What is a public health "emergency"?

O March 27, 2014, Massachusetts Governor Deval Patrick declared the state’s opioid-addiction epidemic a public health emergency. The declaration empowered the Massachusetts public health commissioner to use emergency powers to expand access to naloxone, an opioid antagonist that can reverse overdoses; develop a plan to accelerate the mandatory use of prescription monitoring by physicians and pharmacists; and prohibit the prescribing and dispensing of hydrocodone-only medication (Zohydro, Zogenix), which had been recently approved by the Food and Drug Administration, amid much controversy.1 The governor also allocated $20 million for addiction-treatment services. The public health problem — the advent of a potentially dangerous new drug following 140 deaths due to heroin overdoses in 4 months and a 90% increase in unintentional opiate overdoses between 2000 and 2012 — warranted a robust response. Nevertheless, Patrick’s unusual invocation of emergency public health powers, which are traditionally reserved for infectious disease outbreaks, natural disasters, or acts of terrorism, offers an opportunity to consider some important questions. Should widespread injuries, such as those caused by opiates or motor vehicle crashes, be viewed as public health emergencies? Should chronic health conditions such as hypertension or obesity be similarly categorized? When should normal lawmaking processes, and the typical rights afforded to individuals and entities, be suspended to protect public health? State laws providing public health emergency powers permit designated officials — typically governors and their top health officers — to take extraordinary legal actions. The laws provide flexibility in responding to emergency situations, when adherence to ordinary legal standards and processes could cost lives. State laws vary in their definitions of “emergency” or “disaster.” Many refer to an occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from a natural phenomenon or human act (see table). Some mention only the magnitude of the potential harm, not its source. Others — including the Massachusetts law — provide no definition, leaving it to the governor to determine what constitutes an emergency. Once a public health emergency is declared, designated officials can harness powers that are typically unavailable without legislative approval, by issuing emergency orders. These expansive powers may include deploying military personnel, commandeering property, restricting freedom of movement, halting business operations, and suspending civil rights and liberties. Emergency orders can also tap resources reserved for the proverbial rainy day. Emergency powers sit largely outside the ordinary structures of checks and balances. Even when time-limited, they’re generally renewable at the governor’s discretion; only some of them can be terminated by the legislature (see table). The spirit of emergency-powers laws seems to enshrine three key criteria for suspending normal lawmaking processes: the situation is exigent, the anticipated or potential harm would be calamitous, and the harm cannot be avoided through ordinary procedures. The archetypal scenario is the sudden outbreak of a highly communicable, lethal disease — such as the unlikely event of an Ebola outbreak in a U.S. city — when immediate action is required to avert catastrophe. In such circumstances, acute concern for public health is believed to outweigh substantial trade-offs of values we ordinarily hold dear, including individual autonomy, due process, and democratic lawmaking. Recognizing the extraordinary nature of emergency powers, officials have invoked them infrequently. We know of only three other instances of their use in the modern era in Massachusetts; each arose from a sudden, shortterm crisis, and the orders issued were quite limited in scope. Massachusetts governors invoked the powers to assume state control of a nursing home on the brink of sudden closure in the 1970s, to tap into a private source when a town’s water supply ran dry in 1993, and to conduct aerial spraying to combat eastern equine encephalitis in 2006.2 Other states have invoked emergency powers in response