Conservative blocs unleash litigation to curb public health powers
Through a wave of pandemic-related litigation, a trio of small but mighty conservative legal blocs has rolled back public health authority at the local, state and federal levels, recasting America’s future battles against infectious diseases.
Galvanized by what they’ve characterized as an overreach of COVID-related health orders issued amid the pandemic, lawyers from the three overlapping spheres — conservative and libertarian think tanks, Republican state attorneys general and religious liberty groups — are aggressively taking on public health mandates and the government agencies charged with protecting community health.
“I don’t think these cases have ever been about public health,” said Daniel Suhr, managing attorney for the Liberty Justice Center, a Chicago-based libertarian litigation group. “That’s the arena where these decisions are being made, but it’s the fundamental constitutional principles that underlie it that are an issue.”
Through lawsuits filed around the country, or by simply wielding the threat of legal action, these loosely affiliated groups have targeted individual counties and states and, in some cases, set broader legal precedent.
In Wisconsin, a conservative legal center won a case before the state Supreme Court stripping local health departments of the power to close schools to stem the spread of disease.
In Missouri, the Republican state attorney general waged a campaign against school mask mandates. Most of the dozens of cases he filed were dismissed but nonetheless had a chilling effect on school policies.
In California, a lawsuit brought by religious groups challenging a health order that limited the size of both secular and nonsecular inhome gatherings as COVID-19 surged made it to the U.S. Supreme Court. There, the conservative majority, bolstered by three staunchly conservative justices appointed by President Donald Trump, issued an emergency injunction finding the order violated the freedom to worship.
Other cases have chipped away at the power of federal and state authorities to mandate COVID-19 vaccines for certain categories of employees or a governor’s ability to declare emergencies.
Although the three blocs are distinct, they share ties with the Federalist Society, a conservative legal juggernaut. They also share connections with the State Policy Network, an umbrella organization for conservative and libertarian think tanks, and the SPN-fostered American Juris Link, described by president and founder Carrie Ann Donnell as “SPN for lawyers.” In the COVID-19 era, the blocs have supported one another in numerous legal challenges by filing amicus briefs, sharing resources, and occasionally teaming up.
Their legal efforts have gained traction with a federal judiciary transformed by Republican congressional leaders, who strategically stonewalled judicial appointments in the final years of Democratic President Barack Obama’s second term. That put his Republican successor, Trump, in position to fill hundreds of judicial vacancies, including the three Supreme Court openings, with candidates decidedly more friendly to the small-government philosophy long espoused by conservative think tanks.
“You have civil servants up against a machine that has a singular focus and that is incredibly challenging to deal with,” said Adriane Casalotti, chief of government and public affairs for the National Association of County and City Health Officials.
All told, the COVID-era litigation has altered not just the government response to this pandemic. Public health experts say it has endangered the fundamental tools that public health workers have utilized for decades to protect community health: mandatory vaccinations for public school children against devastating diseases like measles and polio, local officials’ ability to issue health orders in an emergency, basic investigative tactics used to monitor the spread of infectious diseases, and the use of quarantines to stem that spread.
Just as concerning, said multiple public health experts interviewed, is how the upended legal landscape will impact the nation’s emergency response in future pandemics.
“This will come back to haunt America,” said Lawrence Gostin, faculty director of Georgetown University’s O’Neill Institute for National and Global Health Law. “We will rue the day where we have other public health emergencies, and we’re simply unable to act decisively and rapidly.”
‘LEGAL VERSION’ OF NAVY SEAL TEAM 6
The entities pressing the public health litigation predate the pandemic and come to the issue motivated by different dynamics. But they have found common interest amid COVID-19, following the sweeping steps public health officials took to stem the spread of a deadly and uncharted virus.
A coalition of state-based libertarian and conservative think tanks and legal centers, known as the State Policy Network, long has operated behind the scenes promoting a conservative agenda in state legislatures. A KHN analysis identified at least 22 of these organizations that operate in the legal arena. At least 15 have filed pandemic-related litigation, contributed amicus briefs, or sent letters threatening legal action.
Typically staffed by just a handful of lawyers, the organizations tend to focus on influencing policy at the state and county levels. At the core of their arguments is the notion that public health agencies have taken on regulatory authority that should be reserved for Congress, state legislatures, and local elected bodies.
“It’s not about public health, it’s about weakening the ability of government to regulate business in general.”
Wisconsin Institute for Law & Liberty, which calls itself the “legal version” of the Navy SEAL Team 6, has filed a flurry of COVID-related litigation. Among its victories is a state Supreme Court ruling that found Democratic Gov. Tony Evers’ declaration of multiple states of emergency for the same event — in this case, the pandemic — was unlawful. It used the threat of litigation to get a Midwest health care system to stop considering race as a factor in how it allocates covid therapeutics.
The Kansas Justice Institute, whose website indicates it is staffed by one lawyer, persuaded a county-level health officer in that state to amend limitations on the size of religious gatherings and stopped a school district from issuing quarantines after sending letters laying out its legal objections.
Suhr, of the Liberty Justice Center, noted one of his group’s cases underpinned the Supreme Court’s decision crimping the ability of the Occupational Safety and Health Administration to mandate large-business owners to require COVID-19 vaccinations or regular testing for employees. The group teamed with the legal arm of Louisiana’s Pelican Institute for Public Policy on behalf of a grocery store owner who did not want to mandate vaccines for his employees.
Republican attorneys general, meanwhile, have found in COVID-related mandates an issue that resonates viscerally with many red-state voters. Louisiana Attorney General Jeff Landry joined a suit against New Orleans over mask mandates, taking credit when the mandate was lifted. Florida Attorney General Ashley Moody sued the Biden administration over strict limits on cruise ships issued by the Centers for Disease Control and Prevention, arguing the CDC had no authority to issue such an order, and claimed victory after the federal government let the order expire.
Texas Attorney General Ken Paxton joined with the Texas Public Policy Foundation to sue the CDC over its air travel mask mandate. The case was put on hold after a Florida federal district judge in April invalidated the federal government’s transportation mask mandates in a case brought by the Health Freedom Defense Fund, a group focused on “bodily autonomy.” The Biden administration is fighting that ruling.
Missouri Attorney General Eric Schmitt has sued and sent cease and desist letters to dozens of school districts over mask mandates, and set up a tips email address where parents could report schools that imposed such mandates. The majority of his suits have been dismissed, but Schmitt has claimed victory, telling KHN “almost all of those school districts dropped their mask mandates.” This year, legislators from his own political party grew so tired of Schmitt’s lawsuits that they stripped $500,000 from his budget.
“Our efforts have been focused solely on preserving individual liberties and clawing power away from health bureaucrats and placing back into the hands of individuals the power to make their own choices,” Schmitt, who is running for U.S. Senate, said in a written response to KHN questions. “I’m simply doing the job I was elected to do on behalf of all six million Missourians.”
Numerous Republican attorneys generals teamed up and won a Supreme Court decision staying the OSHA vaccine mandate for large employers, building on the legal arguments brought by Liberty Justice Center and others. That decision was cited in the recent Supreme Court case rolling back the Environmental Protection Agency’s authority to regulate the carbon emissions that cause climate change.