| Original Full Text | Journal of Law and Health Volume 37 Issue 2 Article 4-1-2024 When Governors Prioritize Individual Freedom over Public Health: Tort Liability for Government Failures Barbara Pfeffer Billauer JD, MA, PhD University of Porto Follow this and additional works at: https://engagedscholarship.csuohio.edu/jlh Part of the Health Law and Policy Commons, President/Executive Department Commons, Public Health Commons, and the State and Local Government Law Commons How does access to this work benefit you? Let us know! Recommended Citation Barbara Pfeffer Billauer JD, MA, PhD, When Governors Prioritize Individual Freedom over Public Health: Tort Liability for Government Failures, 37 J.L. & Health 52 (2024) available at https://engagedscholarship.csuohio.edu/jlh/vol37/iss2/5 This Article is brought to you for free and open access by the Journal of Law and Health Home at EngagedScholarship@CSU. It has been accepted for inclusion in Journal of Law and Health by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu. 52 JOURNAL OF LAW AND HEALTH Vol. 37:2 When Governors Prioritize Individual Freedom over Public Health: Tort Liability for Government Failures BARBARA PFEFFER BILLAUER JD, MA, PHD** “When any great object is in view, the popular mind is roused into expectation, and prepared to make sacrifices of both ease and property.” – President George Washington1 “Don’t lie about anything, ever. Lying leads to Hell. It was the great and small lies of the Nazi and Communist states that produced the deaths of millions of people.”- Jordan B. Peterson.2 ABSTRACT. Over half the states have enacted laws diminishing or curtailing the rights of the executive branch (legislatures or governors) to enact laws to preserve, protect, or safeguard public health in the wake of the COVID-19 emergency. Governor DeSantis, of Florida, for example, effectively banned mask mandates in schools during the high point of the epidemic – based on flawed science and erroneous data - and now wants to make that response permanent. The rules effectuating this Executive Order were enacted under an emergency order finding a threat to public health. Nevertheless, the response promulgated by the Florida Department of Health was to prevent public health measures, favoring individual liberties, parental rights (which have previously been held not to apply in the context of the spread of contagious disease epidemics) at the expense of public health and safety. This article explores alternative means to compel state governments, heretofore vested with the police power to protect public health, to comply with this obligation, using the Florida situation as a case study. **Dr. Billauer holds academic appointments at the University of Porto, Portugal, where she is a Professor in the International Program on Bioethics and the Institute of World Politics in Washington, D.C., where she is a Research Professor of Scientific Statecraft. She has advanced degrees and certificates in law and public health and has published extensively both for the lay and academic audience, including writing for the Harvard Petrie-Flom Bill of Health and the American Council of Science and Health. Most recently she has published Health Inequity and the Elderly: The Impact of Pandemic-Policy, Bioethics, and the Law. Dr. Billauer is greatly indebted to the comments at the SEALS Health Law Section (chair: Prof. Debbie Farringer and the Work-in-Progress Session (acting Chair: Prof. Kelly Gillespie), as well as Prof. Norman Bailey. She bears full responsibility for the Article and its contents. 1 Lawrence O. Gostin & James G. Hodge, Public Health Emergencies and Legal Reform: Implications for Public Health Policy and Practice, Pub. Health Rep. 477, 477-9 (2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1497578/pdf/12941861.pdf. 2 JORDAN B. PETERSON & NORMAN DOIDGE, 12 RULES FOR LIFE: AN ANTIDOTE TO CHAOS 234 (2018). Vol. 37:2 JOURNAL OF LAW AND HEALTH 53TABLE OF CONTENTS I. INTRODUCTION .................................................................................................54 II. BACKGROUND: FLORIDA’S ANTI-MASKING STATUTE ......................................59 A. Deficiencies in DeSantis’ EO: Legal and Scientific – An Overview ........................................................................................59 B. Deviation from Past Policy ..................................................................63 C. The Legal History of DeSantis’ EO .....................................................64 i. Judge Long Dortch et. al. v. Alachua County School Board ......66 ii. The Predicates for the EO ...........................................................68 iii. Administrative Hearing: Judge Brian Newman ..........................70 III. CRITICAL ASSESSMENT OF THE EXECUTIVE ORDER AND THE EMERGENCY RULE .................................................................................................................74 A. The Science: False Medical Predicates of the Emergency Order ........74 i. WHEREAS Clauses 2 and 6 .......................................................75 ii. WHEREAS Clause 3 ..................................................................76 iii. WHEREAS Clause 9 ..................................................................78 iv. WHEREAS Clause 4 ..................................................................79 v. WHEREAS Clause 16 ................................................................81 B. The Law: Legal Infirmities of the DOH Emergency Rule ..................81 i. Parental Rights v. Public Health .................................................82 ii. The Doctrine of Parens Patriae ..................................................84 IV. WHO REGULATES PUBLIC HEALTH? ................................................................85 A. The Historical Uses of the State’s Police Power ................................85 B. Cases and Case Law.............................................................................86 C. Public Health: Who is Supposed to Mind the Store? The Federal- State Struggle .......................................................................................88 D. The Role of the State............................................................................90 E. The Popular Pushback..........................................................................90 V. THE DUTIES OF THE STATE AS ENUMERATED IN ITS CONSTITUTION ...............92 A. The Authority of the State: A Right or a Duty? ..................................92 B. The Duties of the Governor ................................................................94 i. Texas ...........................................................................................94 ii. Florida .........................................................................................96 VI. TORT REMEDIES TO THE RESCUE .....................................................................98 A. Vehicles to Sue the State in Tort – Tort Claims Acts .........................98 B. Negligence and Rules of Scientific Evidence ......................................99 C. Nuisance ............................................................................................101 VII. CONCLUSION ..................................................................................................102 54 JOURNAL OF LAW AND HEALTH Vol. 37:2 I. INTRODUCTION On April 28, 2020, Gerardo Gutierrez, a 70-year-old deli-worker employed by Publix grocery stores, died from COVID-19. Sadly, Gerry, as his friends called him, died alone; his family was only able to say goodbye to Gerry, now sequestered in a hospital, via video call. Even sadder: it's likely Gerry didn’t need to die at all. Mr. Gutierrez was allegedly exposed to COVID-19 by an infected co-worker working close by. Neither was masked. This occurred not because they didn’t want to mask, but because Publix actively forbade masking by its employees3 --a directive inconsistent with Floridian policy at the time. Publix was sued in tort; Publix objected. The court ruled in favor of Gerry’s family, holding that the claim was not limited to Worker’s Compensation and Publix could be sued for negligence.4 A year later with COVID continuing to rage, Florida’s policy morphed and became draconian.5 Its pre-existing policies were reversed, and now mimicked the Publix approach and applied to children. On July 30, 2021, Governor Ron DeSantis promulgated Executive Order (EO)21-175, effectively banning school districts from mandating masking and punishing school districts refusing to comply with his anti-masking directive by withdrawing state funding.6 On August 6 and then again on September 22, 2021, pursuant to the EO, Florida’s Health Department (DOH) promulgated Emergency Rules addressing masking in school. The EO allowed parents the right to opt-out of masking requirements implemented by local school boards. The rules also vested in parents the sole discretion whether to abide by school district masking rules, favoring their ostensible constitutional right to raise their “own” children as they saw fit. Medically untutored parents were thus vested with the sole discretion whether to allow their children to attend school – even those exposed to COVID, based on parental determination whether the child was sick or symptomatic. In short, parents became the public health officer and arbiter for their family – even though their decisions would (and did) affect the health of the Floridian public. 3 “We have been instructed to not wear gloves or masks in case we ‘incite panic’ on the floor. There is disciplinary action if we refuse to remove them. You can either work without a mask or go home.” Complaint at 17, Ariane Gutierrez v. Publix Super Mkts, (No. 2021 CA-000209 AX), 2023 Fla. Cir. LEXIS 434. 4 Barbara Pfeffer Billauer, Tort Litigation in the Age of COVID-19: Protecting the Innocent and Punishing the Greedy? Or the Other Way Around? AM. COUNS. ON SCI. & HEALTH (Mar. 12, 2021), https://www.acsh.org/news/2021/03/15/tort-litigation-age-covid-19-protecting-innocent-and-punishing-greedy-or-other-way-around-15400. 5 Fla. Exec. Order No. 21-175 (July 30, 2021), https://www.flgov.com/2021/07/30/governor-desantis-issues-an-executive-order-ensuring-parents-freedom-to-choose/. 6 “The Florida Commissioner of Education shall pursue all legal means available to ensure school districts adhere to Florida law, including but not limited to withholding state funds from noncompliant school boards violating any rules or agency action taken pursuant to Section 1 above.” Id. Florida did withhold funding from two school districts. The order was blocked by Judge John C. Cooper, stayed and appealed. See Sarah Mervosh, Florida withholds money from school districts over mask mandates, N.Y. TIMES, (Aug. 30, 2021), https://www.nytimes.com/2021/08/30/us/florida-schools-mask-mandates.html. Vol. 37:2 JOURNAL OF LAW AND HEALTH 55 The emergency rule was challenged by the school boards arguing the opt-outs were an abuse of discretion and outside government powers, and by parents seeking to mandamus their localities to allow the opt-out. In a twisted reading of the law as well as ignorance of facts on the ground, the reviewing courts ratified the DOH rules as enacted under the Governor and the Department of Health’s Emergency Powers provisions. On November 5, 2021, Administrative Judge Brian Newman affirmed the rules and upheld the Governor’s Executive Order, sustaining an earlier non-final decision. The subordination of public health protection in favor of personal liberties was not limited to Florida, nor to masking.7 On September 9, 2021, President Biden announced plans to promulgate an emergency rule requiring COVID vaccination in various employment settings.8 A month later, Governor Greg Abbott of Texas issued an executive order effectively countermanding such directive, banning business and private entities from requiring vaccination.9 Abbott’s order did not exclude hospitals covered under Biden’s order, thereby also jeopardizing the health of patients forced to be exposed to non-vaccinated workers.10 During the months Biden’s rule was challenged, Governor Abbot’s order remained in place, ostensibly because only states are empowered to enact public health regulation. Those opposing Biden’s mandate railed against federal government overreach in favor of state control. This contention, however, has a pick-and-choose quality now that Supreme 7 Barbara Pfeffer Billauer, Politicization and Pariah-tization of Epidemics – A Recipe for Legal and Policy Disaster: Comparing the 1892 Cholera Epidemic with the Handling of COVID-19, 24 WAYNE STATE UNIVERSITY, JOURNAL OF LAW IN SOCIETY, (forthcoming, 2024). See also Andrew Stanton, Philadelphia Sued After Becoming First Major City to Reinstate Mask Mandate, NEWSWEEK (Apr. 17, 2022), www.newsweek.com. Young v. Flower, 22 N.Y.S 332, 335 (N.Y. 1893), (noting that while localities are allowed to set public health rules that superseded the state’s power, this did not apply in an emergency.) 8 Remarks by President Biden on Fighting the COVID-19 Pandemic, WHITE HOUSE (Sept. 9, 2021, 5:02 PM), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/#:~:text=As%20your%20President%2C%20I'm,our%20kids%20safer%20in%20schools. 9 “[N]o entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” The Associated Press, Texas Gov. Greg Abbott orders a ban on all COVID-19 vaccine mandates in the state, NPR (Oct. 11, 2021, 9:18 PM), https://www.npr.org/2021/10/11/1045142578/texas-governor-greg-abbott-ban-covid-vaccine-mandates. At the same time news reports noted a rising death toll from the recent surge caused by the delta variant has the state rapidly approaching 67,000 total fatalities since the pandemic began in 2020. 10 “[T]he board also will consider discontinuing local advertising for COVID-19 and flu vaccines, pending ‘further investigation and results of the Florida Supreme court case to investigate the wrong doing related to COVID-19 vaccines, notwithstanding the advice by the legal department that the Board has not such authority..” Jessica Hill, Elko County health board to consider banning COVID, flu vaccines, L.V. REV. J. (Jan. 17, 2023), https://www.reviewjournal.com/local/local-nevada/elko-county-health-board-to-consider-banning-covid-flu-vaccines-2713830/. DeSantis is seeking to make the anti-mask mandate permanent. See John Kennedy, DeSantis to push for permanent ban on Florida mandates for masks, vaccines, TALLAHASSEE DEMOCRAT (Jan. 17, 2023, 5:46 PM), https://www.tallahassee.com/story/news/politics/2023/01/17/desantis-florida-covid-19-mask-mandates-ban/69815236007/. 56 JOURNAL OF LAW AND HEALTH Vol. 37:2 Court struck down New York’s gun law.11) In January 2022, the Supreme Court upheld Biden’s vaccine mandate, at least vis à vis federal employees and employees of hospitals covered under the Medicare/Medicaid programs.12 But back and forth rulings in the Fifth Circuit sought to undermine the mandate and delayed implementation, which arguably fostered COVID spread. As of this writing, the injunction on implementing the mandate for federal employees has been resurrected,13 and Biden has withdrawn the emergency rule. To date, more than half of American state legislatures have passed similar legislation pre-empting public health/COVID response measures14 and prioritizing protecting private liberties over public health. At least 65 bills limiting state emergency powers have been enacted into law during the COVID pandemic.15 The flawed scientific reasoning that enables many such policies form a key basis for this Article, which utilizes, as a case study, Florida’s Administrative Law Judge Brian Newman’s ratification of Governor DeSantis’ anti-masking Order. Given the ramifications of weakened public health powers by the Governor, I ask what remedies are available to compel a governor to protect the public health and make this consideration a priority. I also suggest a solution, the first, to my knowledge, to raise the power of the “private attorney general”: bringing an action in tort in this context. The implications of the current political temperament are dire. Without regard to changing conditions on the ground as the epidemic morphs, DeSantis tried to make the prohibitions on masking in schools and business permanent,16 thereby returning the state to the Publix situation that allegedly resulted in Geraldo Rivera’s death, described at the outset. Two specific issues are raised by political decisions manifested in the EOs that DeSantis sought to extend: 17 first: which governmental entity is charged with making ‘the 11 N.Y. Pistol & Rifle Ass’n v. Bruen, 142 S. Ct. 2111 (2022). 12 Barbara Pfeffer Billauer, The Supremes Speak Out on COVID VAX in the Workplace, AM. COUNS. ON SCI. & HEALTH (Jan. 17, 2022), https://www.acsh.org/news/2022/01/17/supremes-speak-out-covid-vax-workplace-16064. See also Biden v. Missouri, 142 U.S. 647, 651-3 (2022); Becerra v. Louisiana, No. 21A241, 2022 U.S. LEXIS 218899 at *15 (2022); Ohio v. Dep’t of Labor, OSHA, 142 U.S. 735 (2021). But see Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 142 U.S. 661 (2022). 13 Biden’s vaccine mandate for federal workers blocked while appeals court reconsiders its own ruling, CBS NEWS (June 27, 2022), https://www.cbsnews.com/news/vaccine-mandate-for-federal-workers-blocked-again-court-reconsiders-ruling/. The mandate for hospital workers still stands, and the decision of Judge Brown has been resurrected. See Feds for Med. Freedom v. Biden, 30 F.4th 503, 504; 11 (5th Cir., Apr. 7, 2020). 14 “…26 states pushed through laws that permanently weaken government authority to protect public health. In three additional states, an executive order, ballot initiative, or state Supreme Court ruling limited long-held pubic health powers. More bills are pending … In Arkansas, legislators banned mask mandates … [in public institutions].” Lauren Weber & Anna Maria Berry-Jester, Over Half of States Have Rolled Back Public Health Powers in Pandemic, KFF HEALTH NEWS (Sept. 15, 2021), https://kffhealthnews.org/news/article/over-half-of-states-have-rolled-back-public-health-powers-in-pandemic/. 15 The tally is as of May 20, 2022. 16 Kennedy, supra note 10. 17 In the wake of Governor DeSantis’ relaxation of restrictions on businesses, Miami Beach Mayor Dan Gelber said, “I think unfortunately, Governor DeSantis made a political decision.” On CBS4 in Miami, Vol. 37:2 JOURNAL OF LAW AND HEALTH 57buck-stops-here’ decisions regarding public health: federal, state, or local? And second: if such decisions are negligently or wrongfully made and cause - or are likely to cause - damage, what remedies are available?18 Florida and Texas, for example, continue to enact laws and impose recommendations which negatively impact public health, prioritizing private liberties and mangling the science at the expense of public health. Part II introduces Florida’s anti-vax mandate and provides an overview of the scientific and legal infirmities underpinning that policy. After introducing the EO, the DOH rules and noting the population’s health at the time, I then discuss Judge Brian Newman’s administrative decision rubber- stamping the EO, highlighting the dangers of administrative review of politically motivated public-health orders, and raising strategic lawyering missteps made by The Prejudice, Politicization, and “Pariah-tization” Influencing Pandemic Policy and Law: Stereotype as the Driver of Public Health Response and those championing masking. More recently, Florida’s latest surgeon general, Joseph Ladapo, issued a rather hysterical and overhyped warning about ostensible dangers of mRNA vaccines to all men under 40, and without suggesting an alternative therapy insinuating, via Twitter, that the failure to broadcast the dangers of these vaccines is due to some conspiracy theory.19 This is but another example of a flagrant disregard of the science (which has been interpreted as rank “anti-vax),”20 furthering a health policy averse to the consensus of medical opinion, and further jeopardizing public health. Ladapo’s proclamations were widely criticized by his peers.21 Nevertheless, the status quo remains, illustrating the bleeding effect of allowing the anti-mask bill to stand. In Part III, I delve more deeply into the flawed medical predicates underpinning the EO (and hence the DOH rule) establishing medical concerns that mandate masking, concerns the Governor flagrantly disregards, thereby jeopardizing the health of his constituents and revealing the rank inaccuracies, misrepresentations, and falsehoods used to support his Executive Order. Gelber said he believes DeSantis is taking a page from President Trump’s playbook. St. Petersburg Mayor Rick Kriseman agrees. “He’s listening to Donald Trump … as opposed to epidemiologist and infectious disease specialists.” Allen, infra note 18. 18 Greg Allen, Florida’s Governor: Officials Can Require Face Masks, But Can’t Enforce it, NPR (Oct. 7 2020, 2:28 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/10/07/921216724/floridas-governor-officials-can-require-face-masks-but-can-t-enforce-it (noting that “Orange County Mayor Jerry Demings had a warning for businesses that were considering operating at full capacity, encouraging them first to check their insurance policies… There are liability issues that should be considered now the state government really has abdicated all responsibility.”) 