The Future of Public Health Law Lies in the Past — And Lawyers Need to Learn It

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Currently on appeal before the 11th Circuit is the question of whether a federal Administrative Agency (here, the U.S. Centers for Disease Control and Prevention) has the power to mandate masking on public transportation.

The case stems from the decision of a Florida judge, Kathryn Mizelle, in Health Freedom Def. Fund v. Biden, who ruled the agency overstepped its powers as enumerated under the Administrative Procedure Act (APA).

Stripped down, a key question on appeal boils down to: how can a federal agency order the only effective public health response during the pendency of an epidemic? In other words, how can they act where they must make public health decisions under quickly developing circumstances?

This issue turns on the construction of law under the APA, the meaning of the word “sanitation” as used in the enabling legislation, and the state power of quarantine. But sandwiching the decision on whether masking fits into “sanitation,” as used in the legislation and defined by the lower court, is both superficial and erroneous.

Instead, a better historical understanding of the practice of public health might have assisted the court in making a more prudent decision. Rather than bifurcating the term “sanitation,” as the lower court did, into either “cleanliness” or the “promotion of cleanliness in public health activities,” a more nuanced and knowledgeable basis of scientific history might have cleared up the impasse and given greater guidance (and powers) for CDC to act during COVID and future epidemics.

The critical clause at the heart of the lower court’s decision is found in 42 USC 264, the Public Health Service Act :

“The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

Interpreting these two sentences, the lower court states that “’the second sentence narrows the scope of the first.’” Put otherwise: “The second sentence ‘informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles.’”

Judge Mizelle continues: “if § 264(a) authorizes the Mask Mandate, the power to do so must be found in one of the actions enumerated in the second sentence.” She then focuses on the extent of powers allowed entirely under the response entitled “sanitation.”

In classic fashion reminiscent of an 1840’s medical text and its limited understanding of the germ theory of disease, the court seeks to reconcile the meaning of “sanitation” (the only word available to determine allowable health responses in the COVID-19 context), by using dictionary definitions, and bifurcating the inquiry into whether the activities in question involve “active measures to cleanse something or to preserve the cleanliness of something.” The first half of this definition involves “removing filth, such as trash collection, washing with soap, incineration, or plumbing.” The second, “measures that keep something clean… for preserving or promoting public health…Examples of this sense of sanitation include air filters, barriers, masks gowns, or other personal protective equipment [for the purposes of protecting the wearer].”

Using yet another methodology to define “sanitation,” the corpus linquistics, which compiles standard usage of a term during specified years (here, those surrounding the dates of enactment of the APA), the court rejects a third dictionary definition: the use of sanitation to promote hygiene, as the corpus linguistics limits the term to cleanliness and its promotion.

Interestingly, the judge’s dictionary search is limited [1]. Here’s a definition from Webster’s Universal Dictionary of the English Language of 1936, conspicuously absent from the decision: Sanitation: “Pertaining to or designated to secure health, relating to the preservation of health, hygienic; as sanitary regulations.” The definition is not limited to cleanliness, nor even to public health. Indeed, a “sanitarian,” the equivalent to a modern public health officer acting under the auspices of the surgeon general, is defined as involved with actions: “pertaining to health or the public health; sanitary.”

Another parameter used by the court to limit the term rests on general statutory construction methodology. The court explains that “the practical application of sanitary science” renders the words following (e.g., inspection, fumigation, and disinfection), superfluous. In other words, if the enumerated methods are the only public health responses available, then the word “sanitation” would not allow it to be read broadly to allow masking. On the other hand, if these methods are used by way of example, meaning that other responses could be available, there would be no reason to limit the reading of “sanitation” (to cleanliness or the prevention of disease by its application and the three methods listed), and masking would be allowable.

