What if, instead of releasing anthrax spores in Florida, as is suspected, terrorists circulated smallpox here in Massachusetts? And if the exposure caused a serious smallpox outbreak, who would be responsible for handling the crisis? Well, the answer depends on whom you ask.

Massachusetts law dating back to the 19th century suggests that the ultimate authority to decide who would get vaccinated and who would be quarantined would rest with a political appointee, the commissioner of public health. State law (Chapter 111, Section 5A, to be exact) governs the " preparation and distribution of antitoxins, serums and vaccines. " If the commissioner " determines that the inoculation of the general public ... is essential in the interest of public health and that an emergency exists by reason of a shortage, " he or she is given broad powers by the state.

Such powers are akin to martial law, says State Senator Richard Moore of Uxbridge, chairman of the Senate Health Care Committee, who is sponsoring state legislation to establish a Commonwealth Anti-Terrorism Council to plan for biological and chemical attack. " It is a form of police power as it relates to public health, " he says. " Other agencies of the government are expected to cooperate. If they have to quarantine, they could certainly limit access to a community. "

And if citizens don’t follow the directives of the Department of Public Health (DPH) during a public-health emergency? State law stipulates that such people can be thrown in the slammer for as long as six months.

But the state also charges the Massachusetts Emergency Management Agency (MEMA) with " the coordination of Federal, State, local, voluntary and private resources during disasters and emergencies, " according to its Web site. MEMA, as part of the state’s executive branch, answers to the governor. And the DPH says it’s the governor, not the commissioner, who decides when an outbreak becomes an emergency. Still, deputy public-health commissioner Paul Jacobsen says, " We have a responsibility that we would carry out in the event of any situation where we would need to prevent the spread of communicable disease. "

There’s also federal-level involvement to consider. Right now, the Centers for Disease Control (CDC) have supplies of the smallpox vaccine locked away at secure locations across the country. So even if the DPH ends up determining who gets the vaccine, it must rely on the CDC to supply it — meaning that a federal agency would decide whether Massachusetts got the vaccine and how much it would get. State authorities contend that some of these issues are distinctions without a difference, since different state and federal agencies must work together in emergencies. " We are confident that the citizens of Massachusetts would have access to the necessary vaccine and medication should they be required, " says Sarah Magazine, a spokeswoman for the governor.

The protocol, she says, is as follows: if the governor did not declare an emergency, the DPH would make the decision; if the governor declared an emergency, the governor would decide " in consultation with the commissioner of public health and the director of Commonwealth security " ; and if the federal government became involved, " it would depend on what that was. " The MEMA Web site notes: " Emergency Management is a team effort. "

This all sounds great in theory. But sometimes it doesn’t work in practice. This past July, for example, four agencies — the Johns Hopkins Center for Biodefense Studies, the Center for Strategic and International Studies, the ANSER Institute for Homeland Security, and the Oklahoma City National Memorial Institute for the Prevention of Terrorism — independently conducted a training exercise in how to handle an outbreak of smallpox. The results were given to Congress, and participants testified to the results. In this fictional scenario, individuals played the roles of local, state, and federal authorities in the midst of a terrorist-created smallpox outbreak. In the exercise, 12 million doses of smallpox vaccine — the amount of vaccine believed to be available nationwide — disappeared within a matter of days, and the governor of Texas ordered the state National Guard to fire upon possibly contagious Oklahoma residents trying to enter the state. The exercise ended with the president, played by former Georgia senator Sam Nunn, declaring a state of martial law.

None of which inspires confidence in our state’s — or any state’s — ability to coordinate state and federal agencies in the event of bioterrorism. The DPH’s Jacobsen assures that such a scenario would be " unlikely " and that " we feel we do have enough vaccine. " But consider this: the person in charge of the DPH is Howard Koh, who got the job in 1997, when then-governor William Weld needed to counter the high-profile anti-tobacco campaign by then–attorney general Scott Harshbarger, a potential political rival to Weld. (Koh is a highly esteemed cancer and public-health specialist.) The job of DPH commissioner traditionally calls for lots of cheerleading for the state’s anti-smoking efforts. And while the low-profile Koh is much more qualified for his position than, say, Massport director Virginia Buckingham, who had little to no aviation experience when appointed to her job, the law gives him a lot of power considering that few Massachusetts residents know much about him.

Issue Date: October 11 - 18, 2001