19 Barbara Pfeffer Billauer, The Toxic Treason of Junk Science, Conspiracy Theory, and Political Ideology, AM. COUNS. ON SCI. & HEALTH (Nov.10, 2022), https://www.acsh.org/news/2022/11/10/toxic-treason-junk-science-conspiracy-theory-and-political-ideology-16645. 20 Orac, Quoth Phillip Buckhaults: Oh, no! There’s DNA in COVID-19 vaccines!, RESPECTFUL INSOLENCE (Sept. 21, 2023), https://www.respectfulinsolence.com/. 21 Kristina Fiore, Ladapo’s Colleagues Slam his mRNA Vax Analysis, MEDPAGE TODAY (Jan. 6, 2023), https://www.medpagetoday.com/special-reports/features/102531?x. 58 JOURNAL OF LAW AND HEALTH Vol. 37:2 Part IV reviews the historical provenance of state v. federal responsibility for policing public health,22 before embarking on Part V which sets forth the specific powers governors have, illustrated by the Florida and Texas state constitutions. These obligations form the basis for assigning responsibility for protecting the public health to the governor and provides the predicate for the proposed solution. In the Florida context, the EO and DOH rules, which I claim were detrimentally overreaching, were emblemized by the governor’s assertion that parents have superseding powers overriding concerns for the public health under some artificially expanded parental powers law. Further, protection of parental freedoms may well be a federal task and the governor may have overstepped the bounds of state prerogatives when failing to properly weigh competing interests. In other words, the question arises regarding the primary or superseding obligation of governors to protect the health and safety of their constituents. Surely, state and local governments may institute public health measures, but the question is, can a governor be compelled to do so? And if so, under what rubric? Having laid bare the flaws on which the EO is predicated, both legal and scientific, I then address the possibility of holding the governor liable for harms occasioned by this misgovernment in Part VI. Here, I offer suggestions regarding how to rectify, remedy, and deter this situation, beginning with instituting private rights of action in tort (for negligence and nuisance) against the governor, raising the benefits of bringing suit in civil court, and suggesting that tort remedies might be a better and more societally apt and protective vehicle to review public health orders. Indeed, DeSantis’ rhetoric is inflammatory and damaging to national security, as well as local public health. Crafting the federal government as an adversary, DeSantis proclaimed: “The bureaucracy, the medical establishment, legacy media and even the president of the United States who, together, were working to impose a bio-medical security state on society,” proclaimed even as Florida boasted among the worst COVID-19 statistics.23 This Article alerts us to the grave dangers we face when politicizing an epidemic. Pandering to libertarian voters may be a valid motivation of a governor with political aspirations.24 Whether this is a valid exercise of state power and whether it can be reversed by constituents adversely affected, remains to be seen. In sum, this piece crystallizes the issue of prioritizing public health versus parental freedoms, to my knowledge the first to do so in this context, using the Florida scenario as a case study: Here we ask can a governor or a state legislature actively prevent protecting its youngest constituents – when they are charged with protecting the public health? Do political leanings and motivations afford a governor cover for tort lawsuits alleging behavior which might be considered reckless and wanton, and, at the very least arguably violates the standard of care under a misinformed notion of constitutional rights and 22 See Billauer, supra note 7. 23 Kennedy, supra note 10. 24 Why Florida is lurching to the right, THE ECONOMIST, Feb. 5, 2022, https://www.economist.com/united-states/2022/02/05/why-florida-is-lurching-to-the-right. (Noting that DeSantis describes his state as the “freest state in the United States,” and attacking Biden for creating the “biomedical security state.”) Vol. 37:2 JOURNAL OF LAW AND HEALTH 59perversion of scientific knowledge? Is an administrative action seeking mandamus properly invoked when public health mandates have political expedients? Is there a better way? II. BACKGROUND: FLORIDA’S ANTI-MASKING STATUTE A. Deficiencies in DeSantis’ EO: Legal and Scientific- An Overview DeSantis ‘anti-masking’ EO was significant in several respects.25 First, the predicates for the order enunciated in a series of WHEREAS clauses contained a host of speculative medical presumptions and baseless predictions. These included a parade of imagined horrors prefixed by “could have” or “may lead to.”26 Second, some predicates are rife with error, notably the sixth WHEREAS clause, which erroneously asserts that “studies have shown that children are at a low risk of contracting a serious illness due to COVID-19 and do not play a significant role in the spread of the virus.”27 This is a rank falsehood28 and one which underpins this Article: What are the remedies when a governor eviscerates concerns for public health based on false or flawed information? Indeed, the evidence is clear that children are affected by COVID-19, that they and are prime spreaders of disease29 along with younger members of society,30 and that children suffer long COVID disproportionately. 31 Further, the huge drop in life expectancy, the sharpest decline in decades,32 is primarily due to deaths in the younger cohort, both children and presumptively their parents. In addition to the baseless science, the Order has legal problems. For one thing, it references Section 1003.22(3) of Florida State’s code as a basis for the EO. That section is irrelevant. Indeed, it actually provides that Florida Statutes mandate the Florida Department of Health to adopt rules, in consultation with the Florida Department of Education, governing the control of preventable communicable diseases, including 25 Exec. Order No. 21-175 (Jul. 30, 2021), https://www.flgov.com/wp-content/uploads/2021/07/Executive-Order-21-175.pdf. 26 In view of the Florida State Health Department prior policy and advisories, “urging” or “encouraging” masks and the state’s procurement of almost a million N95 masks, the change in state policy for schools seems like gubernational malpractice, at best. See The State of Florida Issues COVID-19 Updates, FLA. HEALTH (Apr. 14, 2020), https://www.floridahealth.gov/newsroom/2020/04/041420-2140-covid19.pr.html. 27 Barbara Pfeffer Billauer, Discrimination Today: The Dangers of Pariah-tizing the Elderly During the CoVid Pandemic, 31 THE ELDER LAW JOURNAL, 2023. 28 Id.; see also Munoz, infra 38. 29 Id. 30 Jeffrey E. Harris, Data from the COVID-19 Epidemic in Florida suggest that younger cohorts have been transmitting their infections to less socially mobile older adults. REV. ECONO HOUSEHOLD. Aug. 2, 2020. 31 Barbara Pfeffer Billauer, Who Wants ‘Pox Parties’ For COVID?, AM. COUNS. ON SCI. & HEALTH (Nov. 23, 2022), https://www.acsh.org/news/2022/11/23/acsh-who-wants-%E2%80%98pox-parties%E2%80%99-covid-16685. 32 In America and eastern Europe, covid-19 got worse in 2021, THE ECONOMIST, (Oct. 20, 2022) https://www.economist.com/graphic-detail/2022/10/20/in-america-and-eastern-europe-covid-19-got-worse-in-2021. 60 JOURNAL OF LAW AND HEALTH Vol. 37:2 procedures for exempting children from immunization requirements…. 33 referring to vaccination, seemingly at direct odds with the governor’s actions. The Order also provides that no rules promulgated by the Florida Department of Health for COVID management shall violate Floridians’ constitutional rights. This is augmented by the provision that they shall not violate parent’s rights under the Florida law to make health care decisions for their minor children, and that all action shall be in accord with Florida’s “Parents Bill of Rights” which protects parent’s rights to make decisions regarding masking of their children.34 Interestingly, that law was enacted a day before the EO- in direct contravention of the US Supreme Court case, Prince v. Massachusetts.35 Finally, the Florida law provides that any school district not in compliance with these laws shall lose funding.36 In this part, I will provide an overview of the scientific infirmities and discuss in greater depth the legal issues. The risk of COVID-19 to children first became apparent in March of 2020;37 the reason for the delayed recognition being the lack of focus on asymptomatic children – also now regarded as the most likely transmitters of the disease.38 According to a recent report in JAMA Pediatrics, children and adults have similar risks of becoming infected with SARS-CoV-2,39 but a much larger proportion of infected children do not show symptoms of COVID-19. When 33 [italics added] Paulina Villegas & Meryl Kornfield, Some Florida school districts push ahead with mask mandates, defying DeSantis’s threat to cut funds, WASH. POST (Aug. 4, 2021, 7:56 PM), https://www.washingtonpost.com/education/2021/08/03/florida-schools-mask-mandate/; “[I]n May 2021, DeSantis signed into law a bill that prohibited businesses, schools, cruise ships, and government entities from requiring proof of vaccination. He also opposed mandatory vaccination… and largely sidelines health experts and scientists, relying primarily on his wife, a former television reporter, and his chief of staff, a former hospital executive.” Cleve R. Wootson, Jr., ET AL., Coronavirus ravaged Florida, as Ron DeSantis sidelined scientists and followed Trump, WASH. POST (July 25, 2020, 10:10 PM), https://www.washingtonpost.com/national/coronavirus-ravaged-florida-as-ron-desantis-sidelined-scientists-and-followed-trump/2020/07/25/0b8008da-c648-11ea-b037-f9711f89ee46_story.html. 34 Protocols for Controlling COVID-19 in School Settings, H.B. No. 64DER21-12, (Fla. 2021) https://www.flgov.com/wp-content/uploads/2021/08/8.6.21-DOH-Rule.pdf. 35 Infra note 152. 36 Supra note 5. 36 “In an alarming development, however, scientists in China are now reporting that the new coronavirus does not spare the very young. In the first retrospective study of Covid-19 among children in the country where the pandemic began, they count 2,143 cases in children … 6% of pediatric cases were severe and even critical compared to 19% of adult cases. And … nearly 11% of the Covid-19 cases in infants were severe or critical… In South Korea … fewer than 4% of cases there have been in people over 80.” Sharon Begley, New analysis breaks down age-group risk for coronavirus – and shows millennials are not invincible, STAT (Mar. 18, 2020), https://www.statnews.com/2020/03/18/coronavirus-new-age-analysis-of-risk-confirms-young-adults-not-invincible/. 38 Billauer, supra note 26, at 8. 39 Flor M. Munoz, If Young Children’s Risk of SARS-CoV-2 Infection Is Similar to That of Adults, Can Children Also Contribute to Household Transmission?, JAMA NETWORK (OCT. 8 2021), HTTPS://JAMANETWORK.COM/JOURNALS/JAMAPEDIATRICS/FULLARTICLE/2785008. Vol. 37:2 JOURNAL OF LAW AND HEALTH 61one household member is infected, there is a 52% chance they will transmit it to at least one other person with whom they live…. About half of the cases in children were symptomatic, compared with 88% of adult cases.40 By August 2021, there could be no doubt:41 COVID-19 was increasing in children and teenagers – jumping by leaps and bounds,42 and not just in numbers, but in severity. While compared to adults, children have a lower risk of severe COVID illness and deaths (as they do for all diseases), compared to other deaths in children under 14, COVID was particularly lethal. From August through October2021, it was among the top ten causes of death in this age group.43 Hospitalizations also peaked.44 As of August 7, 2021, a day after Florida’s DOH’s first emergency order, the CDC reported that “more than 45,000 children had been hospitalized with Covid-19 [ in the past year] …. And in just one week, the US had an 84% increase in new Covid-19 cases among children,”45 The increasing hospitalization rate in children did not evade Florida.46 In fact, 40 Id. 41 Children and COVID-19: State-Level Data Report, AM. ACAD. OF PEDIATRICS (May 16, 2023), https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-state-level-data-report/; see also Jared Ortaliza ET AL., COVID-19 continues to be a leading cause of death in the U.S. in June 2021, PETERSON-KFF (July 1, 2021), https://www.healthsystemtracker.org/brief/covid-19-continues-to-be-a-leading-cause-of-death-in-the-u-s-in-june-2021/. “For the week ending Dec, 30th, over 325,000 child COVID-19 cases were reported [compared to] the 199,000 added cases reported the week ending December 23rd.”; Pam Belluck, Younger Adults Make Up Big Portion of Coronavirus Hospitalizations in U.S., N.Y. TIMES (Mar. 18, 2020), https://nytimes.com/2020/03/18/health/coronavirus-young-people.html#:~:text=In%the20%20C.S>C%20report%2c%2020,likw%this%2C”%20said%20Dr. 42 Id.; See also Maayan Jaffe-Hoffman, 40% of new COVID cases in Israel among Arabs, 40% children, THE JER. POST (Sept. 20, 2021), https://www.jpost.com/israel-news/40-percent-of-new-covid-cases-in-israel-among-arabs-40-percent-children-679871; see also Jen Christensen and Theresa Waldrop, Covid-19 cases among U.S children and teens jumped 84% in a week, pediatrician group says, CNN (August 4, 2021, 12:16 PM), https://www.cnn.com/2021/08/03/us/covid-19-children-teens/index.html. 43 Supra note 40; Krutika Amin, Covid-19 mortality preventable by vaccines, PETERSON-KFF (Apr. 21, 2022), https://www.healthsystemtracker.org/brief/covid19-and-other-leading-causes-of-death-in-the-us/. “[A]mong children age 1-14, who are at relatively low risk of severe illness compared to older adults, COVID-19 was in the top 10 leading causes of death from August through October 2021. Among children age 5-14, COVID-19 ranked as the number 6 leading cause of death in August and the number 5 leading cause of death in September Among children ages 1-4, COVID-19’s rank rose from number 13 to number 7 among leading causes of death in August 2021 and held there in September.” See also Older children and young adolescent mortality (5 to 14 years), WHO, 28 January 2022, https://www.who.int/news-room/fact-sheets/detail/older-children-and-young-adolescent-mortality-(5-to-14-years). 44 Supra note 39. See graph in appendix. 45 COVID in Florida: Here is Why Doctors Say Children Need To Be Protected, CBS MIAMI (Aug. 7, 2021, 12:10 PM), https://www.cbsnews.com/miami/news/keep-children-protected-from-covid/. 45 Almost half -- 46.4% -- of children hospitalized with Covid-19 between March 2020 and June 2021 had no known underlying condition, according to CDC data from almost 100 US counties. While children are far less likely to die from Covid-19 than adults, the deaths are still significant… At least 416 children ages 0 to 18 have died from Covid-19, according to data from the National Center for Health Statistics… I think we fall into this flawed thinking of saying that only 400 of these 600,000 deaths from Covid-19 have been in children… Children are not supposed to die. And so 400 is a huge amount.” Id. 62 JOURNAL OF LAW AND HEALTH Vol. 37:2 Florida was responsible for the majority of pediatric hospitalizations. 47 Many Florida pediatric cases were serious enough to require intensive care. About half of these were under twelve.48 The increase continued in tandem with the anti-mask mandate.49 Reports regarding the impact on children were chilling: There has been a startling rise in the number of children with the virus at hospitals in Miami, many of them requiring intensive care. Memorial Health’s Joe DiMaggio Children’s Hospital in Hollywood had seven patients with COVID-19. At Nicklaus Children’s Hospital in Miami, there were 17 patients with COVID-19 on Friday, including six in the ICU and one who needed a ventilator, Dr. Marcos Mestre, vice president and chief medical officer, told the Miami Herald. About half of the patients were under 12. 50 It bears repeating that masks and vaccines do not merely protect the receiver, but stem community transmission where children are prime transmitters. This is especially true for those ineligible for vaccination, which, until recently, were children under twelve, precisely the cohort to whom the rules were directed, as well as adults with whom the child comes in contact. Nevertheless, DeSantis denied the benefits of masking in support of his order. Data prove otherwise. By August of 2021, Florida held the record for all COVID-19 hospitalizations.51 Three days after DeSantis’ anti-masking order was issued, Florida had overtaken the country,52 “leading the nation in per capita hospitalizations for COVID-19, 47 “The national boom in pediatric hospitalization has been driven largely by a few states. Only three states are responsible for nearly half of new daily hospitalizations for COVID-19 among children… with Florida leading the pack, reporting 56 new pediatric hospitalizations a day over a recent seven-day period.” Emily Alpert Reyes & Rong-Gong Lin II, Child COVID-19 hospitalization rates hit record in U.S. – but not in California. Here’s why, L.A. TIMES (Aug. 14, 2021, 5:00 AM), https://www.latimes.com/california/story/2021-08-14/kids-covid-hospitalization-rates. 47 “A day after it recorded the most new daily cases since the start of the pandemic, Florida on Sunday broke previous record for current hospitalizations set more than a year ago before vaccines were available. The Sunshine State had 10,207 people hospitalized with confirmed COVID-19 cases, according to data reported to the U.S. Department of Health & Human Services.” Mike Schneider, Florida breaks record for COVID-19 hospitalizations, AP NEWS (Aug. 1, 2021, 5:35 PM), https://apnews.com/article/business-health-florida-coronavirus-pandemic-7ca97f0d685ab25559cf9b51cfc077eb. See also A Florida Hospital is Seeing a Rise in COVID-19 Cases in Children, NPR (Aug. 8, 2021), https://www.npr.org/2021/08/08/1025845668/a-florida-hospital-is-seeing-a-rise-in-covid-19-cases-in-children. 49 Biden’s vaccine mandate for federal workers blocked while appeals court reconsiders its own ruling, CBS NEWS (June 27, 2022, 3:32PM), https://www.cbsnews.com/news/vaccine-mandate-for-federal-workers-blocked-again-court-reconsiders-ruling/; Nikki Battiste, COVID cases up 76% among kids in recent weeks, CBS NEWS (May 19, 2022, 7:16 PM), https://www.cbsnews.com/news/covid-cases-in-us-rise-in-recent-weeks/. See also Children make up 20% of all new COVID-19 cases across the U.S., CBS NEWS (Aug. 8, 2021), https://www.cbsnews.com/video/children-make-up-20-percent-of-all-new-covid-cases-across-the-us/. 50 “Florida is now leading the nation in per capita hospitalizations for COVID-9, as hospitals around the state report having to put emergency room visitors in hallways and others document a noticeable drop in the age of patients.” Schneider, supra note 4. 51 Id. 52 Id. Vol. 37:2 JOURNAL OF LAW AND HEALTH 63as hospitals around the state …[had] to put emergency room visitors in beds in hallways….[O]thers document a noticeable drop in the age of patients.”53 As of February 2022, Florida’s 64,000 COVID deaths placed them above any other state in the country in terms of deaths per population number.54 Regardless, commentary noted that “Republican Florida Gov. Ron DeSantis resisted mandatory mask mandates and vaccine requirements, and along with the state Legislature, has limited local officials’ ability to impose restrictions meant to stop the spread of COVID-19.”55 Public recognition for questioning DeSantis’ science behind the order was limited to one state senator, Sen. Gary Farmer.56 B. Deviation from Past Policy This negative public health response was not Florida’s original policy: On March 1, 2020, the State Surgeon General and State Health Officer of Florida declared a Public Health Emergency, and DeSantis issued his first Executive Order addressing the COVID-19 epidemic.57 That order provided, inter alia, that: [COVID is a] severe acute respiratory disease that can spread among humans through respiratory contact… that CDC recommends community preparedness and everyday prevention measures… [and] that it is necessary and appropriate to take action to ensure that COVID-19 remains controlled and that that residents and visitors in Florida remain safe and secure.58 This initial order further provided that: The State Health Officer, Dr. Rivkees, “take any action necessary to protect the public health [sec.2], …follow guidelines established by the CDC in establishing protocols to control and spread of COVID-19 [sec. 3]; … [further] the Florida Department of Health is designated as the lead agency to coordinate emergency responses [Sec. 4] and that the Florida Department of Health is to make its own determination to quarantine… and any other necessary public health interventions..[ Sec. 8]. 53 “In the past week, Florida has averaged 1,525 adult hospitalizations a day, and 35 daily pediatric hospitalizations. Both are the highest per capita rate in the nation, according to Jason Salemi, an associate professor of epidemiology at the University of South Florida.” Id. 54 Supra note 22. 