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New York State Assembly Health Committee. Public Health Emergency Planning and Response Hearing. March 14, 2002.

Good afternoon. I'm Andy Schlafly, General Counsel for the Association of American Physicians and Surgeons ("AAPS"). I am a member of the New York Bar, and specialize in administrative law.

AAPS is a nonprofit national group of thousands of physicians, including many practicing in New York. We were founded in 1943 and are dedicated to promoting the ethical practice of medicine and defending the patient-physician relationship. AAPS is almost exclusively membership-funded. We file amicus briefs in defense of physicians and other medical practitioners, including our brief against the forced drugging of Dr. Sell in United States v. Sell, 2002 U.S. App. LEXIS 3582 (8th Cir. 2002).

We strongly oppose the proposed Emergency Health Powers Act, introduced as Assembly Bill 9508. Let me explain why.

It is unprecedented in divesting power from the legislature, from this very committee, to the governor. The draft legislation gives the governor absolute authority for 60 days, with the legislature powerless during that period. Section 1024(3) divests the legislature of its power for a period of 60 days after a declaration of a health emergency by the governor.

This is a completely irrational - and unconstitutional -- deprivation of legislative authority and responsibility. There is no justification for this shift in power from one branch of government to another. It means that a 2/3rd vote of the legislature cannot stop the governor during the 60 day period. Not even a unanimous vote of the legislature can do anything.

Why? If the legislature is unanimously opposed to declaration of a health emergency, then it should be able to override the governor. If the legislature has 2/3rd consent, then it should be able to override the governor. If the legislature has a simple majority on this issue then, as in other states, it should be able to end the emergency.

The model legislation funded by the Centers for Disease Control and Prevention (CDC) cites three references for this extraordinary provision. None of these references bear any resemblance to this proposed enormous transfer in power.

The only references for this power transfer cited by the CDC are:

(1) A Colorado statute (Colo. Rev. Stat. Ann. §§ 24-32-2104(3)(a), 4), which allows the governor to call a state of emergency, and convene an advisory council for that purpose. But the statute expressly states that: "The general assembly, by joint resolution, may terminate a state of disaster emergency at any time." There is no justification for omitting that provision from A9508.

(2) A federal statute (42 U.S.C. 247d), which merely authorizes a federal agency to make grants, enter into contracts, and conduct and support investigations into the cause, treatment or prevention of the disease. The agency can also gain access to funds. This provision does not limit the authority and responsibility of Congress in any way.

(3) A Louisiana statute (2001 LA. Acts 1148), which authorizes a chief executive officer of a municipality to declare a state of emergency. But this statute expressly mandates that: "The state of emergency or disaster may be terminated by the governor, parish president, a petition signed by a majority of the surviving members of either house of the legislature, a majority of the surviving members of the parish governing authority or a majority of the surviving members of the municipal governing authority."

Why is the CDC asking state legislatures to give up their power in this unprecedented manner, when Congress itself would not and should not give up such power?

Some may think that a health emergency could require a complete change in government. But the greatest crisis of all - a national declaration of war - can only occur by an act of Congress. When a real crisis arises, legislative bodies are fully capable of acting quickly and forcefully.

We urge the legislature to retain its authority, particularly in times of crisis. We need the checks and balances of divided government power, especially in times of crisis.

The risk of the proposed legislation is that its transfer of power will enable the executive branch to act contrary to the will of the people. Federal aid, for example, may be conditioned on declarations of health emergency by the governor, even where unwarranted.

We worry about political incentives for a governor to declare a health emergency. Could such a declaration affect the outcome of an election? If the legislature supports it, then it can approve it. If the legislature opposes it, then the governor should not have this power to override the legislature. The Louisiana statute cited by the CDC has this provision to block political manipulation: "No organization for emergency preparedness established under this Chapter shall be employed directly or indirectly for political purposes." 2001 LA. Acts 1148(E).

The scope of the draft legislation goes far beyond bioterrorism. It includes every disease "that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability." Section 1020.

Lyme disease in New York could be the basis for a declaration of a state of public health emergency by the governor under the draft bill. Likewise, Hepatitis B or any other widespread illness could be cited in declaring a health emergency.

The bill uses a definition of "infectious disease" that broadly includes virtually everything. It is defined to mean "a disease caused by a living organism [that] may, or may not, be transmissible from person to person, animal to person, or insect to person." Section 1003(6). That sweeps far too much within the ambit of the legislation.

Based on that definition, the governor could force everyone either to take the recently discontinued Lyme disease vaccine, or the Hepatitis B vaccine, or virtually any other vaccine. The bill states that: The department may compel a person to be vaccinated and/or treated for an infectious disease." Section 1043 & (1). No exceptions are in the bill for religious conviction or conscience.

The only medical exemption from the vaccine is "if the department has reason to know that a particular individual is likely to suffer from serious harm from the vaccination." Section 1043(1)(b). So the individual must have a greater than 50% chance of being seriously injured, in the view of the department, which is not legally liable if it is negligent. Less than a 50% chance of serious injury does not qualify for the exception.

We have just seen a striking difference between the choices that individuals make about vaccination, in the face of a bioterrorist threat, compared to the views of health departments. The anthrax vaccine was declared safe and effective by the government, and there was a program requiring everyone in the military to take the vaccine. Soldiers who declined it were subjected to court martial.

After the anthrax attack hit, the vaccine was provided to postal workers and members of the media. Only about 2% elected to be vaccinated. Under the draft legislation, the governor could simply order everyone to be inoculated by the anthrax or other vaccine. The manufacturer's incentive to improve the safety of the vaccine is lost if everyone is forced to take it.

We oppose many other provisions of the proposed legislation. If the health department, in its sole discretion, wants someone quarantined, it would be able to do so without adequate due process. It could order people out of their homes into dangerous quarantines, where there would be no guarantee of safety from violence or contagious disease. Children could be removed from parents, and thrown into public quarantines with others.

The mere potential of removing children from homes is very frightening to most parents. Difficult medical decisions, including whether to accept or deny treatment, should be made without the added worry of how a health department official may react.

The proposed legislation authorizes the governor to seize private property, and even destroy it in many circumstances. Health department officials could control, restrict or prohibit firearms, even though they have no connection with disease.

The draft bill greatly expands the monitoring of medical records, such as prescriptions. Already many physicians are reluctant to provide aggressive pain management medication, for fear of triggering an investigation. Physicians who treat Lyme disease are afraid of providing the prescriptions they sometimes feel are warranted, due to monitoring of their activities. There is no evidence linking a bioterrorist threat to these provisions expanding the monitoring of prescriptions.

George Annas, Chairman of the Health Law Department at the Boston University School of Public Health, noted that "this law treats American citizens as if they were the enemy." Citizens, and the legislature, can respond well to bioterrorism and other health crises under existing law. The anthrax attack did not even persuade 98% of postal workers and the media to take the vaccine.

Conclusion.

The Association of American Physicians and Surgeons ("AAPS") opposes the Emergency Health Powers Act. We urge the legislature to defend its constitutional authority and responsibility in this area, and not grant these enormous powers to the state health department.

Thank you.

Andy Schlafly, Esq., AAPS General Counsel, 908-719-8608