Across the country, GOP lawmakers are rallying around the cause of individual freedom to counter community-based disease mitigation methods, moves experts say leave the country ill-equipped to counter the resurgent coronavirus and a future, unknown outbreak.
In Indiana and other states, anger at perceived overreach by health officials has prompted legislative attempts to limit their authority, including new state laws that prevent the closure of businesses or allow lawmakers to rescind mask mandates.
Some state courts have reined in the emergency and regulatory powers governors have wielded against the virus. And in its recent rulings and analysis, the U.S. Supreme Court has signaled its willingness to limit disease mitigation in the name of free speech.
“The legal framework has evolved in ways that will complicate and perhaps undermine efforts to deal with next public health crisis or even routine health threats,” said Wendy Parmet, director of the Northeastern University Center for Health Policy and Law, who also said she has been a “long critic of emergency laws and their potential for abuse.”
A key issue, Parmet and others say, is that the legislative backlash is based on partisan assumptions about this pandemic, limiting states’ options in the face of a new threat.
“Whatever your feelings are about what health officials did in March of 2020, I can talk to you about a future threat that might be different, that would disproportionately affect a different population, that you would feel differently about,” said Lindsay Wiley, director of the Health Law and Policy Program at American University and an expert on emergency reform. “Please don’t constrain authority as a reaction in a way that will tie officials to the mast for a future crisis.”
At least 15 state legislatures—including the Indiana General Assembly—have passed or are considering measures to limit the legal authority of public health agencies, according to the Network for Public Health Law, which partnered with the National Association of County and City Health Officials to document the legislative counterpunches. Lawmakers in at least 46 states have introduced hundreds of bills relating to legislative oversight of gubernatorial or executive actions during coronavirus or other emergencies, according to the National Conference of State Legislatures.
Indiana Gov. Eric Holcomb and the Indiana Legislature are locked in a court battle over whether lawmakers can call themselves into an emergency session to overrule a governor’s emergency powers. The Indiana Legislature also approved a law—over Holcomb’s veto—that gives local elected officials, rather than health officials, the sole power to impose county restrictions in an emergency.
Nationally, the measures, as described by the Network for Public Health Law, also include a North Dakota law that prohibits a mask mandate, even during an outbreak of tuberculosis, and a new Montana law that prohibits the use of quarantine to separate people who have probably been infected or exposed but are not yet sick. Many bills are modeled on legislation originally crafted by conservative think tanks and activist groups, according to state lawmakers who introduced them.
Among them is the American Legislative Exchange Council—known as ALEC—which has touted its model legislation aimed at reining in emergency powers so it is more “narrowly tailored to serve a compelling public health or safety purpose.”
In an interview, Jonathon Hauenschild, ALEC’s staff policy expert on the model legislation, said that from early in the pandemic he viewed governors’ use of emergency powers as problematic.
“I started to see … that once a branch realizes power they didn’t have before, they don’t give it up unless they are forced to,” Hauenschild said. “Some governors still aren’t giving up their power.”
The group’s legislative members wrote the Emergency Limitation Act in 2020. It was finalized in early January, in time for states’ new legislative sessions.
Hauenschild said he has seen the model act’s influence in new laws in Indiana and Kentucky, where certain emergency orders now expire after 30 days unless the General Assembly approves an extension and there are new protections to purchase firearms. The group’s model legislation, which public health experts believe would leave states relatively defenseless in an emergency, is not motivated by ideology, Hauenschild argues.
“It’s really just trying to inject a little bit of accountability into the system,” he said.
ALEC is not the only conservative group behind the flurry of recent bills.
An aide to Republican Massachusetts state Rep. Nicholas Boldyga said his office worked with Pacific Legal Foundation, a Sacramento-based libertarian group, on legislation imposing a 30-day sunset on emergency orders. Daniel Dew, legal policy director for the Pacific Legal Foundation, estimated that the group has had discussions with lawmakers in more than half the states and has been able to trace at least 18 bills to its model legislation or other activities.
Republican Montana state Rep. Matt Regier said he received input from the state chapter of Americans for Prosperity, the political network funded by the Koch fortune, on his bill, which limits the sort of executive actions that can be taken during an emergency, including by enshrining certain religious exemptions, and ensuring the legislature gets to weigh in after 45 days. The measure gained approval in May over Democratic objections, and it was signed into law by Republican Gov. Greg Gianforte.
Gianforte’s support averted an intraparty squabble marking similar moves in other states against the powers of Republican governors. In March, Ohio’s legislature overrode a veto by Republican Gov. Mike DeWine in response to the approval of a bill giving lawmakers the power to rescind executive actions taken by the governor or state health authorities. State Sen. Rob McColley, a Republican co-sponsor of the legislation, said he had no qualms going against a governor of his own party.
