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A New York appeals court has ruled that if the US Federal government declares a “public health emergency” per the Public Readiness and Emergency Preparedness Act (PREPA) then it does not have to obey state laws. Additionally, the parties who helped it forcibly provide “medical care” to those in the declared emergency area are also not liable for their actions and consequent adverse outcomes.

Quoted from Mom Loses Suit Over Daughter’s H1N1 Vaccine:

The Appellate Division concluded on Nov. 21 that PREP pre-empts state law claims. PREP contains an express pre-emption clause stating that, during a declared public health emergency, “no state … may establish, enforce or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that (A) is different from, or is in conflict with, any requirement applicable under this section; and (B) related to the … use, … dispensing or administration by qualified persons of the covered countermeasure,” Peters wrote.

PREPA: Bad Law Inspired by 9/11

PREPA was passed in December 2005 during the second Bush Administration when it was signed by President George W. Bush. Like so many broken laws passed in the wake of 9/11, it does not appear there is any legal criteria that might counterbalance the potential for harm. In particular, there is no description in the law for what is required to authorize declaring a public health emergency. There is no provision for considering or evaluating dissenting views by those outside the government, either.

Quoted from Pandemic funding, liability shield clear Congress:

But Sen. Edward Kennedy, D-Mass., and some other Democrats, along with consumer groups such as Public Citizen, derided the liability provision as a giveaway to the drug industry. Kennedy said the bill makes it “essentially impossible” for injured parties to sue for damages. He also argued that the measure allows the HHS secretary to use many common diseases as a reason to activate the liability shield.

“Without a real compensation program, the liability protection in the defense bill provides a Christmas present to the drug industry and bag of coal to everyday Americans,” stated a Dec 21 news release issued by Kennedy and Sens. Tom Harkin, D-Iowa, and Chris Dodd, D-Conn.

The liability protection language, called the Public Readiness and Emergency Preparedness Act, was tacked onto the end of the huge defense-spending bill (H.R. 2863).

It gives the HHS secretary authority to trigger the liability protection by declaring an emergency if he or she determines that a disease or other health threat represents an emergency or may constitute an emergency in the future. The act does not list any criteria for determining the existence of an emergency. The declaration would have to list the diseases, populations, and geographic areas covered and when the emergency would end.

Such an emergency declaration is not subject to court review, and it preempts any conflicting laws or regulations of states or local communities, the act says.

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