55 Id. 56 Haley Brown, Gary Farmer warns Board of Education proposed anti-mask rule is unlawful, FLA. POL. (Aug. 5, 2021), https://floridapolitics.com/archives/446414-gary-farmer-warns-board-of-education-proposed-anti-mask-rule-is-unlawful/. 57 Fla. Exec. Order 20-52 (Mar. 9, 2020), https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-52.pdf. 58 Id. 64 JOURNAL OF LAW AND HEALTH Vol. 37:2 The promulgation was corroborated by March 9’s Executive Order 20-52,59 subsequently reissued numerous times. There is no mention of the Department of Education having a role in COVID management in these early orders and directives, although this feature became an adjunct predicate for the later EO supporting the DOH anti-masking rules. On April 14, 2020, Florida’s Joint Information Center on COVID-19 announced that it had procured or expected to shortly procure another one million N95 masks, and that eight million masks had already been distributed.60 In August of 2020, Florida newspapers reported that “[t]he director of the CDC has said that the spread of COVID-19 could be under control in a matter of weeks if everyone wore one.”61 But shortly thereafter the tone and sentiment in the Governor’s office turned decidedly and rancidly anti-mask– replete with false information. One newspaper reported that “despite the Governor’s claims masking might be dangerous and posts you still might be seeing on social media, the fact-checkers at Politifact found there’s no evidence that wearing a mask can be harmful to you…” Backtracking some after the school EO was issued, in October of 2020 the Governor declared that masks may be required, but the requirement may not be enforced,62 a rather quixotic declaration. Nevertheless, the policy was countered by the facts: by December 2020, the results of masking were obvious. According to one epidemiologist, “Face masks reduced Tampa Bay coronavirus cases by 1.4 million.”63 And then came DeSantis’ anti-mask Executive Order. C. The Legal History of DeSantis EO Governor DeSantis’ anti-mask mandate Executive Order was signed into law on July 30, 2021,64 approximately a year and a half after COVID made landfall on American 59 The State of Florida supra note 25. 60 Id. 61 Miriam Berger ET AL., Coronavirus could be ‘under control’ in weeks if everyone wore masks, CDC director says, WASH. POST (July 15, 2020, 12:20 AM), https://www.washingtonpost.com/nation/2020/07/14/coronavirus-live-updates-us/; see also Sharon Kennedy Wynne, Face masks: Read the latest on guidelines, tips for comfort and long-term wear, TAMPA BAY TIMES (Aug. 14, 2020), https://www.tampabay.com/life-culture/2020/08/14/face-masks-read-the-latest-on-guidelines-tips-for-comfort-and-long-term-wear/. 62 Allen, supra note 18. 63 “Hillsborough [County] started its face mask rule June 22 and it led to a reduction in cases through mid-October because it helped curb community transmission of the coronavirus that causes COVID-19. The recent resurgence is due to a steady decline in people observing the social measures and an increase in population movement after Sept. 1, [epidemiologist Dr. Edwin] Michael said, as the school year began and bars and restaurants reopened… [wearing a] face mask is the best option that we have.” C.T. Bowen, Face masks reduced Tampa Bay coronavirus cases by 1.4 million, says USF professor, TAMPA BAY TIMES (Dec. 2, 2020), https://www.tampabay.com/news/health/2020/12/02/face-masks-reduced-tampa-bay-coronavirus-cases-by-14-million-says-usf-professor/. 64 Supra note 5. Vol. 37:2 JOURNAL OF LAW AND HEALTH 65shores. Ten school districts were said to be in violation of the order, and two were financially penalized. Palm Beach County considered suing the governor for political overreach (on constitutional grounds),65 as did a group of parents. One month later the parents prevailed– temporarily - but not before school had begun.66 On August 6, the Health Department issued its first set of emergency regulations, superseded by another set promulgated on September 22 which provided that parents may opt out of any requirement of masking and have sole authority to decide if their children can attend class, even if exposed, as long as they aren’t sick or symptomatic as decided by the parents. Criss-crossed motions and appeals clogged the courts. On August 26, Second Judicial Circuit Judge John Cooper ruled the governor had no legal authority to issue a blanket ban on school mask mandates,67 and overstepped his constitutional authority.68 As for the Parents' Bill of Rights,” Judge Cooper gave it a different gloss than apparently intended. He ruled that the law "expressly permits school boards to adopt policies regarding health care of students such as a facemask mandate, even if a parent disagrees with that policy." The law requires only that the policy be reasonable, is necessary to achieve a compelling state interest and be narrowly tailored ....69 An appeal and a subsequent stay on the order allowed the mandate to continue70 with the governor threatening enforcement against the now thirteen school districts which refused to comply.71 Procedural as well as substantive jockeying raged. On September 8, 65 “DeSantis ‘overstepped his Constitutional authority,’ school board mentor says.” Matt Papaycik, Palm Beach County School Board votes to explore legal action against Gov. Ron DeSantis over face masks, WPTV (Aug. 25, 2021, 10:46 AM), https://www.wptv.com/rebound/state-of-education/palm-beach-county-school-board-may-legally-challenge-gov-ron-desantis-over-face-masks. 66 Matt Papaycik, Florida judge strikes down DeSantis’ ban on mask mandates, says school districts can require facial coverings, WPTV (Aug. 27, 2021, 9:44 AM), https://www.wptv.com/rebound/state-of-education/florida-judge-strikes-down-desantis-ban-on-mask-mandates-says-school-districts-can-require-facial-coverings. 67 Id. See also Forrest Saunders, Judge removes stay and blocks Florida’s mask mandate ban, WFTA TAMPA BAY (Sept. 8, 2021, 10:46 AM), https://www.abcactionnews.com/news/coronavirus/judge-again-considers-blocking-floridas-mask-mandate-ban. 68 Id. See also Pete Reinwald and Christine Zizo, Florida judge: DeSantis mask mandate ban violates Parent Bill of Rights, SPECTRUM NEWS 13 (Aug. 27, 2021, 3:10 PM), https://mynews13.com/fl/orlando/news/2021/08/27/judge-expected-to-rule-on-lawsuit-against-gov-desantis-mask-mandate. 69 “It’s our right to drink alcohol … but we cannot get in our car and start driving around …. The driver is now putting at risk other people.” The judge also noted the recommendations of the masking of students by the U.S. Centers for Disease Control and Prevention, which he called the U.S. “gold standard” for guidance on health [and that] the COVID-19 delta variant “presents a higher risk to children” than previous strains of the virus.“We had a less-dangerous form of the virus last year than this year,” he said. “I’m talking about the facts on the ground now as I understand it from the evidence.” Id. 71 Saunders, supra note 65. 66 JOURNAL OF LAW AND HEALTH Vol. 37:2 Judge Cooper vacated his ruling and blocked the stay. The state immediately appealed.72 As of September 10, the ban on masking was back in effect.73 Hearings continued throughout September and into October,74 and the Health Department asked for the challenge to be dismissed. This was rejected.75 On October 29, First Circuit John Long issued a non-final opinion in a case brought by parents and held that local school districts must comply with the law, allowing students to attend without masks.76 The propriety of the Order and rules were then put before an administrative tribunal in an action instituted by several school districts, and a decision was rendered on Nov. 5, 2021; that decision by Judge Brian Newman became the last word on the subject.77 i. Judge Long; Dortch et al. v. Alachua County School Board The matter was legally dissected first in Dortch et al. v. Alachua County School Board, decided by Judge Long on October 29. While not the ultimate resolution on the matter, Judge Long’s decision is noteworthy. It is primarily confined to the issue of mandamus sought by the petitioners, parents of children in various school districts who disavowed the school’s district masking mandate, seeking to compel their adherence adhere to the DOH rules and EO. Side-stepping the public health policy issue and noting that those policy decisions are constitutionally vested in the legislative and administrative branches, Judge Long noted that “[s]ociety’s collective response to the COVID-19 virus has become a cultural and political flash point.”78 He then confines himself to determining whether the court has the power to issue a writ of mandamus, noting that the mandamus issue “turns on a question of more enduring substance… whether the respondent government actors are required to comply with the laws that govern their authority.” Turning his back on the critical issues of public health, he notes that “despite its dressing, this case is not a dispute about the wises public policy response to the virus.”79 72 Id. 73 Erin Doherty, Court reinstates DeSantis’ mask mandate ban in Florida schools, AXIOS (Sept., 10, 2021), https://www.axios.com/2021/09/10/court-reinstates-desantis-mask-mandate-ban-florida. 74 Dortch v. Alachua Cty. Sch. Bd., 330 So.3d 976 (Fla. Dist. Ct. App. 2021). 75 Jim Saunders, Florida judge refuses to toss out mask rule challenge, NEWS 6 (Oct. 20, 2021, 8:41 PM), https://www.clickorlando.com/news/2021/10/21/florida-judge-refuses-to-toss-out-mask-rule-challenge/. 76 That order is linked to a press release on the Governor’s webpage. The Courts are Clear: School Districts Must Comply with the Law and Honor Parents’ Rights, FLA. GOV. (Nov. 5, 2021), https://www.flgov.com/2021/11/05/the-courts-are-clear-school-districts-must-comply-with-the-law-and-honor-parents-rights/. 77 News Service of Florida, Judge backs DeSantis on prohibition of student mask mandates, TAMPA BAY TIMES (Nov. 5, 2021), https://www.tampabay.com/news/florida-politics/2021/11/05/judge-backs-desantis-on-prohibition-of-student-mask-mandates/. The challenge was filed by school boards that faced state financial penalties after adopting student mask requirements. 78 Dortch supra note 72, at 977. 79 Id. Vol. 37:2 JOURNAL OF LAW AND HEALTH 67 With a blind eye to the health of citizens, the court held that the rule was purely ministerial. Excusing itself by refusing to address the science and substance behind it, the court concluded: The courts will not wade into the policy battles underway [which, of course, is the crux of the issue]. But neither will we refuse to exercise our constitutional authority to compel compliance with the law. Respondents cannot stand between parents and their lawful right to make decisions on behalf of their children.80 In sum, the court ruled that a “writ of mandamus is the proper remedy to compel a public official’s performance of a ministerial duty that is clearly required by law when there is no other adequate legal ground… A ministerial duty is one that does not involve the exercise of discretion.”81 While Judge Long blithely swats away the policy issues underlying the “ministerial rule” as if they are of no consequence and had no bearing on the rules’ enactment, it is precisely this issue that governs whether the policy is ministerial. Allowing a failure to address the dire public health emergency (which is how earlier orders were predicated) on the basis that they are “ministerial” and “do not require discretion,” is rank quackery. Surely, rules promulgated by the Health Department require judgment and discretion. That the duty “is required by law” is precisely the issue, and merely ipse dixit by the judge to the contrary does not change a dangerous policy into a “required law.”82 Further, refusing to “wade into the policy battles underway,” the court “refuse[s] to exercise their constitutional authority to compel compliance with the law,” even as the as they pander to the personal rightists. Indeed, the courts admit this is their objective: “Respondents cannot stand between parents and their lawful right to make decisions on behalf of their children.” [emphasis added]. That these decisions will affect others, drive community spread, which was already fulminating in Florida,83 is irrelevant to the court. Perhaps one problem is that the respondents took a single line of attack, admitting they were not following the rules and claimed they were challenging it on legal grounds of administrative procedure. As the court couched it, they claim that “rather than following Florida law, they say they are following their preferred policy recommendations.” Perhaps it might have been more ingenuously recounted as rather than following an unfortunate and 80 Id. at 980. 81 Id. at 979. 82 Infra note 143. The subordinate issue, the rights of parents to raise their children when their decisions pose a public health risk, has been rejected by the Supreme Court. Prince v. Massachusetts, 321 U.S. 158 (1944). Failing to provide a balancing test is a further flaw in the court’s reasoning. 83 See Harris, supra note 29. See also Tori L. Cowger, ET AL., Lifting Universal Masking in Schools – Covid-19 Incidence among Students and Staff, NEW ENG. J. OF MED. (Nov. 9, 2022), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9743802/. 68 JOURNAL OF LAW AND HEALTH Vol. 37:2 unscientific policy that panders to the populace, they are implementing their own science-based rules - to protect the public, i.e., to do what the governor is charged with doing. The way the decision couched their actions – it appears as a turf war or an insurrection, rather than the exercise of a local power to protect public health.84 Nevertheless, calling a mask mandate “ministerial’ demonstrates the depths to which governments sank to enforce personal choice at the expense of public health. The matter then found itself before an administrative tribunal. On November 5, 2021, Administrative Judge Brian Newman ruled in favor of DeSantis on legal, administrative, and scientific questions.85 In a 25-page decision, Judge Newman upheld the emergency rule, elevating parental rights, affirming that decisions to opt out of student mask requirements are at the “sole discretion” of parents or guardians,” and noting that “the school boards have “failed to prove that the emergency rule opt-out provisions facilitate the spread of COVID-19 in schools.86 The school districts vowed to appeal, but in December, the matter was declared moot.87 The cases pivoted on the constitutional authority of the governor as well as the validity of the scientific underpinnings. Given DeSantis’ rhetoric, we can expect similar enactments in the future should public health threats emerge.88 Moreover, given that Florida’s procedural mechanisms invited a stay of rulings adverse to gubernatorial orders, we can expect students to be exposed while litigants duke it out in court. The ultimate decision of Judge Newman is replete with error. To understand the depth and breadth of the errors, a review of the structure of the underlying Executive Order is warranted: ii. The Predicates for the EO The framework for the rules (and their ostensible constitutionality) rests on seventeen preliminary WHEREAS clauses contained in the Governor’s EO. Eight WHEREAS clauses provide an ostensible medical predicate for disallowance of masks, the accuracy of which is discussed in greater detail in Part III. Four WHEREAS clauses set forth an ostensible superiority of the rights of parents in mask-decision making, even during the pendency of an epidemic, including the 84 Young v. Flower, 32 N.Y.S. 332 (Supp. Ct. 1893); see also Billauer, supra note 7. 85 Saunders, supra note 74; see also supra note 75. 86 Id. noting the judge rejected the medical testimony of the school board, in favor of that of medical economist, Jay Bhattacharya, who, apparently is not licensed to practice medicine. 87 DeSantis v. Scott, 330 So. 3d 1055 (Fla. Dist. Ct. App. 2021); See also Scott v. DeSantis, 2021 Fla. LEXIS 1714, 2021 WL 4898476 (2021). 88 Indeed, similar rhetoric appeared regarding appeared regarding the alleged dangers of the mRNA vaccine by Florida’s new Surgeon General, Joseph Ladapo almost a year later. Supra note 21. Vol. 37:2 JOURNAL OF LAW AND HEALTH 69highly irregular enactment of H.B. 241. This bill was signed into law a day prior to the anti-mask order and titled the Parent’s Bill of Rights. It “prevents the state [and its agencies] from infringing on fundamental rights of parents to direct the upbringing, education, health care, or mental health of a minor child without … [proof] that such action is …necessary to achieve a compelling state interest….” The Order further provides that no rules promulgated by the Florida Department of Health for COVID management shall violate Floridian’s constitutional rights, which include parent’s rights to make health care decisions for their minor children under the “Parents Bill of Rights” provision, which protects parent’s rights to make decisions regarding masking of their children. The Sept. 22, 2021 Emergency Rule issued by the Health Department reiterates the concern for protecting parents’ rights “to make decisions regarding masking of their children” and provides in operative part, that parents must be “allowed the flexibility to control and education and health care decisions of their own children, and to protect the fundamental rights of parents guaranteed under Florida law”89 [emphasis added]. The gist of this clause is repeated no less than five times in the page and a half order, and provides that parents have the right to opt-out of any mask-mandate a school issues “at the parent’s sole discretion.”90 Further, under provision (3) “PROTOCOLS FOR STUDENTS WITH EXPOSURE TO COVID-19” the rule notes “Schools shall allow parents or legal guardians the authority to choose how their child receives education after having direct contact with any individual that is positive for COVID-19”) … so long as the child remains asymptomatic,”91 -- a determination made by the medically uneducated parent. Indeed, the first decision of any significant substance relating to this matter arose from a group of parents seeking mandamus seeking to compel school districts to comply with Section 1000.03(3) of the Florida Statutes and 64DER21-15,92 ratifying their “freedoms” to, in effect, determine public health policy. Three WHEREAS clauses claim the Department of Education is the lead agency in decision-making on this issue.93 That claim is contravened by State Laws (and earlier promulgations) which elect the Department of Health as lead agency. Much of the basis for the EO and enabling rules is coupled with the importance of in-school education, which provides the basis for designating the Department of Education as the lead agency.94 The 89 Supra note 32. 90 F.A.C §64DER21-15(1)(d), (2006) https://floridahealthcovid19.gov/wp-content/uploads/2021/09/64DER21-15.pdf. The question of parental rights related to health during an epidemic is an issue that has been addressed by the Supreme Court – and decided in a manner contrary to that provided by the Florida EO and rules, and the decisions of Judge Newman, Long, and Cooper. The applicable case, Prince v. Massachusetts, however, was not brough before these judges. 91 Id. 92 Dortch, supra note 72, at 977. 93 Supra note 5. 94 Dortch, supra note 72, at 977. A feature also noted by Judge Newman in the ensuing administrative hearing on the rules, discussed below. 70 JOURNAL OF LAW AND HEALTH Vol. 37:2 continued juxtaposition extolling the need for in-person schooling as a basis of the rule with the opt-out for masking is a clear non-sequitur. What does a masked child have in common with one who cannot attend at all? Further, Section 1000.03(3) of the Florida Statutes,95 on which both the parents and governor rely, pertains exclusively to education96 and seems to bear no relevance to the matter at hand. (Also raised is section 1003.22(3) and although that statute pertains to coordination between the DOH and the Dept of Education, it pertains exclusively to immunization.)97 iii. Administrative Hearing- Judge Brian Newman The matter ultimately was heard by Administrative Judge Brian Newman, a political appointee of Governor DeSantis.98 In School Board of Miami-Dade County, Florida, et al., v. Department of Health,99 Judge Newman ruled on whether certain provisions of Emergency Rule 64DER21-15 (the ”Emergency Rule”) are invalid exercises of delegated legislative authority. His decision focuses on the rights of the parents, but the basis for the challenge is not clearly articulated. While not per se ruling on DeSantis’ Executive Order, the EO is cited as furnishing a scientific basis on which the Emergency law is founded, and Judge Newman does engage in a review of the medical basis for the rules. The ruling is enough to cause apoplexy, as we see a politically appointed administrative judge overruling the national standard of medical and public health care and kowtowing to a governor whose public health decisions are purely politically motivated. The laws in question are precisely those evaluated by the Dortch court, including the irrelevant 1003.22 Florida statute which requires the DOH in conjunction with the Dept of Education “to adopt rules governing … the control of preventable diseases,” providing for “School-entry health examinations; immunizations; immunizations against communicable diseases;” and which pertains to pre-school vaccination. The case also turns on the provisions of 64DER21-15 which “allows students to attend school… without restriction… so long as the student remains asymptomatic [as determined by the medically illiterate parent, even if the child has been exposed.] In 95 Id.; FLA. STAT. §1000.003(3). 