At least nine states have considered ‘emergency power limitation’ legislation proposed by conservative organization Alec
Republican lawmakers across more than a dozen states are working to limit the powers of local health departments in ways experts say is likely to lead to “preventable tragedies” during disease outbreaks, including the Covid-19 pandemic.
The attempts to limit the emergency powers of public health agencies comes alongside harassment of individual public health workers, renewed concern about the spread of the highly transmissible Covid-19 Delta variant, and a flagging US vaccination campaign.
“The supposed rationale is that a lot happened during Covid. People didn’t like being restricted so much,” said Lori Tremmel Freeman, CEO at the National Association of County and City Health Officials (Naccho).
“But if these laws and pieces of legislation stand beyond the pandemic we have a big problem,” she said. “They basically handcuff health officials from being able to use century-long mitigation measures.”
Montana barred local health authorities from quarantining people suspected of being exposed to or infected with a contagious disease. That ends an infection control measure used since at least the plague, known as the “Black Death”, hit Italian cities in the 14th century.
North Dakota banned state health authorities from requiring a face covering for any reason, a measure that could impact diseases such as tuberculosis. Florida gave the governor sweeping power to “invalidate” any local emergency order. Kansas removed the governor’s ability to close businesses during a public health emergency.
Together, at least 15 states are considering new limits to local public health authorities’ power in ways likely to diminish local expertise, the ability to locally tailor restrictions and lead to more politicized responses.
“I was a staff attorney at the Massachusetts department of public health for 10 years, and then I was the general counsel for the next 26,” said Donna Levin, national director of the Network for Public Health Law. Levin has since been with the network for an additional seven years of her career.
“I can safely say I have not in my experience seen the assault on public health officials, and threats and worse across the country, and I’ve never seen this wholesale attack on public health authority … in the context of emergency response,” Levin said.
Lawmakers across at least nine states have zeroed in on the emergency powers of health departments to limit how people gather in places such as churches, schools and businesses. Conservative model legislation has described these limitations as orders that “infringe on the rights of private parties”.
Many of the limits on public health measures have also come with the imprimatur of one of the most powerful and well-financed conservative legislative machines in the country – the American Legislative Exchange Council (Alec).
At least nine states have considered “emergency power limitation” legislation proposed by Alec that could directly limit public health response, a report by Naccho found. Those states – Arizona, Idaho, Kentucky, Montana, North Dakota, Pennsylvania, Utah, Virginia and Washington – lean conservative or purple.
Alec began circulating model legislation related to Covid-19 as early as last April. The emergency powers legislation was first published in 2020 December. Since then, experts said attempts to limit the emergency powers of health departments have become more concerted and widespread as the pandemic has marched on, with states such as Missouri curtailing the emergency powers of health departments in June.
Alongside a raft of new legislation pushed by Alec, a loose coalition of conservative groups have worked since April 2020 to drive attendance at anti-lockdown protests, fund lawsuits against public health orders and commissioned polls to support the appearance of a “grassroots” drive for reform.
Alec’s proposed legislation is meant to limit government spending, reduce regulation and impose “constitutional law”, according to principles laid out by Alec’s conservative economists early in the pandemic.
“As they should, every state will have a different solution and approach to reopening, and Alec will support legislators in these efforts,” said Alec’s CEO, Lisa Nelson, in April 2020.
Alec’s primary model for consolidating power in state capitals is through “pre-emption”, or banning any locality except the state from legislating on an issue. Alec has used this strategy across issues as wide-ranging as workers’ rights to environmental protections.
“This is an organization that is all about consolidating power in the state, particularly in conservative states,” said Kim Haddow, a strategic consultant for the Local Solutions Support Center (LSSC), a group that works to maintain the democratic rights of cities, counties and other municipalities.
That, Haddow said, allows Alec to deal directly with state legislators who tend to be “disproportionately representative of white, rural areas”, rather than thousands of localities. Pre-emption also denies urban centers, which tend to be more racially diverse and lean Democratic, the ability to enact progressive reform.
“Around the pandemic, [Alec] took advantage and exploited the ability to take away more local power,” said Haddow. “People are saying why vote” if states constantly pre-empt local legislation, she said. “Well, why indeed?”
Missouri is one of the states working to limit the power of public health authorities. In June, its Republican governor, Mike Parson, signed legislation to limit public health orders to 30 days in a statewide emergency, and 21 days when there is no state declaration. A local governing body then has to vote to renew such restrictions.
Parson was a speaker at Alec’s 2020 conference, which was forced to go digital after Florida, where they planned to hold the in-person conference, became the center of an outbreak.
“There is a longstanding discomfort with public health at its core, but Covid-19 has been immediately politicized in a way other health issues weren’t,” said Dr Elvin Geng, an infectious disease expert at Washington University in St Louis, Missouri.
Missouri is also among states now experiencing the most significant outbreak of Covid-19 since spring 2021, when a fast-moving vaccination campaign and social distancing led to the lowest rates of new infections since the pandemic began.
Though cases remain low overall compared with the peak of the pandemic, Missouri is among the least vaccinated states in the nation, with just 40% of people fully vaccinated.
“Local control is critical because epidemics are heterogenous in severity and timing,” said Geng. Missouri is currently experiencing one of the worst Covid-19 outbreaks in the nation.
Remarkably, Missouri was also the target of another well-financed conservative effort to avoid government spending that might affect taxes on the wealthy. The political advocacy group Americans for Prosperity, funded in part by the billionaire oil and gas magnate David Koch, worked to dissuade voters from expanding Medicaid.
The health insurance program for the poor and disabled would have provided health insurance to 230,000 low-income Missourians. Voters approved the ballot measure, which state Republicans refused to honor, and quickly took to court.
It ranks last in public health funding, and spent just $7 a person on public health measures in 2020, an analysis by the State Health Access Data and Assistance Center, a state-focused health research center found.
“Health and guidance and orders were not seen for what they were,” said Tremmel Freeman, “which was trying to protect the health and wellbeing of the community.”
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