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Here's what Mass. Legislators are emailing their constituents about S2028

The party line from the Mass. Dept. of Health PR campaign

Posted: Oct. 5, 2009

The email below was sent by several Mass. state reps and senators to constituents who confronted them about the constitutional issues -- and general concerns -- of S2028, the "Pandemic control bill".

Like the other DPH literature on this, it attempts to persuade people that (1) bill S2028 does not MANDATE vaccines; and (2) although Bill S2028 gives the state broad extra-constitutional powers, we can trust our government not to abuse that. However, the former argument is misleading and the latter is not believable given the history of abuse of power in the Commonwealth.

For a more thorough refutation, see our annotated text of bill S2028.

NOTE: The text below is copied verbatim from emails sent by legislators, including underlines that are not links:

The following are the facts about the legislation:

Senate Bill 2028
An Act Relative to Pandemic and Disaster Preparation and Response in the Commonwealth

Existing Laws

Laws currently exist in Massachusetts (and all other states) which give very broad powers to various officials during a time of emergency.  All states have had emergency powers laws for many years, which are crucial during times of emergency to provide for the safety, health, and welfare of residents. These laws have been used responsibly over the last several decades. 

Here are some examples of current law:

(1) M.G.L. c. 17, s. 2A:

“Section 2A. Upon declaration by the governor that an emergency exists which is detrimental to the public health, the commissioner may, with the approval of the governor and the public health council, during such period of emergency, take such action and incur such liabilities as he may deem necessary to assure the maintenance of public health and the prevention of disease.
The commissioner, with the approval of the public health council, may establish procedures to be followed during such emergency to insure the continuation of essential public health services and the enforcement of the same.

Upon declaration by the governor that such emergency has terminated, all powers granted to and exercised by the commissioner under this section shall terminate.”

(2) M.G.L. c. 111, s. 5A (in relevant part):

“Section 5A. Whenever the commissioner determines that the inoculation of the general public by, or the administration to the general public of, any antitoxin, serum, vaccine or other analogous product is essential in the interest of the public health and that an emergency exists by reason of a shortage of such product, the department may purchase, produce and distribute such product under such conditions and restrictions as it may prescribe; and while such emergency exists, as determined by the commissioner, the department may establish by written order or orders, rules and priorities for the distribution and use of any such product within the commonwealth. Whoever violates any provision of any such order shall be punished by a fine of not less than fifty dollars nor more than two hundred dollars or by imprisonment for not more than six months, or both.”

Senate Bill 2028

S. 2028 provides more specificity and detail to the ways in which emergency powers may be exercised only during a time of emergency

Vaccinations & Quarantine

The bill DOES NOT allow for mandatory vaccinations.  Rather it says the following in section 13:

“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.”

In other words, an individual may refuse vaccination, but should not be allowed to infect others if he or she has or may have a condition that poses a serious danger to public health, and therefore may be isolated or quarantined.  In this situation, the health of the population temporarily takes precedence over the freedom of the individual.   This principle has been upheld by the U.S. Supreme Court numerous times.  The seminal case is Jacobson v. Massachusetts, 197 U.S. 11 (1905).

The Department of Public Health has regulations requiring extensive legal process before people can be isolated or quarantined.  See 105 CMR 300.210.  (The full set of regulations can be found at http://www.mass.gov/Eeohhs2/docs/dph/cdc/reporting/rdiq_reg_summary.pdf)


The bill provides NO immunity for criminal acts. 

Warrantless Arrest

The bill provides that during a declared public health emergency or state of emergency, warrantless arrest is allowed only when a law enforcement officer has probable cause to believe that a person has violated a health order. 

In non-emergency times, warrantless arrest is only allowed when a law enforcement officer has probable cause to believe that a person has violated a health order, and non-compliance poses a serious danger to public health, as declared by the commissioner.  Probable cause is a high legal standard; it is what is required when a police officer arrests someone without a warrant for a crime.  In fact, under the Constitution police officers may conduct a threshold stop of a person merely on reasonable suspicion, which is a lesser standard. 

Entry onto Property

Section 95 (a) of the bill allows the commissioner of DPH to issue an order for entry onto property where there is reasonable cause to believe that a disease or condition dangerous to the public health exists or may exist or that there is an immediate risk of an outbreak of such a disease or condition, and that certain measures are necessary to decrease or eliminate the risk to public health. The order may be a verbal order in exigent circumstances, and shall be followed by a written order as soon as reasonably possible, which shall specify the reasons for the order.

Waiver of Licensing Requirements

The bill only allows for waiver of licensing requirements during a Governor-declared public health emergency or state of emergency, and these requirements may only be waived 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.  This is a high standard that should assure protection to the citizens of the Commonwealth.

Disposal of Human Remains

The bill allows the Commissioner of Public Health and local health authorities to provide for the safe disposal of human remains during a declared public health emergency or state of emergency.  Religious, cultural, family, and individual beliefs of the deceased person must be followed to the extent possible whenever that may be done without endangering the public health.  It must be remembered that public health authorities have a legal and moral obligation to protect the public from any items, including human remains, that may cause the spread of a dangerous disease.  

Seizure of Pharmaceuticals/Medical Supplies

Under the bill, pharmaceuticals and medical supplies may be seized only if necessary to protect the public health during a Governor-declared public health emergency or state of emergency, and only those supplies that arenecessary to respond to the emergency. Under the Constitution, private property maybe taken for public use when compensation is paid.