96 FLA. STAT. §1000.03. 97 FLA. STAT. §1003.22(3), (2023), http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=1000-1099/1003/Sections/1003.22.html. “The Department of Health may adopt rules necessary to administer and enforce this section. The Department of Health, after consultation with the Department of Education, shall adopt rules governing the immunization of children against, the testing for, and the control of preventable communicable diseases.” 98 Brian Blair, Governor Appoints Shareholder Brian Newman to Judicial Nominating Commission, PENNINGTON P.A., https://www.penningtonlaw.com/news/entry/governor-appoints-shareholder-brian-newman-to-judicial-nominating-commissio. 99 Sch. Bd. of Miami-Dade Cty. v. Fla. Dep’t of Health, 329 So.3d 784 (Fla. Dist. Ct. App., Oct.6, 2021). (Respondents shockingly argue that no immediate public health emergency exists to justify the rule. Wouldn’t it be better to say that the rule does not properly or scientifically address the admitted immediate danger?) Vol. 37:2 JOURNAL OF LAW AND HEALTH 71essence, that provision legitimizes banning public health responses in the context of a declared public health emergency in the face of an acknowledged “immediate danger to the public health and welfare”100 and elevates parents as the diagnostic arm for their children’s symptomatology. In addition to contravening the Supreme Court case of Prince v. Massachusetts,101 Judge Newman ignores the Florida Health Department’s flip-flopped policies. After first acknowledging an immediate danger to the public health and safety because of increase in COVID-19 infections, “largely due to the spread of the COVID-19 delta variant” and noting its predicate for the rule, the DOH then eviscerates a prime public health measure, masking, by allowing parents to thumb their noses at any such directive by their school board. To further support the legitimacy of the DOH rule and sustain the rule-making, the court notes a high level of student absenteeism – 100,000 cases of COVID-19 in August and September -- the highest Florida has seen, mostly of the more transmissible delta variant, incomprehensibly coupling this finding with the blatant regulatory inconsistency prescribing banning of masks. The court also acknowledged that the delay in rule-making typically afforded DOH was too long, justifying the emergency rule, “because COVID-19 presents an immediate danger to the public health, safety, and welfare, and because COVID-19 protocols must adapt to changing COVID-19 case data.”102 This is followed by the conclusion that the emergency measure: banning masking by all school districts- is legitimate. Judge Newman then reviews the basis for the DOH rule-making power – i.e., the existence of a health emergency -- before ruling that this emergency justifies governmental action, which in this case requires doing nothing other than keeping sick children at home. Further, the definition and diagnosis of “sick” is vested in medically untutored parents. Finally, again, conflating the rationale against quarantine and lockdown, the court applies flawed reasoning to justify nixing masking. The last three pages of the Newman decision concern the legal predicate for the DOH to enact the opt-out rule, addressing whether the rule was an invalid exercise of delegated legislative authority, and whether the DOH exceeded its authority. Holding that the DOH’s rule was proper and warranted, the court predicated its decision on section 120.54(4)(a)3. “In order to utilize emergency rule-making procedures, rather than employing standard rule-making, an agency must express reasons at the time of promulgation of the rule for finding a genuine emergency. [cites omitted] Those reasons 100 Id. 101 Infra note 143. 102 Supra note 99. 72 JOURNAL OF LAW AND HEALTH Vol. 37:2 must be factually explicit and persuasive.”103 And so, we have a precise finding of a health emergency – which the court then says the government may refuse to address. Finding that “COVID-19 is an immediate danger to the public health, safety and welfare… emergency rulemaking is necessary because Respondent is statutorily obligated to adopt statewide protocols to respond to the same emergency, and its COVID-19 protocols must also be informed by.. COVID-19 case data…. Respondent is confined to the general measures which are necessary “to alleviate the emergency. 104 In sum, the court rules that: “The preamble to the Emergency Rule sets out a facially adequate factual basis for emergency rule-making. In addition, the evidence presented justifies emergency rule-making.”105 And what is that emergency rule? Ban masking. The court is trying to have it both ways. Their interpretation is that the rule codifies doing nothing. If this is such an emergency as to justify imposition of emergency rule-making, one would expect requirements to act or respond, not justifications for failure to act. The court justifies its result by saying the rules are designed to achieve the DOH’s objective to keep children safe and the DOE’s objective of fostering learning in school. Indeed, masking would not interfere with either goal and would in fact further them by keeping the children – and their parents- healthy and hence school-going. Saying the opt-out does not run counter to the dictates of 1003.22 is pure ipse dixit. Specific assessment of the enabling EO’s WHEREAS clauses gets the court further bolloxed up. All eight WHEREAS clauses containing medical predicates are problematic. As mentioned, two of the eight are speculative; some are outright wrong, such as the assertion that there is no evidence that schools with mask mandates fared better than those without. A fourth (WHEREAS clause 7) relies on Florida’s Surgeon General’s unsubstantiated claim that long-term masking poses a risk of adverse and unintended consequences, without citation or specification – or scientific basis. Indeed, in para. 29 of his decision, Judge Newman finds that the claim that the parental opt-out on masking “makes it more likely that children will spread COVID-19 to others, … was unproven….” The reason offered is that “[t]he emergency rule requires sick children to stay home [and] [i]t is extremely rare for asymptomatic people to spread 103 Fla. Stat. §120.54(4)(a)3. 104 Supra note 99. 105 Id. (emphasis in original). Vol. 37:2 JOURNAL OF LAW AND HEALTH 73COVID-19 and children are otherwise inefficient transmitters of the ... virus.106 In a footnote, the court rejects the recommendations of the CDC, the World Health Organization, and the European CDC regarding universal masking on the grounds that the “scientific basis for the recommendations was not proven.” Indeed, the CDC website and its Mortality and Morbidity provides a link to a Kansas study documenting the efficacy of masking. Even the “Brown study” references various articles showing masking effectiveness. As to claim that COVID is not spread by asymptomatic persons, that too has been proven false. Indeed almost 25% of cases are traced to such transmission.107 In sum, in support Newman’s “do nothing” order, itself in flagrant disregard of the enabling predicates establishing an immediate danger, the court ratifies testimony claiming that children have no increased case-fatality rates. And while the rule notes that it comports with the governor’s Executive Order “to ensure safety protocols for controlling the spread of COVID-19 in schools,” the court flaunts publicly available data and finds that children do not pose a risk for spread or community transmission,108 as if schools and the community were two discreet planets separated by parsancs of dark matter with no contiguity between them, even if it were in fact accurate. Another serious flaw is characterizing the decision, which rests on medical judgment, as ministerial. The decision focuses on whether the court has the power to issue a writ of mandamus to compel local school boards to allow parental opt-outs,”109 After rejecting the expert medical testimony presented by the school boards (two Board Certified doctors) and accepting the testimony of the medical economist presented by the state, the Administrative Court upheld the DOH rules–issuing the writ and finding that the rule merely codified a “ministerial” function. A word about the strategic lawyering offered by the state. It appears that the school board lawyers focused on sterile legal/procedural issues, in essence feeding the State’s position. Perhaps had they argued that health decisions require medical judgment rendering mandamus inapplicable, claimed the flawed medical predicates for the rules were scientifically invalid, and that asserted that even though very few children died, “children are not supposed to die at all,” it might have made a difference. 106 Staff, The Courts Are Clear: School Districts Must Comply with the Law and Honor Parents’ Rights, Office of Governor Ron DeSantis (Nov. 5, 2021), https://www.flgov.com/2021/11/05/the-courts-are-clear-school-districts-must-comply-with-the-law-and-honor-parents-rights. 107 K. Ravindra et. al., Asymptomatic infection and transmission of COVID-19 among clusters: systematic review and meta-analysis. 100–109, 203 J. Pub. Health (February 2023) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8654597/. 108 “[T]he Department observed no meaningful difference in the number of COVID-19 cases in school-aged children in counties where school districts have not imposed mask mandates.” Id. Cf. Pediatric COVID-19 Cases in Counties With and Without School Mask Requirements — United States, July 1–September 4, 2021, CDC,MMWR Weekly / October 1, 2021 / 70(39);1377–1378 https://www.cdc.gov/mmwr/volumes/70/wr/mm7039e3.htm: “The results of this analysis indicate that increases in pediatric COVID-19 case rates during the start of the 2021–22 school year were smaller in U.S. counties with school mask requirements than in those without school mask requirements. School mask requirements, in combination with other prevention strategies, including COVID-19 vaccination, are critical to reduce the spread of COVID-19 in schools.” 109 Dortch v. Alachua, 330 So. 3d. 976 (Fla. Dist. Ct. App. 2021). 74 JOURNAL OF LAW AND HEALTH Vol. 37:2 III. CRITICAL ASSESSMENT OF THE EXECUTIVE ORDER AND THE EMERGENCY RULE To demonstrate the extent of political motivation involved in the outcome, a further review of the enabling legislation is in order. Such review demonstrates that the pandering to “parental rights” drove the outcome. The bizarre reasoning and incompatibility of that result cannot be stressed strongly enough. It should be recalled that a declaration that a health emergency is ongoing is a necessary precursor to the EO and DOH rules. Indeed, the EO first recognizes this “immediate danger” to public health, safety, or welfare predicating the rule-making by acknowledging an increased incidence of COVID cases. Next, the Governor and State Surgeon General created the rubric for, in essence, doing nothing (i.e., banning masking, and later discouraging vaccination), other than “encouraging” handwashing and routine classroom cleaning. In so doing, they favor and elevate parental rights over the initially recognized health-threat. Audaciously, the DOH rule goes on to say that it comports with the Governor’s Executive Order “to ensure safety protocols for controlling the spread of COVID-19 in schools” --- by banning masking. I now turn back to these eight clauses and review them in greater detail: A. The Science: False Medical Predicates of the Emergency Order WHEREAS clauses 2 and 6 state that schools did not drive community transmission and assert that there is no statistically significant evidence schools with masking requirements fared better than those without (i.e., no evidence exists to prove a negative). WHEREAS clause 3 acknowledges the CDC recommendation regarding the advisability of masking (which might be taken as the standard of care),110 before claiming (without citation) that this recommendation lacks a well-grounded scientific justification and then claiming (again without citation) that a Brown University study found no evidence masking works, when correlating with COVID-19 data (whatever that means). WHEREAS clauses 3 and 5 speculate that masking “may lead” or “could” result in negative health and social consequences and “lead to the collection of dangerous impurities such as bacteria, parasites, and fungi (how this could happen is unspecified). 110 CDC, Guidance for Schools & Child Care Programs, https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-childcare-guidance.html#:~:text=CDC%20recommends%20universal%20indoor%20masking,layered%20prevention%20strategies%20in%20place (Oct. 4, 2023). Vol. 37:2 JOURNAL OF LAW AND HEALTH 75WHEREAS clause 4 claims that children are at a low risk of contracting serious COVID 19 and do not significantly spread the disease.111 WHEREAS clause 7 relies on the Surgeon General’s claim that long-term masking poses a risk of adverse and unintended consequences, again, without specification. WHEREAS clause 16 claims that given the ongoing debate over whether masks are more harmful than beneficial to children, protecting freedom and statutory rights of parents is more important, and the decision to mask should rest with parents (even though their decision impacts children of others). i. WHEREAS Clauses 2 and 6 Shamelessly and falsely, WHEREAS clauses 2/6 assert that “studies have shown that children are at a low risk of contracting a serious illness due to COVID-19 and do not play a significant role in the spread of the virus.”112 Even a cursory review of Florida statistics indicates that the disease was out of hand and hospitals were overwhelmed at the time.113 Disconcerting and increasing rates of childhood admissions were reported during the dates leading up to and immediately following the Executive Order.114 Bearing in mind that younger children could not be vaccinated at this time, the only protection available to children, short of staying home, was masking. (That there is no statistically significant evidence of the benefits of masking does not mean that there is no evidence that masking does -- or doesn’t work, it just means no tests were performed or analysis done to establish that masking efforts reliably work.) Shortly after the EO, the CDC released its Mortality and Morbidity Reports establishing that areas without mask mandates reported more cases of COVID.115 These 111 This is patently false. See Chen Stein-Zamir, SARS-CoV-2 infection characteristics among students and staff in a large high school COVID-19 outbreak and secondary transmission in households, 34 J. Infectious Medicine 1, (2023). https://www.academia.edu/110417146/SARS_CoV_2_infection_characteristics_among_students_and_staff_in_a_large_high_school_COVID_19_outbreak_and_secondary_transmission_in_households?email_work_card=view-paper. 112 Billauer, supra note 26. 113 Billauer, supra note 19. 114 Id. 115 CDC Studies Show More COVID-19 Cases in Areas Without School Masking Policies citing the MMWR of Sept 24, 2021 reporting on 3 studies https://www.cdc.gov/media/releases/2021/p0924-school-masking.html (citing CDC, Association Between K–12 School Mask Policies and School-Associated COVID-19 Outbreaks — Maricopa and Pima Counties, Arizona, July–August 2021, 70(39) MMWRW 1372-1373 (Oct. 1, 2021); Pediatric COVID-19 Cases in Counties With and Without School Mask Requirements — United States, July 1–September 4, 2021, 70(39) MMWRW 1377-1378 (Oct. 1, 2021); CDC, COVID-19–Related School Closures and Learning Modality Changes — United States, August 1–September 17, 2021, 70(39) MMWRW 1374-1376 (Oct. 1, 2021). 76 JOURNAL OF LAW AND HEALTH Vol. 37:2 reports establish both the importance and effectiveness of masking, and that schools are indeed a locus of transmission.116 ii. WHEREAS Clauses 3 Clause 3 claims that masking doesn’t work, discounting CDC recommendations, and denying well-grounded scientific justification. Interestingly, CDC’s website did refer to a well-grounded study at the time, reference to which is studiously avoided by the Governor,117 DOH, (and the court). Instead, the Clauses cite to a “Brown University study” in support of their claim that masking doesn’t work.118 The “Brown Study” is anything but a true study, nor does it emanate from Brown. Actually, this is a non-peer reviewed pre-print providing an observational report evaluating the correlation - not of masking on COVID - but of the effect of legal mandates on disease incidence. Further, only the paper’s lead author, Emily Oster, an economist,119 is affiliated with Brown;120 ‘Brown University’ appears nowhere on the paper. The study members, Oster included, are associated with an independent NGO called “the COVID-19 School Response Dashboard,” which seems to have sponsored the report. In fact, “CDC researchers concluded that schools without mask requirements saw nearly four times as many COVID-19 outbreaks as schools with such mandates[:]”121 We would emphasize that in general this literature suggests in-person school[ing] can be operated safely with appropriate mitigation, which typically includes universal masking. It would be premature to draw any alternative conclusions about this question based on this preliminary data. [emphasis added]122 116 An updated study confirmed these results. See Tori L. Cowger et al., Lifting Universal Masking in Schools — Covid-19 Incidence among Students and Staff, NEJM, Nov. 24, 2022, rendering DeSantis’ latest proposed initiative, to ban masking in schools permanently, dangerous at best. 117 Center for Disease Control, Science Brief: Community Use of Masks to Control the Spread of SARS-CoV-2, https://www.ncbi.nlm.nih.gov/books/NBK570440 (Dec. 6, 2021). 118 Barbara Pfeffer Billauer, The COVID Amnesty Controversy: Qui Bono?, ACSH (Nov. 17, 2022), https://www.acsh.org/news/2022/11/17/covid-amnesty-controversy-qui-bono-16671. 119 Since that report was issued, Oster seems to have recanted or at least apologized. See id. 120 Oster herself aligned with pro-masking sentiment in an article with several coauthors. See Polly van den Berg, et al., Effectiveness of 3 Versus 6 ft of Physical Distancing for Controlling Spread of Coronavirus Disease 2019 Among Primary and Secondary Students and Staff: A Retrospective, Statewide Cohort Study, NATIONAL LIBRARY OF MEDICINE (Mar. 22, 2022), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7989511. 121 Lauren Camera, CDC researchers concluded that schools without mask requirements saw nearly four times as many COVID-19 outbreaks as schools with such mandates, US NEWS (Sept. 24, 2021), https://www.usnews.com/news/education-news/articles/2021-09-24/schools-without-mask-requirements-more-likely-to-see-covid-19-outbreaks. 122 “It is important to note that this does not imply masks are ineffective, as these results focus only on masking in schools and do not take community behavior into consideration. Additionally, as noted above, we focus only on mask mandates and not actual masking behavior.” Emily Oster, et al., COVID-19 Mitigation Practices and COVID-19 Rates in Schools: Report on Data from Florida, New York, and Vol. 37:2 JOURNAL OF LAW AND HEALTH 77 By happenstance, former Surgeon General Rivkees (who signed the Department of Health order) joined the Brown faculty less than four months after the Executive Order was signed.123 Obviously, a declaration of no conflict of interest was not appended to the study. Further, it appears that “off-line” Surgeon General Rivkees touted the benefits of masking – at least until a vaccine could be developed, while simultaneously supporting DeSantis’ anti-mask mandate initiative for schools, or at least allowing his name to be used in this regard. While the Oster pre-print noted there was no correlation between COVID rates and mask mandates in Florida, New York, and Massachusetts,124 the authors themselves note this does not prove causality. They further note that masking was universal in New York and Massachusetts, further setting a baseline for the standard of care in favor of mask mandates in schools. The authors then expressly disclaim any information regarding in-school transmission, and, citing peer-reviewed studies, they strongly caution against relying on their findings in the manner done by DeSantis.125 Indeed, they advise: We caution that our analysis focuses only on correlations and it is challenging to make causal statements. In the case of masking in particular, we focus on mandates and not on actual behavior. Masking is likely correlated with mask mandates, but it is also likely that some individuals mask even in the absence of a mandate and that there is imperfect compliance even with a mandate. In addition, while we control for community rates, we do not control for community mitigation practices, which would also impact behavior and rates in schools. It cannot be stressed strongly enough that the paper itself repeatedly cautions against relying on it to set masking policy – which is exactly what the DOH does -- and the court accepts.126 Massachusetts, medRxiv (May 21, 2021), https://www.medrxiv.org/content/10.1101/2021.05.19.21257467v1.full.pdf. 123 Jeffrey Schweers, Scott Rivkees — former Florida surgeon general, COVID mask advocate — accepts job at Brown U. Rivkees will work under Ashish Jha, the school’s dean and a noted expert on the pandemic, TALLAHASSEE DEMOCRAT, (Nov. 22, 2021), https://www.tallahassee.com/story/news/local/state/2021/11/22/former-florida-surgeon-general-scott-rivkees-brown-pandemic-misinformation-disinformation/8726709002/. Apparently, Rivkees was slated to step down on September 20, some two months after his own Department issued an Order opposing mask mandates. Saunders, infra note 118. 