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.