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‘It’s a tsunami’: Legal challenges threatening public health policy

The high-profile challenges to the CDC sit atop thousands more lawsuits against state and local health authorities that have been filed during the pandemic, experts say, seeking to end localized social distancing and mask orders, vaccine mandates and business closures.

The constant threat of being dragged into court is having a chilling effect on local health officials that may last well beyond the Covid-19 crisis, leading health commissioners or board of health members to think twice about enacting public safety measures.

“It’s a tsunami,” says James Hodge, a law professor at Arizona State University’s Sandra Day O’Connor College of Law. “Anything that limits you as an American from doing something you don’t want to do … It all got a challenge.”

The flood of legal challenges is part of a profound antagonism many in the U.S. have felt toward public health officials since the early days of the pandemic, when the rapid spread of Covid-19 put government authority and America’s fierce defense of individual freedoms on a collision course.

Political meddling in the CDC’s Covid-19 response and the agency’s own unforced errors in testing and communication stiffened many Americans’ resistance to the government’s involvement in their personal health, even as nearly one million Americans have died. In addition to lawsuits, bills have been introduced in state legislatures across the nation to limit public health authorities’ power, and scores of public health officials have left their jobs in frustration.

Every stage of the crisis has brought a new challenge to public health workers.

In Massachusetts, public health officials fended off a stream of lawsuits in the early days of the pandemic, getting in the way of work like finding shelters for homeless Covid-positive residents. In Ohio, the state legislature passed a bill in 2021 to allow lawmakers to override the governor’s health orders or emergency declarations. And in Washington, one of the last states to end its indoor mask order in March, local public health officials worried about trying to enforce future regional orders on their own, if cases rose again in their community.

“Health authorities need to know that they can’t run amok. Judicial review is an important deterrent against overreach and abuse,” says Parmet.

“On the other hand, you don’t want judicial review to be so threatening, and so omnipresent… that when a health emergency arises, officials are paralyzed by fear of litigation, and they’re so worried about what the court will do, when their lawyers are saying, ‘You can’t do this and you can’t do that’… Then you get into a situation where lives will be in danger.”

Future authority

Threats to the CDC’s authority came into focus in April when a federal judge in Florida ruled the agency did not have the authority to order a national mask mandate on public transportation and issued a nationwide injunction against the order.

The ruling from the judge, a Trump appointee who the American Bar Association deemed was “not qualified” when she was nominated for the bench, came as national Covid-19 cases were rising, and prompted a cascade of private transportation companies to lift their own requirements on facial coverings.

The Department of Justice appealed the ruling in the 11th Circuit Court of Appeals, in part to protect the CDC’s authority to issue similar orders in the future. On May 3, the mandate ran out anyway, and the CDC recommended that people continue to mask up on planes, trains and buses.

Since then, another federal judge in Florida reached the opposite conclusion, saying the CDC was within its power to order the mandate. In Texas, yet another challenge to the defunct requirement is still pending.

The 11th Circuit has weighed in on the CDC’s pandemic authorities before. In July, it upheld a lower Florida court order prohibiting the agency from imposing Covid-19 restrictions on cruise ships in the state. The next month, the Supreme Court rejected the CDC’s pandemic-related eviction moratorium, ruling the agency did not have the authority to impose it.

Other federal agencies that watch over Americans’ health have also come into the courts’ crosshairs. In January, the Supreme Court struck down an order by the Occupational Safety and Health Administration that mandated employees in businesses with over 100 workers be vaccinated or tested, though it upheld the Centers for Medicare & Medicaid Services’ vaccine mandate for workers in Medicare and Medicaid participating facilities. The court is also considering a case that could limit the Environmental Protection Agency’s ability to regulate air pollution, among other things.

Many of these decisions fit a worrying pattern, public health experts said, in which judges do not appear to be taking scientific evidence or expertise on board.

“Historically, there’s been some level of deference to experts who are using their legal authority to save lives,” said Joshua Sharfstein, professor of the practice in health policy and management at Johns Hopkins Bloomberg School of Public Health. “But that has been eroding. The courts have increasingly not really cared to assess the implications of the decisions for health.”

At the local level, state and local public health agencies have won most of the challenges to their authority, says Hodge of ASU, who provides legal guidance to public health agencies and others through The Network for Public Health Law, an expert entity that helps organizations navigate laws and regulations.

But after vaccines were introduced, some courts started to ask authorities more questions on why mitigation measures are necessary, he said.

Courts have also intervened over Title 42, the CDC order stopping migrants from entering the U.S. immigration system in order to prevent the spread of Covid-19. The policy has drawn the ire of judges and critics, who have said it is a legitimate public health rule that has been politicized in both the Trump and Biden administrations.

Since it was enacted under Trump in March 2020, public health experts say the order is an ineffective way to prevent transmission of the virus, and immigration advocates say it violates international humanitarian law by turning away asylum seekers fleeing danger at the border.

Some courts have been sympathetic with those perspectives. On March 4, a D.C. Circuit Court judge questioned what, if any, public health purpose the policy serves at this stage in the pandemic and ruled that the CDC did not have the authority to send families back to danger without giving them the chance to apply for protection against persecution and torture.

Others have sided with states seeking to keep the order in place as an immigration-control measure. Not long after the D.C. Circuit Court ruling, the CDC said it would end the order for all migrants on May 23. That effort is being challenged in a Louisiana court by states worried about the surge in migrants that its end could bring. A federal judge issued a temporary restraining order preventing the CDC from phasing out the order before then and could soon seek to stop the administration from ending it altogether.

“It’s dangerous to start manipulating the public health laws,” says Lee Gelernt, an ACLU attorney representing the families in the case in D.C. Circuit Court. “At this point, there’s no longer even the pretense that Title 42 is needed for public health; it’s being discussed openly as a border-control measure.”

Landscape of ‘anger and vehemence’

In Washington state, Secretary of Health Umair Shah says this litigious atmosphere, and particularly a decision like the Florida injunction against the CDC’s travel mask mandate, “has ramifications for public health policy across the nation.”

He says it’s part of a broader landscape of “anger and vehemence” against public health officials and public health policies that is making it harder for them to do their jobs.

“I know that those things — everything together — has had an impact on people,” said Shah. “It may not have changed necessarily what they’re doing, but it may have changed how they’ve gone about it, or how public they’ve been, or how careful they’ve been, because nobody wants to have that onslaught launched against them.”

In Massachusetts, having to constantly fend off lawsuit threats was a “complete time suck” in the early days of the pandemic, recalls Cheryl Sbarra, executive director and senior staff attorney at the Massachusetts Association of Health Boards.

Sbarra, who provides legal guidance to health boards across the state, says two years later, the threats have not stopped. Board meetings are more contentious. There’s more “bashing.” People wearing masks during the latest rise in Covid cases are harassed.

“It’s not as hot as it was, but there’s still a lingering feeling with some people that we violated their rights,” Sbarra said. “And I don’t know if that’s ever going to go away.”

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