Growing number of state, local measures undermining public health authority: Temple University researchers tracking laws, policies that limit public health protections

Eeshika Dadheech

Most U.S states have introduced bills that would limit public health authority during emergencies, and over 20 states have enacted laws, such as banning public health officials from mandating masks or COVID-19 vaccinations. The Center for Public Health Law Research at Temple University has created a dataset of such measures, with a goal of facilitating research on their impact.

Photo by William87, courtesy iStockphoto

“They could prevent governors and health officials from taking steps to try to mitigate the spread of diseases other than COVID-19, or could limit their ability to respond to other public health emergencies in the future.”
— Katie Moran-McCabe

Nearly half of U.S. states have passed laws in recent years that limit the authority of public health officials to take action in a health emergency. Many of the laws hamper the ability of governors or local health officials from taking action to protect people from infectious disease.

In 2021, legislators in 47 states introduced bills that would limit public health authority during emergencies, and 21 states have enacted them, Temple University’s Center for Public Health Law Research announced in July.

In North Dakota, for example, a law requires elected officials to approve health officer emergency actions, while in Tennessee, a measure bans the governor or health officials from requiring COVID-19 vaccinations. Kansas, which was the first state in 2021 to pass a law limiting public health emergency orders, allows county officials to issue a local order that is less stringent than a governor’s order.

While the laws pose health dangers for everyone, they are more likely to have a harmful effect on people of color, according to a May 2022 policy brief from the Center for Public Health Law Research.

“Based on history, expertise and existing research…there is reason to believe that laws limiting reasonable and expert public health authority may pose a preventable threat to life and health,” the brief authors said.

The center is capturing information on such laws through its Policy Surveillance Program, with a goal of facilitating research on the impact of the measures, particularly as it applies to health equity.

Moran-McCabe

Katie Moran-McCabe, JD, supervising researcher for the program and lead law and policy analyst at the center, spoke with The Nation’s Health about the work.

What are the most common measures that limit public health authority?

The most frequent type of limitation that we saw was a restriction on the scope of an order.

For example, prohibiting a governor or a state or local health official from mandating use of face masks, or prohibiting one or all of those government entities from mandating COVID-19 vaccinations. We saw states limiting authority of what the order could say — basically limiting the provisions of the order.

There were also some other ways that states were limiting authority by restricting the issuance of orders. For example, requiring that a legislature approve a governor’s order before it could be issued. Then we also saw laws explicitly saying legislatures can terminate an order by a governor or health official.

And then also laws that limited the duration of orders to a particular number of days — 30 days, 60 days, something like that. The most frequent was limiting the scope of the order.

What impact could these laws have?

Some health officials and governors will be limited in how they can respond to future COVID outbreaks. Some of these laws that we tracked, particularly those that prohibit mask mandates, or that limit the issuance or the duration of an emergency order are not specific to COVID-19. Meaning that they could prevent governors and health officials from taking steps to try to mitigate the spread of diseases other than COVID-19, or could limit their ability to respond to other public health emergencies in the future.

Why did the Center for Public Health Law Research develop this surveillance of emerging laws and policies?

We do a lot of scientific legal mapping and tracking of public health-related laws at the center in an effort to identify the key features of those laws to facilitate evaluation of their impact on health.

Because that is so important, we were trying to create a process to do that more rapidly, which is where we came up with a sentinel surveillance project. It’s sort of a modified legal mapping process tracking public health related laws more quickly, in an effort to facilitate faster evaluation of their impacts. We so far have created two datasets using that process: the one we recently updated — the laws limiting public health, emergency orders — and then we have a second sentinel surveillance data set on state legislation that decriminalizes drug possession. We’re working on an update to that dataset, and then hope to publish that soon.

What other public health-related datasets are you working on? Do any look at school vaccination requirements?

There’s going to be six (datasets), and they all are tracking state legislation. Basically, any legislation — bills that were introduced, as well as laws that were actually enacted, from beginning of 2021 through May 20, 2022.

That dataset will include any legislation that addresses use of vaccines, so not necessarily limited use of vaccines in schools. It would include those, but it would also include broader provisions addressing vaccines in general.

When will the dataset on measures against public health authority be updated again?

We’re aiming for the fall. We are working with the Act for Public Health Initiative. It’s basically like a collaborative working group, providing resources and training and technical assistance to try to protect public health authority. We’re working with some partners from the Network for Public Health Law and the Association of State and Territorial Health Officials and a few other organizations.

Who can benefit from using this dataset?

Lots of folks in the public health law field: policymakers, advocates, researchers and state and local health officials. I think the dataset really helps to give a sense of the legal landscape on this issue and sort of see movement in these laws limiting public health authority from state to state over time.

Moran-McCabe and other experts will be discussing surveillance of laws that erode public health authority during a Wednesday, Nov. 9, session at 10:30 a.m. during APHA’s 2022 Annual Meeting and Expo in Boston.

For more on the Center for Public Health Law Research’s datasets, visit www.lawatlas.org. For information on APHA’s work on public health authority, visit www.apha.org/alliance.

This interview was edited for style and length.