By Wendy Parmet
[Cross-posted from HealthLawProf Blog.]
What makes a public health threat an emergency? In this week’s New England Journal of Medicine, Rebecca Haffajee, Michelle M. Mello and I ask this question in connection with Massachusetts Governor Deval Patrick’s decision last spring to declare the opioid-addiction epidemic a “public health emergency.” In our Perspective we do not question the seriousness of the opioid-addiction problem; or the specific policies Patrick implemented. Rather, we ask whether the epidemic warranted the invocation of emergency powers.
In the years since 9/11, in the name of public health legal preparedness, public health officials and scholars have focused much attention on the need for so-called emergency laws to strengthen the response to a public health emergency. Although the exact parameters of emergency laws vary, they typically allow for the suspension of some or most ordinary legal procedures and protections. Thus when an emergency is declared, the rules of the legal system are suspended. Executives can take action without awaiting legislative approval, or following the typical administrative process. Judicial review may also be significantly curtailed. As my co-authors and I discuss, this has enormous costs, not only on the individuals and entities whose interests are affected, but on the credibility of public health officials who must ultimately depend on the public’s trust. If the public comes to believe that declarations are issued too easily, its support for public health may diminish. In addition, in the absence of legislative and judicial checks, executive powers may easily be turned against vulnerable populations, as they have been too often in history.
Yes precisely because emergency laws are designed to give officials flexibility to respond to unexpected crises, for which existing policies are insufficient, public health emergency laws grant officials extremely broad, usually unreviewable, discretion to decide what constitutes a “public health emergency.” For example, the Massachusetts law that Governor Patrick invoked provides no definition of a public health emergency whatsoever, leaving its determination solely to the Governor’s judgment. Likewise no definition appears in the 2005 federal Public Readiness and Emergency Preparedness Act (PREPA), which preempts most state tort claims against and a vaccines and countermeasures once the Secretary of Health and Human Services declares an emergency.
Some laws attempt to offer a bit more guidance. The 2005 International Health Regulations define a “public emergency of international concerns” as “an extraordinary event which is determined… (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response.” The 2001 Model State Emergency Public Health Powers Act, stated that a “public health emergency” is “an occurrence or imminent threat of an illness or health condition” caused by one of several factors, including bioterrorism or a novel or previously eradicated pathogen, that “poses a high probability of the following harms: (1) a large number of deaths in the affected populations; (ii) a large number of serious or long-term disabilities in the affected population; or (iii) widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population.” Interestingly, this definition varied from the one appearing in an earlier version of the Model Act., which didn’t require that an infectious illness be novel or previously eradicated, allowing for the possibility that HIV/AIDS or hepatitis would be declared a public health emergency. But even narrowed, the Model Act’s definition remains purposefully broad. Although HIV could not qualify today, because the virus is well established, it could have been declared a public health emergency in 1981, when it first appeared. Of course, in many ways HIV was an emergency, and should have been met with more attention and resources than was given. That doesn’t mean, however, that the rule of law should have been suspended; or that such suspension would have been helpful. To the contrary, it is easy to imagine that if emergency powers had been used in the 1980s, they would have been used, at least in some jurisdictions in harsh and punitive ways that targeted vulnerable populations, thereby impeding efforts to encourage people to be tested for the virus.
Although it is difficult to define a public health emergency with precision, we can articulate principles to guide the determination. In the Perspective my co-authors and I note three criteria that are the traditional hallmarks of a public health emergency: “the situation is exigent, the anticipated or potential harm would be calamitous, and the harm cannot be avoided through ordinary procedures.” The latter is especially critical. For purposes of emergency laws, a public health emergency is not simply a health emergency that demands serious attention; it is one that cannot be addressed through ordinary procedures. If the rule of law can be followed; it should be.
It may be tempting in this era of short attention spans and overblown rhetoric to call problems that deserve attention emergencies. Whether the use of such language in public discourse is effective in garnering the public’s attention, I’ll leave for another day. But when it comes to declaring a problem an emergency as a matter of law, the stakes are far too high. The extraordinary powers that come with emergency declarations should be reserved for only the gravest threats.
