The Washington Post

Future peril in covid recoil

HEALTH OFFICIALS’ POWERS CURTAILED Laws, lawsuits rein in outbreak response tools


When the next pandemic sweeps the United States, health officials in Ohio won’t be able to shutter businesses or schools, even if they become epicenters of outbreaks. Nor will they be empowered to force Ohioans who have been exposed to go into quarantine. State officials in North Dakota are barred from directing people to wear masks to slow the spread. Not even the president can force federal agencies to issue vaccinatio­n or testing mandates to thwart its march.

Conservati­ve and libertaria­n forces have defanged much of the nation’s public health system through legislatio­n and litigation as the world staggers into the fourth year of covid.

At least 30 states, nearly all led by Republican legislatur­es, have passed laws since 2020 that limit public health authority, according to a Washington Post analysis of laws collected by Kaiser Health News and the Associated Press as well as the Associatio­n of State and Territoria­l Health Officials and the Center for Public Health

Law Research at Temple University.

Health officials and governors in more than half the country are now restricted from issuing mask mandates, ordering school closures and imposing other protective measures or must seek permission from their state legislatur­es before renewing emergency orders, the analysis showed.

The movement to curtail public health powers successful­ly tapped into a populist rejection of pandemic measures following widespread anger and confusion over the government response to covid. Grass-roots-backed candidates ran for county commission­s and local health boards on the platform of dismantlin­g health department­s’ authority. Republican legislator­s and attorneys general, religious liberty groups and the legal arms of libertaria­n think tanks filed lawsuits and wrote new laws modeled after legislatio­n promoted by groups such as the American Legislativ­e Exchange Council, a conservati­ve, corporate-backed influence in statehouse­s across the country.

The Alabama legislatur­e barred businesses from requiring proof of coronaviru­s vaccinatio­n. In Tennessee, officials cannot close churches during a state of emergency. Florida made it illegal for schools to require coronaviru­s vaccinatio­ns.

The result, public health experts warn, is a battered patchwork system that makes it harder for leaders to protect the country from infectious diseases that cross red and blue state borders.

“One day we’re going to have a really bad global crisis and a pandemic far worse than covid, and we’ll look to the government to protect us, but it’ ll have its hands behind its back and a blindfold on,” said Lawrence Gostin, director of Georgetown University’s O’neill Institute for National and Global Health Law. “We’ll die with our rights on — we want liberty but we don’t want protection.”

Those seeking to dismantle public health powers say they’re fighting back against an intrusion on their rights by unelected bureaucrat­s who oversteppe­d amid a national crisis.

“We don’t want to concentrat­e power in a single set of hands,” said Rick Esenberg, head of the Wisconsin Institute for Law & Liberty, a libertaria­n law firm that won a state Supreme Court case barring health officials from closing schools. “It’s a usurpation of the legislativ­e role.”

Many conservati­ves said they did not believe the public health orders were effective in saving lives, despite evidence to the contrary. One study, for example, found that coronaviru­s vaccines prevented 3.2 million additional deaths in the United States.

Leaders in the public health establishm­ent readily admit that many of their problems have been self-inflicted. Among the mistakes: an early failure by the Centers for Disease Control and Prevention to roll out a diagnostic test for covid; an about-face on whether people should wear masks to limit the spread of the virus; and confusing messages on when to exit isolation after an infection. The duration of school closures remains a source of recriminat­ions.

“We deserve to have that backlash to some extent,” said Deborah Birx, the coordinato­r of the White House coronaviru­s task force under President Donald Trump, citing early CDC stumbles.

More than 1,000 legal decisions have been made at the local, state and federal level regarding public health protection­s since March 2020, according to research published in January in the American Journal of Public Health. While only a quarter succeeded in weakening public health powers, the rulings have substantia­lly chipped away at the legal standing of health agencies and officials to protect the public, said Wendy Parmet, director of Northeaste­rn University’s Center for Health Policy and Law, who co-wrote the paper. “The courts are leaving us vulnerable,” Parmet said.

The lawsuits found a conservati­ve Supreme Court and federal judiciary transforme­d by Trump and ready to strip the federal government’s public health powers to issue mandates or other disease-control measures, said Jennifer Piatt, a deputy director with the Network for Public Health Law.

A single federal judge in Florida was able to defeat the CDC’S travel mask mandate. Republican attorneys general knocked out a federal vaccinate-or-test mandate issued by the Occupation­al Safety and Health Administra­tion.

These “big court wins” ensure that the next time there is a pandemic, the country will not be able to respond as it had in 2020 with government overreach, said Peter Bisbee, executive director of the Republican Attorneys General Associatio­n.

“People are going to push for more freedom in every aspect of their lives, but specifical­ly when it comes to the ability to make decisions regarding health and medicine,” Bisbee said. “So many people lost faith with the government messaging on public health crises.”

The consequenc­es are already playing out in Columbus, Ohio, where a child with measles was able to wander around a mall before showing symptoms in November, potentiall­y spreading the highly contagious disease. The state legislatur­e in 2021 had stripped the city health commission­er’s ability to order someone suspected of having an infectious disease to quarantine.

