States Are Passing Laws That Threaten Public Health, Report Finds

In the wake of the COVID-19 pandemic, states are passing laws that could endanger the public health, according to a report from the National Association of County and City Health Officials (NACCHO).

“In recent months, at least 15 state legislatures have passed or are considering measures to limit severely the legal authority of public health agencies, and other states may consider such legislation in the future, hindering the ability of health departments to do their jobs and putting wide swaths of the public at risk,” the organization said in a statement last week when it released the report.

Examples of laws cited in the report include:

• Prohibiting requiring masks in any situation, including cases of active tuberculosis. In North Dakota, a new law would remove the authority of the state health office to require face masks or covering.

• Blocking the closure of businesses necessary to prevent the spread of disease, allowing for super-spreader venues. In Kansas, a new law removes the governor’s ability to close businesses during a public health emergency.

• Banning the use of quarantine. In Montana, a new law prohibits local board of health emergency orders from separating those individuals who are not yet ill but are reasonably believed to be infected or exposed. Prohibition of quarantine orders undermines the basis of infection control and would make it impossible to stop outbreaks of deadly diseases that are spread by individuals who are not yet symptomatic.

• Blocking state hospitals and universities from requiring vaccinations for employees and students in dormitories to protect state residents. In Arizona, a new law prohibits requirements that a person receive a vaccination — except in K-12 school settings — and creates criminal penalties for violating the ban.

• Giving unilateral power to legislatures to stop public health actions. In Ohio, a new law will allow the legislature alone to rescind any order or action by the state health department or director of health to control or [stop] the spread of contagious or infectious disease. The governor, who vetoed the law, issued a statement saying that the law “strikes at the heart of local health departments’ ability to move quickly to protect the public from the most serious emergencies Ohio could face.” The governor’s veto was overridden by the legislature, and the law will take effect on June 23.

NACCHO noted in its report that the introduction of these types of bills “appears to be coordinated, in part, [by] the American Legislative Exchange Council (ALEC),” a conservative-leaning organization that develops model bills for state legislatures, and whose membership includes one-quarter of state legislators.

“ALEC is advocating a slate of policy initiatives and model bills crafted to limit the authority of public health agencies and weaken their ability to protect the public’s health … Many of the bills that have been, or will be considered, in a majority of states are based on ALEC’s model acts,” the report said, adding that “in some cases, the legislation uses language that is almost verbatim to ALEC’s model bill.”

Asked to comment on the report, an ALEC spokesman said in an email: “The NACCHO report is incorrect in its assertion. ALEC does not have model bills or any public policy initiatives crafted to limit the authority of public health agencies.” He added that “In fact, ALEC has no public health model policy of any sort on COVID-19. As a 501(c)(3), we don’t advocate policy. We have, however, empowered legislators with fact-based CDC information, discussions on vaccine safety and touchless travel innovations.”

The spokesman also gave a link to ALEC’s model policy database.

Georges Benjamin, MD, executive director of the American Public Health Association, said he found the trend in the laws disturbing. “We’ve been looking at what one needs to do about this because this is a big issue,” Benjamin said in a phone interview. “Governmental public health is the only entity in the community that has legal authority to protect your health … The fact that this legal authority is being attacked, which we believe are for reasons that are unacceptable, concerns us.”

As to why these laws are being passed, “we think they don’t understand what they’re doing in their zeal to rein in things,” Benjamin said of the state legislators. “It’s like telling a bunch of doctors, ‘We don’t like the fact that you take out appendixes, so we’re going to take away your authority to do surgeries.’ It’s like going to a fire chief and saying, ‘Hey, we don’t want you to have authority to do inspections or close down a venue because it’s a fire hazard.’

“They’re taking away core authorities that public health needs to do its work … and undermining the work of government employees who are just doing their job,” Benjamin said.

This is especially concerning when it comes to any public health emergency, he added. “You don’t run an emergency by committee; it doesn’t work that way. That’s why the fire department and the police department have a chain of command. If you undermine those efforts, you’re going to find that people won’t have the authority they need, and bad things will happen.”