124 Oster, supra note 111. 125 “Third, our data only represent cases among people associated with schools, not cases spread in schools… Finally, we do not focus on possible community spread as a result of schools opening, which is a separate consideration and has been considered in other work. Id. See also Courtemanche et al., 2021; Harris et al., 2021; Harell & Lieberman, 2021. The report did indicate that lower student density did correlate with lower COVID cases in students, a finding augmented by better ventilation, suggesting that preventing exposure by reducing contact by air is indeed effective. 126 This is contrary to good practice in evaluating scientific evidence, which requires adherence to limitations authors of a study provide, at least per the Daubert standard. See In re Acetaminophen - ASD- 78 JOURNAL OF LAW AND HEALTH Vol. 37:2 Even the positive results obtained by the authors are irrelevant. While the authors found that no correlation existed between mask mandates and disease incidence in Florida, this finding does not establish that masking doesn’t work. Rather, it is a correlation between a legal response (mask mandates) and epidemiological finding. In other words, had there been a high level of voluntary masking without mandates, the results would not be apparent. This is because the study didn’t measure the relationship between masking and disease, but rather mask mandates and disease.127 Neither does the report evaluate the impact of mandates on stemming community spread; nor the effect of masking or mandates on the severity of disease. That report did note that lower student density correlated with lower COVID cases, a finding augmented by better ventilation, suggesting that preventing exposure by reducing contact by air is indeed effective. (Curiously, some months after Oster’s report was issued, she took to the media-waves and asked for a “reset” – as if asking for forgiveness, in her words “amnesty” for flawed advice, although without identifying which parts she wants recanted. That article was much maligned, and the pushback was significant.)128 iii. WHEREAS Clause 9 WHEREAS Clause 9 is based on then Surgeon General Scott Rivkees’ proclamation and Public Health Advisory of April 29 claiming masks pose risks of adverse consequences. Nevertheless, in litigation over mask mandate propriety, Rivkees was shielded from being deposed. (The judge held the Apex rule governed,129 meaning that high ranking officials are shielded from deposition if the information is publicly available.)130 Indeed, in an audacious response, the Department of Health’s attorneys had the temerity to argue “that Rivkees does not “possess … unique, personal knowledge about the disputed ADHD Products Liability Litigation, No. 22md3043 (DLC), 2022 WL 17348351 (S.D.N.Y. Nov. 14, 2022). 127 "Our cohort study revealed that enforcing SARS-CoV-2 mitigation policies, such as mask wearing, physical distancing, and hand hygiene, resulted in minimal clusters of SARS-CoV-2 infection and low rates of secondary transmission in schools and did not cause a larger community infection burden. Our data indicate that schools can reopen safely if they develop and adhere to specific SARS-CoV-2 prevention policies.” Kanecia O. Zimmerman et.al., Incidence and Secondary Transmission of SARS-CoV-2 Infections in Schools, PEDIATRICS 7 (April 1, 2021), https://publications.aap.org/pediatrics/article/147/4/e2020048090/180871/Incidence-and-Secondary-Transmission-of-SARS-CoV-2?autologincheck=redirected. See also Justin Lessler,et. l., Household COVID-19 risk and in-person schooling Science, Science (April 29, 2021), https://www.science.org/doi/10.1126/science.abh2939. 128 Billauer, supra note 108. See also Chuck Dinerstein, Thinking Aloud, COVID Amnesty, ACSH (Nov. 9, 2022), https://www.acsh.org/news/2022/11/09/thinking-aloud-covid-amnesty-16656. 129 School boards in Broward, Alachua, Orange, Miami-Dade and Leon counties and other parties, including the Florida State Conference of the NAACP, have challenged the mask rule issued Aug. 6 by the Department of Health. Jim Saunders, Florida fights to block disposition of its own surgeon general in school mask legal battle, MIAMI HERALD (September 17, 2021), https://www.miamiherald.com/news/coronavirus/article254291238.html. 130 Jim Saunders, Florida’s Surgeon General Won’t Have to Give a Deposition in the Mask Mandate Case, WUSF PUBLIC MEDIA (Sept. 16, 2021), https://wusfnews.wusf.usf.edu/courts-law/2021-09-16/floridas-surgeon-general-wont-have-to-give-a-deposition-in-the-mask-mandate-case. Vol. 37:2 JOURNAL OF LAW AND HEALTH 79issues in this proceeding that his staff does not otherwise possess.”131 The existence of public information, however, is not the issue. Rather, the question is the validity of the governor’s order, which was based, at least in part on Rivkees’ opinion. In fact, as noted above, Rivkees had advocated masking. In June 2020, he issued an across-the-board recommendation for masking.132 And on June 20, the Florida Department of Health (DOH) issued an additional Public Health Advisory recommending that all individuals in Florida should wear masks in any setting where social distancing is not possible.133 Further, on August 9, 2021, the State Health Department issued an advisory recommending masking in view of the increased incidence in cases134 and supporting CDC recommendations,135 which were quite clear and data-based.136 The issue of why and when Rivkees changed his mind would appear quite relevant, although ignored by the court. iv. WHEREAS Clause 4 WHEREAS clause 4 asserts that children are at a low risk of contracting serious COVID and do not significantly spread the disease. This, too, is blatantly false.137 Nevertheless, the mantra was further embedded in the state mindset by Jay Bhattacharya, who appeared on several DeSantis roundtable discussions and advised the governor about the virus, and who also testified as an expert witness at the Newman hearing on behalf of the State. He testified that “Children are inefficient transmitters of this disease.”138 Unfortunately, the objective evidence shows otherwise.139 131 Id. 132 @MiamiHerald, TWITTER (Jun. 22, 2020, 3:31 PM), https://twitter.com/miamiherald/status/1275149540837003266. 133 Florida Department of Health Issues Additional Public Health Advisory, FLORIDA PHYSICAL THERAPY ASSOCIATION https://www.fpta.org/PAGE/FLDOHHEALTHADVISORY. 134 “These protocols were created because of a recent increase in COVID-19 infections, largely due to the spread of the COVID-19 delta variant,…” Florida Department of Health, Florida Health in Flagler Clarifies Protocol for COVID in Schools, Florida Health – Flagler County (Aug. 9, 2021), https://flagler.floridahealth.gov/newsroom/2021/08/Florida-Health-in-Flagler-Clarifies-COVID-Protocol-in-Schools.html. 135 “The health department, following CDC recommendations, continues to encourage mask-wearing, particularly in indoor settings like schools.” Id. at ¶ 2. 136 Use Masks to Slow the Spread of COVID-19, , CDC (Aug. 12, 2021), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/masks.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fprevent-getting-sick%2Fdiy-cloth-face-coverings.html. 137 Munoz, supra note 38. See also, Nathan Jaffay, The silent young spreaders: Lots of asymptomatic kids among COVID-19 cases, The Times of Israel (Jun. 16, 2020), https://www.timesofisrael.com/the-silent-spreaders-lots-of-asymptomatic-kids-among-covid-19-cases, “Current coronavirus peak is sparing the elderly, but it’s also highlighting the risks of asymptomatic carriers, says head of research at Maccabi Health Services.” 138 Curt Anderson, Florida Mask Debate Split-Screen: Courtroom vs. Classrooms, Associated Press (Aug. 24, 2021), https://apnews.com/article/health-florida-coronavirus-pandemic-0dbaa007159b55018ffefa1728ac2e2c. 139 See Munoz, supra note 38; Staff, The Courts Are Clear: School Districts Must Comply with the Law and Honor Parents’ Rights, Office of Governor Ron DeSantis (Nov. 5, 2021), https://www.flgov.com/2021/11/05/the-courts-are-clear-school-districts-must-comply-with-the-law-and- 80 JOURNAL OF LAW AND HEALTH Vol. 37:2 The claim directly contradicts CDC data,140 facts on the ground in Florida,141 and surveys demonstrating the serious impact COVID-19 had on the youth. Indeed, for 2022, COVID-19 was the 4th and 5th leading cause of death for children 5-14 for three months in 2021, and for young people 15-24, for nine months of the year.142 143 Sandwiched between two WHEREAS clauses bemoaning the effects of loss of in-person class time, the DOH appends the non-sequitur: “In addition, the Department observed no meaningful difference in the number of COVID-19 cases in school-aged children in counties where school districts have imposed mask mandates.” No citation to published or even pre-print data is given, and as noted above, the facts are contrary to this assertion. honor-parents-rights (noting also that he presented “credible” testimony that “a child infected with COVID survives 99.997% of the time that supposed to die); See Peri Klass, When Children Die, Harper’s Magazine (Jun. 2021), https://harpers.org/archive/2021/06/when-children-die. 140 After the governor’s executive order, COVID-19 incidence (calculated as the 7-day rolling average number of new daily cases per 100,000 population) decreased (mean decrease of 0.08 cases per 100,000 per day; net decrease of 6%) among counties with a mask mandate (mandated counties) but continued to increase (mean increase of 0.11 cases per 100,000 per day; net increase of 100%) among counties without a mask mandate (nonmandated counties). The decrease in cases among mandated counties and the continued increase in cases in nonmandated counties adds to the evidence supporting the importance of wearing masks and implementing policies requiring their use to mitigate the spread of SARS-CoV-2. See Miriam E. Van Dyke, et al., Trends in County-Level COVID-19 Incidence in Counties With and Without a Mask Mandate — Kansas, June 1 - August 23, 2020, MMWR (Nov. 20, 2020), https://stacks.cdc.gov/view/cdc/97490. 141 Biden’s vaccine mandate for federal workers blocked while appeals court reconsiders its own ruling, CBS News (Jun. 27, 2022), https://www.cbsnews.com/news/vaccine-mandate-for-federal-workers-blocked-again-court-reconsiders-ruling. (noting that at one point hospitals were overwhelmed and that the emergency room became a hot spot for spreading - especially for unvaccinated children. In one week in July, 400 children daily were hospitalized with COVID. A 66% increase from the prior week.) 142 See Billauer, supra note 26. 143 Jared Ortaliza, et al. COVID-19 leading cause of death ranking, KFF, March 24, 2022; Billauer, supra note 26. Vol. 37:2 JOURNAL OF LAW AND HEALTH 81v. WHEREAS Clause 16 Concluding with WHEREAS clause 16, the order claims that given the ongoing debate over whether masks are more harmful than beneficial to children, protecting freedom and statutory rights of parents is more important than protecting public health. Hence, the court rules that the decision to mask should rest with parents (even though their decision impacts on children of others, as well as community spread). In sum, the ostensible “debate” over the relative benefits of masking for children appears to exist only in the minds of Floridian (and other similarly politically- aligned) officials, with Florida one of the few states bucking the national trend on mask mandates.144 B. The Law: Legal Infirmities of the DOH Emergency Rule Like Brutus, Judge Newman elevates the focus on safeguarding the rights of parents by a contrarian expose, allowing parents “the flexibility to control and education and health care decisions of their own children, … [which] protect[s] the fundamental rights of parents guaranteed under Florida law at the parent’s sole discretion,” [emphasis added].145 This mantra, the court extends to masking decisions affecting the health of the children of others and the populace-at-large. A vast body of legal literature has addressed governmental power to enact mandating public health measures.146 Cases and commentary alike also address the need to balance individual liberties against the state’s police power to protect the public health, interpreting state powers in the process.147 Until recently, the question vexing the courts is do state directives go too far? Now we ask – do they go far enough? And what is the penalty for failure to act if they don’t go far enough? 144 39 states imposed mask mandates for indoor wear. Ironically, the Florida legislators were required to wear masks, test negative for COVID19, maintain safe distances and submit to fever checks. See Laura Cassels, Florida remains an outlier as Gov. DeSantis bucks national trend on mask mandates, FLORIDA PHOENIX (Nov. 19, 2020); Five states prevented masking even on a local basis. See Eram Abbasi, State by State Face Mask Mandates, LEADING AGE, (June 9, 2022). https://leadingage.org/state-state-face-mask-mandates/. 145 Dortch, supra note 72, at 977. 146 Both regarding vaccines and quarantines. See e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 385 (1902); see also Barbara Pfeffer Billauer, Religious Freedom vs. Compelled Vaccination: A Case-Study of the 2018–2019 Measles Pandemic- or The Law as a Public Health Response, 71 CATH. U. L. REV. 277 (2022). 147 Prince v. Massachusetts, 321 U.S. 158, 162 (1944) (Concerning an ordinance prohibiting children from offering or selling newspapers, a Jehovah’s witness guardian. Mrs. Prince admitted she supplied her niece with the magazines, and said, "[N]either you nor anybody else can stop me . . . This child is exercising her God-given right and her constitutional right to preach the gospel, and no creature has a right to interfere with God's commands. [The plaintiff] rests squarely on freedom of religion under the First Amendment. She buttresses this foundation, however, with a claim of parental right as secured by the due process clause of the latter Amendment.”) See also Price v. New York, 51 A.D.3d 277 (N.Y. App. Div. 2008). 82 JOURNAL OF LAW AND HEALTH Vol. 37:2 Thus, egregious trespass on federal Constitutional rights may not supersede public health148 where strict scrutiny is applied to evaluate First Amendment rights – restricting state license to act.149 For example, the recent case of Roman Catholic Church v. Cuomo restricts state power to enact emergency public regulations involving contagious diseases (once held to be broad) when the free exercise clause is involved. In this case, the right infringed is a universal religious right to worship, common to most religions,150 yet the state was barred from acting. i. Parental Rights vs. Public Health While freedom of religion may supersede public health and safety in some cases, that exception is limited.151 No other individual right has come close in competing with the pre-eminence of public health protection. Indeed, legal mantra has weighted individual rights in this balancing act, establishing, inter alia, that individual practice of religion must fall before the public health if such practices jeopardize the community, with the Supreme Court noting, “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”152 Other constitutional provisions have also been pitted against the state’s police power to preserve public health and found to be subordinate.153 Much of the ballast for Newman’s decision (and DeSantis’ order) comes from reliance on a claimed constitutionally-vested parental right to rear a child. Nevertheless, the Supreme Court has ruled that a state can restrict personal liberties in manners far more egregious than masking,154 such as imposing quarantine, in order to safeguard public health. These measures are enabled to prevent those with communicable diseases to prevent 148 Jew Ho v. Williamson, 103 F. 10 (9th Cir. Cal.1900); see also Paula Mindes, Tuberculosis quarantine: a review of legal issues in Ohio and other states, 10 J. L. & HEALTH 403, 409 (1996) (Noting that until recently, courts upheld quarantine actions with minimal scrutiny even when the regulations or their implementation were arbitrary and overbroad). 149 Edward P. Richards. & Katherine C. Rathbun, The Role of the Police Power in 21st Century Public Health, JOURNAL OF THE AMERICAN SEXUALLY TRANSMITTED DISEASES ASSOCIATION, 350, (1999). 150 Roman Catholic Church v. Cuomo, 595 U.S. --- (2020); But see Does v. Mills, 595 U.S. (2021) (where individual religious beliefs against vaccination will not supersede state requirements for health care workers to be COVID-19 vaccinated, indicating that even where freedom of religion is concerned, that right is not hegemonic. The Supreme Court has refrained from sounding in on religious exemptions for vaccination). 151 See Id. (Where a Catholic health worker claimed such an exemption. Here, the Pope has specifically endorsed vaccination, even where aborted fetal cells are used in development. To my knowledge only two recognized religions forbid vaccination. See Davis v. State 294 Md. 370, (1982). https://casetext.com/case/davis-v-state-2958); Barbara Pfeffer Billauer, Religion, Politics and Public Health: A Toxic Combination, ACSH (March 11, 2022), https://www.acsh.org/news/2022/03/11/religion-politics-and-public-health-toxic-combination-16179. 152 Prince v. Massachusetts, 321 U.S. 158, 167 (1944) citing People v. Pierson, 176 N.Y. 201 (N.Y. 1903) (noting however that the “ruling does not extend beyond the facts the case presents.”). 153 Barbara Pfeffer Billauer, Fundamentalism in Roman Catholic Diocese v. Cuomo: The Court’s Farrago of Religious Freedom, Public Health Law, and Scientific (II) Literacy, 29 VA. J. SOC. POL’Y & L. 129, (2022). 154 See In re Halko, 54 Cal. Rptr. 661 (Cal. App. 2d. 1966). Vol. 37:2 JOURNAL OF LAW AND HEALTH 83“conveyance of the infectious agent, aka spread or transmission.”155 And not surprisingly, the petitioners object to the Floridian Parents’ Bill of Rights. The court, however, relies on the Governor’s Executive Order (which references the Parent’s Bill of Rights) to sustain the DOH’s powers, allowing by indirection that which he denies directly (and sotto voce endorsing the superiority of parental rights).156 He notes: On the contrary, the evidence admitted in this case established that the emergency rule opt-out provisions strike the right balance by ensuring that the protocols that govern the control of COVID-19 in schools go no further than what is required to keep children safe and in school. 157 Presumably, the Parental Bill of Rights of Florida, enacted a day before the EO, serves as the predicate for some enhanced right of Floridian parents that supersedes the concern for protecting public health. Presumably, Florida is relying on Wisconsin v. Yoder to sustain this construct. That case concerned an Amish family which objected to the State’s educational requirement of keeping children in school past eighth grade, on the grounds of freedom of religion. The Supreme Court ruled that the Free Exercise Clause trumps state educational rules, and the case has been interpreted as vesting upbringing rights in parents. But that right is not absolute, although courts interpreting the EO and Rules would have us so believe. Indeed, parental rights are clearly limited when it comes to the life or health of a child, as evidenced by the doctrine of parens patriae, discussed below.158 One might argue that compliance with the parental rights principle should occupy second tier or lower priority in the hierarchy of governmental obligations during a health crisis. Not so, says Judge Newman. He is wrong. Even parental religious convictions won’t override the state’s concern for the child’s health and medical welfare, let alone a hastily enacted state law. Thus, for example, in Prince v. Massachusetts, the Supreme Court refused to allow parents’ beliefs to determine child-care when there was a danger of community transmission. 159 [T]he family itself is not beyond regulation in the public interest,….And neither rights of religion nor rights of parenthood are beyond limitation.. [T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare…160 155 In 1951, § 4429-1 of the Ohio General Code provided the department of health with this power. 