Emergency Response Act is constitutional
A recent Journal editorial and letter to the editor misconstrue the legality of the New Mexico Public Health Emergency Response Act, enacted almost unanimously by the Legislature in 2003 and being used for the first time by Gov. Michelle Lujan Grisham in response to the COVID-19 pandemic.
As an attorney for the N.M. Department of Health in 2002-03, I co-authored the act with other public health law experts in-state and nationally. It was carefully crafted with significant public input to meet the constitutional requirements of an effective response to a public health emergency and has been upheld twice by a unanimous N.M. Supreme Court in two recent cases challenging the act.
Since the beginning of our country’s history, the U.S. Supreme Court has upheld the use of the State’s “police powers” to protect the health and safety of our people in the case of Gibbons v. Ogden (1824), recognizing the use of quarantine powers, and Jacobson v. Massachusetts (1905), upholding the use of adult immunizations during an infectious disease epidemic. The State’s public health power does have limits, but so long as it is not used in a discriminatory manner or in a way that might endanger the health of the public, that broad power has been found constitutional. Of course, the Legislature can re-visit this or any other emergency response statute on the books currently, but the Public Health Emergency Response Act has worked as designed to protect New Mexicans from unnecessary infection and death, understanding that protecting the public’s health based on the best scientific evidence can cause economic loss and significant inconvenience to our daily lives.
I applaud Gov. Lujan Grisham and her administration’s efforts to carefully consider the available scientific information about COVID-19 when crafting sensible and necessary public health orders to protect us from harm. Science, not opinions based on emotion, should form the basis for our public health response to bring this vicious disease under control, as has been achieved in other countries. CLIFFORD M. REES, JD Santa Fe