By Lauren Weber and Anna Maria Barry-Jester
Republican lawmakers in more than half of U.S. states, spurred on by voters angry at lockdowns and mask warrants, are removing powers that state and local authorities use to protect the public from infectious disease.
A KHN review of hundreds of pieces of legislation found that in all 50 states, lawmakers have proposed bills to restrict these public health powers since the start of the COVID-19 pandemic. While some governors have vetoed the bills passed, at least 26 states have passed laws that permanently weaken the government’s authority to protect public health. In three other states, an executive order, voting initiative, or state Supreme Court decision has long limited public health powers. Other bills are pending in a handful of states whose legislatures are still in session.
In Arkansas, lawmakers have banned mask warrants except in private businesses or state-run health facilities, calling them “a burden on the public peace, health and safety of the citizens of this state.” . In Idaho, county commissioners, who typically have no public health expertise, can veto county-wide public health orders. And in Kansas and Tennessee, school boards, rather than health officials, have the power to shut down schools.
President Joe Biden announced broad vaccination warrants and other COVID measures last Thursday, saying he was forced to act in part because of such legislation: “My plan is also attacking elected state officials that undermine you and those life-saving actions. “
- In at least 16 states, lawmakers have limited the power of public health officials to order mask warrants, quarantines or isolation. In some cases, they have given themselves or local elected officials the power to prevent the spread of infectious diseases.
- At least 17 states have passed laws banning warrants or passports for COVID vaccines, or have made it easier to bypass vaccine requirements.
- At least nine states have new laws banning or limiting mask warrants. Decrees or a court ruling limit mask requirements in five more.
Much of this legislation comes into effect as COVID-related hospitalizations in some areas peak at any time during the pandemic, and children are back in school.
“We could really see more people sick, injured, hospitalized or even die, depending on the extremity of the legislation and the reduction in authority,” said Lori Tremmel Freeman, head of the National Association of Health Officials counties and cities.
Academics and public health officials are frustrated that they have become the enemy instead of the virus. They argue it will have consequences that will last well beyond this pandemic, diminishing their ability to tackle the latest wave of COVID and future outbreaks, such as the possibility of quarantining people during a measles outbreak.
“It’s kind of like having your hands tied in the middle of a boxing match,” said Kelley Vollmar, executive director of the Jefferson County Department of Health in Missouri.
But supporters of the new limits say they are a necessary control over executive powers and give lawmakers a voice in protracted emergencies. Arkansas State Senator Trent Garner, a Republican who co-sponsored his state’s successful bill to ban mask mandates, said he was trying to reflect the will of the people.
“What the people of Arkansas want is for the decision to be left in their hands, theirs and their families,” Garner said. “It’s time to take power away from the so-called experts, whose ideas have been woefully inadequate.”
After initially signing the bill, Republican Gov. Asa Hutchinson expressed regret, calling a special legislative session in early August to ask lawmakers to make an exception for schools. They refused. The law is currently blocked by an Arkansas judge who has ruled it unconstitutional. Legal battles are also underway in other states.
Lawmakers there have also placed limits on local officials: If jurisdictions add more stringent public health rules than state public health measures, they could lose 20% of some grants.
The loss of the ability to order quarantines has left Karen Sullivan, health officer for Montana’s Butte-Silver Bow Department, terrified of what’s to come – not only during the COVID pandemic but for future measles outbreaks and pertussis.
“In the middle of the delta and other variations out there, we’re frankly a nervous wreck about it,” Sullivan said. “Relying on morality and goodwill is not good public health practice. “
As some public health officials tried to fight the national wave of legislation, underfunded public health workers were consumed with the implementation of the largest vaccination campaign in U.S. history and were little time for political action.
Freeman said his city and county’s group of health officials had little clout and resources, especially compared to the American Legislative Exchange Council, a conservative, business-backed group that has promoted a model bill to restrict emergency powers of governors and other officials. The bill appears to have inspired dozens of state-level bills, according to KHN magazine. At least 15 states have passed laws limiting emergency powers. In some states, governors can no longer institute mask mandates or shut down businesses, and their decrees can be overturned by lawmakers.
When the North Dakota legislative session began in January, a long list of bills sought to restrict public health powers, including one with language similar to that of the ACFTA. The state did not have a health director to oppose the new limits as three had resigned in 2020.
Fighting the bills not only took time, but also seemed dangerous, said Renae Moch, public health director for Bismarck, who testified against a measure banning mask warrants. She then received an onslaught of hate mail and demands for dismissal.
The new laws are aimed at reducing the power of governors and restoring the balance of power between the executive and legislative powers of states, said Jonathon Hauenschild, director of the ALEC’s task force on communications and technology. “Governors are elected, but they delegated a lot of authority to the public health official, often whom they appointed,” Hauenschild said.
“Like turning off a light switch”
When the Indiana legislature overturned the governor’s veto to pass a bill that gave county commissioners the power to review public health orders, it was devastating for Dr. David Welsh, the health officer public in rural Ripley County.
People immediately stopped calling him to report the COVID violations because they knew county commissioners could overturn his authority. It was “like turning off a light switch,” Welsh said.
Another county in Indiana has already had its health department’s mask mandate quashed by local commissioners, Welsh said.
He plans to step down after more than a quarter of a century in the role. If he does, he will join at least 303 public health officials who have retired, resigned or been fired since the start of the pandemic, according to an ongoing analysis by the KHN and the PA. That means one in five Americans lost a local health official during the pandemic.
“It’s a fatal blow,” said Brian Castrucci, CEO of the Beaumont Foundation, which advocates for public health. He called the legislative assault the last straw for many seasoned public health officials who have battled the pandemic without sufficient resources, while also being vilified.
Public health groups expect aggressive new legislation. ALEC’s Hauenschild said the group was considering a Michigan law that would allow the legislature to limit the governor’s emergency powers without the signature of Democratic Gov. Gretchen Whitmer.
Limiting the authority of public health officials has also become campaign fodder, especially among Republican candidates who run more to the right. As Idaho Republican Gov. Brad Little traveled out of state, Lt. Gov. Janice McGeachin signed a surprise executive order banning mask warrants she then promoted for her upcoming campaign against him. He then rescinded the ban, Tweeter, “I don’t like petty politics. I don’t like political hits on the rule of law.”
Fawbush sponsored the 1989 legislation during the AIDS crisis. It prohibited employers from requiring healthcare workers, as a condition of employment, to be vaccinated against HIV, should it become available.
But 32 years later, that means Oregon can’t require healthcare workers to be vaccinated against COVID. Calling the drafting of laws a “messy affair,” Fawbush said he certainly would not have passed the bill if he had known then what he is doing now.
“Lawmakers obviously have to deal with immediate situations,” Fawbush said. “But we have to look over the horizon. It’s part of the job’s responsibility to look at the consequences.”
KHN data reporter Hannah Recht, Montana correspondent Katheryn Houghton and Associated Press editor Michelle R. Smith contributed to this report.