Persistent political undertones, extensive economic ploys, reckless re-openings, misperceived liberties, and aspirations for a return to normalcy contribute to an improbable series of legislative and executive machinations grounded in COVID-19 denialism. Facing an evolving and lingering pandemic, select state legislatures and governors have dismissed emergency declarations, banned mask requirements, prohibited vaccine mandates or passports, limited social distancing, and forbidden school or business closures. Casting aside epidemiology, they have thwarted interventions proven earlier in the pandemic to tamp down infections and save lives even as the Delta variant ravages unprotected populations. Some states have even foreclosed local governments from using their public health powers to protect communities. As San Antonio Mayor Ron Nirenberg observed on August 10, 2021, “[w]e have seen [Texas’] governor systematically tie the hands of local health officials and local authorities throughout this pandemic.”Reference Aguirre¹

Distressed public health officials on the front lines see their populations suffer under denialist emergency laws and policies. It is the public health equivalent of obstructing doctors from using efficacious medical treatments at the bedside. Neither doctors nor public health professionals should stand idle over such efforts. Nor are they. Legal counter-strategies are actively underway or in consideration among municipal and public health officials, clinicians, parents, and affected citizens seeking to delay, offset, or overturn COVID-19 denialist policies through (1) constitutional structural- and rights-based challenges; (2) conditional spending supporting national public health priorities; (3) federal preemption of contrary state-based maneuvers; (4) disability and other anti-discrimination laws; (5) circumventions through waivers or routine uses of public health powers; and (6) civil liability claims.

Constitutional Challenges. As state legislators and governors effectuate imprudent, anti-public health emergency laws, significant constitutional issues have surfaced.Reference Hodge and Piatt² School mask bans in multiple jurisdictions (e.g., AR, FL, IA, OK, SC, TN, UT) have resulted in extensive litigation and early victories in select cases. In June 2021, Arizona’s state legislature added a provision to a budget reconciliation bill to ban mask requirements in K-12 public schools.³ It included a retroactivity clause to try to bypass a constitutional 90-day waiting period prior to enforcement. Litigation quickly ensued when several school districts required masks to start the Fall term.Reference Taros⁴ Coupled with equal protection claims, counter-allegations centered on the legislature’s attempt to bypass the 90-day requirement⁵ and “single-subject rule”⁶ (requiring state bills to focus on a dominant theme). On August 16, 2021, a Maricopa County (Phoenix) court determined the 90-day rule limited immediate enforcement of the state’s mask ban.⁷ In Texas, successful challenges to Governor Abbott’s school mask prohibition⁸ in courts in San Antonio/Bexar CountyReference Palacios and Creedon⁹ and Dallas¹⁰ were subsequently backed by the Texas Supreme Court, which remanded the cases for further review.¹¹ Despite being diagnosed with COVID-19 on August 17,Reference LeBlanc¹² Governor Abbot has vowed continued appeals.Reference Chamberlain¹³

Alternatively, some courts have dismissed denialist-grounded opposition to effective public health interventions. Constitutional challenges to Indiana University’s vaccine mandate (imposed against gubernatorial orders) were rebuffed first by a federal district court, then the Seventh Circuit Court of Appeals, and finally the U.S. Supreme Court on August 12, 2021.Reference Kendall¹⁴ After Florida’s legislature prohibited COVID-19 vaccination travel documentation requirements,¹⁵ Norwegian Cruise Lines obtained a preliminary injunction on grounds that Florida’s ban inhibited First Amendment free speech protections and unconstitutionally interceded on interstate commerce.¹⁶

Federal Spending Conditions. Initial judicial triumphs over state-based denialist laws may still be subject to attack through appeals, executive actions, or additional legislation. Governors Hutchison (AR)Reference Fischels¹⁷ and Holcomb (IN)Reference Schnell¹⁸ have voluntarily sought to derail or put aside their states’ school mask bans, despite internal political resistance, given surges of Delta variant infections among school-age children. Not so in Arizona. Facing what they described as “anarchy” regarding school board imposition of mask mandates,¹⁹ select Arizona legislators pled with Governor Ducey to deny districts federal funds through the American Rescue Plan Act.²⁰ When the Governor obliged on August 17, 2021, the U.S. Department of the Treasury instantly rejected such restrictions.Reference Pitzl²¹ A day later, President Biden pledged to “use all of his authority and legal action if appropriate” to counter states’ masks bans in schools.Reference LaFraniere and Mandavilli²²