That’s because McColley, like other advocates of similar legislation, views the incursions on personal liberty as grievous enough to rival the loss of life from the pandemic. “Coronavirus is serious, but we can’t make decisions in a vacuum,” he said.
“I start with this premise: If you would have asked any of us in January or February of 2020 if we could ever have foreseen the amount of unprecedented executive authority used over the coming 12 to 15 months, many of us would have scoffed at that idea,” McColley added. “No way that would happen in a country like the United States, in a state like Ohio. Yet it did.”
The recent passage of Ohio’s SB 22 has left local officials grappling to understand its future effect on everything from closing restaurants to quarantining residents. Keary McCarthy, executive director of the Ohio Mayors Alliance, said that in a public health emergency, local officials need immediate clarity.
“If executive and legislative branches get into a dispute about all of these things, it really creates some challenges for local officials,” McCarthy said. “What are the rules? How do we implement them? How do we keep our folks safe?”
The measures are also motivated by the perceived randomness of some business restrictions. Particularly irksome to Boldyga, the Massachusetts lawmaker, was a rule against golf carts, which was designed to limit the use of shared equipment and lifted last May. “A golf cart was too difficult to be in by yourself because of covid, I guess,” he said. “It was absurd.”
Eighteen months ago, few people anticipated an infection that was as deadly, spread as stealthily or acted as disproportionately on certain groups in the way the coronavirus has done. With responsibility for protecting the public’s health falling historically to state and local government, many governors turned to general emergency powers, intended for disruptive but short-lived events like wildfires or tornadoes. As the pandemic persisted, they re-upped their powers, with many GOP lawmakers fighting back.
Some battles between Democratic governors and Republican-controlled legislatures have landed in state courts. The supreme courts of Michigan and Wisconsin, respectively, ruled that their governors didn’t have the power to renew executive orders relating to the pandemic or to declare multiple public health emergencies. And in Colorado, Democratic Gov. Jared Polis, who has been under fire from Republican legislators, took matters into his own hands, announcing last month that he would phase out his emergency powers. In New York, some fellow Democrats earlier this year moved to strip Democratic Gov. Andrew Cuomo of unilateral emergency powers.
In some places, legislators are taking aim at laws that have been on the books for decades. In Tennessee, lawmakers have focused their ire on the Mature Minor Doctrine, which stems from a 1987 state Supreme Court ruling allowing clinicians to provide care including family planning, substance-abuse treatment and in some instances vaccines to adolescents without parental consent.
The state’s immunization manager, Michelle Fiscus, had alluded to the doctrine in a memo circulated to enrolled vaccine providers. The information enraged some conservative lawmakers, who disputed the doctrine’s validity.
Less than a month later, Fiscus was fired for what she argued were political reasons and the state scaled back on adolescent vaccine outreach.
“It’s an absolute travesty that individuals are putting their own political agenda ahead of the health and well-being of the people they were elected to serve,” Fiscus said in an interview with The Washington Post.
Tennessee Health Commissioner Lisa Piercey said Friday that almost all vaccine outreach was being restarted, with the exception of 11 social media posts that depicted a child without a parent. The pause in communications, she said, was to ensure that all forms of outreach – from postcard reminders to consent forms – “were appropriately directed at parents and not kids.”
Public health law has long been controversial. In 2001, when the country was comparatively united following the Sept. 11 terrorist attacks and subsequent anthrax mailings, model legislation that has since been adopted by at least 40 states and some countries was met with opposition, including from the left and center.
It “turns governors into dictators,” the Association of American Physicians and Surgeons wrote about the Model State Emergency Health Powers Act, by empowering them “to create a police state by fiat, and for a sufficient length of time to destroy or muzzle [their] political opposition.”
The act, which strengthened powers to respond to public health emergencies, largely withstood the tests of Zika and Ebola. It anticipated the need for mask mandates and social distancing, but failed to foresee other characteristics of the current pandemic – including lockdowns in America’s biggest cities, said Lawrence Gostin, a professor of global health law at Georgetown University who drafted the act.
“We are always looking back at the current or past crisis, not the future crisis,” Gostin said.
While some scholars believe that in any future pandemic the federal government would step in to play a greater role, others are focused on new model legislation for states to adopt.
A group of lawyers at the Uniform Law Commission, a nonprofit with representatives from each state appointed by the state government, have formed a study committee to look into reforming public health legislation.
Diane Boyer-Vine, the ULC’s vice president, said the partisan divide makes the challenges of drafting enactable legislation daunting.
“I don’t think that is going to be easy, envisioning how we are going to draft this,” she said. “We have to represent the Californias and the Alabamas.”