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VOL. 45 | NO. 49 | Friday, December 3, 2021

Public health v. freedom of choice

How the courts might view state’s new COVID laws

By Kathy Carlson

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When the sun came up on the last Saturday in October, the Tennessee legislature had voted overwhelmingly along party lines to say that the state – not the federal government – will call the shots in dealing with COVID-19.

There was never any doubt that the Republican-sponsored bills would pass, and pass handily, since Republicans hold a supermajority in both the House and Senate. Gov. Bill Lee signed all but one of the bills. All went into effect immediately, even though they most likely will be fine-tuned when the Legislature reconvenes in January.

Lee commended the General Assembly for working to push back on federal mandates and address the Biden Administration’s overreach into our state, workforce and schools. In a letter to House Speaker Cameron Sexton and Lt. Gov. Randy McNally, the governor “pointed to concerns about the potential impact the bill could have on routine, non-pandemic functions, such as restaurant inspection and mosquito control,” a spokesperson for the governor said in a written statement.

Federal courts will decide the ultimate fate of the measures, with court battles pitting advocates for public health against advocates for personal liberties.

“Early on last year no one knew exactly what (coronavirus) was, what was happening,” Sexton says. Early in the pandemic, governments took restrictive measures, Sexton adds, but now more people are pushing back against restrictions because they have more knowledge. They’re also frustrated with what they see as inconsistent messaging from the Centers for Disease Control, he continues.

“You cannot have the CDC (Centers for Disease Control and Prevention) constantly contradicting itself every three or four months,” Sexton says. “People will stop listening. The CDC needs to provide only factual information, not hypothetical but very factual.”

State Rep. John Ray Clemmons (D-Nashville) says the special session legislation doesn’t protect the health of Tennesseans, rather that it places the rights of the individual above the public health and safety rights of society.

Former state vaccination director Dr. Shelley Fiscus says the measures stymie public health efforts to contain and control COVID-19 and keep people safe. Fiscus was fired under pressure from Republican legislators angry over the Health Department’s efforts to get children vaccinated against COVID-19, The Associated Press reported.

More than 17,000 people have died of COVID-19 in Tennessee through Nov. 28, the Tennessee Department of Health reports.

The Tennessee Legislature passed in special session bills that either preserved the state’s right to set health policy or took dangerous steps to appease conservatives, depending on whom is asked.

-- Photo By Mark Humphrey | Ap

Two courts – one in Nashville and the other with ties to Tennessee – will decide two key issues with the legislation. The first lawsuit, in the U.S. District Court for Middle Tennessee, will determine whether new rules on face masks for public school children harms the educations of children with disabilities, in violation of the Americans with Disabilities Act.

The second legal contest is a consolidation of dozens of challenges to an emergency Occupational Safety and Health Administration rule that states employers with 100 or more employees must require vaccination against COVID or test workers weekly. It will be heard by judges from the 6th Judicial Circuit, which hears appeals of federal cases brought in Tennessee, Kentucky, Ohio and Michigan.

So, who is entitled to set the rules on public health?

Generally speaking, public health is a state function, says Zack Buck, associate professor at the University of Tennessee College of Law, where he teaches health law and bioethics.

Under the U.S. Constitution, the federal government has powers that are explicitly spelled out. If the Constitution is silent on a particular power, the state exercises that power. There’s no mention of public health in the Constitution, so it’s a state power, one of many the state has under its general police power to promote the general welfare. The state can do as much or as little as it wants in exercising these powers, Buck explains, but whatever it does must comply with other federal laws.

That’s why parents of children with disabilities are contesting the new state provisions on masking and providing reasonable accommodations to protect the health of these children. The case reviewing the federal vaccine-or-test rule through OSHA will examine whether the rule is within OSHA’s lawful authority and complied with administrative law requirements, the law professor notes.

The basic constitutional doctrine on public health hasn’t changed much since the case of Jacobson v. Massachusetts was decided in 1905, he adds.

An April 2005 article in the American Journal of Public Health describes the case. It upheld the authority of the Cambridge, Massachusetts, Board of Health to require people to get vaccinated against smallpox during an epidemic or pay a fine. There was no mechanism to compel people to become vaccinated. The article states the Jacobson case “confirmed that the Constitution protects individual liberty and that liberty is not ‘an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint.’”

Present-day courts will probably look to this case for guidance in deciding on the OSHA rule on vaccinations and tests. The OSHA rule was supposed to go into effect Jan. 4, but it has been held up until the federal courts resolve the matter.

Vaccine advocates await the start of a state legislative committee meeting in July. They carried signs protesting the firing of Dr. Michelle Fiscus, the state’s top vaccine official, after state lawmakers complained about her efforts to promote COVID-19 vaccination among teenagers.

-- Photo By John Amis | Ap

The OSHA case could go to the U.S. Supreme Court, and the current court has shown an interest in protecting religious interests, Buck says. The court recently struck down a law shutting down religious services the same way that concerts were shut down to prevent COVID-19’s spread. The court stated (contrary to Chief Justice Roberts) that it couldn’t burden religious observance by treating it as the same as a secular gathering.

