Published: November 01, 2009 11:17 pm      

Governor has broad power in event of H1N1 crisis

Flu outbreak could choke civil rights, professors say

WASHINGTON — Quarantine, forced vaccination and martial law are just a few of the options available to Gov. Martin O’Malley should the H1N1 virus spread uncontrollably, according to professors who talked Wednesday about the civil rights problems an outbreak could create.

Michael Greenberger and Dr. Marita Mike from the University of Maryland Center for Health and Homeland Security and Wendy Mariner from Boston University’s School of Public Health discussed the legal and constitutional implications of the government’s response to a potential H1N1 pandemic at the National Press Club.

“The Maryland governor has the power to compel people to take medical measures; he could compel medical vaccinations; he can quarantine; he can isolate; he can seize medications ... he can condemn or reorient how hospitals give treatment; he can shelter people in place; he can move them out of the city,” Greenberger said. “He has the power to overturn any law that interferes with his ability to respond to the catastrophe.”

Disease prevention laws in many states shifted from public health to national security and emergency preparedness after the terrorist attacks of Sept. 11, 2001. In Maryland, the statute was passed almost overnight, according to Greenberger.

Epidemics are similar to terrorist attacks in that they have the potential to strike at any time, so laws that dictate government responses to these emergencies should be scrutinized, said Mariner.

“It is especially important to look at what laws bar so we don’t undermine fundamental human rights,” Mariner said. “Laws that suspend civil rights during epidemics become laws that suspend constitutional rights in our daily lives, perhaps indefinitely.”

So far, no public health emergency law has been challenged in Maryland court because no governor has had to use one.

“When you look at the statute books state to state, while they aren’t well defined, the power they give to governors and local executives are truly extraordinary,” Greenberger said. “The issues I’ve outlined are the issues lawyers and those that care about the application of law in this area will have to be thinking about very carefully.”

According to the panel, H1N1’s impact would have to get worse before any governor would think about drastic measures, but such a scenario could be imagined.

“This thing attacks the lungs,” Greenberger said. “Ventilators cost $35,000; we have a very limited supply of ventilators. You can just imagine having someone you care about and knowing that if they can get on a ventilator, they’ll live.”

Lack of ventilators, vaccine or anti-virals in any state could force governors or other executives to turn to these laws.

In New York, the state health commissioner recently order-ed all state health care workers to get the H1N1 vaccine. Last week, after facing a lawsuit, the state suspended the mandatory requirement saying limited supplies should be used for those most at risk for serious illness.

“Nurses who were perfectly willing to get vaccines voluntarily, got their backs up and began to resist when they were told it was necessary,” Mariner said about the New York situation. “The danger can be illustrated by the old axiom, if the only tool you have is a hammer, then every problem looks like a nail. If the only tools you have are quarantine and isolation then what happens when you need more vaccine? You can’t force people to get a vaccine you don’t have.”