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Layman's Response to Massachusetts Mandatory Vaccination Issue
August 24, 2009

This is very real and disturbing. Read it and weep…the Bill delivers no accountability but full authority for state and local officials.

I wonder how we ever got the position that government feels it necessary to give itself blanket immunity but require citizens to submit fully, completely, and in all matters always conduct themselves in full compliance with thousands of densely worded laws?

While I am fully in support of the need for public health measures, I wonder why the state has seen fit to craft such a heavy-handed bill that effectively strips important rights (such as my right to intelligently avoid illness in my own way), due process, right to a trial by a jury of your peers, and creates perverse monetary incentives for local officials.

Below we see several things.

• Right to privacy – out the window. If you decide that you don’t want to let in public health officials, who you reasonably suspect might be carrying the disease as they sweep from house to house, you cannot decide for yourself to bar their entry into your disease-free house. You can be arrested on the spot with or without a proper written order.
• Warrantless arrest enabled. So much for due process.
• For every day that you are out of compliance, a $1000 fine applies. A 30 day jail sentence may also result.
• Massive monetary conflict of interest. Local authorities are incentivized to levy fines as a revenue raising device as it will be ”credited fifty percent to the courts and fifty percent to the health care safety net trust fund”.
• If the local authority was in error in their judgment of public risk when arresting you and/or applying a fine, you are forbidden to use their error as part of your defense.
• Forced vaccinations. Yep, they’re in there. If you refuse, you can (and probably will – be sure to see the Section 96 rule at the very bottom) be forcibly quarantined which involves removal to a quarantine facility. The last thing I would want in a pandemic is to be crammed into a quarantine barracks of some sort as these are the perfect places to catch the very disease one is trying to avoid.

In short, if your strategy for avoiding a pandemic is to simply hole up and avoid contact until it blows over, that strategy has now been rendered illegal pending the sole authority and discretion of the MASS health commissioner or local health authority.

Again, while I support the notion of a strong public health response to a serious disease, I am stumped as to why this cannot be accomplished without stripping so many rights and fully inoculating public officials from bearing any consequences or accountability for stupid decisions and/or actions. I figure that accountability is a great way to cause people to respond carefully and with better judgment.

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MA Senate Bill 2028 http://www.mass.gov/legis/bills/senate/186/st02/st02028.htm

Section 95. (a) Whenever the commissioner, or a local public health authority within its jurisdiction, determines that 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 commissioner or local public health authority may issue an order. 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. The written order shall specify the reasons for it, and may include, but is not limited to:

(1) requiring the owner or occupier of premises to permit entry into and investigation of the premises;
(2) requiring the owner or occupier of premises to close the premises or a specific part of the premises, and allowing reopening of the premises when the danger has ended;
(3) requiring the placarding of premises to give notice of an order requiring the closing of the premises;
(4) requiring the cleaning or disinfection, or both, of the premises or the thing specified in the order;
(5) requiring the destruction of the matter or thing specified in the order.

The written order shall be delivered personally to the person to whom it is directed, but if that is not possible, it shall be delivered in a manner that is reasonably calculated to notify such person of it.

If a person does not comply with the order, and if the commissioner or the local public health authority determines that non-compliance poses a serious danger to public health, upon request or issuance of an order by the commissioner or local public health authority, an officer authorized to serve criminal process may arrest without a warrant any person whom the officer has probable cause to believe has violated such an order and shall use reasonable diligence to enforce such order.

If a person does not comply with the order within the time specified in the order, but the non-compliance does not pose a serious danger to public health, the commissioner or the local public health authority may apply to a judge of the superior court for an order requiring the person to comply with the order within the time specified in the order of the court; and to take whatever other action the court considers appropriate in the circumstances to protect the public health. The law enforcement authorities of the city or town where the person is present shall enforce the court order.

Any person who knowingly violates an order, as to which non-compliance poses a serious danger to public health as determined by the commissioner or the local public health authority, shall be punished by imprisonment for not more than 30 days or a fine of not more than one thousand dollars per day that the violation continues, or both.

It shall not be a defense to a prosecution for this offense that the commissioner or the local public health authority erroneously determined that non-compliance would pose a serious danger to public health, if the commissioner or local public health authority was acting in good faith under color of official authority.

A person who knowingly violates any other order issued under this subsection may be subject to a civil fine of not more than one thousand dollars per day that the violation continues. Any fine collected for any violation of this section shall be credited fifty percent to the courts and fifty percent to the health care safety net trust fund.

The commissioner or the local public health authority may recover expenses incurred in enforcing the order from the person to whom the order was directed, by action in the superior court.

(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:

(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.

(c) 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:

(1) to decontaminate or cause to be decontaminated any individual; provided that decontamination measures must be by the least restrictive means necessary to protect the public health and must be such as are not reasonably likely to lead to serious harm to the affected individual; and

(2) to perform physical examinations, tests, and specimen collection necessary to diagnose a disease or condition and ascertain whether an individual presents a risk to public health.

If an individual is unable or unwilling to submit to decontamination or procedures necessary for diagnosis, the decontamination or diagnosis procedures may proceed only pursuant to an order of the superior court. During the time necessary to obtain such court order, such individual may be isolated or quarantined pursuant to section 96 of chapter 111 if his or her refusal to submit to decontamination or diagnosis procedures 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.

(d) (1) When the commissioner or a local public health authority within its jurisdiction reasonably believes that a person may have been exposed to a disease or condition that poses a threat to the public health, in addition to their authority under section 96 of chapter 111, the commissioner or the local public health authority may detain the person for as long as may be reasonably necessary for the commissioner or the local public health authority, to convey information to the person regarding the disease or condition and to obtain contact information, including but not limited to the person’s residence and employment addresses, date of birth, and telephone numbers.

(2) If a person detained under subsection (1) refuses to provide the information requested, the person 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.

(e) This section does not affect the authority of the commissioner or a local public health authority to take action under any other provision of law or under any regulation promulgated pursuant to law.

Chapter 111: Section 96. Warrants to remove persons infected with dangerous disease
http://www.mass.gov/legis/laws/mgl/111-96.htm

Section 96. A magistrate authorized to issue warrants may issue a warrant directed to the sheriff of the county or his deputy, or to any constable or police officer, requiring him, under the direction of the board of health, to remove any person infected with a disease dangerous to the public health or who is a carrier of the causative agent thereof, or to take control of convenient houses and lodgings, and to impress into service and use such convenient houses, lodgings, nurses, attendants and other necessaries. The removal authorized by this section may be made to a hospital in any town established for the reception of persons having diseases dangerous to the public health; provided, that the assent of the board of health of the town to which such removal is to be made shall first have been obtained.