Ugh. There are few things more irritating than misleading news stories about legislative bills. They're annoying mostly because it means I have to go digging through some piece of legislative gobbledy-gook in order to debunk them, and that's not fun.Such is the case with the Sentinel article entitled Bill may make flu shot mandatory. The first flaw can be seen in that weaselly headline. What's with "may"? Either it makes them mandatory or it doesn't, right? This headline "may" be misleading!
Then there's this fearmongering lede:
A bill being considered on Beacon Hill would allow state government officials to search and destroy property without a warrant, fine and jail people for not taking a vaccine and bar people from assembling publicly during a state of emergency.Well, that all sounds pretty bad. But is it actually true?
The bill in question is Massachusetts Senate Bill 2028. I actually heard about it a couple of weeks ago when a friend forwarded me a scary email from an antivaccination group, and wrote it off as senseless fearmongering from people who oppose vaccination no matter what.
I guess it's time to get more deeply into it. Here's the part of the bill that's going to scare people:
Specifically, but without limiting the generality of section 2A and notwithstanding the provisions of any other law, the commissioner shall have and may exercise, or may direct or authorize other state or local government agencies to exercise, authority relative to any one or more of the following if necessary to protect the public health during an emergency declared pursuant to section 2A or a state of emergency declared under chapter 639 of the acts of 1950.. During either type of declared emergency, a local public health authority as defined in section 1 of chapter 111 may exercise authority relative to subparagraphs (1), (2), (3), (4), (6), (7), (13), (14), and (15); and with the approval of the Commissioner may exercise authority relative to subparagraphs (5), (8), (9), (10), and (11):Most of that is pretty uncontroversial, and all of it is contingent upon the governor declaring a public health emergency, and is limited to actions that help protect public health. When the emergency ends, the emergency powers go away.
(1) to require the owner or occupier of premises to permit entry into and investigation of the premises;
(2) to close, direct, and compel the evacuation of, or to decontaminate or cause to be decontaminated any building or facility, and to allow the reopening of the building or facility when the danger has ended;
(3) to decontaminate or cause to be decontaminated, or to destroy any material;
(4) to restrict or prohibit assemblages of persons;
(5) to require a health care facility to provide services or the use of its facility, or to transfer the management and supervision of the health care facility to the department or to a local public health authority;
(6) to control ingress to and egress from any stricken or threatened public area, and the movement of persons and materials within the area;
(7) to adopt and enforce measures to provide for the safe disposal of infectious waste and human remains, provided that religious, cultural, family, and individual beliefs of the deceased person shall be followed to the extent possible when disposing of human remains, whenever that may be done without endangering the public health;
(8) to procure, take immediate possession from any source, store, or distribute any anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents or medical supplies located within the commonwealth as may be necessary to respond to the emergency;
(9) to require in-state health care providers to assist in the performance of vaccination, treatment, examination, or testing of any individual as a condition of licensure, authorization, or the ability to continue to function as a health care provider in the commonwealth;
(10) to waive the commonwealth’s licensing requirements for health care professionals with a valid license from another state in the United States or whose professional training would otherwise qualify them for an appropriate professional license in the commonwealth;
(11) to allow for the dispensing of controlled substances by appropriate personnel consistent with federal statutes as necessary for the prevention or treatment of illness;
(12) to authorize the chief medical examiner to appoint and prescribe the duties of such emergency assistant medical examiners as may be required for the proper performance of the duties of the office;
(13) to collect specimens and perform tests on any animal, living or deceased;
(14) to exercise authority under sections 95 and 96 of chapter 111;
(15) to care for any emerging mental health or crisis counseling needs that individuals may exhibit, with the consent of the individuals.
How about that lede? Yes, in such a situation the state would have the right to destroy property, but only if that property poses a public health risk. They're not going to destroy your Xbox, but they could destroy your smallpox-infected blankets.
And yes, they could enter your property and even decontaminate it. But only if it's a risk to public health. Your anthrax lab may be in trouble, but your home probably isn't. Ditto to public assembly. If you're in the habit of hanging out with people who have ebola, you might be prohibited from doing so. If you're just going to the movies with some friends, no worry.
Now, that's not to say this is all a good idea. I'd be happy to see some amendments creating greater oversight than I find in this bill. The basic ideas aren't terrible, but they absolutely need to have sufficient oversight to keep them from being abused.
How about the claim that the bill would "fine and jail people for not taking a vaccine"? That's really not true. Here's what the bill says (with my emphasis):
(b) Furthermore, when the commissioner or a local public health authority within its jurisdiction determines that either or both of the following measures are necessary to prevent a serious danger to the public health the commissioner or local public health authority may exercise the following authority:Part (1) there just gives public health officials the right to provide vaccinations to those for whom they're not contraindicated. No worries there.
(1) to vaccinate or provide precautionary prophylaxis to individuals as protection against communicable disease and to prevent the spread of communicable or possibly communicable disease, provided that any vaccine to be administered must not be such as is reasonably likely to lead to serious harm to the affected individual; and
(2) to treat individuals exposed to or infected with disease, provided that treatment must not be such as is reasonably likely to lead to serious harm to the affected individual.
