By Rob Gatter and Seema Mohapatra
This is an excerpt of an essay first published in the Washington and Lee Law Review Online here.
As a counter-measure to the COVID-19 pandemic, should wearing masks in public be required or merely recommended?
The question is complicated and without a clear right answer. Ohio Governor Mike DeWine announced on April 27th that shoppers would be required to wear masks. He reversed the mandate the next day, after a public backlash. Ohio’s experience demonstrates the divided opinions – and actions — on the topic.
Some jurisdictions require masks. Others do not. The CDC issued a recommendation in early April that individuals wear a mask when in public but stopped short of proposing that states require masks. Meanwhile, the WHO still does not recommend masks unless symptomatic or caring for someone symptomatic.
So what is the right policy? We, as public health law experts, provide some analysis and recommendations.
Masks and Public Health
Wearing masks in a store or other place of public accommodation is likely effective at preventing the spread of the coronavirus. The CDC says the virus is transmitted primarily through respiratory droplets expelled by an infectious person directly onto another person, surfaces others touch, and into the ambient air others breathe. Masks help prevent all methods of transmission. Moreover, because the virus can be transmitted by those without symptoms, a mask requirement likely helps prevent asymptomatic infections.
Empirical evidence also supports mask-wearing requirements. Recent systematic reviews confirm that masks work to contain the droplets of individuals infected with coronavirus.
Based on science alone, it’s tempting to require masks for everyone in public spaces, especially as stay-at-home orders are being lifted. Yet, the efficacy of masks cannot be the only consideration.
Masks and Racial Discrimination
Black Americans risk being targeted by law enforcement, the employees of retail establishments, or their own neighbors for wearing masks.
For example, Kam Buckner, an Illinois State Representative who is Black, was stopped by a Chicago police officer after shopping while wearing a mask. The officer asked to see Rep. Buckner’s ID and store receipt. When the legislator asked the officer why he was stopped, Buckner says the officer answered, “I can’t see your face man, and you look like you may be up to something.”
Senators Kamala Harris, Cory Booker and others sent a letter to the FBI and DOJ that chronicles several other incidents of racial discrimination by police against Black American men for wearing or failing to wear masks.
Such discrimination is uniquely offensive given that the COVID-19 pandemic has disproportionately harmed Black communities. CDC has shared data suggesting “an overrepresentation of Black (people) among hospitalized patients” nationally. In New York City, the death rate for Black Americans is more than twice that of white residents.
Wearing a mask is particularly valuable in preventing the spread of the virus in communities where it is more prevalent, and yet doing so increases the risk of racial discrimination. “In essence, Black men have to pick their poison — risk their lives (and the lives of others) to Covid-19 by not wearing a mask, [or] risk their lives to police officers who see them as suspicious while wearing a mask,” writes
Perhaps a mask mandate would cause less stigma by requiring almost everyone to wear masks. Yet mask mandates—particular those enforced with fines or worse—lead to unequal police enforcement, and whether they are worn or not, the mandates run the risk of becoming a proxy to carry out racial profiling.
The Law as an Unreliable Check on Discrimination During a Pandemic
Racial discrimination is illegal — prosecutors and private litigants are empowered to pursue a remedy for such discrimination. So, in theory, the law is a check against any discrimination that might result from a mask requirement. Yet, in practice, there is reason to be doubtful.
Courts are less accessible than they would be during normal times. A litigant seeking redress for racial discrimination in the enforcement of a mask requirement may have difficulty obtaining a timely hearing. And justice delayed is justice denied.
Moreover, courts are exceedingly deferential to the actions of officials during a public health emergency. Such deference is compounded when judges also use the emergency as justification to adopt lenient standards of review. Courts have manipulated constitutional review standards in this pandemic, lowering the bar that police and other state action must clear.
For example, the Fifth Circuit federal appellate court recently side-stepped case law imposing an “undue burden” standard on state actions related to abortions in favor of a less demanding “real and substantial relation” test, claiming that the more forgiving test is required during a public health emergency. Worse still, a New Hampshire state court held that, during this pandemic, a Governor may “suspend civil rights” in the temporary service of civil order.
In short, a litigant seeking relief for race-based enforcement of a mask requirement is likely to find himself before a deferential judge deploying lenient standards of review and opining that civil liberties take a back seat to civil order during an emergency.
We conclude that a mask recommendation is the better solution. The additional racial discrimination that is likely to result from the enforcement of a mask requirement is unacceptable, and it undercuts the empirical justifications for a mandate.
In comparison, a mask recommendation captures some of the public health benefit without the need for an enforcement mechanism that is so likely to result in additional discrimination.
Moreover, officials can boost the likely effectiveness of a mask recommendation if they combine it with advertising campaigns to educate the public about mask use, perhaps with well-known celebrities and those of all political stripes, so as to help normalize mask-wearing.
Additionally, we recommend increased federal funding for states and public health agencies to make masks widely available to the general public.