The President’s remarks are consistent with expansive federal roles in protecting national security and public health,Reference Hodge²³ especially through the use of conditional spending. Such requirements help assure adherence to medical countermeasures (MCMs) such as mask use in schoolsReference Stolberg and Green²⁴ and COVID-19 vaccinations in select settings. The U.S. Department of Education (DOE) is considering allowing school districts to seek funding directly if states like Arizona attempt to block their access to federal COVID-19 relief funds.²⁵ On August 19, the Centers for Medicare and Medicaid Services (CMS) announced plans to require nursing facilities to vaccinate employees (with exceptions) to continue to receive federal reimbursements.Reference LaFraniere²⁶

Federal Preemption. Consistent with principles of federalismReference Hodge²⁷ and federal supremacy,²⁸ the national government can preempt, or override, contradictory state laws impinging national public health objectives.Reference Hodge²⁹ The scope of federal preemption is exemplified by the invocation of the Public Readiness and Emergency Preparedness (PREP) Act during the COVID-19 pandemic.³⁰ Among other authorities, PREP Act declarations by the U.S. Secretary of Health and Human Services (HHS) provide for the emergency use and implementation of MCMs.³¹ The act’s strong preemptive language expressly prohibits conflicting state laws in manifold ways.³² On September 3, 2020, HHS asserted that certain state-licensed pharmacists could administer COVID-19 vaccinations via its amended PREP Act declaration³³ irrespective of contrary state licensing or other laws.³⁴ In October 2020, HHS preempted Nevada’s attempt to legally prevent uses of certain authorized COVID-19 tests.Reference Evans and Clayton³⁵ In correspondence dated July 2, 2021,³⁶ one senior CDC official addressed the reach of PREP Act preemption among state and local governments rescinding their emergency declarations and orders despite continuing threats of COVID-19.³⁷ It unequivocally concludes that the nation remained in a state of emergency and subject to PREP Act requirements, “regardless of state laws and regulations.”³⁸ Any supposed state or local barriers to federal emergency action under the PREP Act are preempted.

Anti-discrimination Laws. Denialist public health actions are also contested under existing federal or state disability protections or other anti-discrimination laws. Litigants in Florida, South Carolina, and Texas challenged school mask mandate bans as violative of disability-based protections. On July 30, 2021, Florida Governor Ron DeSantis banned school-based mask mandates via executive order³⁹ and subsequently threatened to withhold state funding from schools defying it.⁴⁰ Parents of children with disabilities sued alleging violations of: (1) the Americans with Disabilities Act (ADA) by excluding children with disabilities from equal educational opportunities and failing to make programs readily accessible;⁴¹ (2) Section 504 of the federal Rehabilitation Act of 1973⁴² guaranteeing access to free appropriate public education;⁴³ and (3) Florida’s Educational Equity Act⁴⁴ preventing disability-based discrimination in education.⁴⁵ The American Civil Liberties Union similarly challenged South Carolina’s ban.⁴⁶ Plaintiffs in Texas⁴⁷ alleged that Governor Abbott’s school mask prohibition⁴⁸ and accompanying Texas Education Agency (TEA) guidance⁴⁹ violate the ADA and the Rehabilitation Act.Reference Caprariello and Falcon⁵⁰ TEA updated its guidance to clarify that mask bans are not being enforced pending litigation.⁵¹ On August 17, 2021, Secretary Miguel Cardona indicated that DOE is taking necessary legal actions to investigate bans on universal masking, gain compliance with federal anti-discrimination acts,⁵² and ensure school safety upon return to in-person instruction.Reference Strauss⁵³

