States Adopt Dangerous Legal Reforms Undercutting Public Health Emergency Powers
Michelle Mello and colleagues argue that state legal reforms have exacerbated rather than improved weaknesses in U.S. emergency powers revealed by COVID-19, jeopardizing future responses.
The COVID-19 pandemic revealed significant gaps in the legal infrastructure for responding to health emergencies in the U.S., yet rather than fixing them, many states have adopted reforms that make them worse, according to new research by SHP’s Michelle Mello, JD, PhD.
The mortality rate in the United States was higher than those of every western European country and its neighbor to the north, Canada. The 1.16 million Americans killed by the pandemic represent 16% of global deaths in a nation with 4% of the world’s population. About 300,000 children are estimated to have lost one or both parents.
How can this be in one of the world’s most advanced nations? And what can be done to prevent so many illnesses and deaths when the next pandemic inevitably hits our shores?
These are the key questions being addressed in a series of articles by BMJ exploring topics such as how systematic racism and economic inequality contributed to COVID disparities; why mass incarceration and poor prison health were drivers of the pandemic; and how labor market inequalities contributed to the poor health outcomes in this country.
Mello, a professor of health policy and of law, is lead author of an analysis in the BMJ series that looks at the role that the legal infrastructure held in combatting the pandemic. Mello and Stanford Law School student David Jiang, along with their colleagues at the Center for Public Health Law Research at Temple University Beasley School of Law, examined laws passed by state legislatures addressing the scope of public health powers held by health officials and governors. They concluded that these legal reforms exacerbated rather than improved weaknesses in U.S. emergency response powers revealed by the pandemic.
“A web of federal, state, and local laws determines what officials can do to respond to emergencies,” Mello wrote. “Political forces have pushed reform efforts strongly in one direction—weakening public health legal powers—with potentially dangerous consequences for present and future health crises and preparedness.”
The study builds on previous work finding that 191 bills addressing public health authority were adopted by state legislatures from January 2021 through May 2022, all but 17 of which imposed constraints on public health authority.
The authors analyzed the content of 65 laws adopted in 24 states from January 2021 through April 2023 imposing restrictions that extend beyond the COVID-19 pandemic period. They found that many imposed important, substantive restrictions on the things officials can do to combat health emergencies. For example, 4 states adopted new prohibitions on requiring vaccines or proof of vaccination, 5 prohibited mask mandates, 7 limited officials’ ability to close businesses, and 11 restricted the ability to restrict religious gatherings.
Another group of reforms imposed procedural constraints on exercises of public health power, such as shortening the number of days a governor’s emergency declaration can be in effect without the legislature voting to confirm it.
Some of the procedural checks that states adopted could be helpful, the authors noted—for example, requirements that officials provide explanations for the health orders they issue. But other legal reforms could hobble emergency response, especially reforms that take key community-mitigation interventions like vaccination and mask mandates and stay-at-home orders off the table.
They also argue that some legal reforms “contort federalism” in ways that may undermine emergency response and exacerbate inequities. In three states, for example, federal orders won’t be enforced if state officials believe them unconstitutional, regardless of court rulings. Other states have adopted “pre-emption” rules barring local governments from adopting stricter disease-control measures than their state.
Such provisions “undermine communities’ ability to defend themselves in the face of inaction at the state level—for example, by deciding that their schoolchildren must wear masks,” the authors wrote. Although “legal reforms should reflect a coherent vision of federalism …, these reforms merely advance a political ideology privileging `health freedom’ over health protection.”
Failures of Legal Infrastructure
The researchers note that even prior to these reforms, the nation’s legal infrastructure contributed to three key problems with the U.S. response to the pandemic:
There is nothing in the constitution or any emergency powers statutes that requires federal or state officials to act in response to health threats. This allowed some states to delay shutting down schools or lift stay-at-home orders too early, allowing the disease so continue to spread.
“The federal response was also slow and riddled with missteps, leaving states to fill the gap,” the researchers wrote. “This reliance on states for action had predictably varied results, in many respects along lines that reinforced pre-existing socioeconomic and health inequalities and contributed to the pandemic’s disproportionate burdens on disadvantaged communities.”
2. “When the federal government did attempt to mount a robust response to COVID-19, it found itself constrained by the courts,” the authors wrote. As Mello noted in this NEJM perspective, the Supreme Court limited the ability of federal agencies to implement mitigation measures, calling on Congress to give them the authority to do so.
3. Finally, state emergency powers are not set up to meet the challenges of a multiple year pandemic. “The laws were designed for short term, localized emergencies such as a bioterrorist incident,” the authors wrote. “Most do not clearly provide authority to impose orders that limit the activities of large groups of people for extended periods.”
An accompanying editorial in the BMJ’s COVID-19 series notes the nation’s pre-existing structural and systematic features contributed to the devastating pandemic outcomes.
“These include gaps in healthcare and public health systems, the absence of social safety nets and workplace protections, social inequality, and systematic racism,” the authors of the editorial wrote, adding that even while the U.S. had many scientific resources—such as the rapid development of vaccines—the government couldn’t communicate reliable information and then translate it into policy.
Legal Reforms Moving Forward
Mello and her coauthors argue that future legal reforms should focus on enhancing accountability rather than reducing powers.
“Emergency powers laws were designed to give officials broad discretion to choose the means to combat threats because of the impossibility of knowing what may be needed,” they wrote. “Dissatisfaction with how this discretion was wielded during the covid emergency should inspire conversation about procedural checks—not elimination of crucial public health legal tools.”
Appropriate procedural reforms can also help build trust in public health law, the authors concluded, a “crucial” priority going forward.
