Olivia Shaffett is an MPA Staff Writer for Brief Policy Perspectives
It is both a strange and frightening experience to watch the effects of an unforeseen pandemic unfold across the United States of America, and the reactions to this public health crisis are as shocking as the devastating casualties. In spite of staggering infection numbers, a viral YouTube “Plandemic” video asserts that Americans have fallen victim to a global hoax. Young people holding COVID-19 parties with cash prizes for the first infected person offer a sharp contrast to the pleas of essential health workers to take serious precautions. America has lost over 143,820 lives with high projections for more to come—and it’s only July. These varied reactions beg the question: what can policymakers do to mitigate the spread of the pandemic?
One of the easier, yet surprisingly controversial, policies that states could and have implemented is the creation and enforcement of a mandated mask policy. Mandated mask policies require residents of an area to wear cloth masks that cover their mouths and noses while occupying public spaces. While public officials and public health experts alike have recommended masks for some time, the shift toward mandated mask policies is just now happening.
Why Experts Want You to “Mask Up”
Due to the failure to contain and mitigate the spread of COVID-19, a fear of hospital overcrowding is on the rise as major hospitals in some states, like Mississippi, run out of ICU beds. According to Dr. Anthony Fauci, the nation’s leading expert on infectious diseases, masks present a logical and effective solution to lowering the COVID-19 transmission rate. A recent study indicates that wearing a face mask lowers one’s chance of infection by 65 percent.
As of early July, 21 states require some form of mandated masks, with 14 of these 21 states requiring masks for over 30 days. In these 14 states, COVID-19 cases have increased by an average of 16 percent, compared to 79 percent on average in the 29 states without mask mandates. Much of this spread stems from unmasked, asymptomatic carriers of the virus who are infected but do not have symptoms and “feel fine.” The World Health Organization (WHO) estimates that 16 percent of asymptomatic carriers can transmit the virus, while unpublished disease models indicate that number may be as high as 40 percent.
Additionally, mandated mask policies allow businesses to remain open and prevent future mandatory lockdowns, potentially alleviating some of the economic fears many Americans hold at this time. Without masks, a vicious cycle seems to occur when carriers of COVID-19 infect employees and other customers, causing businesses to temporarily close. Businesses then reopen and unmasked customers cause another outbreak, leading to further temporary closures and further lost profits while in recovery. For months, public health officials have recommended masks as one solution for containment, but as case numbers continue to spike across the country, it seems the advice is not well-heeded. A mandated mask policy may be the road to both effective COVID-19 mitigation and economic recovery.
The Legality of Mask Mandates
In times of crisis, state and local authorities can issue emergency orders. Thus, these officials possess the discretion to invoke mandated mask policies. The most common legal challenge to these mandates derives from a challenge to personal liberties, invoking a violation of the First Amendment defense. Opinions from current Supreme Court Justices on South Bay United Pentecostal Church v. Newsom dismiss the use of the First Amendment as a sound argument against emergency public health guidance, reaffirming the central decision of Jacobson v. Massachusetts, which ruled in favor of public health authority during a 1905 smallpox outbreak. A broader legal claim could assert that mandated mask policies violate the Fourteenth Amendment and a citizen’s constitutional right to freedom, which is a stretch of the purpose of this amendment and unlikely to hold up as a legitimate argument in court.
State and city officials’ decision to not enforce a mandated mask policy also does not inhibit business owners from setting their own policies as an extension of their COVID-19 mitigation efforts. Despite viral videos of customers refusing masks and berating employees for their attempts at enforcement, private businesses have complete jurisdiction to enforce a mandated mask policy within their businesses. Businesses do not need a government mandate to make this decision, because it follows a similar “no shoes, no service” policy many businesses implement for customers. Under the Americans with Disabilities Act (ADA), customers can obtain a mask exemption pass due to a legitimate and persistent disability that clearly hinders their ability to wear a mask, though medical professionals have disputed the claims that pre-existing conditions prevent individuals from wearing a mask for brief periods of time. For customers who cannot shop in masks or refuse to do so as an expression of personal values, curbside delivery and curbside pick-up remain viable alternatives as well in many cases.
American Opposition: Liberty and Enforcement
The strongest criticism of mandated masks appears to stem from the American ideology of personal responsibility and individualism. One argument against mandated masks is that mandated masks signal the government’s attempt to regulate the bodies of American residents. Outraged critics in Texas unironically invoked a “my body, my choice” rallying cry with claims that the government cannot impose laws and policies upon their bodies. It is important to note that mandated mask policies do not require or deny medical procedures to citizens. Rather, a person’s choice to wear a mask or not affects the health of the individuals they both knowingly and unknowingly come into contact with, thus infringing upon the choices of others.
A more logistical criticism of mandated mask policies focuses on issues of enforcement. How can the government realistically enforce such a measure? What is the punishment for noncompliance? A comparable scenario unfolds when considering the enforcement of fines for speeding vehicles. It remains true that not every speeding vehicle is caught, and most likely not every unmasked individual will face consequences for noncompliance. Yet, violators of reckless driving who are caught face either an immediate warning or a required fine. Tickets for reckless driving are an extension of a community’s commitment to public safety. In essence, a mandated mask policy is not much different.
Despite the idea behind masks as an effort toward public safety, some advocates have raised the legitimate concern of inequity among enforcement between different racial and socioeconomic groups. Will a mask mandate primarily target low-income individuals? Do mask mandates create a new outlet for racial profiling from law enforcement? Issues with disproportionate enforcement have caused some officials to disband mask mandates until a clearer enforcement plan is enacted.
The Partisanship of Public Health
The final challenge of mandated mask policies stems from the politicization of a public health recommendation. Masks have now become a partisan issue. Like all partisan issues, the stance one takes reflects their party of choice. The partisanship of public health has created internal conflict between officials within some states. After Louisiana’s Democrat Governor John Bel Edwards’ issued a mask mandate, the state’s Republican Attorney General, Jeff Landry, immediately condemned the mandate as unconstitutional, creating a landscape of political contentiousness over COVID-19 mitigation efforts. In Georgia, conservative Governor Brian Kemp has gone so far as to ban local and country officials from implementing mandated mask policies, reversing local orders and making Georgia the first and only state to prohibit mask mandates.
Contrary to the claims of certain politicians and media influencers, a mask is not akin to a red “Make America Great Again” cap or a “Biden 2020” lawn sign. A group of Republican officials have pushed back against this attempt at partisanship and encouraged their constituents to wear masks in public settings. Despite recent partisan battles, states should still follow public health guidelines as there is no reasonable justification for the politicization of masks if the goal of America’s commitment to public health is to minimize as much damage and cost to human life as possible.