This article by Christine Vestal originally published in Stateline, an initiative of The Pew Charitable Trusts.
Although no one wants to see it happen, some state and local public health officials soon may recommend reinstating mask mandates, imposing curfews, limiting travel and even reclosing schools and businesses.
But in numerous states, including many with low vaccination rates and escalating COVID-19 hospitalizations, newly minted laws may prevent many of those public health precautions—or at least make them difficult to impose.
Earlier this year, when vaccines became available and caseloads began falling, nearly all states dropped statewide mask mandates, allowed businesses to reopen and ended restrictions on large gatherings.
Many Republican lawmakers want to keep it that way, even as COVID-19 cases spike in unvaccinated pockets of the country, largely because of the delta variant.
Starting last year, mostly GOP state legislators in nearly every state proposed hundreds of bills to either specifically preclude the use of proven public health measures or more broadly tie the hands of state and local health officials, and governors, in a public health crisis.
At least 20 states have approved laws sharply curtailing health agencies’ emergency powers to invoke restrictions such as quarantines, mask wearing, business closures and vaccine mandates.
Many of the new laws also limit the duration of public health emergencies, require legislative approval to declare or continue emergency status, and prohibit state and local governments from issuing public health safeguards without oversight by elected officials.
Some of the new laws face legal challenges. In Kentucky, for example, the state Supreme Court earlier this month temporarily halted new state laws limiting executive branch public health authority. Experts expect other Republican-backed laws challenging public health emergency powers to end up in court too.
If the laws are upheld, public health officials and legal experts warn, these measures will hinder state and local health agencies’ ongoing efforts to stanch COVID-19 transmission. And many of the statutes could prevent public health officials from acting swiftly in the next epidemic or natural disaster.
“I’ve never seen an infectious disease politicized to the same extent that COVID-19 has been. Virtually every neutral public health measure from masking, to distancing and now vaccines has been politicized,” said Lawrence Gostin, an international health law professor at Georgetown University.
Gostin was instrumental in updating and bolstering state public health laws after the Sept. 11 terrorist attacks to address emerging public health threats, including bioterrorism, infectious diseases and civilian mass casualties.
“What state lawmakers are doing now,” he said, “is very unwise, because in the middle of a pandemic, public health officials need to act quickly, flexibly and decisively. As we have more variants, epidemiological conditions will change. But these laws are cast in stone so no matter what happens on the ground, public health officers will be prevented from doing their jobs.”
Republican state lawmakers argue that governors and other executive branch officials went too far with pandemic-related restrictions, and they want to alter public health laws to curb such moves in the future.
During the debate over the public health bill in Ohio, for example, Republican state Sen. Rob McColley told The Columbus Dispatch, “Essentially, we’ve granted the governor’s office and the [Ohio] Department of Health lawmaking authority that it simply does not have under our constitution … The bill would simply put in place checks and balances that as we’ve seen over the past year are absolutely necessary.”
In May, the National Association of County and City Health Officials, which represents local health departments, collaborated with Minnesota-based legal research group the Network for Public Health Law to highlight what they called an attack on public health authority in statehouses across the country.
The report found that “dissatisfaction and anger at perceived overreaches by governors and public health officials in response to the COVID-19 pandemic has led to an onslaught of legislative proposals to eliminate or limit the emergency powers and public health authority used by these officials.”
Separately, the Association of State and Territorial Health Officials, which represents state agencies, published a comprehensive report on bills and newly enacted laws, saying they threaten to undermine state public health systems.
“We’ve seen these types of bills in the past,” said Adriane Casalotti, chief of public and government affairs at the National Association of County and City Health Officials. “The problem is that now they’re gaining traction.
“Even the bills that ultimately fail are putting questions into people’s minds,” Casalotti said. “If they’re hearing their elected officials claim that public health rules are government overreach, that they aren’t necessary, people will start thinking they have permission not to follow them. With vaccinations stalling out, we need people to be following public health rules.”
This week, California and New York City announced they are requiring all government employees to get vaccinated or submit to regular COVID-19 testing. Hospitals and other employers nationwide are beginning to require workers to get COVID-19 vaccinations, and schools are considering mask mandates for the fall, particularly for kids under 12 who aren’t eligible for vaccinations.
New laws in some states would make these types of measures illegal, potentially leaving it up to courts to decide whether constraining individual rights can be justified by the need to protect the public from a dangerous pathogen.
Specific prohibitions in new state laws against mask requirements, business closures and vaccine mandates are likely to create major barriers to effective public health practices in this pandemic, said Michael Fraser, executive director of the state public health organization. But, he said, many of the laws that more broadly limit executive powers in a public health emergency are likely to have unintended consequences in the future.
