Tuesday's debate in the House Health and Human Service Committee over House Bill 1058 suggests that some South Dakota lawmakers spend more time listening to the uninformed paranoia of constituent e-mails than (a) reading what the bills before them actually say or (b) trying to apply their purported ideological principles consistently
House Bill 1058 is the South Dakota Department of Health's effort to update South Dakota's statutes on managing and preventing disease outbreaks. Much of the bill clears out 1950s/1960s-era language focusing on tuberculosis and makes clear that the Department's epidemic-fighting authority applies to communicable diseases like Ebola and virulent agents weaponized for bioterrorism.
Deputy Secretary of Health Tom Martinec did a good job of explaining in committee Tuesday (listen to his testimony beginning just after timestamp 16:08) what HB 1058 does and what it does not do. Among the does-not-dos:
- HB 1058 does not make it a crime to have a communicable disease.
- HB 1058 does not make it a crime to expose others to a communicable disease; current statute already does that. Section 4 of HB 1058 preserves that language.
- HB 1058 does not give the state the authority to force vaccinations; SDCL 34-22-6 outlaws forced vaccination. Section 15 of HB 1058 requires folks suspected of carrying Category I diseases or diseases declared a public health emergency to get diagnosis and treatment. Section 15 does not order preventive measures like vaccines.
- HB 1058 does not force South Dakotans to submit to a specific government mandated treatment; Section 16 preserves language on the books since 1963 protecting individuals' right to seek diagnosis and treatment from their own doctors.
From my own reading of HB 1058, I add the following observations of things HB 1058 does not do:
- HB 1058 does not give the Department of Health new quarantine powers. SDCL 34-22-1 already empowers the Department of Health to essentially close the state's borders to stop any communicable disease and detain any person carrying a disease threat across our borders. SDCL 34-22-9 already authorizes the Department of Health to "Prescribe methods and procedures for the control of communicable disease patients and carriers," which clause is not qualified with any restriction on quarantine. Sections 2 and 7 of HB 1058 simply clarify existing quarantine power.
- HB 1058 does not preserve three 1963 statutes (SDCL 34-22-7, -37, and -40) that required the state to pay for tuberculosis treatments. I understand the policy distinction here: in 1963, the state was declaring war on tuberculosis, committing to eradicating the chronic public health threat, while HB 1058 makes clear the authority of the Department of Health to confront new and evolving public health threats. But I do find it a bit odd that HB 1058 does not make explicit our willingness as a community to bear the cost of implementing our own epidemic control procedures... especially when this same state government refuses expand Medicaid under the Affordable Care Act to help tens of thousands more South Dakotans be able to afford the kind of diagnosis and treatment the state might mandate.
- Perhaps most importantly, HB 1058 does not appear to reduce any due process rights available under current law. Section 33 makes explicit the procedure the Department of Health can already follow to obtain a court order to enforce quarantines and other public health interventions. As Deputy Secretary Martinec explained in committee, a public health intervention order states that individuals have a statutory right to contest the order in court.
Contrary to the clear text of HB 1058 and the clear explanation from Deputy Secretary Martinec, a clump of conservative Republican legislators lobbed a jumble of unfounded fears and ill-formed anti-government rhetoric at this public health measure. Newly elected Rep. Steven Haugaard (R-10/Sioux Falls) asserted that the bill seems to expedite the due process of individuals, despite the absence of any language in the bill changing whatever due process surrounds court orders on quarantines or other measures. Rep. Haugaard fretted over the prospect that HB 1058 could expand to include flu (even though he himself acknowledged flu is a not a Category I disease subject to the bill text before the committee), but then fretted that flu is killing more people in South Dakota than the Ebola that motivated HB 1058.
Rep. Haugaard and Rep. Steve Hickey (R-9/Sioux Falls) both complained that HB 1058 was like the overreach of authority that government committed following the September 11, 2001, terrorist attacks, yet neither legislator proposed an amendment to repeal the public health emergency law passed overwhelmingly by the South Dakota Legislature in 2002 that gives the Department of Health some of the "overreach" power it can use with or without HB 1058.
Rep. Haugaard offered as his legislating principle a sort of arch-conservative shadow-of-a-doubt standard: he said that if anything about a bill gives legislators pause—and he noted that even the supporters of HB 1058 expressed concern about protecting individual liberties—then we should vote the bill down. Rep. Haugaard evidently wasn't paying attention in 2012, when one of the main Republican arguments defending the education reform bill that raised numerous doubts about was that we couldn't just do nothing, that we had to try some sort of change and see if it worked.
Rep. Haugaard even asserts that the Ebola epidemic in Africa was overblown. The only reason the concern may look overblown now is that African countries took steps at least as drastic as the provision of South Dakota law clarified by HB 1059 to stop Ebola in its tracks.
Rep. Lana Greenfield (R-2/Doland) said that making people take their temperature twice a day and putting them in a holding tank seems extreme to her. She said she'd rather be stoned in the town square. Baffled as to how to respond to that nuttiness, Deputy Secretary Martinec thanks Rep. Greenfield for her comment, said he "would respectfully disagree," and characterized HB 1058 as a reasonable and judicious effort to balance individual freedom with protection of the public.
Of all people, committee chair Rep. Scott Munsterman (R-7/Brookings) closed the discussion of HB 1058 with one of the most sensible comments on rights: "Think about the masses who also have the liberty to be disease free and not be exposed."
Rep. Munsterman's sentiment, a Republican embrace of the general welfare over extreme individual liberties, won the day, leading an 8–5 vote to send HB 1058 to the House floor. The bill has been deferred, as the Department of Health, far from plotting an authoritarian takeover, is working on clarifications to address the concerns it has heard.
Frankly, the only amendment it appears we need is a provision to quarantine radical conservatives from infecting the Legislature and threatening public health with their ideological nuttiness and blindness to the text on the page.