Governor’s virus orders under assault
Business challenge: Crisis overblown, needless harm caused, lawsuit says
Several New Mexico businesses have filed a federal lawsuit to nullify the governor’s emergency health order, contending the coronavirus is no worse than the seasonal flu and doesn’t justify stay-at-home restrictions or even a mask mandate.
The lawsuit names Gov. Michelle Lujan Grisham and the state Department of Health, arguing they imposed arbitrary and unnecessary rules for a contagion that should not be deemed an emergency. It asks the U.S. District Court to override the governor’s executive orders.
“All the various restrictions that have been placed would be null and void if there’s no emergency,” said Ana Garner, a Santa Fe attorney who is one of three lawyers representing the plaintiffs.
The lawsuit is the most recent attempt to challenge the governor’s emergency health orders, aimed at curbing the virus spread amid a pandemic that has besieged state and national economies.
The state Supreme Court has backed the governor’s authority to restrict commercial and public activities in the pandemic.
Governor’s Office spokesman Tripp Stelnicki said his office won’t comment on pending litigation.
But Matt Bieber, Health Department
spokesman, said the lawsuit seems to overlook some grim facts about COVID-19, noting more 2,400 deaths in New Mexico alone.
“The medical profession is clear: This is the worst global pandemic in a century,” he said. “The lawsuit appears to be out of step with these realities.”
Aside from requesting that the court overturn the governor’s order, the 125-page lawsuit seeks to limit any future public health orders to “an extremely limited period of time” unless authorized by the Legislature.
It also asks the plaintiffs be compensated for lost income during the lockdowns. They include three Albuquerque businesses, a Silver City resort and a number of individuals.
The lawsuit contends the precautionary measures the governor imposed are out of proportion to the virus’s true severity, which it says could have a mortality rate as low as 0.14 percent. That’s in sharp contrast to latest national figures that have more than 335,000 Americans dying out of 19.4 million cases — a 1.7 percent fatality rate.
It cites the widely challenged assertion that most patients die from co-morbidities — or underlying health problems — and not from the virus itself.
“We’re saying it’s roughly equivalent to seasonal flu,” Garner said.
Garner said lawyers cited 325 references in the lawsuit, arguing “there is a lot of science behind it.”
The lawsuit also challenges the effectiveness of face masks and claims they impede the breathing not only of those with respiratory problems but people living at higher elevations where oxygen is thinner.
It also claims state health officials have overestimated asymptomatic transmission, and that people with COVID-19 symptoms should be targeted for restrictions and mask-wearing.
These assertions run counter to the Centers for Disease Control and Prevention, the National Institutes of Health and Johns Hopkins University, which say masks curb spread and asymptomatic carriers are highly contagious.
The lawsuit goes on to accuse the state of violating New Mexicans’ constitutional rights to gather, including at places of worship. It argues that past court rulings bar the needs of a minority segment — in this case, those who are most vulnerable to the virus — to override the rights of the majority.
The court should declare on the record that the restrictions are unconstitutional, the lawsuit says.
“While we recognize that there may on occasion be a legitimate public health emergency … allowing for an unending declaration of emergency without a check on such power is completely unconstitutional,” the lawsuit says.