Based on the first approach, the court determines that allowable measures are aimed only at “identifying, isolating, and destroying the disease itself,” i.e., the direct targeting of the disease or “the removal or neutralization of elements injurious to health.” Even the government, Mizelle writes, concedes that “sanitation [is] the promotion of hygiene and the prevention of disease by maintenance of sanitary conditions,” which she infers are to be limited to the methods listed.

Today, we know that even measures that fit under the definition of sanitation as meaning either cleaning or keeping something clean do not always work to preserve public health: consider something like lye, which was widely used during the cholera epidemics to no effect. Neither did quarantine (isolating the diseased person) quell that disease.

In short: the ramifications of the limited definition of “sanitary” as used by the court are horrific.

But what if we can prove that there were other responses available when the Act was drafted in 1944, measures that do not involve inspection, fumigation, or disinfection? Would the existence of other responses that are not listed answer the question – and definitively allow masking?

Let’s go back one hundred and fifty years — say, to 1854. Thousands of people who obtained their drinking water from the Broad Street Well in London are dying from a dreaded disease, although no one knows the cause or the source. In the 1800s, medical science used the same binary approach regarding disease causation as used by Judge Mizelle. This turned on the belief by many that the scourge at hand was caused by a “miasma,” meaning something malevolent in the air. If so, the ensuing epidemics should respond to cleaning procedures and products such as lye (an approach supported by the sanitation-equals-cleanliness view). Yet, improved sanitary conditions — even active disinfection — didn’t work. Alternatively, anti-miasma proponents claimed prevalent epidemics were transmitted person-to-person or by their possessions (the contagion school), such that preserving cleanliness (or fumigation) or avoiding exposure to persons (via quarantine) would be preventative. That didn’t work either in 1854 (or the years before), nor did the other typical steps used to stem personal transmission, like fumigation, or inspection, or disinfection of houses of the sick. Ventilation didn’t work either. In short, none of the definitions of “sanitation” would have covered these situations. And the organism causing the epidemics of the day hadn’t been discovered yet — and wouldn’t be determined for another some 30 years.

One doctor, John Snow (parenthetically, Queen Victoria’s obstetrician who pioneered chloroform as an anesthetic during childbirth) investigates the issue. Painstakingly he documents that those who don’t drink from that well don’t get sick — the sickness in question: the dreaded disease cholera. After debating the miasmatists, he finds that closing off the well that supplies nearby residents (by removing the pump handle) has a positive effect.

Even then, it was the shoe-leather epidemiology performed by Dr. Snow (and Pastor Henry Whitehead who, after dogged investigation, found an infected diaper disposed in a local well, which proved the Broad Street well was the source of the contamination of the 1854 cholera epidemic). Nevertheless, the organism causing the disease isn’t confirmed for several years.

And even after the pump handle was removed, with dramatic results, miasmatists (the then-sanitationists) believed that lye and cleanliness was the answer, while the contagionists swore by quarantine. Even after the Vibrio cholera organism was discovered by Robert Koch in 1884, and the vector of transmission was found to be ingestion, not inhalation, Americans still advocated either the sanitation/cleanliness or quarantine/contagion approach for decades, stuck in the past, as late as the epidemic of 1892, again turning to the courts to determine which governmental unit had the power to act.

It’s a good thing that the cholera epidemics of 1854 (and 1886, and 1892) didn’t arise today. By Judge Mizelle’s decision, the CDC would not be able to do anything short of inspection, fumigation, and disinfection to quell the epidemic. The CDC would not have the power to remove the pump or close the Broad Street well, thereby stemming the epidemic. Let’s hope the 11th Circuit doesn’t fall into the same trap and hamstring responses that work, even as knowledge of an epidemic — its causes and method of transmission — is still developing.

[1] Another important omission that Jeffrey E. Harris notes: Perhaps the most salient feature of Judge Mizelle’s word search was its failure to identify one of the most culturally important appearances of the word ‘sanitary’ in early 20th century America: the sanitary napkin.”

This is a reprint of an article that appeared in Harvard Law School's Bill of Health