By James G. Hodge, Jr.
Over the course of the COVID-19 pandemic, now entering its fourth year in 2023, legislators, executives, and judges at every level of government have sought measures to derail efficacious public health interventions. Despite clear risks of excess morbidity and mortality, these law- and policy-makers, often in more conservative jurisdictions, intentionally chose to push laws, guidance, and decisions prioritizing rapid “returns to normalcy” over the health and lives of Americans.
Casual observers of these collective trends may see the end of public health powers and services as we know them in the United States. And that’s where they are wrong.
Sizing up extant threats to communal health goals, public health officials have engaged in the legal equivalent of chess, maneuvering around ill-begotten, politically-motivated, and patently unconstitutional denialist laws, policies, and decisions. Resulting counter-strategies to delay, offset, or overturn COVID-19 denialism incorporate “whole-of-government” approaches to craft real-time legal solutions to further the public’s health.
Many public health officials and their partners have fought and won against denialist laws using innovative arguments to counter antithetical approaches. Some victories came easy. Over 1,500 state anti-public health bills – introduced to thwart emergency powers, dismiss emergency declarations, prohibit masks, eliminate vaccine mandates, and restrict social distancing – were introduced between January 1, 2021 – May 20, 2022. Yet, only 185 of these bills actually passed. And most relate solely to COVID-19 interventions, which sunset permanently as states withdraw their emergencies. Other bills were so improperly drafted or passed as to have minimal impacts.
Take, for example, state legislative attempts to ban masks in schools. In June 2021, Arizona’s state legislature hastily tacked on a provision to a budget reconciliation bill to ban mask requirements in K-12 public schools, including a retroactivity clause to get around a constitutional 90-day enforcement waiting period. Ensuing litigation centered not so much on the bill’s content, but on its inept passage. Ultimately, Arizona’s Supreme Court agreed with lower courts that the legislature acted outside its boundaries. The bill was never fully enforced.
States that sought to inhibit vaccine mandates faced alternative arguments framed in federal conditional spending powers and preemption. On August 19, 2022 the Centers for Medicare and Medicaid Services announced plans to require nursing facilities to vaccinate most employees to continue to receive federal reimbursements. Invoking the federal Public Readiness and Emergency Preparedness (PREP) Act, the Department of Health and Human Services (HHS) asserted how pharmacists could administer COVID-19 vaccinations irrespective of contrary state licensing laws. As per Centers for Disease Control and Prevention (CDC) correspondence, PREP Act requirements remained in place, “regardless of state laws and regulations.”
Denialist interventions were also contested under existing federal or state disability protections. After Florida Governor Ron DeSantis banned school-based mask mandates via executive order in July 2021, affected parents sued. They alleged violations of the federal Americans with Disabilities Act and Florida’s own Educational Equity Act resulting from the exclusion of disabled children from equal and safe educational opportunities.
State and local health departments initiated other tactical moves to circumvent denialist laws through waiver authorities or reliance on everyday public health powers. During the pandemic, state governors all waived or suspended state laws interfering with emergency response efforts. When Michigan’s Supreme Court limited Governor Gretchen Whitmer’s emergency authorities in October 2020, her state health department relied on its routine powers to successfully order school face coverings and restrict gatherings. Local school districts were crafty, too. Prior to the start of the 2021 term, one Texas school district altered its dress code to include face coverings, effectively getting around Governor Greg Abbott’s school mask ban.
Emergency health powers were firmly put to the test during the pandemic, and public health agencies and their partners lost some battles along the way. Many federal and state courts issued judgements during the pandemic rejecting proven public health interventions, including the CDC’s travel mask mandate and residential eviction moratorium. Congressional members have repeatedly sought to end or defund HHS’ national public health emergency. By now, most governors have withdrawn their own emergency declarations. As of this writing, only 8 states remain in a state of emergency tied to COVID-19, which is still a premier cause of death in the U.S.
However, victories underlying legal interventions countering denialist laws and policies reflect the spirit of public health resilience. The ingenuity of public health agencies and their partners reflected in their “legal triage” strategies during the pandemic will assuredly be counted on again in future emergencies.
James G. Hodge, Jr., JD, LLM, is the Peter Kiewit Foundation Professor of Law and Director of the Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, Arizona State University.