On September 2, 2009, a memo was released by John Auerbach, Massachusetts Commissioner of Public Health. Its subject: "False Rumors Regarding Mandatory Vaccination for H1N1 Influenza."
The opening paragraph reads:
"Many of you may have heard rumors that the Commonwealth of Massachusetts is planning to impose mandatory vaccinations as part of our response to the H1N1 (swine) flu pandemic. These rumors are not true. The Department of Public Health will not call for or authorize mandatory vaccination against the pandemic flu. [Auerbach's emphasis.] There are no public health officials on the state, national, or global level calling for forced vaccination for H1N1. These rumors appear to be part of a deliberate effort to misinform concerned citizens about state and national pandemic response efforts."
The memo concludes, "Mandatory vaccination is not and has never been part of the plan or discussion in Massachusetts' pandemic response." Again, the emphasis is Auerbach's.
Auerbach wrote his memo in response to criticism of Senate Bill No. 2028 that had been passed unanimously by the state Senate's Committee on Ways and Means in April. Entitled "An Act Relative to Pandemic and Disaster Preparation and Response in the Commonwealth," the bill describes special powers given to commissioners in the event of an emergency "which is detrimental to the public health." While some of the legislation arguably seeks to improve state-wide communications and management of emergency responses, the bill also allows, in some cases, for the suspension of civil rights.
The state House of Representatives recently passed a modified, less stringent version of the law, which the Legislature will now attempt to reconcile with the Senate's draft.
The Senate's version, which caused considerable controversy, gave local health officials the authority in a state of emergency to "restrict or prohibit assemblages of persons," as well as the authority to search private premises, close or destroy them without a warrant, even adding that "the order may be a verbal order in exigent circumstances, and in such case it shall be followed by a written order as soon as reasonably possible." Those resisting such a search could be imprisoned for 30 days and fined $1,000 a day.
The Senate law also stipulated that "the commissioner or local public health authority may exercise the following authority: (1) to vaccinate or provide precautionary prophylaxis to individuals as protection against communicable disease… (2) to treat individuals exposed to or infected with disease. … Individuals unable or unwilling to submit to vaccination or treatment shall not be required to submit to such procedures but may be isolated or quarantined…" Those resisting isolation or quarantine could also be imprisoned for 30 days, without trial, and fined $1,000 per day.
In September, Auerbach told the Boston Globe that he released his emphatic memo out of concern that those opposing the bill were mistakenly conflating the strongly worded emergency language with the state's response to the H1N1 virus. "The bill, Auerbach and other top officials said in interviews, would never force anyone to be vaccinated unwillingly," the Globe reported, "and its extraordinary measures… would be reserved for equally extraordinary times, such as a bioterror attack or the emergence of a highly lethal, rapidly spreading germ. Swine flu … is not such a germ, Auerbach said."
Drafts of the bill don't make such distinctions. The Senate bill defined terms such as as "isolation" and "quarantine," but left open to interpretation the type of public health emergency to which the law applies, allowing the governor and his health commissioner to invoke the law at their discretion.
The Senate bill stops short of permitting health workers to forcefully inject vaccines, but gives health officials authority to require those "unable or unwilling" to be vaccinated to be isolated or quarantined under threat of imprisonment and fines, and charged for the expense of enforcing the order against them.
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On October 7, in a vote of 114 to 36, the state House of Representatives approved a much-amended version of the law, which appears to have deleted or softened some of the more draconian and punitive measures in the bill. The House version of the law (No. 4271) is not, in itself, a complete piece of legislation, but mainly a list of edits and insertions to the Senate's work. The bill is now in conference committee, where three members of both the House and Senate will negotiate a compromise between the two versions.
The ACLU of Massachusetts praised the House revision to the bill, stating that it emphasizes the importance of clear communication and accountability structures "without resorting to sweeping 'emergency powers' that trample due process and other rights; [and] recognizes that respecting civil rights and civil liberties enhances confidence and trust in public health operations." Anne Lambert, a Boston-based ACLU lawyer, said the House has done a good if not perfect job of dealing with "the most serious" affronts to civil liberties.
Wendy Mariner, Professor of Health Law, Bioethics and Human Rights at Boston University, agrees, writing, "The Massachusetts House of Representatives took its job seriously and has begun to build that infrastructure and ensure that public health initiatives deserve the public trust." Mariner is co-author of "Pandemic Preparedness," a report written under the auspices of the ACLU, which observes that "too often, policymakers are resorting to law enforcement and national security-oriented measures that not only suppress individual rights unnecessarily, but have proven to be ineffective in stopping the spread of disease and saving lives."
Dave Kopacz is the vice president of the Liberty Preservation Association of Massachusetts (MassLPA), whose criticisms and concerns over the Senate bill appear to have motivated Auerbach to issue his memo in September. While he acknowledges some of the House's edits were steps in the right direction, Kopacz said he fears the amendments to the bill are mostly cosmetic.
"One of the things brought to light by the debate over the bill in the House and through our own research is that there are already laws in place that give health officials some of the same special powers in the case of an emergency," Kopacz said. "A lot of what's in the Senate bill is padding and removing those lines won't affect the end results. I've started to see that not only do we need to go after this bill, but we need to look at existing legislation, too."
Kopacz emphasized that his group are not medical experts, and they don't oppose people taking vaccines—just the government making it mandatory that they do so. He said that he believes the bill is a product of pressure from pharmaceutical companies, and that he's also concerned by language in the Senate bill that absolves health care workers from liability in a state of emergency.
"We need to preserve our right to self-shield," he said, adding that he's "not against the government being prepared and identifying a chain of command," but as an individual, he doesn't want to be required to depend on others for protection. In the event of an emergency, his home is stocked with enough provisions to get himself and his family through a quarantine lasting for some time: "If there's an epidemic, and some health worker comes to my door with a needle in his hand, I want to be able to wave through my window and tell them to go away. 'No thanks, I'm prepared.'"