Researchers at both the state and local public health associations suggest that many of this year’s bills limiting public health authority were likely inspired by the American Legislative Exchange Council, or ALEC, a conservative nonprofit. Specific language from a model bill—the Emergency Power Limitation Act—published on the group’s website in January has shown up in bills in more than a dozen states, the researchers say.
Governors vs. Lawmakers
Last year, GOP-led legislatures in Kentucky, Michigan, Minnesota, North Carolina, Pennsylvania and Wisconsin battled Democratic governors over what they called government overreach in their response to the COVID-19 pandemic.
In April 2020, Wisconsin’s legislature sued the state’s health secretary for her “Safer at Home” emergency order extending COVID-19-related business closures and prohibiting nonessential travel as the pandemic raged.
The Wisconsin Supreme Court found that the health secretary and Democratic Gov. Tony Evers had exceeded their authority and failed to follow administrative procedures under a state law that granted the health secretary authority to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.”
In September 2020, in a case brought by several counties, some Republican state legislators and businesses, a U.S. district judge in Pennsylvania ruled that some of Democratic Gov. Tom Wolf’s orders to control the coronavirus outbreak, including limits on crowd sizes, stay-at-home orders and business closures, were unconstitutional.
In October 2020, Michigan’s high court ruled against Democratic Gov. Gretchen Whitmer, finding she did not have the authority to extend the pandemic state of emergency after the legislature voted against an extension in April.
Similar lawsuits in Kentucky, Illinois, Minnesota and North Carolina were decided in favor of the governors.
This year, new laws limiting state and local public health authority in Indiana, North Dakota and Ohio have pitted Republican lawmakers against Republican governors. In all three states, GOP governors vetoed legislative attempts to curtail state and local COVID-19 related powers, and lawmakers overrode their vetoes.
In May, after the CDC advised that mask wearing was no longer necessary for vaccinated people, many states and localities eliminated or relaxed their mask requirements.
But this week, the CDC shifted course, advising vaccinated people in high-transmission communities to wear masks in indoor public settings. It also recommended masks for vaccinated people with young children or immunocompromised members of their households. And it called for universal masking of teachers, staff members and students in schools.
In the meantime, new state laws and dozens of bills aim to strip state and local governments, including school districts, of the authority to reinstate mask requirements.
In Arkansas, which has one of the lowest vaccination rates in the country and is seeing a surge in new COVID-19 cases among unvaccinated people this summer, Republican Gov. Asa Hutchinson signed a bill in April that preempts local government mask mandates.
This week, as the number of COVID-19 hospitalizations in the state jumped, Hutchinson announced he may call a special session to revisit the ban.
North Dakota Republican Gov. Doug Burgum rejected a similar a bill, arguing in his veto that to “strip future governors and their state health officers of any low-cost tool that might be used to save lives and livelihoods in a future pandemic or other emergency would be both irresponsible and an unnecessary risk to the future public health and well-being of North Dakota citizens.” But the Republican-led legislature voted to override his veto.
In May, Iowa Gov. Kim Reynolds signed a law prohibiting local governments and schools from imposing their own mask mandates. Republican Utah Gov. Spencer Cox signed a similar bill that prohibits universities, school boards and local education agencies from requiring individuals to wear a mask as a condition of attendance for in-person instruction, sports events, dormitories or anywhere else on campus.
Arizona enacted a law prohibiting mask mandates, and Oklahoma enacted a ban on mask requirements in schools.
In Ohio, a Republican lawmaker proposed a bill this month that would prevent public schools and universities from requiring students, staff or visitors to wear masks while in class, at school-sponsored sports or during extracurricular events.
In Texas, Republican Gov. Greg Abbott issued an executive order in May preventing local governments, including school districts, from requiring students, teachers, staff and visitors to wear masks after June 4. Republican South Carolina Gov. Henry McMaster issued a similar order.
For decades, public health officials have required vaccines for diseases such as polio, measles, mumps and rubella for children entering schools. Health care employers have required the same vaccines for workers, and many require an annual flu shot.
But Republican lawmakers and some governors want to make sure that similar requirements don’t apply to COVID-19 vaccinations in their states. So far, no COVID-19 vaccine has received full approval from the Food and Drug Administration.
Laws banning the use of COVID-19 vaccine passports as official proof of vaccination for any purpose, including travel, education or services, have been enacted in 11 states—Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Missouri, Montana, Oklahoma, Tennessee and Texas—according to data from the National Academy for State Health Policy, which has been tracking COVID-19-related bills and laws.
Five states—Arkansas, Montana, North Dakota, Tennessee and Utah—have enacted laws prohibiting businesses from requiring their workers to get COVID-19 vaccinations. And six states—Arkansas, Arizona, Ohio, Oklahoma Montana and Tennessee—have enacted laws banning schools and universities from requiring COVID-19 vaccinations, according to the state health policy organization.