A story is told about a new immigrant, who, on reaching American shores, rapturously extends his arms in joy, and in so doing, fractures the nose of a neighboring bystander. The neighbor sues, and the immigrant finds himself in court.
“But this is America, Your Honor. Don’t I have Freedom of Speech?” cries the immigrant in his defense.
“Yes,” says the judge. “But individual freedoms have limits.
“Limits?” cries the baffled immigrant, limits not comporting with the immigrant’s notion of freedom.
“Yes,” admonishes the judge. “In America, your freedom ends -- where the other man’s nose begins.”
The story attributed to noted civil rights lawyer, Zechariah Chaffee, was recounted in a Harvard Law Review article written in 1919, entitled “Freedom of Speech in War Time.” It could not be more timely.
We are now seeing those advocating freedom of choice regarding wearing masks collide with those advocating restriction of individual liberties to promote public health via mask mandates. While the torch-bearers are divided into individuals advocating the needs of the one vs. the many, the decision-makers are political entities: local, state, and federal governments – and the courts.
The issue I raise here is not whether masks work -- or vaccines are effective- or regarding the efficacy of any other pandemic response - but rather who makes these decisions regarding societal conduct until we have clear and convincing scientific evidence – and on what basis?
How are those decisions to be made when the evidence is in equipoise? What is the default position to be when there isn’t enough evidence? Those advocating individual decisions and choice argue that they should make the decisions for themselves, or at the very least, the politicians advocating their point-of-view should be given that power. Those with responsibility for population health, school boards, and health leadership want the decision to foster public health – even if, based on evidence, some might consider tenuous.
As Dr. Dinerstein recently wrote, some claim epidemic responses have been co-opted by politics. This is not new, as my last article attested. While perspectives on epidemic responses shouldn’t be political –decision-making authorities, be they governments or courts, are, indeed, driven by their political allegiances.
State, localities, and the federal government have long warred over pandemic jurisdiction. In 1892, Surgeon General Walter Wyman proposed that the federal government oversee all quarantine measures; to avoid a multiplicity of conflicting regulations enacted on a state-by-state or locality-by-locality basis. Given the mismanagement of the federal response to COVID, that doesn’t seem to be a viable solution this go-around. That leaves the battleground to states and localities, again, not a new war.
What is new, however, – and troubling from a historical vantage point, as well as a public health perspective - is the novel positions of some state governments. According to a recent report, no less than 15 states have sought or plan to seek legislation that would limit public health initiatives and reduce local control measures, shackling public health experts previously empowered to make such decisions. These limiting initiatives take several forms, including laws prohibiting mask mandates in any situation
- blocking business closures to stem disease transmission and removing the Governor’s former statutory power to do so
- prohibiting quarantine by local Boards of Health
- giving unilateral power to legislatures to stop or rescind any action by the state health department to control contagious or infectious disease
“The Constitution is not a suicide pact.” Terminello v. Chicago (1949) Justice Robert Jackson
“A nation’s strongest instinct, after all, is survival- even at the cost of individual rights.” Professor Kenneth Larson
While these laws might find favor among the libertarian, they are at odds with the historical development of public health regulation in America. This group believes that individual choice trumps the public health. At least legally and Constitutionally, however, this view is incorrect.
Until recently, state decision-making championed public health - even at the expense of individual liberties, relying on the concept that individual rights have limits when they impinge on the health, safety, and even morality of others.
This limitation of our rights “when the hand of one bangs the nose of another” is the basis of “nuisance” law – which forbids the otherwise legal use of property if such usage harms – or even vexes a neighbor. It is the basis of the State’s police power to protect the health and safety of the population – even if it trespasses on individual rights. The courts have given such decision-making great deference.
This deference devolved from three historical predicates:
- Assignment of the police power to regulate health, safety, and morality to the States was made by the founders as part of constitutional compromises.
- Such compromise rested on the understanding that the Governor’s exercise of their police powers regarding health and safety would be driven by science and experts, determined by the Health Department.
- That local conditions would drive proper responses, and those closest to local conditions would be best suited to make appropriate decisions.
The power to regulate public health during an emergency (including epidemics) was broadened by legislation to include Gubernatorial executive orders.
Public Health Protection is Broad: Tobacco and Opioids
The right of the State to protect the safety and health of its residents even in non-emergent matters manifests when attorneys general brings nuisance claims on behalf of the State’s residents. Dozens of states brought claims against tobacco, lead, and asbestos companies on behalf of their citizens, exemplifying the State’s traditional role of guardian of the public health. We see this again in the suits brought by most states against Purdue for its role in our opioid crisis.
Since the country’s inception, States and localities, supported by their legislatures, have religiously adhered to protecting the health and safety of their constituents as a primary concern over individual rights, even if such action trespassed on rights involving commerce or later proved to be scientifically inaccurate, or were determined by the US Supreme Court to be overzealous. But reliance on the state’s primary focus to safeguard their constituents based on the best science of the time ensured a consistency that allowed the nation to survive and thrive.
Rarely did the state or localities shy away from their primary duty to protect the health and safety of their citizens. When they did – havoc ensued. Just over a hundred years ago, September 28, 1918, the City of Philadelphiapermitted a huge liberty loan parade (to promote government bonds that helped pay for the Allied cause in Europe). The decision enabled a huge outbreak of Spanish flu in the city, killing thousands before quarantine was required and the outbreak was curtailed.
Some governors and states are toppling their traditional roles and responsibilities
It may be that there is insufficient evidence supporting the mask mandates - but observable facts, the rise in COVID-19 related hospitalizations, deaths while patients wait for an ICU bed to become available, require State and local governments to err on the side of prudence - focusing on the public’s needs and collective benefit. There seems to be a significant correlation between an absence of masking (and lower vaccination rates) with a lack of hospital beds (as of a few days ago, multiple areas in Texas are out of ICU beds) and a subsequent increase in excess deaths.We are seeing similar results in Israel -enough to require a public health -not an individual rights- focus.
These data do not prove - or disprove - masks prevent COVID. Rather, they showthat either the masks or something associated with mask mandates- such as enhanced fear of the danger of COVID causing people to stay home, wear masks, or maintain social distancing – is associated with fewer hospitalizations and deaths. This, alone, is sufficient to render a state negligent for failing to carry out historically imposed duties, that here would include masking, to protect the public health. Should a valid argument lie that this decision is excessive- the remedy lies in the US Supreme Court; not in individual states, nor individuals, to rewrite constitutional mandates.
Indeed, how can the Texas governor, in good faith, request additional resources from other states, as he reportedly did – inconveniencing their constituents -- while Texans go maskless?
Interestingly, local governments, charged with protecting students or assuring adequate hospital beds, are championing mask mandates and vaccination, and nowhere more strenuously than where beds are rapidly becoming unavailable. The public health community vehemently agrees. It is entirely possible that eventually, masks may not prove grossly beneficial, but in the mind of those entrusted with our public health, even if it frees one bed and saves one life, such an incursion on the freedoms of the healthy seems worth it.
The solution to the jurisdictional conundrum is clear: whoever is responsible for our healthcare resources and who has the best handle on the local situation, be it the rate of spread and vaccination or the overall health of the community – must be charged with making the ultimate decision – one which may determine who lives and who dies.
