The mask mandate decision defies common sense

Jennifer E. Engen

The U.S. District Court in Tampa, Florida, made big news when it struck down the CDC (Centers for Disease Control) mandate that people on public transportation had to wear masks. The news was celebrated by some who triumphantly tore off their masks in mid-air and lamented by others who warned of a new spike in infections. It came a few weeks before the mask mandate was set to expire and in the midst of a nationwide relaxation of masking and social distancing rules. In response, the Biden Administration opted not to ask for an emergency stay of the order—which would have immediately, but temporarily reinstated the mask mandate. But they did do something that is potentially important to the future of public health and CDC power. They appealed the decision by the U.S. District Court in Tampa. If the Tampa decision stands the results could be disastrous.

By basing a ruling on an especially narrow definition of the word “sanitation” the court restricted future public health interventions during pandemics or other public health crises. The CDC’s statutory authority is defined in Section 264 of the Public Health Services Act of 1944. It gives the agency the right to promulgate regulations aimed at “identifying, isolating and destroying” diseases. Under this broad authority, Section 264 (a) has two sentences. The first gives the agency the power to issue regulations necessary “to prevent the spread of communicable diseases.” The second sentence goes on to illustrate the kinds of policies that would or could be necessary. They include “inspection, fumigation, disinfection, sanitation, pest extermination and destruction of contaminated animals and articles.” The CDC argued that masking was a form of sanitation. But the court, in its decision, argued that the second sentence limited the CDC’s power and that masks did not constitute sanitation—“wearing a mask cleans nothing.” Going further, the Court concluded that:

“A requirement that individual travelers wear a mask is not inspection, fumigation, disinfection, sanitation, pest extermination, destruction of contaminated animals and articles… and other measures.” (p. 11)

This extremely narrow definition of sanitation—which would leave out many ways of transmitting airborne illnesses no matter how deadly—is not even uniformly agreed upon in the legal profession. In fact, in the court’s decision they quote and reject, “The Simplified Medical Dictionary for Lawyers”, defines sanitation to include “air filters, or barriers, masks, gowns or other personal protective equipment.” And yet, Judge Mizelle’s decision spends an inordinate amount of time parsing the word “sanitation” in order to prove that CDC authority involves cleaning not masking.

The decision defies common sense. Some deadly and highly infectious diseases travel by touch. The deadly Ebola virus turned out to be spread by direct contact with blood or other bodily fluids from someone who is infected. Polio was spread through contact with water or food contaminated by fecal matter. Typhus is spread through contact with infected fleas who carry it after they’ve bitten infected animals.

But other deadly diseases, like Covid and other SARS viruses, spread through the air. Measles lives in the nose and throat mucus of an infected person and can spread through coughing or sneezing. Smallpox spreads through direct, close contact with an infected person. Influenza viruses are spread through respiratory droplets, as is the deadly H1N1.

In other words, the very narrow reading of the word “sanitation” by the court means, in practice, that the CDC could order everyone to carry around bottles of sanitizer and wipe down the subway poles they hang onto—but they could not order everyone to wear a mask. As many will recall, in the early days of Covid, people wore rubber gloves and wiped down their groceries before putting them in the house. Under the reasoning in its decision, the U.S. District Court would have approved of that. But as we learned more about Covid it became clear that the disease was airborne, not surface based, and high-quality masks became the most important means of avoiding infection.

The data on masks have been confusing and uneven, as has the CDC guidance. But constraining Covid will almost certainly not be the end of pandemics. With the world ever more interconnected and with climate change causing disruptions in natural eco-systems, we will almost certainly see more pandemics. Some will spread by touch; others will be airborne. And, as has happened with Covid, scientists can start out thinking a disease is spread by touch but improve their understanding as the disease progresses and more data are available and analyzed.

The CDC has a lot to do to prepare for the next pandemic; its performance has not been without flaws. But the CDC will be much less capable, and the next pandemic will be much worse if the silly and narrow definition asserted by the court is not reversed.

The mask mandate decision defies common sense

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