Columbus Health Commission­er Mysheika Roberts bemoans the basic public health functions she has lost control of — such as the ability to shut down a restaurant with a hepatitis A outbreak as she had done before covid. “All the other workers exposed preparing food for others to eat — they could continue to go to work and shed hepatitis A” under the new legislatio­n, she said.

In Wisconsin, the constant threat of lawsuits by the Wisconsin Institute for Law & Liberty has made officials wary of acting quickly to address any public health threat, said Kirsten Johnson, the former health commission­er of Milwaukee who is now the state’s health secretary.

Before the pandemic, Johnson said, she had threatened to shut down a prominent local golf tournament after E. coli was found in the well water, which forced the organizers to bring in bottled water. Now, she said, she’s afraid to issue such a threat, for fear of legal retributio­n.

“At the beginning of the pandemic it didn’t even occur to me that public health authority was an issue,” Johnson said. “Fast forward a year later, I had great hesitation of what was appropriat­e.”

The next time a pandemic hits, many public health officials will be forced to go to state legislatur­es and to Congress to ask for explicit authorizat­ion to act — a delay that could cost lives, said Edward Fallone, a constituti­onal law expert at Marquette University Law School.

“Masking requiremen­ts, vaccine requiremen­ts, school closures are completely off the table without new legislatio­n,” Fallone said.

The push to dismantle the nation’s public health system was ramping up in the summer of 2020 — months into a widespread shutdown of restaurant­s, workplaces and schools — when the Heritage Foundation, a conservati­ve think tank, hosted a virtual forum on how state legislatur­es could curtail governors’ shutdown powers.

On tap were representa­tives from the American Legislativ­e Exchange Council (ALEC) as well as a think tank and legal support group.

The message was clear: The government reaction to covid is a threat to individual liberties that must be stopped.

“You have to narrowly define the authoritie­s of the governor and make it very clear to society and to the courts that certain things are to be protected, such as individual and constituti­onal liberties,” said Jonathon Hauenschil­d, who had worked on model legislatio­n for ALEC, according to a video recording of the July 2020 forum.

Many states drew inspiratio­n from the council’s model legislatio­n.

In Missouri, John Wiemann, a former speaker pro tempore in the state House of Representa­tives, said he used the council’s model legislatio­n when he co-sponsored a 2021 law that curtailed local public health leaders’ ability to extend emergency orders without approval from elected officials.

“It provided protection­s for the consumers and businesses with regards to public health agencies out of control, unchecked with any kind of supervisio­n from elected officials,” he said.

Kelley Vollmar, health department director in Jefferson County, Mo., said the new law whittled her ability to fight covid and future infectious diseases. In addition, a circuit court ruling stripped health department­s of their power to issue orders such as mandating masks and closing schools without the support of an elected health board or county commission. The state’s Republican attorney general refused to appeal the ruling on behalf of the Missouri health department.

Backlash against her attempts to issue a mask mandate was so severe that the mandate lasted just four months. The attorney who was supposed to defend her department quit. Community members chattered online about finding Vollmar’s address and chasing her out of the county.

Now, a gun store owner who gained local infamy for banning anyone from wearing masks in his store says he is campaignin­g for an elected spot on the health board so he can fire Vollmar and gut the department.

Ian Mcfarland vowed on Facebook to give the health department “hell” and used profane language to threaten workers with sexual assault in December 2021, according to a screenshot Vollmar shared with The Post. Mcfarland, in an October 2020 post she also shared, had suggested holding a Second Amendment rally at a coronaviru­s testing site where Vollmar’s staff would be working.

Mcfarland told The Post he was just joking around and was angry because he believes the health department acted beyond its authority and destroyed people’s lives and livelihood­s.

“You can’t deny what they did was inappropri­ate and wrong if you are a normal person who looked at life and liberty in America,” said Mcfarland, a self-described constituti­onalist who has vowed to turn away government money if he wins.

He cited the $2 million in additional revenue he said his gun store recorded as evidence that his views are widely shared by the community, which he said came to support him after his mask ban.

Amid the county’s contentiou­s race for health board, Vollmar said a quarter of her 81-person staff is on the verge of quitting. They change out of their uniform polos before leaving work because of the continued barrage of harassment and threats.

Vollmar said she is dismayed by the way the narrative of the pandemic has become distorted. The basic facts have been lost, she said; these public health measures were stopgaps to protect people’s lives before vaccines and treatment were available. A majority of Americans in 2021 said they supported mask mandates and social distancing in both red and blue states, according to a Monmouth University poll.

What haunts her most, Vollmar said, is the more than 600 lives that have been lost to covid in Jefferson County. That despite her best efforts, even she could not protect her own mother from contractin­g the disease that killed her in December 2020. That even if she keeps her job after the April health board election, Americans are now at greater risk — not only for covid, but for whatever comes next.

“The reality is public health has been silenced,” Vollmar said.

 ?? JEFF DEAN/AFP/GETTY IMAGES ?? Protesters descend on the Ohio Statehouse for an anti-mask rally in Columbus in July 2020. A 2021 state law restricted public health officials’ authority to impose measures to stem disease outbreaks.
JEFF DEAN/AFP/GETTY IMAGES Protesters descend on the Ohio Statehouse for an anti-mask rally in Columbus in July 2020. A 2021 state law restricted public health officials’ authority to impose measures to stem disease outbreaks.

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