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Network for Public Health Law
Legal Protections for Public Health Officials

Protecting Public Health Authority to Protect the Health of Our Communities

February 24, 2021

by Jill Krueger

Overview

The legislature in every state has convened in 2021, and legislators have introduced an enormous volume of proposed bills. A substantial subset of bills introduced in state legislatures in 2020 and 2021 concern public health authority. That can be a lot to keep track of in a single state, or across all 50 states. Nonetheless, at the same time that health departments are working flat out to monitor trends in COVID cases (through testing, contact tracing and other surveillance methods) and flatten the curve (through community mitigation measures and the most massive vaccination campaign in the United States in generations) public health practitioners and their associations must also communicate the role and value of public health and public health authority to legislators, as well as leaders from every sector of government and the economy.

Policymakers at every level of government are grappling with the complex stew of factors that shaped our individual and collective responses to COVID-19. These include uneasiness with resting tremendous authority in a single leader; with indefinite, open-ended, ongoing states of emergency; with scientific experts and information; and with restrictions on individual liberty and economic enterprise. These sources of uneasiness are not confined to a single political party or set of stakeholders, nor is the widespread recognition that:

  • democratic processes may not be entirely compatible with the quick action required by emergencies;
  •  not all emergencies involve a single catastrophic event;
  •  experts are most persuasive when they are connected to communities and  state their recommendations, evidence, and reasoning clearly, consistently, and with humility; and
  • individual liberties are not absolute, but must be balanced with reasonable measures as needed to protect the common good.

We can classify bills proposed in state legislatures in a variety of ways. For example, ASTHO produced an overview of bills that had been introduced or were anticipated in 2021 arranged by topic. The topics included personal protective equipment, testing, contact tracing, public health authority, vaccines, scope of practice of healthcare providers, and mental health impact of the pandemic.

Focusing on bills concerned with public health authority in particular, we can group them in several categories. They include bills that would:

  • Limit, clarify, or expand emergency powers, including through adjusting the allocation of emergency powers between the executive and legislative branches:
    • State level (governors and state health officers) and/or
    • Local level (local health officers and local boards of health).
  • Limit, clarify, or expand public health authority generally, including through adjusting the allocation of general public health authority between the executive and legislative branches:
    • State level (governors and state health officers) and/or
    • Local level (local health officers and local boards of health).
  • Address specific aspects of public health or emergency authority, including community mitigation measures (such as requiring the use of masks, social distancing, and closures of schools, places of worship, and non-essential businesses) related to controlling the spread of COVID-19
  • Re-assign specific authority from health departments (such as the power to decide whether, when, and to what extent, to close schools to in-person learning) to other entities, such as school boards or superintendents
  • Create a commission or task force to study the pandemic response, and make recommendations regarding emergency powers and public health authority

Whether or not one is directly engaged in lobbying or advocacy, deep knowledge of existing emergency powers and public health authority within one’s jurisdiction, and a solid understanding of how a proposed bill would either threaten or strengthen the ability of government to protect, promote and improve public health is an essential foundation for pandemic response and recovery. After all, policy development is one of the three core functions of public health.

An event as singular and far-reaching as the COVID-19 pandemic will inevitably have both short and long-term implications for public health authority and public health law. How state laws will evolve to address public health authority as it relates to community mitigation and ongoing public health emergencies is not yet settled, but should be guided by fundamental principles, not transient political interests and judgments. Law professor Lindsay Wiley has proposed six key principles (transparency; allow renewable emergency declarations; provide for scaled response; address religious gatherings on the basis of risk; provide supports, legal protections and accommodations; and employ criminal enforcement of social distancing only when it is the least restrictive alternative) to orient discussions of appropriate public health authority and emergency powers. Our mission must be to consider emergency powers and public health authority not only in light of the COVID-19 pandemic, but also in light of the potential for very different public health emergencies in the future, as well as the vital everyday work of public health.

This post was written by Jill Krueger, Director, Network for Public Health Law – Northern Region Office.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.