New state, local laws threaten vital public health authority: Backlash from COVID-19 protections
================================================================================================

* Mark Barna

![Figure1](http://www.thenationshealth.org/http://www.thenationshealth.org/content/nathealth/51/6/1.1/F1.medium.gif)

[Figure1](http://www.thenationshealth.org/content/51/6/1.1/F1)

A sign is displayed at a movie theater in Burbank, California, in March. State officials allowed indoor dining and movie theaters to partially reopen during the pandemic. In some states, lawmakers are working to restrict public health authority.

Photo by Valerie Macon, courtesy Getty Images

Spring was a tough time for public health in Montana. As health workers fought to control the spread of COVID-19 and save lives, elected officials in the state were passing new laws to make it more difficult for them to do their much-needed work.

One of Montana’s new laws gives elected officials the power to repeal or change an order that is designed to protect the health of the state’s residents. Another strips health officials of most of their ability to safeguard workers and consumers at businesses during a public health emergency.

The flurry of laws from legislators caused some Montana public health officials to resign, said Drenda Niemann, MPA, health officer of Lewis and Clark County Public Health, where two workers handed in their resignations.

“We are put in a situation where we have public health work to do, but at the same time have to rely on elected officials to make public health decisions, even though they have no public health background and are swayed by their voters,” Niemann told *The Nation’s Health*.

The chilling actions by Montana legislators are not isolated incidents, unfortunately. Local and state agencies across the U.S. are seeing an assault on their public health authority. Through spring, at least 300 bills and resolutions had been introduced targeting oversight of emergency public health actions in 45 states, according to a May paper in the *Brigham Young University Journal of Public Law*.

![Figure2](http://www.thenationshealth.org/http://www.thenationshealth.org/content/nathealth/51/6/1.1/F2.medium.gif)

[Figure2](http://www.thenationshealth.org/content/51/6/1.1/F2)

A runner passes by a sign in Alexandria, Virginia, in October reminding people to stay apart during the COVID-19 pandemic. Public health workers in some states are facing new laws that could curtail their work to protect people.

Photo by Michele Late

A new North Dakota law prohibits requiring masks in any situation, including cases of tuberculosis, a highly transmissible respiratory disease. In Arizona, a law ends requirements for vaccinations at state hospitals and universities, though they are still required for grade schools. And a law in Kansas takes away the governor’s ability to order business closures during a public health emergency. Those are just three of the many harmful new policies highlighted in “Proposed Limits on Public Health Authority: Dangerous for Public Health,” released by the Network for Public Health Law and the National Association of County and City Health Officials in May.

“These laws pose a real threat to the ability of public health practitioners to do their jobs in emergencies and day to day,” Jill Krueger, JD, director of the Northern Region Office of the Network for Public Health Law, told *The Nation’s Health*.

In Montana, Lewis and Clark County Public Health issued an order requiring people at businesses to wear masks to protect them from COVID-19. But H.B. 257, a state bill that became law May 7, took away that power. If COVID-19 cases spike significantly — a possibility, given that only 41% of Montanans were fully vaccinated as of June and variants were circulating in the state — county health officials will not be able to require that people mask up at businesses.

“It discredits the education and experience we have in this field,” Niemann said. “It sends the message into our communities that public health can’t be trusted with this work.’

> “It discredits the education and experience we have in this field. It sends the message into our communities that public health can’t be trusted with this work.” *— Drenda Niemann*

Over a month after the Montana law went into effect, Lewis and Clark County officials were still debating who would be on the governing body to make emergency public health decisions. None of them will likely have a background in health.

In Ohio, S.B. 22, a state bill that became law on June 23, empowers the state Legislature to rescind any order or rule issued by the governor or the Ohio Department of Health on the spread of a contagious or infectious disease. The law also limits the ability of local boards of health to issue isolation and quarantine orders.

If an outbreak of measles or another highly infectious disease occurs, Ohio public health workers may find they have no recourse, based on the new law.

Joe Durham, JD, a lawyer representing the board of health in Franklin County, Ohio, said he believes a medical diagnosis of measles would allow county health officials to impose quarantine and isolation. But the law would not allow quarantine or isolation based on a COVID-19 diagnosis from a self-test, he told *The Nation’s Health*. It would need to be through a medical office ordering a lab report.

Joe Mazzola, MPA, county health commissioner of Franklin County Public Health, said the Ohio law hampers the department’s work.

“These types of laws put public health in a lot of jeopardy because not having the ability to act timely and having to defer to other bodies impedes our ability to carry out our public health responsibilities,” Mazzola told *The Nation’s Health*.

While public health and elected officials have occasionally butted heads during past disease outbreaks, COVID-19 has amplified the stakes. James Hodge Jr., JD, director of the Western Region Office of the Network of Public Health Law, called the recent measures a “power grab” by legislators who want to appease constituents, even if it endangers public health.

Federal policymakers can respond to the new state and local laws by invoking federal powers and constitutional law, according to the *Brigham Young University Journal of Public Law* paper by Hodge and Jennifer Piatt, JD, both of Arizona State University.

For example, opponents of Ohio S.B. 22, which also creates a governing body to make emergency public health decisions, could invoke constitutional law because the measure “crosses a constitutional boundary designed to maintain divisions among branches of government,” the paper said.

Many of the new laws have the potential to be struck down if challenged in court, Hodge said. “Emergency powers invariably put a lot of flexibility at the local, state and federal levels, and you simply can’t bootstrap all that due to a single machination from legislators,” he told *The Nation’s Health*.

Public health experts will discuss the ongoing attacks against public health authority during APHA’s 2021 Annual Meeting and Expo this fall. A featured session on Monday, Oct. 25, will share strategies that health supporters can use to challenge laws that undermine public health.

For more, visit [www.networkforphl.org](http://www.networkforphl.org).

*   Copyright The Nation’s Health, American Public Health Association