A Tennessee Attorney General’s 2020 opinion also referred to the Jacobson case to conclude that it was constitutionally defensible for the state to require members of the public to wear face masks in public during a state emergency caused by COVID-19.

Attorney general’s opinions don’t carry the force of law but reflect what the state’s top legal officer has concluded on legal questions posed by state legislators or other state officials. The opinion stated that under Jacobson, a community has the right to protect itself against an epidemic that threatens the safety of community members. Protective measures can be overturned only if they have no “real or substantial relation” to the health crisis, or if they unquestionably invade fundamental legal rights.

People can hold differing opinions on the effectiveness of masking in slowing the spread of COVID-19, the opinion states, but courts may not second-guess governmental officials when they enact public health measures that aren’t arbitrary or unreasonable. Moreover, the opinion states, challenges to mandatory seat belt laws and to the motorcycle helmet law on grounds of infringement of personal liberty have been rejected.

Antivaccination and anti-mask sentiments are nothing new, says Georges C. Benjamin, M.D., executive director of the American Public Health Association. It happened in 1918 with influenza regarding masks and with smallpox regarding vaccination.

There’s much misunderstanding about public health, Benjamin says. Some people think it represents health care for poor people, and at the beginning of the pandemic, people thought public health meant the doctors and nurses in hospitals providing patient care – what many people consider traditional health care.

“Now, for many people,” he points out, “public health is the person who tells them no, as in you can’t go to crowded places, have to wear a mask, etc. …

“With public health, our best look is when nothing happens,” he continues. “It’s not until we close the swimming pool because of bacterial contamination that we get people’s attention.”

House Speaker Cameron Sexton, R-Crossville, oversees the special session.

-- Photo By Mark Humphrey | Ap

Tennessee’s public health department dates to 1877 when it became the 14th state in the union to create one, the Tennessee Department of Health’s online history states. There were 37 states at that time. County boards of health were authorized in 1885, although it took until 1919 for Blount County to establish the first full-time county health department.

In 1967, Tennessee began requiring children to be vaccinated for diphtheria, measles, polio, smallpox, tetanus and whooping cough before they could be registered for school. That same year marked the first time every county had its own health department.

State Sen. Becky Massey (R-Knoxville) sees public health’s mission continuing in the years to come. She co-sponsored the special-session bill that placed all county health departments under the governor’s jurisdiction. She says her district covers rural, urban and suburban neighborhoods, and constituents express a wide variety of opinions.

“I just felt like there was so much confusion (with) six counties having (their own) set of rules,” she says. Knox County at one point was limiting the number of people at a wedding to 10, she adds, but you could go a mile down the road to another county and have 100 guests. Constituents were confused.

Massey says she is vaccinated, as is her 9-year-old granddaughter.

“I would rather people see the value of being vaccinated. I’m not a fan of the mandates,” she says. “Overall Tennesseans are kind of a stubborn bunch. I just think we probably would have more people vaccinated if we work to convince them.

“I think our bigger (public health) issues are inactivity, smoking and obesity,” she adds. She sees public health departments continuing to work on preventative measures on those three health issues. She sees more of a public health role in prevention than mandates.

What happens on public health measures when the legislature reconvenes in January is anyone’s guess.

The SARS-CoV-2 virus that causes COVID-19 continues to spread around the world and mutate. The World Health Organization has classified the latest iteration, the Omicron variant, as a variant of concern and scientists are working to determine whether current vaccines will work to keep it from infecting people.

Fiscus, the former state Health Department official, says she is concerned about possible future legislation to expand exemptions to vaccinations to people claiming a conscientious objection. Religious and medical exemptions are now allowed, and about 95% of Tennessee kindergartners are vaccinated as required, but conscientious objections could lower that percentage. Except for the COVID-19 vaccines, parents generally support vaccinations for their children, she says.

State Rep. Clemmons, a Democrat, says the state needs good health care policies. Partisan battles over measures to contain COVID will diminish any incentive for representatives to work across party lines to develop policies that benefit people, whether health policies or other policies.

All the Democrats and many Republicans expressed frustration at the special session, he adds. There was no public policy debate, no thoughtful review or analysis of scientific data. Bills were posted online a day or two before the special session. People had no idea which of about 90 bills filed were going to move. One committee reviewed 40 of the bills.

As the special session rolled on into the early morning hours of Saturday, Oct. 30, he recalls, legislation was changing until the last minute. In his opinion, the bills that were passed in the special session were “solely based on political issues and polls,” which was “very disappointing to people on both sides who believe in good public policy, general public welfare.”

Sexton says his constituents’ reaction to the special session bills has been positive for the most part. Republican legislators wanted uniform standards for responding to COVID throughout the state. They also wanted to protect parents’ rights to make decisions for their children and to keep health information private.

“I’m sure you have some individuals who think you should be forced to take a vaccine, and they’re not happy with it,” he says, but that’s not the decision the state Legislature made.

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