156 See Dortch v. Alachua, 330 So. 3d. 976 (Fla. Dist. Ct. App. 2021); “(School Districts) cannot stand between parents and their lawful right to make decisions on behalf of their children.” 157 Staff, The Courts Are Clear: School Districts Must Comply with the Law and Honor Parents’ Rights, Office of Governor Ron DeSantis (Nov. 5, 2021), https://www.flgov.com/2021/11/05/the-courts-are-clear-school-districts-must-comply-with-the-law-and-honor-parents-rights. 158 JONA’S HEALTHCARE, LAW, ETHICS, AND REGULATION, 9(3): 69 (Jul. – Sept. 2007). 159 Barbara Pfeffer Billauer, COVID-19 Causes Parental Conflicts; And It’s The Kids Who Suffer, ACSH (Jul. 26, 2022), https://www.acsh.org/news/2022/07/26/covid-19-causes-parental-conflicts-and-it%E2%80%99s-kids-who-suffer-16446. 160 321 U.S. 158, 166. 84 JOURNAL OF LAW AND HEALTH Vol. 37:2 ii. The Doctrine of Parens Patriae Another rubric supporting a state’s responsibility to protect the health of its most vulnerable citizens, in this case the health of a child (or all children), is the doctrine of parens patriae, (meaning ‘father of the country’). This doctrine denotes the state’s role as sovereign guardian for persons under a disability, the infirm, or the vulnerable, and describes the obligation of the state to act as "parent of the country" in caring for those who cannot care for themselves.161 The doctrine allows the state to usurp parental control where the child’s best interest is at stake – even when the parental decision is vested in such hallowed a right as freedom of religion. The best interest of the child - often being the child’s health and welfare – is the superseding and driving factor. The doctrine often has been applied in the public health setting.162 Newman’s decision acknowledges the doctrine of parens patriae in support the DOH rule, but then mis-appreciates the purpose for which that doctrine has been historically deployed.163 The motivating force directing the state’s parens patriae response is not a blanket power-grab, nor is it to be used to embolden or empower parents. Often courts will temporarily remove the child from parental custody, as in the case of Jehovah’s Witness children whose parents refuse to consent to blood transfusions. After considering the child’s best interests, the doctrine may even consider protecting interests of third parties (e.g., community transmission),164 as well as maintaining the ethical integrity of the medical profession.165 Given the competing rulings between Wisconsin v. Yoder and Prince v. Massachusetts, the best interests of the child would be determined by health-related factors, not educational ones. 161 A.M. Rogers, Saving Sick Children from State Science, FOUNDATION FOR ECONOMIC EDUCATION (Jun. 1, 1993), https://fee.org/articles/saving-sick-children-from-state-science. 162 See generally Lawrence O. Gostin & James G. Hodge, Jr., Public health emergencies and legal reform: implications for public health policy and practice, NATIONAL LIBRARY OF MEDICINE, 118(5), 447 (Sept. – Oct.. 2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1497578. 163 In the Matter of Elisha McCauley, 565 N.E.2d 411 (Mass. 1991). 164 Kathryn Hickey, Minors’ Rights in Medical Decision Making, JONA’S HEALTHCARE, LAW, ETHICS, AND REGULATION, 9(3): 69, (Jul. – Sept. 2007), https://journals.lww.com/jonalaw/abstract/2007/07000/minors__rights_in_medical_decision_making.13.aspx. 165 Shawna Benston, Not of Minor Consequence? Medical-Making Autonomy and the Mature Minor Doctrine, 13:1 INDIANA HEALTH L. REV., 1 (2016); see also Geraldine Koeneke & Russell Donald Wallace, Jehovah’s Witnesses and the Refusal of Blood Transfusions: A Balance of Interests, 33 THE CATHOLIC LAWYER 361, 376 (2017) (noting that “Chief Justice Ehrlich concurred with the majority opinion, asserting that the primary interest in the case was the protection of the minor children, which has its basis in the doctrine of parens patriae….The state's interest in protecting third parties is based on the common law doctrine of parens patriae.”). Vol. 37:2 JOURNAL OF LAW AND HEALTH 85 IV. WHO REGULATES PUBLIC HEALTH? A. The Historical Uses of the State’s Police Power Faced with an unpredictable epidemic whose spread is fostered by asymptomatic carriers, sickening children both acutely and with long COVID,166 a governor who is preventing implementation of the standard of care public health measures, and an administrative Judge backing the governor’s policy, the question becomes what can be done? One proposed answer is that suits might be brought under negligence theory. To achieve this, several obstacles must be overcome. The first is to determine whether the state, in the person of its governor, has any duty to safeguard the health of the public, and if so, is that obligation primary, or can it be subordinated to other rights, such as parental freedom to raise their children as they see fit. I first begin by examining the role of the state in regulating public health. In so doing, we find the derivation of the state’s powers to regulate public health is dual, and historic.167 The first prong arises from the tenth amendment, which reserved to the states those rights not appropriated by the federal government.168 While “the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty reflected throughout the Constitution's text, such as a police power to oversee and regulate public health and safety.169 That foundation, by itself, however, does not seem to vest a duty in the states to act, but rather affords them the right to so act, rather than any obligation. Nevertheless, Chief Justice Roberts has written “our Constitution principally entrusts the safety and health of the people’ to the politically accountable officials of the States.”170 The second basis for a private lawsuit arises from common law principles of sic utere tuo ut alterum non laedas (use that which is yours so as not to injure others)171 and salus publica suprema lex est (public well-being is the supreme law),172 which flow 166 Billauer, supra note 30. 167 “The Supreme Court, in its affirmation of this power, noted that the state had the power to quarantine “to provide for the health of the citizens.” Wendy E. Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 13 HOFSTRA L. REV. 53, 57 (1985) (the law and the public's health: a study of infectious disease law in the United States). 168 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people…” U.S. CONST. amend X. 169 Printz v. United States, 521 U.S. 898 (1997); See, e.g., Lane County v. Oregon, 74 U.S. 71 (1868). 170 S. Bay United Pentecostal Church v. Newsom, 590 U.S. (2020) (Roberts. J., concurring); see also Wendy E. Parmet & Faith Khalik, Judicial Review of Public Health Powers Since the Start of the COVID-19 Pandemic: Trends and Implications, AMERICA JOURNAL OF PUBLIC HEALTH (Feb. 15, 2023), https://ajph.aphapublications.org/doi/10.2105/AJPH.2022.307181?url_ver=Z39.88-2003&rfr_id=ori%3Arid%3Acrossref.org&rfr_dat=cr_pub++0pubmed. 171 Parmet, supra note 158. 172 Jorge E. Galva et al., Public Health Strategy and the Police Powers of the State, 120 PUBLIC HEALTH REPORTS 1, 20-27 (2005); see also Smith v. Turner, 48 U.S. 283, 340-341 (1849) (noting “Salus populi 86 JOURNAL OF LAW AND HEALTH Vol. 37:2 from common law doctrines of nuisance173 requiring preservation of the common good174 as established in the King’s England, which, in turn, found its way into American nuisance law. This principle would enable a private claim for public nuisance.175 In 1886, for example, influential legal commentator Christopher Tiedeman wrote: This police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State. According to the maxim, sic utere tuo, ut alienum non laedas, it being of universal application, it must of course be within the range of legislative action to define the mode and manner in which everyone may so use his own as not to injure others.176 B. Cases and Case Law The law confirming the superiority of the states’ police power to regulate public health is well-settled. The case of Jacobson v. Massachusetts177 (upholding state compulsory vaccinations), decided at the turn of the last century), has found its way into common discourse. There, the Supreme Court affirmed state police powers when necessary to protect the public’s health and safety “beyond what was reasonably required for the safety of the public.” The case went further, allowing such decisions to be delegated to a locality. The powers involved were active, aggressive, and invasive – allowing incursion into and superseding private rights to safeguard the public health.178 Jacobson v. Massachusetts, … [has] settled that it is within the police power of a state to provide for compulsory vaccination. That case and others had also settled that a state may, consistently with the federal Constitution, suprema lex esto (Latin: [The health (welfare, good, salvation, felicity) of the people should be the supreme law", (or highest) law)] upholding New York’s quarantine laws); Glenn H. Reynolds & David B. Kopel, The Evolving Police Power: Some Observations for a New Century, 27 HASTINGS CONST. LAW QUARTERLY 511, 512 (2000); Reynolds GH, Kopel DB. The Evolving Police Power: Some Observations for a New Century. HASTINGS CONST. LAW QUARTERLY 511–37 (2000) (While the salus publica doctrine implied a more extensive exercise of police powers, state actions allowable under its aegis were, generally speaking, under the discretion of the state legislature, and limited only by infractions to an express constitutional right or by actions opposite to the principles of representative government). 173 Holden v. Haardy, 169 U.S. 366, 392 (1898) (noting that the police power may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion [and] is necessarily vested in the legislature…” (citing Lawton v. Steele, 152 U.S. 133, 136; Weaver v. Palmer Brothers Company, 270 U.S. 402, 404 (1926) (Holmes, J., dissenting) (noting that “[w]here there is any doubt as to whether or not a thing prohibited is obnoxious, poisonous or harmful, [and hence regulatable under the police power], the determination by the legislature is conclusive.”))) 174 Galva, supra note 163. 175 See Barbara Pfeffer Billauer, The Sperminator As a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts), 42 U. ARK. LITTLE ROCK L. REV. 3 (2019). 176 Reynolds, supra note 163. 177 Jacobson v. Massachusetts, 197 U.S. 11 (1905). 178 Sugarman v. United States 249, U.S. 182, 184 (1919). Vol. 37:2 JOURNAL OF LAW AND HEALTH 87delegate to a municipality authority to determine under what conditions health regulations shall become operative.179 To be sure, recent case law has diluted Jacobson’s impact. In Roman Catholic Diocese v. Cuomo180 [hereinafter RC v Coumo] Justice Gorsuch labelled the importance of Jacobson as “modest.”181 Public-Health-Law-come-lately Professor Josh Blackman considers the importance of the case a “myth,” and seeks to repudiate its impact.182 Blackman’s statements, however, can hardly undo history where Jacobson and its progeny is considered legendary (even “iconic”). However,183 even in RC v. Coumo, restriction of the state’s powers is recognized only when it interferes with the First Amendment’s explicit Freedom of Religion Clause – and then only in certain circumstances.184 Imposing other public health measures which restricted individual liberty, such state-mandated quarantine (a far more restrictive response than masking), is ancient and has been invoked multiple times during the 400 years of American history and prehistory. Local and state quarantine laws predated the founding of the republic:185 The earliest municipal ordinances began in Boston (1647) and New York (1663), with Massachusetts and New York enacting quarantine statutes during the following century.186 “By the time the federal Constitution was drafted in 1787, quarantine had become a well-established form of public health regulation…. New York passed its first maritime quarantine act in 1755.”187 The state’s police power to govern public health was initially validated shortly after the Revolutionary War when Philadelphia was isolated to control yellow fever (in an 179 Zucht v. King, 260 U. S. 174, 177 (1922); Laurel Hill Cemetery v. San Francisco, 216 U.S. 358 (1910) (Other cases held that the municipality may vest in its officials’ broad discretion in matters affecting the application and enforcement of a health law). See Lieberman v. Van de Carr, 199 U.S. 552 (1905); see also Valdez v. Grisham, 559 F. Supp. 3d. 1161 (D. N. M. 2021), https://scholar.google.co.il/scholar_case?case=6383235871437415421&hl=en&as_sdt=6&as_vis=1&oi=scholarr; F.F. v. State of New York, 37 N.Y.3d 1040 (2021), https://law.justia.com/cases/new-york/appellate-division-third-department/2021/530783.html; Whitlow v. California, 203 F. Supp.3d 1079 (2016) 180 Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S. 5 (2020). 181 “Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?” Id. at 5; see also Billauer, supra note 144. 182 Josh Blackmun, The Irrepressible Myth of Jacobson v. Massachusetts, 70 Buff. L. Rev. 131 (2022); see also Josh Blackmun, COVID and the Constitution: Cato Live Webcast, Live, Online Policy Forum (2021). 183 See Jennifer Oliva, Public Health Surveillance in the Context of COVID-19, 18 INDIANA HEALTH L. REV. 107, (2020). See also, LAWRENCE GOSTIN & LINDSAY WILEY, PUBLIC HEALTH LAW, POWER, DUTY, RESTRAINT 122 (2020). “Jacobson was an iconic case reconciling individual rights with the collective good, and the Court’s resolution continues to reverberate in modern times.” 184 Even here, Conservative Supreme Court justices don’t give free reign to individual rights, refusing to weigh in on whether personal religious views supersedes the State’s right to order vaccination; See Does v. Mills, 595 U.S. (2021). 185 Josh Hicks, A brief history of quarantines in the United States, The Wash. Post (Oct. 7, 2014), https://www.washingtonpost.com/news/federal-eye/wp/2014/10/07/a-brief-history-of-quarantines-in-the-united-states. 186 Id. 187 Wendy E. Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 13 HOFSTRA L. REV. 53, 57 (1985) (citing 3 Colonial Laws of New York 1071-73, Ch. 973 (1755)). 88 JOURNAL OF LAW AND HEALTH Vol. 37:2 early example of lockdowns.)188 Restricting immigration in response to cholera and yellow fever epidemics began in the early 1800s and continued until the early 1900s.189 While Jacobson (and cases following it)190 acknowledge the State’s police power to regulate health and safety, some say the Lochner case overruled it. However, in the words of a legal scholar of the day, this is not so: Indeed, “the Court subsequently has more or less ignored the Lochner decision [and] Bunting v. Oregon,191 decided in 1917 practically overruled it,” thereby, in effect, re-instating Jacobson. All the cases agree that this [police] power extends at least to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights…. [N]either the [14th] Amendment -- broad and comprehensive as it is -- nor any other Amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people.192 C. Public Health: Who is Supposed to Mind the Store? The Federal-State Struggle The Cholera epidemic of 1893 showcased the battle between the federal government and the State of New York wrestling over public health control.193 For a time, the state-federal rudder of the public health ship was quite unsteady, before settling down 188 Smith v. Turner, 48 U.S. 283, 340-341 (1849). 189 Billauer, supra note 7. 190 E.g., Zucht v. King, 260 U.S. 174 (1922); Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (noting preventing communicable diseases is a compelling interest); Prince v. Mass, 321 U.S. 158, 166 (1944), Workman v. Mingo County Bd. Of Educ., 439 F. App’x 348 (4 th Cir. 2011); Wright v. De Witt Sch. Dist., 385 Ark 644-648 (Ark. 1965); Viemeister v. White, 72 N.E. 97, 99 (1904); Abeel v. Clark, 24 P. 383, 383–84 (Cal. 1890); Love v. State Dep’t of Educ., 240 Cal. Rptr. 3d 861 (Cal. Ct. App. 2018); F.F. ex rel. Y.F., v. State of New York, 108 N.Y.S.3d at 774 (2021). 191 Bunting v. Oregon, 243 U.S. 426 (1917). 192 Lochner v. New York, 198 U.S. 45, 65 (1905); “[w]hen the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property. These principles are so well established as to require no discussion and we cite but a few out of many authorities relating to the subject.” See also Matter of Veimeister, 179 N.Y. 235, 238 (1904); “[T]he State police power was validated for the first time a few years after the end of the Revolutionary War, when Philadelphia was isolated to control the threat of yellow fever.” Galva, supra note 163 citing Smith v. Turner, 48 U.S. 283, 340-341 (1849). See also Reynolds, supra note 163. 193 Billauer, supra note 7. See also The New Deal Supreme Court (1933–1945), which held that Congress had the authority to regulate any economic activity, including intrastate economic activity. This interpretation of the Commerce Clause allowed Congress to regulate labor, agriculture, and manufacturing. Direct federal regulation of other spheres, including education, health care, and police and security, soon followed. James G. Hodge Jr, Bioterrorism law and policy: critical choices in public health, 30(2) J. LAW MED. ETHICS 254 (2002); Wendy E. Paramet, After September 11: rethinking public health federalism, 30(2) J. LAW MED. ETHICS 201 (2002). Vol. 37:2 JOURNAL OF LAW AND HEALTH 89to assigning public health control of local matters to state health departments. Deference for the expertise and experience of the local health department was expressly recognized.194 Nevertheless, this state of affairs does not completely eviscerate federal powers regarding safeguarding public health. “Although quarantine is principally a state and local power, the federal government has limited quarantine authority to prevent the international and interstate spread of infection.”195 Indeed, in 2003, President Bush issued Executive Order 13295, “providing for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases”,196 adding SARS-1 to the federal quarantine list as affecting international and interstate transmission. In 2014, the order was expanded by President Obama, ostensibly to include MERs, but also other respiratory diseases which arguably include COVID.197 Moreover, Obama’s order allows federal quarantine and "mandates the apprehension and detention of Americans who merely show signs of 'respiratory illness.'"198 In some cases, the jurisdiction might be jointly subsumed under the guise of “cooperative federalism" or dual sovereignty.199 Alternatively, we might claim that Congress should enact national public health regulations which would be incumbent on the states to implement200 as “there are a variety of methods…, by which Congress may urge a State to adopt a legislative program consistent with federal interests.”201 Nevertheless, opposition to Biden’s OSHA-governed vaccine mandate suggests that the populace believes that vaccine mandates, as one example of a public health regulation, are not within the purview of the federal government to regulate,202 and that these functions vest entirely in the State. In other words, there are some functions which the federal government dare not exercise.203 194 See Billauer, supra note 144. 195 Lawrence O. Gostin & Eric A. Friedman, Private: State Quarantine Powers Under the Constitution: Fear in an Age of Ebola, ACS (NOV. 4, 2014), https://www.acslaw.org/?post_type=acsblog&p=10552. 196 Exec. Order No. 13295. https://www.cdc.gov/sars/quarantine/exec-2004-04-03.html. 197 Id. 198 Id. 199 “It is incontestable that the Constitution established a system of "dual sovereignty." Printz v. United States, 521 U.S. 898 (1997); See also Gregory v. Ashcroft, 501 U. S. 452, 457. (1991); Tafflin v. Levitt, 493 U. S. 455, 458 (1990). 200 New York v. United States, 505 U.S. 144 (1992). 201 “As relevant here, Congress may, under its spending power, attach conditions on the receipt of federal funds, so long as such conditions meet four requirements.” ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, 219, (6th ed. 2019); South Dakota v. Dole, 483 U. S. 203, 206-208 (1988); Victoria L. Killion, Funding Conditions: Constitutional Limits on Congress’s Spending Power, CRS REPORT, (Jul. 1, 2021), https://crsreports.congress.gov/product/pdf/R/R46827. 202 Barbara Pfeffer Billauer, Should Judges Tell Doctors How to Practice Medicine, ACSH (Dec. 7, 2021), https://www.acsh.org/news/2021/12/07/should-judges-tell-doctors-how-practice-medicine-15979. 