State of Emergency: 700 flu cases in Boston this season and 4 elderly deaths/ NY Daily News

Puh-Leeze.  A State of Emergency?  I'd laugh except declaring an emergency gives states new political powers.  Powers designed by CDC and Lawrence Gostin.  Begun by 1999, before the anthrax letters or comparable public health emergencies existed, CDC "called for strengthening the legal foundation for public health practice."

The Model Emergency Health Powers Act was only unveiled 4 weeks after the anthrax letters emergency, a time of confusion when legislators were inclined to approve legal fixes.  Yet good legal arguments can be made that the new powers are unnecessary, unethical and conflict with prior health law. On this issue the Heritage Foundation and I come together.

Under the original Model State Emergency Health Powers Act, upon the declaration of a "public health emergency," governors and public health officials would be empowered to do the following and more:

• Force individuals suspected of harboring an "infectious disease" to undergo medical examinations.
• Track and share an individual's personal health information, including genetic information. [The new electronic medical records do this already--Nass]
• Force persons to be vaccinated, treated, or quarantined for infectious diseases.
• Preempt existing state laws, rules and regulations, including those relating to privacy, medical licensure, and--this is key--property rights.
• Control public and private property during a public health emergency, including pharmaceutical manufacturing plants, nursing homes, other health care facilities, and communications devices.
• Mobilize all or any part of the "organized militia into service to the state to help enforce the state's orders."
• Ration firearms, explosives, food, fuel and alcoholic beverages, among other commodities. 

"One of the most outspoken opponents of the MSEHPA, on which Article VI of the Turning Point Model is based, is George Annas, who eloquently outlines a few of the most popular objections to the act: (1) bioterrorism is inherently a federal issue, and only secondarily a state issue; (2) the premise that Americans must trade freedom for security in the event of a bioterrorist attack is wrongheaded, as is the presumption that the public and physicians would not cooperate except under threat of law; and (3) the arbitrary use of force by public officials with immunity from liability is incompatible with medical ethics, constitutional principles, and basic democratic values."   See his NEJM article here.

Last year (winter 2011-12) was the lightest flu season since records started being kept:  basically there was no flu epidemic.  The year before was also light.  That is how influenza works:  some years lighter, some heavier.  The heavier years give us more cross-immunity for future outbreaks.

Anyway, this year is [unsurprisingly] heavier.  One in 25 ER patients has flu.  As a former ER doc, that is something to yawn about.  But I'm not yawning about the emergency powers invoked--to do what, exactly?  From the Daily News:

The City of Boston declared a public health emergency Wednesday as the city and country deal with a historic outbreak of the flu.  The influenza-ravaged city has seen about 700 confirmed cases of the virus since Oct. 1, the unofficial start of the flu season, according to the office of Boston Mayor Thomas Menino, who declared the state of emergency Wednesday morning.

By comparison, Boston saw 70 confirmed cases during last year’s flu season.

The outbreak has so far killed four Boston residents, all elderly, since the season unofficially began.

“This is the worst flu season we’ve seen since 2009, and people should take the threat of flu seriously,” Menino said in a release...