An individual who is unable or unwilling to submit to vaccination or treatment shall not be required to submit to such procedures but may be isolated or quarantined pursuant to section 96 of chapter 111 if his or her refusal poses a serious danger to public health or results in uncertainty whether he or she has been exposed to or is infected with a disease or condition that poses a serious danger to public health, as determined by the commissioner, or a local public health authority operating within its jurisdiction.
Part (2) is the part that's being misrepresented in the headline. Nobody's going to be forced to get vaccinated. But if you refuse, and your refusal constitutes a public health threat, then you can be quarantined. Actions have consequences. But quarantine is not jail. That part comes from here:
Any person who knowingly violates an order for isolation or quarantine shall be punished by imprisonment for not more than 30 days and may be subject to a civil fine of not more than one thousand dollars per day that the violation continues.So yeah, if you violate quarantine and go running around coughing your drug-resistant tuberculosis all over everybody like an asshole then you can be fined and jailed. Forcibly quarantined, basically.
But no, you can't be fined or jailed for not being vaccinated. Only if you refuse a vaccination and are determined to be a public health risk worthy of quarantine and then you violate that quarantine, then you can be.
Now, all this stuff is conditional. It doesn't have to be done, and the decisions of public health officials constitute the final word. This just lays out what sort of options are open to them, without dictating what they have to do. I'd argue it would take quite a bit more than the current swine flu to trigger most of these measures, but they're available as options.
So yeah, that's some potentially scary stuff, and it definitely needs appropriate safeguards in place. But it's also worst-case scenario stuff. And while it could use improvements, the basic ideas behind it are sound from a public health perspective, at least for certain threats. Most public health officials are fully aware that quarantines and isolation aren't very effective at stopping the spread of influenza, so I'd be shocked to see that happen.
Continuing with the Sentinel article, here comes a group we probably shouldn't listen to:
Bob Dwyer, a coordinator for the Massachusetts Liberty Preservation Association -- a non-profit, non-partisan organization -- said the bill is a "power grab" by the state.While it's true that the Massachusetts Liberty Preservation Association is politically non-partisan, it can hardly be said that they're non-partisan on the subject of vaccines. They're not: they're strongly antivaccinationist.
"If you don't want to take a vaccine you can be arrested," Dwyer said. "What type of freedom is that? I don't think declaring a state of emergency should change a person's Constitutional rights."
In other words, this is about more than fears of government overstepping, it's also about promoting their antivaccine nonsense. Stuff like this:
Vaccine trials and testing has been scaled back and expedited adding risk. Government officials have granted advanced approval of these highly questionable vaccines.The swine flu vaccine has had extensive testing, and is made exactly the same way as the seasonal flu (which has lots of testing of its own). There's nothing "questionable" about it, and to assert that's the case is disingenuous.
Further down the same page they have videos by an antivaccinationist chiropractor who keeps promoting the disproven assertion that childhood vaccination causes autism. It doesn't.
Maybe the MLPA has valid points about the bill itself. Unfortunately, their lack of understanding about vaccines and public health and the fact that they're using lies about vaccines in order to make their argument means they really can't be taken seriously. They may not be Democratic or Republican, but they're totally partisan on the issue of vaccines. They're on the quackery side, and have no credibility on this topic.
The rest of the Sentinel article is typical newspapery tripe. Local citizens think A and B, local public officials think X and Y and Z. Not much of use in it besides this, from James Eldrige:
"What this bill really reflects is an updating of our public-health laws from the 1950s," he said. "The new bill provides many civil liberty protections and improvements."Yes, this is an updating of what was already an overly-broad law. Is it still too broad? I think it is, but not by too much.
Eldridge said the previous law allows for a "blanket statement" that does not specify due process laws. The new proposal gives authorities specific direction of when a person can be arrested.
"Certainly with the number of viruses that have appeared across this country in recent years, I think that the state needs to be better prepared so that if there is a serious pandemic, the state can protect the public," he said. "At the same time, that needs to be done with a balancing act between liberty and security."
It's indeed a balancing act. With a major public health emergency, you do need to respond quickly, and you're probably going to need to step on some people's toes when trying to protect others. There need to be measures in place to make sure that as few toes are stepped on as possible, and that rights are preserved as much as they possibly can be. There should be zero tolerance for any abuse of these laws, and any potential Constitutional conflicts should be eliminated before the bill becomes law.
But even as it stands now, this bill really can't be construed to mean that everyone is going to be mandated to have a swine flu shot. That's just not going to happen on that kind of grand scale. It's unenforceable, especially within the timeframe we're talking about. I'd be surprised if more than a few individuals, if any at all, get that kind of mandate.
The bill isn't perfect, but nor is it the mandate for swine flu vaccination that some are claiming. By all means let's criticize the parts that are troublesome, but spouting false claims about it mandating the flu shot when that's not actually the case won't do anything but muddy the real issue, which is that we absolutely do need up-to-date legislation for dealing with a public health emergency. Perhaps this bill isn't perfect, but let's fix the real problems instead of freaking out about invented ones.