Circumvention Via Waivers or Routine Powers. State health departments, local municipalities, school districts, and others are forging new pathways to circumvent state-based denialist laws using waiver authorities (where available) and an array of routine health powers or existing regulatory authorities. In states where executive and legislative branches are not in lockstep on specific policies, governors may have the capacity to waive or suspend conflicting state laws in declared emergencies (if not expressly foreclosed by the legislature). During the pandemic, nearly every governor has waived state laws interfering with emergency response efforts.⁵⁴ To control the spread of COVID-19, Maryland Governor Hogan reinstituted his state’s emergency declaration in June 2021 to extend expiration dates for nursing licenses and permits and suspend conflicting statutes or rules.⁵⁵

Use of routine public health powers may also bypass state legislative prohibitions. After the Michigan Supreme Court limited Governor Whitmer’s emergency authority in October 2020,⁵⁶ the state health department ordered face coverings in schools (which survived judicial challenge)⁵⁷ and restricted gatherings under its existing statutory public health authorities.Reference Leblanc and Mauger⁵⁸ Similar efforts were undertaken among larger municipalities in Wisconsin seeking to continue stay-home orders after state emergency powers were abruptly restricted by its supreme court.Reference Gabbatt⁵⁹ Other cities have demonstrated legal resiliency.⁶⁰ In March 2021, the Ohio Legislature passed an act over Governor DeWine’s veto forbidding city boards of health from ordering face masks applicable “to a class of persons.”⁶¹ On August 18, 2021 the Athens City Council, relying on its constitutional home rule authority,Reference Gridley⁶² amended the city’s mandate to require face coverings indoors regardless of vaccination status.Reference Behrens⁶³ The city’s attorney argued its revisions did not violate state law, which only restricted the board of health, and not the city itself.Reference Zuckerman⁶⁴ Local school districts have employed similar tactics. Prior to the start of the 2021 term, one school district in Texas altered the dress code to include face coverings, arguing that the Governor’s ban did not suspend its distinct authorities.⁶⁵

Civil Liability. Placing hundreds of thousands of persons at direct risk of exposure to a deadly infectious agent through state-based laws or policies seemingly designed to assure harm under the guise of promoting liberty and self-interests is not only reckless, but also a backdrop for civil liability. State laws facilitating autonomous adults in their quest to avoid vaccines is one thing. Inhibiting public or private schools from instituting efficacious mask requirements to protect children who must attend but cannot lawfully be vaccinated is another. As DOE Secretary Cardona observed, “[w]hat we’re dealing with now is negligence.”⁶⁶

Massive liability may extend from purposeful governmental legal interventions contrary to science impacting the health of children and adults. Extensive and varied civil claimsReference Healy⁶⁷ flowing from the Flint (MI) water crisis⁶⁸ are illustrative. After state and local officials averted existing water supplies, extensive exposure to lead through municipal water pipes resulted, leaving “lasting developmental effects,”⁶⁹ especially among children in Flint. Class action litigation followed. In August 2020, the State settled a lawsuit for $600 million, including creation of a compensation fund for city residents.Reference Schneider and Riess⁷⁰

Governments or their agents may be insulated from liability under principles of sovereign immunity, but not for claims grounded in gross negligence or constitutional violations.⁷¹ Multiple states like Ohio and Arizona have enacted laws shielding health care providers,⁷² businesses, and educational institutions⁷³ from civil liability during the pandemic, but these protections are revocable. On April 6, 2021, New York state repealed its liability protections applicable to health care facilities.⁷⁴ A subsequent lawsuit filed in June 2021 against a nursing home in upstate New York alleged that the facility’s lack of sufficient staffing, personal protection equipment, and infectious control policies caused a husband and wife to contract and perish from COVID-19.Reference Michel⁷⁵ The specter of impending liability against government, its agents, or private sector entities sustains legal reconsideration and reversals of COVID-19 denialist approaches.

Legal interventions countering or limiting the impacts of state-based denialist laws and policies collectively reflect the promise of meaningful and constitutional public health safeguards in the throes of the pandemic. Promotion of individualism without justification over communal health is untenable. Ultimately, public health will prevail.