For every mainstream article advocating masking or vaccination to prevent or minimize COVID-19, a group or individual is attacking it. The science seems crystal clear – to the proponents on either side. Even more, than advocating for “scientific might,” individuals claim the political right to decide which conduct or treatment they favor under the mantra of “liberty.” But when a disease as contagious as COVID affects more than the individual, some independent arbiter needs to make over-arching public health decisions. Supposedly, that would be the state government – entrenched under the law in time-honored state constitutions. But of late, that bastion seems wobbly.
Since COVID-19 made landfall over three years ago, at least 65 laws have been enacted restricting the powers of the State to mandate public health measures. By comparison, only 17 laws augmented state powers.
“At least nine states have new laws banning or limiting mask mandates. Executive orders or a court ruling limit mask requirements in five more.”
Thousands of bills were proposed by individuals, requiring action by the courts. In over 75%, judges refused to give individuals the relief they sought. Yet, even as many Americans, as ACSH advisor Dr. Miller writes, aren’t taking the COVID toll seriously, over half the states reigned in state powers to act. Public health arbiters and experts bemoan the current trend in detailed reports:
“The report is also a wake-up call for the public health community. … to gain better insight into those perspectives and reactions that drove the enactment of these laws, and to become better messengers and advocates for the public’s health in the legislature and other arenas.” - State Laws Limiting Public Health Protections: Hazardous for our Health
Even so, some libertarians and their political heroes, such as Governor DeSantis, extol personal liberties at the expense of public health measures that impact the health of others.
In large measure, the voice of the people governs as far as regulations impact local (or state) activities - the people’s vote limits or extend the powers of their legislature or governors as to what measures are taken intra-state.
Various factors must be balanced against the protection of public health. These include
- The constitutional right to freedom of religion- but so far, per the Supreme Court, only as it affects majority practice, such as mass and synagogue attendance.
- The Supreme Court has not accepted for their review cases regarding vaccine exemptions based on religious convictions.
- Items involving significant costs and economic upheaval, such as striking down rent moratoriums, have also been held by the Supreme Court to have superseding import over public health measures.
When we consider masking (or vaccination or other public health response) on an interstate level – that becomes a federal issue. While a lower federal court in Florida struck down the CDC’s mask mandate, the appellate court (at least in oral argument) did not seem as taken with the lower court’s ruling. The appellate court decision is pending, but the oral arguments (you can listen to them here) are telling. The efficacy of masking was hardly raised. It seems that both sides conceded masking works. The issues were primarily procedural: did the CDC afford the requisite period for public health commentary? If not, were they sufficiently forthcoming in explaining the need for an emergency bypass of that requirement? As far as the claim raised of masking’s financial burden, it seemed to me that the three-judge panel was biting their lips to keep from laughing. At any rate, that argument was rejected.
That leaves state initiatives to ban masking intra-state. All states have lifted them for now, except in some cases for high-risk areas. But what about the future? But what happens if COVID morphs and becomes more virulent or contagious?
A look back at the early mandates sheds some light – like the parental claim that masking interferes with spreading the word of God. In Florida, Governor DeSantis invoked his emergency powers to address public health because of the dire situation - and then used those same emergency power to allow parents to reject masking -even to children who were exposed. That decision was affirmed by a political appointee’s administrative judicial decision, which considered “scientific evidence” from a non-practicing medical doctor, , now economist, Jay Bhattacharya, while rejecting the evidence of a pediatrician and epidemiologist proffered by the School Board. Now Governor DeSantis wants to make that ruling permanent.
It seems he has the right to do so. According to noted and expert Professor Wendy Parmet and Faith Khalik, citing Chief Justice Roberts, they write:
“Our Constitution principally entrusts ‘the safety and the health of the people to the politically accountable officials of the States.”
For the libertarians among us, that should make you feel good. If you don’t like your state’s ruling- you are free to move.
But before packing, consider this: A future epidemic hits.
- State A doesn’t require masking or vaccination. Their hospitals, as was Florida’s for much of the time, were overrun.
- Neighboring State B requires masks, vaccines, and intermittent lockdowns. State B now bars entrance into its state by those traveling from State A.
Think it can’t happen? It can. And it’s legal. The Supreme Court said so 120 years ago. And even now, the threat is powerful. The State of Rhode Island tried to restrict New Yorkers from entering at the inception of COVID. Only the ex-NY Governor convinced Rhode Island’s Governor to relent.
If we can’t balance our concerns for individual freedoms – as exercised by the States- against the greater good for all, it is almost certain the national economy may well suffer.