203 Whether this maxim applies to forbidding judges to direct physicians to use certain medications, such as Ivermectin, is an interesting question. Id. 90 JOURNAL OF LAW AND HEALTH Vol. 37:2 D. The Role of the State If so, regulating intrastate public health must be primarily a state endeavor- by default.204 As Professor James Hodge says, “States must be clearly viewed as the leadership venue for public health responses.”205 Federal powers, are, at best, secondary. Nor may courts impose public health regulations on their own as a violation of the doctrine of separation of powers.206 This surely precludes using mandamus as a vehicle to rubber-stamp a governor’s act – or allow him not to act, and hence Judge Newman’s invocation of mandamus to compel inactions on the local level, should be viewed as suspect.207 In sum, the history of public health law suggests that responsibility for public health protection lies with the state. But what happens if the state declines to fulfill this mandate?208 A secondary question: whether and when this state right becomes a duty209 – and if so, is it non-delegable such that states are required to honor it, and are they liable in tort (assuming all other relevant elements be satisfied) if they don’t? E. The Popular Pushback Violent public outcry against anti-mandate regulations is apparently new. I don’t find evidence of the magnitude of venom opposing anti-public health mandates in the past,210 nor do I find EO do-nothing mandates in the public health literature at all. I attribute this particular manifestation of social upheaval to two factors: the anti-vaxx industry (as this group is termed by the journal Nature)211 who have perfected, refined, and distilled their message and its dispersal to a fine art (i.e., that the disease is not dangerous, the 204 “[S]tate police powers have long been recognized to include the authority for public health and safety. Most lawmaking in the United States is done at the state level and relies on that kind of authority.” Ilya Shabiro, State Police Powers and the Constitution, Pandemics and Policy (Sept. 15, 2020). 205 James G. Hodge Jr., Implementing modern public health goals through government: an examination of new federalism and public health law, 14(1) NATIONAL LIBRARY OF MEDICINE, 93 (1997), https://pubmed.ncbi.nlm.nih.gov/9458611. 206 Berman v. Parker, 348 U.S. 26, 32 (1954) (subject to specific constitutional limitations, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation enacted in the exercise of the police power). Nevertheless, the decision in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S. (2020), suggests that the Supreme Court retains ultimate jurisdiction over the excessiveness of such state mandates. This jurisdictional volleyballing suggests that final determination of public health – even when it does not reach unconscionable incursions into liberty- ultimately vests in the Supreme Court of the United States, a grossly untenable result. 207 See Young v. Flower, 3 Misc. 34, 22 N.Y.S. 332 (N.Y. Sup.Ct.1893). 208 “State constitutions, meanwhile, can be considered ‘documents of limitation rather than documents granting power.” (emphasis added) Ilya Shapiro, State Polices Powers and the Constitution, Pandemics and Policy, CATO INSTITUTE, (Sept. 15, 2020). 209 Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," THE FEDERALIST No. 39 (James Madison), Lane County v. Oregon, 74 U.S. 71, 76 (1868); Texas v. White, 74 U.S. 700, 725 (1868). 210 Barbara Pfeffer Billauer, Yes, Vaccine Mandates Work: Really? Really!, ACSH (Feb. 17, 2022), https://www.acsh.org/news/2022/02/17/yes-vaccine-mandates-work-really-really-16133. 211 Imran Ahmed, Dismantling the anti-vaxx industry, 27 NATIONAL LIBRARY OF MEDICINE 366, (Mar. 15, 2021), https://pubmed.ncbi.nlm.nih.gov/33723446. Vol. 37:2 JOURNAL OF LAW AND HEALTH 91vaccine is, and they don’t trust government),212 and the increasingly vocal libertarian/individualist stance reflected in the current Floridian anti-health Executive Orders.213 This rhetoric bespeaks an ignorance of American civics, as well as public health imperatives. Perhaps one reason for the vituperative response favoring the do-nothing mandates might be that the public health powers deployed yester-year were primarily based on preventing spread of horrendous diseases. But that wasn’t all there was to it. The rubric of public health was also used as a predicate for political turf expansion.214 If, in current times, political leaders seek to side-step public-health powers in favor of personal liberties, in past times pandemics predicated political power grabs. For example, using a fear factor to facilitate overreach, (Republican) President Benjamin Harrison spear-headed the Quarantine Act of 1893 which conscripted from the states exclusive jurisdiction over port-quarantining of incoming of immigrants to mewed and muted opposition. The Surgeon General at the time, Walter Wyman, sought to expand his turf with nary a thought to preserving liberty.215 Nor was the 1893 assertion of control over public health limited to battles between the feds and the states. Local jurisdictions also battled their states for control.216 Today, it appears states are beggaring out of public health control responsibility– in the quest of other political (and vote-getting) objectives.217 Perhaps perception of the dire consequences of COVID and consequences of failing to institute preventative measures are not in full view of friends or the public as were the horrific diseases of yester-year. (Cholera, bubonic plague, yellow fever and, smallpox were all very ugly diseases).218 Perhaps it is because past epidemics created major panic, such as Ebola or even polio, diseases far less infectious than COVID.219 Perhaps it was due to early official pronouncements regarding COVID, minimizing its dangers. But now that we’ve reached more than one million deaths in the US, more than Spanish flu, the public is divided by politics:220 those who are downright (and justifiably, in my opinion), scared of the disease, and those more scared of increasing governmental power and losing votes and personal liberties, backed by governors of an increasing Libertarian constituency, like Abbott and DeSantis. 212 Does v. Mills, 595 U.S. (2021); see Billauer note 7; see also Barbara Pfeffer Billauer, The Prejudice, Politicization, and “Pariah-tization” Influencing Pandemic Policy and Law: Stereotype as the Driver of Public Health Response, unpublished, SSRN.com 213 “Indeed, high levels of governmental trust is attributed to the high vaccine rate in the Scandinavian countries.” Galva attributes the pushback to other factors and refers to the individualist/libertarian facet as deriving from the focus on patient autonomy. Galva, supra note 163. 214 See Hicks, supra note 177. 215 Billauer, supra note 7. 216 Young v. Flower, 3 Misc. 34, 22 N.Y.S. 332 (S.Ct. Suffolk Cty., 1893). 217 Ortaliza et al., supra note 134. 218 Billauer, supra note 7. 219 DAVID M. OSHINGSKY, POLIO – AN AMERICAN STORY (Oxford University Press, 2006). 220 See EZRA KLEIN, WHY WE’RE POLARIZED (Avid Reader Press, 2020). 92 JOURNAL OF LAW AND HEALTH Vol. 37:2 In sum, until now, public health measures (including quarantine which might be analogous to a modern-day lockdown)221 were believed to be the state’s responsibility.222 Recently, restrictions on the breadth of such powers have been acknowledged,223 including requiring the responses to be scientifically valid and narrowly constructed.224 But the major question still remains. Whose job is it to protect the public from health scourges and what is the penalty for failure to perform it? V. THE DUTIES OF THE STATE AS ENUMERATED IN ITS CONSTITUTION A. The Authority of the State: A Right or a Duty The traditional view, espoused by Tiedman, was that state power could legitimately be employed to protect individuals from direct harm; the newer view was that the state could regulate even to prevent harms that might not occur, or that might not have been considered harms at all by the common law.225 The question vexing us here, is not can the State act, but must it act? Is the authority of the state a right or a duty? Different states have different parameters.226 The question whether the state’s authority over public health is merely one of those powers under its aegis or whether is an actual duty has not received much attention.227 Professor Gostin refers to it as a duty, signifying an obligation: The duty of government to protect the public may require the provision of services and incentives, the creation of voluntary programs which promote 221 N.Y. PUB. HEALTH LAW § 2100(1) (LexisNexis 1954) (“Every local board of health and every health officer shall guard against the introduction of such communicable diseases as are designated in the sanitary code, by the exercise of proper and vigilant medical inspection and control of all persons and things infected with or exposed to such diseases”). 222 See Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 385 (1902) (“The object in view was to keep down as far as possible the number of persons to be brought within danger of contagion or infection, and by means of this reduction to accomplish the subsidence and suppression of the disease and the spread of the same”). 223 Galv, supra note 163. 224 As Professor Lawrence Gostin has stated: “Simply put, a quarantine that is at odds with public health and scientific knowledge is also at odds with the law.” Lawrence Gostin & Eric Friedman, Private: State Quarantine Powers Under the Constitution: Fear in an Age of Ebola, AMERICAN CONSTITUTION SOCIETY (November 4, 2014), https://www.acslaw.org/?post_type=acsblog&p=10552 (“The touchstone of the law is public health necessity. Imposed quarantines represent a significant burden on people’s liberty, leading courts and legislators to create a high standard that must be met for mandatory quarantines. States such as New York require that quarantines be “necessary” to protect the public’s health. New Jersey's quarantine law requires a quarantine to be “by the least restrictive means necessary to protect the public health”). 225 Reynolds & Kopel, supra note 163, at 512. 226 Ilya Shapiro, State Police Powers and the Constitution, THE CATO INSTITUTE: PANDEMICS AND POLICY (Sept. 15, 2020), https://www.cato.org/pandemics-policy/state-police-powers-constitution (“Different states empower their Governors to act in different ways. California, for example, allows its governor to declare a “state of emergency” in case of an “epidemic”). 227 Mindes, supra note 140. Vol. 37:2 JOURNAL OF LAW AND HEALTH 93counseling and education, and the exercise of compulsory powers when necessary…. Because preventive and curative treatment may be the single most important aspects of tuberculosis control, health departments should have a duty to devise an individualized plan of treatment for all persons diagnosed with active disease.228 [emphasis added] Professor Gostin’s pronouncements relate to the TB epidemic. However, they are similarly relevant here: “This is the other side of the duty of the state to protect the rest of the community from infected individuals. It justifies similar limitations on individual rights…..”229 A review of early writings may cast additional light. The Federalist Papers confirm that an overriding concern involved preservation of the sovereign powers, efficiency of function,230 and preserving a separatist function enabling each branch to control the other.231 Madison observed that "the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due."232 Any “resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.”233 The power of the people, then, seems to be the driving force, although it is not clear if a majority seeking to exercise libertarian choices can impose the consequences of their choices on the public at large- especially when the choices are damaging to that public. The Constitution contemplates that a state's government will represent and remain accountable to its own citizens, while limiting federal incursions into areas reserved for the states, without clearly answering this question:234 228 Lawrence O. Gostin, The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law, and Society, 54 MD. L. REV. 1, 112 (1995), https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1753&context=facpub; See generally National MDR-TB Task Force, National Action Plan to Combat Multidrug-Resistant Tuberculosis (1992). 229 “From an adjudication point of view, tuberculosis patients are thus similar to juveniles and the insane,” Mindes, supra note 140. 230 ALEXANDER HAMILTON, JAMES MADISON, AND JOHN JAY, THE FEDERALIST PAPERS [85 PAPERS, 1787-1788; WITH U.S. CONSTITUTION] (Bantam Classic 1st ed. 1982) (noting the efficacy of the structure as well as the objective of fostering separation of powers); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 80, 89 (2002) (noting the motivating force as the “desire or power” and the love for glory, but also acknowledging that the deep political passion is influenced by the intensity of human passion and the numbers of people espousing that passion). 231 See THE FEDERALIST No. 51 (James Madison) (Clinton Rossiter ed., 1961); THE FEDERALIST No. 46 (James Madison) (Clinton Rossiter ed., 1961); See also FTC v. Ticor Title Ins. Co., 504 U. S. 621, 636 (1992). 232 THE FEDERALIST No. 46, at 295 (James Madison) (Clinton Rossiter ed., 1961). 233 Will v. Mich. Dep’t of State Police, 491 U. S. 58, 71 (1989). 234 See New York v. United States, 505 U.S. 144 (1992); See also LAWRENCE FRIEDMAN, MODERN CONSTITUTIONAL LAW: CASES, PROBLEMS AND PRACTICE 168-169, 188-189 (Wolters Kluwer, 2nd ed., 2019). 94 JOURNAL OF LAW AND HEALTH Vol. 37:2 Perhaps legislatures are inherently uncommandable as to the outcome of their legislation, but they are commanded all the time as to what subjects they shall legislate upon-commanded, that is, by the people, in constitutional provisions that require, for example, the enactment of annual budgets or forbid the enactment of laws permitting gambling.235 B. The Duties of the Governor Insofar as gubernatorial and legislative obligations vest in the people, a look at the state’s obligations as set forth in their constitution should illuminate the issue. Nevertheless, while the people might signal their approval (or disapproval) of governmental handling of various roles in an election, in a crisis, such as a public health catastrophe or epidemic, the deliberative electoral process is inefficient. Hence, states have codified mechanisms for emergency gubernatorial (and legislative) decision-making powers. Whether this codification, enacted on a state-by-state basis, contains “may” or “shall” language signaling that the powers are discretionary or mandatory may make the difference in whether the governor is answerable for civil liability. Generalized duties and functions expected of all state governors can be found in various civic-education websites. According to the website “IN Gov.” among the “duties” of a governor includes “Issue[ing] executive orders on matters important to the state,”236 The type of is not defined. Another site claims that the governor is the CEO of the state but describes the emergency order aspect as discretionary: “Governors can also issue executive orders to take quick action without the cooperation of the legislature. 237 A review of particular state statutory enactments is more illuminative. As examples, we look at Texas and Florida. i. Texas The Texas statute describes the overall governor’s responsibility in an emergency more as obligatory than discretionary, although the issuance of emergency orders could seem to be discretionary: The applicable law provides: § 418.011. RESPONSIBILITY OF GOVERNOR. The governor is responsible for meeting: (1) the dangers to the state and people presented by disasters;238 and 235 Printz v. US, 521 U.S. 898 (1997). 236 What Are the Duties of the Governor?, INDIANA STATE GOVERNMENT: FREQUENTLY ASKED QUESTIONS (February 2023), https://faqs.in.gov/hc/en-us/articles/115005229568-What-are-the-duties-of-the-Governor-. 237 What Does a Governor Do? 6 Duties of a Governor, MASTERCLASS (Sept. 6, 2022) https://www.masterclass.com/articles/what-does-a-governor-do. 238 Including, by definition, epidemics. See infra note 246. Vol. 37:2 JOURNAL OF LAW AND HEALTH 95(2) disruptions to the state and people caused by energy emergencies.239 § 418.012. EXECUTIVE ORDERS. Under this chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations have the force and effect of law. The obligations of the Texas Department of Health are detailed in language reminiscent of a corporate mission-statement, to wit the functions of the governor are: “[t]o improve the health, safety, and well-being of Texans through good stewardship of public resources, and a focus on core public health functions.”240 The Texas State Code is more definitive.241 Under the provision governing communicable diseases, the law is clear:242 “Sec. 81.002. RESPONSIBILITY OF STATE AND PUBLIC. The state has a duty to protect the public health.243 Each person shall act responsibly to prevent and control communicable disease.”244 In terms of prevention, which includes both vaccines and masking, similar obligations are imposed with the operative language being “shall” not “may.”245 The enumerated responsibilities recognize the importance of vaccination, noting that typical religious exemption will not apply in cases of emergency.246 Further, while imposition of federal law is not required, per se, if considered in the best interest of the state, federal regulations must be implemented.247 In terms of a public health disaster, the health 239 TEX. GOV’T CODE ANN. § 418.011 (1987). 240 TEXAS DEPARTMENT OF STATE HEALTH SERVICES, Improve health outcomes through public health services in communities, (2023) https://www.dshs.texas.gov/About-DSHS.shtm#:~:text=Improve%20health%20outcomes%20through%20public,public%20health%20services%20in%20communities. 241 TEX. HEALTH & SAFETY CODE ANN. § 81.002 (1989). 242 Id. 243 New York law, by way of example, is similar, although here, responsibility is assigned to the locality. See N.Y. PUB. HEALTH LAW § 2100(1) (2021). See also Mindes, supra note 140 (“In 1951, § 4429-1 of the Ohio General Code provided the department of health with the power to "at once ... cause [someone with a communicable disease] to be separated from susceptible persons in such places and under such circumstances as will prevent the... conveyance of the infectious agents... and shall enforce such restrictive measures as may be prescribed by the state department of health”). 244 (Emphasis added). “A private individual performing duties in compliance with orders or instructions of the department or a health authority issued under this chapter is not liable for the death of or injury to a person or for damage to property, except in a case of willful misconduct or gross negligence.” TEX. HEALTH & SAFETY CODE ANN. § 81.007 (1989). 245 “The executive commissioner and department shall exercise their powers in matters relating to protecting the public health to prevent the introduction of disease into the state.” TEX. HEALTH & SAFETY CODE Ann. § 81.021 (2015). 246 “An exemption from medical treatment under this section does not apply during an emergency or an area quarantine or after the issuance by the governor of an executive order or a proclamation under Chapter 418.” TEX. HEALTH & SAFETY CODE ANN. § 81.009(b) (1989). 247 “The executive commissioner shall review the Ryan White HIV/AIDS Treatment Extension Act of 2009 or any successor law and any regulations adopted under the law and determine whether adopting by rule any part of the federal law or regulations is in the best interest of the state to further achieve the purposes of this chapter. If the executive commissioner determines that adopting the federal law or regulations is in the best interest of the state to further achieve the purposes of this chapter, the executive commissioner may by 96 JOURNAL OF LAW AND HEALTH Vol. 37:2 department assumes prime responsibility as the lead agency with “pre-emptive responsibility.”248 Thus, here it seems the responsibility for public health responses lies in the Commissioner of Health, not the governor.249 However, in managing disasters the onus falls on the governor: “Responsibility of the Governor: The governor is responsible for meeting: (1) the dangers to the state and people presented by disasters.”250 Disaster, includes, by definition, “epidemic.”251 Interestingly, during a declared state of disaster, a Texas Medical Board order or regulation limiting or prohibiting a non-elective medical procedure governs.252 Given the explicit onus on the Texas governor and health departments to protect and preserve human health during the pendency of an epidemic and the primary and pre-emptive nature of such directives, one wonders how a legally acceptable mandate could preempt generally accepted public health procedures. It would also seem that the Texas governor (and legislature) should be amenable to a civil lawsuit sounding in tort. ii. Florida An omnibus provision in Florida’s state statutes, corroborated by the state’s constitution, assigns the role of the head of state to the governor.253 Specific emergency powers are regulated under section, 252.36. Additional gubernatorial emergency management powers were promulgated with COVID in mind, and, inter alia, provide that: rule adopt all or a part of the federal law or regulations.” TEX. HEALTH & SAFETY CODE ANN. § 81.013 (2015). 248 “The department is the preemptive authority for purposes of this chapter and shall coordinate statewide or regional efforts to protect public health. The department shall collaborate with local elected officials, including county and municipal officials, to prevent the spread of disease and protect the public health.” TEX. HEALTH & SAFETY CODE ANN. § 81.081 (2003); “The commissioner may declare a statewide or regional public health disaster or order a statewide or regional public health emergency if the commissioner determines an occurrence or threat to public health is imminent. The commissioner may declare a public health disaster only if the governor declares a state of disaster under Chapter 418, Government Code, for the occurrence or threat.” TEX. HEALTH & SAFETY CODE ANN. § 81.0813(a) (2015). 