Balancing Public Health and Civil Liberties

The Model State Emergency Health Powers Act (MSEHPA), written by request of the Centers for Disease Control and Prevention, has galvanized the debate around the appropriate balance between public health and civil liberties ([1][1]). R. Bayer and J. Colgrove are widely known scholars who seek to offer a neutral commentary (“Public health vs. civil liberties,” Policy Forum, 13 Sept., p. [1811][2]). However, some of their points require clarification. Focusing on a vocal minority of critics, the authors imply that MSEHPA has not been well received. Yet, 36 states have introduced legislation based, at least in part, on some provisions of the Act, with 20 states (and the District of Columbia) passing bills. The Secretary for Health and Human Services recommends that states use MSEHPA as a checklist to ensure legal preparedness for bioterrorism. The authors suggest that the Act provided a range of “extraordinary measures” that “radically enhanced the power of the state.” Yet, MSEHPA is based largely on existing state laws. Its powers regarding persons (e.g., testing, treatment, and isolation) and property (e.g., nuisance abatements and “takings,” i.e., the acquisition of private property by the state for legitimate governmental purposes) are a traditional part of state public health law. Nothing within MSEHPA is “extraordinary” or a “grave threat.” MSEHPA safeguards personal liberty by providing clear standards governing state power rather than relying on officials' discretion; ensures procedural due process rather than arbitrary actions without hearings; respects cultural, religious, and ethnic differences instead of tolerating discrimination; and entitles individuals to adequate information, basic treatment, and humane conditions during an emergency. What is the appropriate balance between individual rights and public goods in response to bioterrorism? Critics contend that no conflict exists. Past experiences, however, show that fighting serious health threats sometimes interferes with individual interests ([2][3]). Law alone cannot ensure that power is appropriately exercised; preparedness and competencies of judges, health officials, and citizens are essential. The Act offers clear criteria, fair procedures, and robust entitlements that are conspicuously absent from existing, antiquated infectious disease statutes. 1. [↵][4]1. L. O. Gostin 2. et al. , JAMA 288, 622 (2002). [OpenUrl][5][CrossRef][6][PubMed][7][Web of Science][8] 2. [↵][9]1. L. O. Gostin , Public Health Law: Power, Duty, Restraint (Univ. of California Press and Milbank Memorial Fund, Berkeley and New York, 2000). # Response {#article-title-2} We agree with Gostin and colleagues that “fighting serious health threats sometimes interferes with individual interests.” Indeed, this conflict has been at the heart of American public health and is reflected in the views of groups concerned with privacy rights and civil liberties who objected to provisions of MSEHPA in both its original and revised forms. Our intent was not to judge the validity of the claims made by MSEHPA's supporters or critics about the extent to which the act would or would not violate individual rights or about the extent to which the proposed legislation entails an advance over the current legal regime in terms of the rights that would be accorded to individuals in the face of a public health emergency. Rather, it was to describe an enduring tension that lies at the heart of public health in the United States and the resulting challenges that face those who attempt to strike a balance between privacy rights and the common good when crafting policy and law. It is, however, worth noting that organizations such as the New York Civil Liberties Union that have a historic commitment to liberty and privacy remain unconvinced by the analysis of the current legal regime undertaken by Gostin and colleagues, and by the remedy they offer ([1][10]). 1. [↵][11]New York Civil Liberties Union, “Testimony of Robert Perry on Behalf of the New York Civil Liberties Union before the Assembly Standing Committee on Health and the Assembly Standing Committee on Codes Concerning the Model State Emergency Health Powers Act,” 14 March 2002. 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