Public Health Law in an Age of Terrorism: Re-Thinking Individual Rights and Common Goods

Abstract

The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. Public health preparedness also requires a sound legal infrastructure. This article presents and defends the provisions of the Model Emergency Health Powers Act (MSEHPA). The Center for Law and the Public's Health at the request of the U.S. Centers for Disease Control and Prevention (CDC) and in collaboration with governors, legislators, attorneys general, and public health officials wrote the MSEHPA.

First, this article explains the provisions of MSEHPA. The MSEHPA has been adopted in whole or part in 20 states and the District of Columbia. Second, this article shows why extant public health laws provide a weak foundation for public health practice. They are obsolete, inconsistent, and inadequate from a public health and civil liberties perspective. State legislation does not facilitate, and may even impede, all of the critical variables for public health preparedness. Finally, the article offers a systematic defense of MSEHPA. The Model Act has galvanized the public debate around the appropriate balance between public goods and individual rights. This defense shows how the Model Act creates strong public health powers, while safeguarding individual freedoms (adopting clearer standards and more rigorous procedures than existing statutes). In a country to tied to rights rhetoric, any law reform initiative that has the appearance of strengthening governmental authority is bound to travel in tumultuous political waters.