249 “A health authority has supervisory authority and control over the administration of communicable disease control measures in the health authority's jurisdiction unless specifically preempted by the department. Control measures imposed by a health authority must be consistent with, and at least as stringent as, the control measure standards in rules adopted by the executive commissioner [ and include] immunization [and] prevention.” TEX. HEALTH & SAFETY CODE ANN. § 81.082(a) (2021). 250 TEX. GOV’T CODE ANN. § 418.011 (1987). 251 TEX GOV’T CODE ANN. § 418.011 (1987); “"Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, extreme heat, cybersecurity event, other public calamity requiring emergency action, or energy emergency” (emphasis added). TEX GOV’T CODE 418.004(1) (2019). 252 TEX. GOV’T CODE ANN. § 418.0125(b) (2021). 253 The supreme executive power shall be vested in a governor… The governor shall take care that the laws be faithfully executed, commission all officers of the state and counties, and transact all necessary business with the officers of government. FLA. CONST. art. IV, § 1(a). Vol. 37:2 JOURNAL OF LAW AND HEALTH 97(1)(a) The Governor is responsible for meeting the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the Governor, or, in the Governor’s absence, her or his successor as provided by law, may assume direct operational control over all or any part of the emergency management functions within this state….254 The assignment of functions to the governor is thus couched in language of direct responsibility or duty rather than an elective power the governor has the option of using. The governor’s role is couched in terms both of mitigation and prevention, and the governor is required [“shall’] to consider basic steps to mitigate harmful consequences on a continuing basis.255 Among the powers afforded Florida’s governor to fulfill this duty is issuing emergency or executive orders. In so doing, this power provides for assignment of inter-jurisdictional emergency management plans256 as well as requires transparency.257 State policy also supports local response efforts.258 Further, “[i]f the Governor declares by executive order or proclamation that the emergency requires businesses to restrict their operations or close, the executive order or proclamation must contain specific reasons for those determinations, and he or she must review and reassess the situation regularly.”259 Other than a presumption that schools be kept open and a recognition of economic consequences of regulation – gubernatorial decision-making appears to be driven by disaster mitigation. Additionally, delegation of responsibility to the appropriate agency is countenanced.260 These provisions propel us to consider the obligations of the Department of Health. 254 FLA. STAT. § 252.36 (2023). 255 “In addition to prevention measures included in the state and local comprehensive emergency management plans, the Governor shall consider on a continuing basis steps that could be taken to mitigate the harmful consequences of emergencies.” FLA. STAT. § 252.44(1) (2023). 256 “An executive order or proclamation of a state of emergency shall activate the emergency mitigation, response, and recovery aspects of the state, local, and interjurisdictional emergency management plans applicable to the political subdivision or area in question.” FLA. STAT. § 252.36(4)(a) (2023). 257 FLA. STAT. § 252.36(5) (2023). 258 FLA. STAT. § 252.311(3) (2023). 259 FLA. STAT. § 256.36(2) (2023). 260 “The Governor shall delegate emergency responsibilities to the officers and agencies of the state and of the political subdivisions thereof prior to an emergency or threat of an emergency and shall utilize the services and facilities of existing officers and agencies of the state and of the political subdivisions thereof, including their personnel and other resources, as the primary emergency management forces of the state, and all such officers and agencies shall cooperate with and extend their services and facilities to the division, as it may require.” FLA. STAT. § 252.36(9) (2023). 98 JOURNAL OF LAW AND HEALTH Vol. 37:2 The Florida Department of Health (FDOH), branded “Florida Health”, advertises itself as a joint endeavor of state professionals and the Floridian public.261 In terms of accountability, the “FDOH is accountable to the state legislature, the Executive Office of the Governor, all residents and visitors in the state, and the federal government.”262 In 2007, the Department was reformatted, with the Surgeon General designated to spearhead the efforts of the Department (analogous to the state Commissioner of Health in other jurisdictions):263 “The Surgeon General’s role encompasses being the state’s leading advocate for wellness and disease prevention.”264 The applicable section mentions that the Surgeon General, is empowered with “disseminat[ing] public service announcements concerning the emergency ….”265 VI. TORT REMEDIES TO THE RESCUE A. Vehicles to Sue the State in Tort – Tort Claims Acts The bastardization of administrative law to rubber-stamp a politically-motivated public health decision showcases the inaptness of these tribunals to review these types of cases. I suggest a tort law approach might provide a more impartial, equitable, socially protective, and scientifically valid review. Coupled with a high enough damage award, tort judgments might also have a deterrence effect on governors who run roughshod on a scientifically illiterate public – and judiciary.266 Two tort causes of action are viable candidates: negligence and nuisance. While negligence may be more appropriate to showcase gubernatorial malfeasance, damages would first have to accrue, meaning, for example, a child would have to sicken, or a community must first become so deluged with cases that hospitals can longer function 261 “Florida Health represents the vision that health belongs to everyone and every group—not just a state agency. It takes individuals, families, communities, and partnerships with local and state-level policy makers and stakeholders to create a culture of health in Florida. While our agency is the spearhead for public health in the state, we are all stewards of health in Florida. Florida Health belongs to all of us.” About Us, FLORIDA DEPARTMENT OF HEALTH (2023). https://www.floridahealth.gov/about/. 262 Id. (“In 2007, the first-ever State Surgeon General was established to spearhead the efforts of FDOH, thereby designating a health officer to oversee all matters of public health”). 263 Id. 264 Id. 265 FLA. STAT. § 256.36(c)(12) (2023). 266 An affliction to which Florida judges seem particularly susceptible, to wit, the Tampa judge who voided the CDC transportation mask mandate on the grounds that the enabling power for the CDC, the Public Health Services Act of 1944 which used the words “sanitary” did not cover infectious diseases. See Jefferey E. Harris, In mask mandate case, judge ruled on wordplay, not public health, STAT NEWS (April 22, 2022), https://www.statnews.com/2022/04/22/federal-judge-travel-mask-mandate-wordplay-not-public-health/#:~:text=When%20a%20Tampa%2Dbased,appears%20to%20be%20flaring%20up (“The sanitarians who worked for the public health service at the time of the enactment of the enabling act would have been surprised. The travel mask mandate had been put in place in January 2021 by the U.S. Centers for Disease Control and Prevention (CDC). In response to a lawsuit opposing it, Judge Kathryn Kimball Mizelle ruled that the mandate went beyond the legal authority granted to the CDC under the 1944 Public Health Services Act. Although the Biden administration has appealed the decision it isn’t clear how such a challenge would fare in the higher courts. But there is little doubt that the judge’s formulaic ruling missed the real-world historical context in which the public health law was enacted”). Vol. 37:2 JOURNAL OF LAW AND HEALTH 99properly with people dying due to hospital overload, not an optimum public health response. Given that this unfortunate state of affairs has happened in some jurisdictions, and is a foreseeable eventuality, availability of this legal response is noteworthy.267 B. Negligence and Rules of Scientific Evidence To sustain a claim for negligence, four elements must be proven: duty, breach of the standard of care, causation, and damages.268 The duty (i.e. obligation) of the state of Florida to act reasonably and to comport with its own mandates has been set forth above. Let’s take a hypothetical to evaluate the other elements: consider a student diagnosed with COVID who exposes an unmasked classmate–let’s say one unmasked by virtue of a DeSantis order, and that this second student dies. Assuming no other exposure can be established, proving prima facie causation is likely. That the student may have eventually contracted the disease from another source is irrelevant. “One who has negligently forwarded a diseased condition, and thereby hastened and prematurely caused death [or injury], cannot escape responsibility even though the disease probably would have resulted in death at a later time, without his agency.”269 Causation could be established by proving proximity of a non-masked child to an ill one, and/or by hospital admission statistics and high likelihood of statistical probabilities.270 The remaining element of negligence would be demonstrating a breach of the standard of care, easily demonstrated in this case: Failure to comply with governmental policies may be considered as evidence of breaching the standard of care.271 Deviation from early Floridian policies recommending and procuring masks might suffice to achieve that end. Federal policies as established by 267 Center for Disease Control and Prevention, Morbidity and Mortality Weekly Report (MMWR), 70(46); 1613–1616 (November 19, 2021). 268 “Rivkees… was kept out of the public eye for more than a year of the COVID-19 pandemic for recommending people wear masks until a vaccine was developed.” Schweers, supra note 112. 269 McCahill v. New York Transp. Co., 201 N.Y. 221 (1911). 270 Zamir, supra note 111. 271 See e.g., Lugtu v. California Highway Patrol, 28 P.3d 249, 259 (Cal. 2001) (police officer safety manual policies may be considered by the trier of fact in determining whether an officer was negligent in a particular case; see also Howard M. Kuehner, Violation of a Statute or Ordinance as Evidence of Neglience, 36 DICK. L. REV. 192 (1932) at 194-95. See generally Tara Ramanthan, Law as a Tool to Promote Healthcare Safety, CLINICAL GOVERNANCE: AN INT’L JOURNAL 2014; COVID-19 Pandemic Negligence Claims: What is the Standard of Care When There is No Precedent? https://www.segalmccambridge.com/blog/covid-19-pandemic-negligence-claims-what-is-the-standard-of-care-when-there-is-no-precedent/#_ftn9. For evidence of efficacy see Health Affairs Vol. 41, No. 3: Hospitals, Healthy Equity & More, Jing Huang, et al., The Effectiveness of Government Masking Mandates on COVID-19 County-Level Case Incidence Across the United States, 2020. https://www.healthaffairs.org/doi/10.1377/hlthaff.2021.01072. 100 JOURNAL OF LAW AND HEALTH Vol. 37:2 the CDC, confirmed by international bodies,272 could be another, one of which a judge could simply take judicial notice. That other states mandated indoor masking would also be valid evidence of the prevailing standard of care, especially as verified by scientific studies demonstrating the efficacy of masking, for example the Kansas study noted above and now Boston.273 Perhaps of pre-eminent concern in pursuing a tort (civil) action in state civil court (or better, federal court under a diversity provision) would be the different standards for admissibility of scientific evidence in federal courts and most states enumerated under Daubert and Joiner and codified by FRE 702. Thus, while the school districts seeking to dismantle the opt-out clause (under the inexplicable guise that the Health Department and the Governor did not have the authority to enact emergency rules),274 the evidence adduced by the State likely would have been inadmissible under a Daubert analysis.275 The State presented a medical doctor and epidemiologist to sustain the prudence of compulsory masking; the DOH provided the testimony of one Jay Bhattacharya, who claimed that “Children are inefficient transmitters of this disease.”276 Indeed, Judge Newman rejected the school board’s medical witness testimony, and accepted Bhattacharya’s testimony in toto, and solely upon that, tethered his decision. By comparison Floridian federal courts have demonstrated a rigorous interest in evaluating the standards of scientific evidence in a Daubert hearing, imposing on a judge gatekeeper responsibility of barring questionable scientific evidence.277 Likely, Bhattacharya would not have been allowed to testify in a federal court,278 or if so, the bulk of his testimony would have been rejected. While he did attend medical school, he does not appear to be licensed to practice medicine in any state in the country, nor to have completed a medical internship or residency. Bhattacharya is actually a medical economist and appears to have no specialized training in infectious diseases, pediatrics, epidemiology, or even industrial hygiene. 272 The CDC, European CDC, World Health Organization, and 40 states recommended it. Julia Raifman, Universal Masking Policies in Schools and Mitigating the Inequitable Costs of Covid-19, 387 N. Engl. J. Med. 1993-1994 (2022) https://www.nejm.org/doi/full/10.1056/NEJMe2213556. 273 Tori Cowger, Lifting Universal Masking in Schools – Covid-19 Incidence among Students and Staff, 387 N. Engl. J. Med. 1935-1946 (2022) https://www.nejm.org/doi/full/10.1056/NEJMoa2211029. 274 Instead of demonstrating the nonsense of the state first establishing an dire emergency thereby justifying an emergency rule- the emergency rule being do nothing, the school districts argued the state didn’t have the authority to act. 275 Florida is a Frye state which has been construed to be often more lenient. See George Zeckler, The State of Frye in Florida, FIU L. REV. (2019) https://law.fiu.edu/2019/01/07/the-state-of-frye-in-florida/#:~:text=%5B13%5D%20Although%20the%20Legislature's%202013,will%20remain%20a%20Frye%20state. 276 Curt Anderson, Florida mask debate split-screen: courtroom vs. classrooms, AP NEWS (August 25, 2021), https://apnews.com/article/health-florida-coronavirus-pandemic-0dbaa007159b55018ffefa1728ac2e2c. 277 See In re Zantac (Ranitidine) Prods. Liab. Litig., 2023 U.S. Dist. LEXIS 126297, (Fla. Dist. Ct. App. 2023). 278 See FED. R. EVID. 702(a); See also Joiner v. General Elec. Co., 864 F.Supp. 1310 (N.D. Ga. 1994); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Vol. 37:2 JOURNAL OF LAW AND HEALTH 101 Further, Bhattacharya relied heavily on the non-peer-reviewed “Brown study” (although he didn’t call it that) which contains the disclaimer discussed above, warning against its use for policy setting of mask mandates. Both factors would disqualify the study from admission into evidence in a civil action under Daubert and Joiner.279 Finally, Bhattacharya’s testimony, which is predicated on no reliable or established methodology and is pure ipse dixit and is thus outlawed by Joiner.280 C. Nuisance The basis for nuisance law claims arise from common law principles of sic utere tuo ut alterum non laedas (use that which is yours so as not to injure others)281 and salus publica suprema lex est (public well-being is the supreme law),282 and preservation of the common good283 as established in the King’s England which also form the basis for the state’s police power, and hence should be easy to sustain.” The principle of salus publica, recognizes police power as a means to “prevent or avoid public harm even if the has not - as yet -harmed others.” 284 The benefits of utilizing a nuisance theory are that it allows use of injunction and that it does not require a pre-existing injury.285 In this regard, its use can be employed prophylactically, as well as retrospectively – to prevent future disease as well as hospital over-crowding.286 279 See Barbara Pfeffer Billauer, The Causal Conundrum: Examining Medical-Legal Disconnects from a Cultural Perspective - or How the Law Swallowed the Epidemiologist and Grew Long Legs and a Tail, 51 CREIGHTON L. REV. 319 (2018); See also Barbara Pfeffer Billauer, Admissibility of Scientific Evidence Under Daubert: The Fatal Flaws of ‘Falsifiability’ and ‘Falsification’, 22 B.U. J. OF SCI. & TECH. L. 21 (2016). For a review of how Daubert played out in the Florida Zantac cases, see Barbara Pfeffer Billauer, The Zantac Cases And Admissibility Of Scientific Evidence, AMERICAN COUNCIL OF SCIENCE AND HEALTH (Jan 3, 2023) https://www.acsh.org/news/2023/01/03/zantac-cases-and-admissibility-scientific-evidence-16772. 280 See Anderson, supra note 268. 281 The Supreme Court corroborated that the state had the power to quarantine “to provide for the health of the citizens.” Wendy E. Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 HOFSTRA L REV. 1, 57 (1985); See also J. Gostin et al., The law and the public's health: a study of infectious disease law in the United States, 99 COLUMBIA LAW REV. 1, 59-128 (1999). 282 See Galva, supra note 163; see also Smith v. Turner, 48 U.S. 283, 340-341 (1849); Reynolds, supra note 163; Holden v. Hardy, 169 U.S. 366, 392 (1898) (noting that the police power may be “lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion [and] is necessarily vested in the legislature” (citing Lawton v. Steele, 152 U.S. 133, 136 (1894))); Weaver v. Palmer Brothers Company, 270 U.S. 402, 404, 413 (1926) (Holmes J., dissenting) (“[W]here there is any doubt as to whether or not a thing prohibited is obnoxious, poisonous or harmful, [and hence regulatable under the police power], the determination by the legislature is conclusive.”). 283 See Galva, supra note 163. 284 See Reynolds, supra note 163; See also Billauer, supra note 144. 285 Leslie Kendrick, The Perils and Promise of Public Nuisance, 132 YALE LAW JOURNAL 3 (2023). 286 See Billauer, supra note 166 (discussion of how nuisance law can be used in novel contexts). 102 JOURNAL OF LAW AND HEALTH Vol. 37:2 VII. CONCLUSION Rather than identifying the false predicates used to support a “do nothing” order, the local boards rely on governmental abuse of powers. Instead, a clear-eyed view shows that either there was an emergency – in which case mask mandates are required, no exceptions needed; or there was not an emergency – in which case the governor and the DOH have no power to act. To identify the existence of an emergency and legislatively require doing nothing should be considered the height of recklessness. If children had a tiny rate of increased deaths, as the court found, then perhaps there was no emergency. Alternatively, any increased deaths in kids is significant - since, as one commentator noted, children aren’t supposed to die. Further, limiting findings of interest to school illness and death rates manifests a total lack of understanding of the purpose of masking and the role of community transmission occasioned by children. While cases are legion deferring to the expertise of local authorities as well as exigencies of managing a pandemic on a local basis,287 and while Judge Newman’s decision does recount the differences in rules enacted by the various school districts in response to the situation presented on the ground, his decision affords a one-size fits all directive across the state, defeating the public health paradigm that the locality governs. That DeSantis is trying to permanize the ruling is violative of all public health legal practice.288 In sum, when the health of children is at stake, the courts and government should be stringently constrained to act to protect them. As the prosecutor in one case where the parents were criminally indicted for failing to protect their child’s, memorably stated: “Adults are free to choose martyrdom. Children cannot have it thrust on them.”289 287 See Billauer, supra note 144. 288 Maya Yang, Ron DeSantis moves to permanently ban COVID mandates in Florida, THE GUARDIAN (January 21, 2023), https://www.theguardian.com/us-news/2023/jan/21/ron-desantis-covid-mandates-florida. 289 A.M. Rogers, Saving Sick Children from State Science, FOUNDATION FOR ECONOMIC EDUCATION (June 1, 1993) https://fee.org/articles/saving-sick-children-from-state-science/. Vol. 37:2 JOURNAL OF LAW AND HEALTH 103Appendix https://www.latimes.com/california/story/2021-08-14/kids-covid-hospitalization-rates 104 JOURNAL OF LAW AND HEALTH Vol. 37:2 290 290 St. John’s County, FLORIDA DEPARTMENT OF HEALTH (May 4, 2022), https://stjohns.floridahealth.gov/programs-and-services/covid-19-response/health-information/index.html; See also Miriam Van Dyke et al., Trends in County-Level COVID-19 Incidence in Counties With and Without a Mask Mandate — Kansas, June 1–August 23, 2020, 69 MORBIDITY AND MORTALITY WEEKLY REPORT 47, 1777-1781 (2020). |
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