Early in the pandemic, Covid patients with very low oxygen levels were put on ventilators, the standard of care for severe respiratory diseases. But some doctors noticed that severely ill patients responded better to noninvasive ventilation such as high-flow nasal tubes. They shared their findings with other physicians, and gentler oxygen support became the norm. That change in treatment has saved tens of thousands of lives.
But it would have been illegal under a new bill that Democratic lawmakers have proposed in California. The legislation would require the state Medical Board to take action against doctors found to be spreading “misinformation” related to the “nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.”
What is “misinformation”? It’s not clearly defined, but the bill would instruct the board to consider whether a doctor’s order or opinion deviates from the “standard of care” (i.e., recommendations by government bodies or treatments that are widely used by healthcare practitioners) and is “contradicted by contemporary scientific consensus.”
So doctors who prescribe or recommend treatments that haven’t been approved by the Food and Drug Administration for Covid-19—for example, the antidepressant fluvoxamine, which has shown strong results in trials—could be disciplined and even lose their medical licenses no matter if they have scientific evidence to support them. Same for doctors who disagree with masking and vaccines for children.
The intolerance of different viewpoints that is infecting the medical profession may itself be a public-health threat. Emails obtained by the American Institute for Economic Research showed how the National Institutes of Health’s Francis Collins and Anthony Fauci tried to discredit the authors of the Great Barrington Declaration, which opposed the lockdown consensus. “This is a fringe component of epidemiology,” Dr. Collins told the Washington Post. “This is not mainstream science. It’s dangerous.”
What’s actually dangerous is silencing debate on critical public-health issues. Mainstream science is often wrong, as vaccine expert Paul Offit explains in his book “Overkill: When Modern Medicine Goes Too Far.” Dr. Offit details how many conventional medical recommendations, like finishing a course of antibiotics or giving Tylenol to reduce a child’s fever, aren’t supported by science and can do more harm than good. Many recommendations have changed over time as scientists learn more and do more studies.
The CDC claimed that it was relying on Section 264(a) of the Public Health Service Act, which empowers it to issue regulations “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries,” and from state to state. Last year, the agency claimed the same section gave it authority to issue a nationwide eviction moratorium. The Supreme Court struck down the moratorium on the grounds that the CDC had exceeded its statutory authority, since the statute narrows the types of measures it can implement to limit the spread of disease to fumigation, disinfection, sanitation, and pest extermination.
The Florida district court followed the same reasoning to conclude that Section 264(a) also does not authorize the CDC to issue a mask mandate. As in the Supreme Court’s eviction-moratorium ruling, the district court invoked the “major questions doctrine,” which requires “Congress to speak clearly” in the statutory language if it intends to authorize an administrative agency to make decisions “of vast economic and political significance.” The CDC claimed that Section 264(a)’s reference to providing for “sanitation” or “other measures” gives it broad, indeed almost unlimited, powers to take measures applying to both sick and healthy people that would limit the spread of disease and preserve public health. But the statutory language does not do that.
Section 264(a) actually refers to actions (fumigation, disinfection, sanitation) taken on “animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings”—not to taking those same actions on human beings. While the CDC claimed the mandate was a “sanitation” measure allowed by the statute, the court held that the mandate has nothing to do with sanitation as it is commonly understood—cleaning or sanitizing.
The federal mask mandate increasingly seemed like an anachronism. State and local governments and businesses around the country have dropped indoor mask mandates in response to plunging Covid case, hospitalization, and death rates. At best, the CDC came across as overcautious; at worst, it seemed like a sclerotic bureaucracy clinging to its power to dictate peoples’ daily lives.
A lasting benefit of the pandemic appears to be public realization that government bureaucratic experts do not always know what is best and an increased judicial willingness to rein in administrative agencies’ expansive view of their regulatory powers. The mask-mandate ruling, along with the earlier Supreme Court eviction-moratorium ruling, limits the CDC’s broad claims of authority under the Public Health Service Act.
I’ve done a fair amount of travel in the past few weeks, to South Carolina, Tennessee, Texas, and Nevada, and I observed that the only place where people wore masks was airports. Sure, a few people wore them in other areas, but the vast majority did not. People were already disregarding the CDC’s advice when they could get away with it.
The CDC might be right, so I’m not passing judgment on whether their advice to mask up is medically sound. I’m observing that most people don’t trust the CDC’s advice, and when they have a choice, they choose to disregard it (with regard to masks, anyway).
Government authority is undermined when people don’t trust the government. Perhaps the widespread disregard of the CDC’s public health advice is a good sign. People will think for themselves and make their own decisions rather than uncritically doing what the government tells them they should do.
(DBx: In the Virginia suburbs of DC, where I live, mask wearing is still common indoors, and it’s not uncommon outdoors. For example, I estimate that more than 50 percent of people in supermarkets still wear masks. And not a day passes – I’ve been paying attention – when I don’t see people driving apparently alone yet fully masked. The frequency of masking in my stomping grounds has, thankfully, fallen noticeably in the past couple of weeks, but I – who never wear a mask, save when in airports and planes – remain in the minority in most places frequented by the public in northern Virginia.)
The mandate’s supporters seem determined to obscure what was at stake in this case. “Public health decisions shouldn’t be made by the courts,” White House Press Secretary Jen Psaki told reporters yesterday. “They should be made by public health experts.” But Mizelle did not make a public health decision; she made a legal decision, based on her understanding of the relevant statute.
Contrary to Psaki’s implication, courts are not only authorized but obligated to make such decisions, as she surely would have conceded had Mizelle ruled in the CDC’s favor. If politicians acknowledged the judicial branch’s authority to interpret and apply statutes only when they liked the result, it would be fatal to the rule of law.
It is time for indoor mask mandates to end. They had to end sometime, after all, and if not now, when?
“When people stop dying!” says a voice from the back. But that ceased to be a workable answer last summer when it became clear that the vaccines were not providing the sterilizing immunity that might have allowed us to eliminate the virus, the way we have done with smallpox and polio. Anything short of that requires us to figure out how to live with a virus that will continue to circulate. And by “live,” I mean full, normal lives, not the severely restricted public activities of the past couple of years.