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Conservative blocs unleash wave of litigation to curb public health powers

Texas Attorney General Ken Paxton (right) has sued the CDC over its air travel mask mandate, while Missouri Attorney General Eric Schmitt (left) has sued and sent cease and desist letters to dozens of school districts over mask mandates.
Chip Somodevilla
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Texas Attorney General Ken Paxton (right) has sued the CDC over its air travel mask mandate, while Missouri Attorney General Eric Schmitt (left) has sued and sent cease and desist letters to dozens of school districts over mask mandates.

Through a wave of pandemic-related litigation, a trio of small but mighty conservative legal blocs has rolled back public health authority at the local, state and federal levels, recasting America's future battles against infectious diseases.

Galvanized by what they've characterized as an overreach of COVID-related health orders issued amid the pandemic, lawyers from the three overlapping spheres — conservative and libertarian think tanks, Republican state attorneys general, and religious liberty groups — are aggressively taking on public health mandates and the government agencies charged with protecting community health.

"I don't think these cases have ever been about public health," said Daniel Suhr, managing attorney for the Liberty Justice Center, a Chicago-based libertarian litigation group. "That's the arena where these decisions are being made, but it's the fundamental constitutional principles that underlie it that are an issue."

Through lawsuits filed around the country, or by simply wielding the threat of legal action, these loosely affiliated groups have targeted individual counties and states and, in some cases, set broader legal precedent.

In Wisconsin, a conservative legal center won a case before the state Supreme Court stripping local health departments of the power to close schools to stem the spread of disease.

In Missouri, the Republican state attorney general waged a campaign against school mask mandates. Most of the dozens of cases he filed were dismissed but nonetheless had a chilling effect on school policies.

In California, a lawsuit brought by religious groups challenging a health order that limited the size of both secular and nonsecular in-home gatherings as COVID-19 surged made it to the U.S. Supreme Court. There, the conservative majority, bolstered by three staunchly conservative justices appointed by former President Donald Trump, issued an emergency injunction finding the order violated the freedom to worship.

Other cases have chipped away at the power of federal and state authorities to mandate COVID vaccines for certain categories of employees, or thwarted a governor's ability to declare emergencies.

Although the three blocs are distinct, they share ties with the Federalist Society, a conservative legal juggernaut. They also share connections with the State Policy Network, an umbrella organization for state-based conservative and libertarian think tanks and legal centers, and the SPN-fostered American Juris Link, described by president and founder Carrie Ann Donnell as "SPN for lawyers." In the COVID era, the blocs have supported one another in numerous legal challenges by filing amicus briefs, sharing resources and occasionally teaming up.

Their legal efforts have gained traction with a federal judiciary transformed by Republican congressional leaders, who strategically stonewalled judicial appointments in the final years of Democratic President Barack Obama's second term. That put his Republican successor, Trump, in position to fill hundreds of judicial vacancies, including the three Supreme Court openings, with candidates decidedly more friendly to the small-government philosophy long espoused by conservative think tanks.

"You have civil servants up against a machine that has a singular focus and that is incredibly challenging to deal with," said Adriane Casalotti, chief of government and public affairs for the National Association of County and City Health Officials.

All told, the COVID-era litigation has altered not just the government response to this pandemic. Public health experts say it has endangered the fundamental tools that public health workers have utilized for decades to protect community health: mandatory vaccinations for public school children against devastating diseases like measles and polio, local officials' ability to issue health orders in an emergency, basic investigative tactics used to monitor the spread of infectious diseases, and the use of quarantines to stem that spread.

Just as concerning, said multiple public health experts interviewed, is how the upended legal landscape will impact the nation's emergency response in future pandemics.

"This will come back to haunt America," said Lawrence Gostin, faculty director of Georgetown University's O'Neill Institute for National and Global Health Law. "We will rue the day where we have other public health emergencies, and we're simply unable to act decisively and rapidly."

'Legal Version' of Navy SEAL Team 6

The entities pressing the public health litigation predate the pandemic and come to the issue motivated by different dynamics. But they have found common interest following the sweeping steps public health officials took to stem the spread of a deadly and uncharted virus.

The State Policy Network affiliates have long operated behind the scenes promoting a conservative agenda in state legislatures. A KHN analysis identified at least 22 of these organizations that act in the legal arena. At least 15 have filed pandemic-related litigation, contributed amicus briefs, or sent letters threatening legal action.

Typically staffed by just a handful of lawyers, the organizations tend to focus on influencing policy at the state and county levels. At the core of their arguments is the notion that public health agencies have taken on regulatory authority that should be reserved for Congress, state legislatures and local elected bodies.

Wisconsin Institute for Law & Liberty, which calls itself the "legal version" of the Navy SEAL Team 6, has filed a flurry of COVID-related lawsuits. Among its victories is a state Supreme Court ruling that found Democratic Gov. Tony Evers' declaration of multiple states of emergency for the same event — in this case, the pandemic — was unlawful. It also used the threat of litigation to get a Midwest health care system to stop considering race as a factor in how it allocates COVID therapeutics.

The Kansas Justice Institute, whose website indicates it is staffed by one lawyer, persuaded a county-level health officer in that state to amend limitations on the size of religious gatherings and stopped a school district from issuing quarantines after sending letters laying out its legal objections.

Suhr, of the Liberty Justice Center, noted one of his group's cases underpinned the U.S. Supreme Court's decision crimping the ability of the Occupational Safety and Health Administration to mandate large-business owners to require COVID vaccinations or regular testing for employees. The group teamed with the legal arm of Louisiana's Pelican Institute for Public Policy on behalf of a grocery store owner who did not want to mandate vaccines for his employees.

Republican attorneys general, meanwhile, have found in COVID-related mandates an issue that resonates viscerally with many red-state voters. Louisiana Attorney General Jeff Landry joined a suit against New Orleans over mask mandates, taking credit when the mandate was lifted. Florida Attorney General Ashley Moody sued the Biden administration over strict limits on cruise ships issued by the Centers for Disease Control and Prevention, arguing the CDC had no authority to issue such an order, and claimed victory after the federal government let the order expire.

Texas Attorney General Ken Paxton joined with the Texas Public Policy Foundation to sue the CDC over its air travel mask mandate. The case was put on hold after a Florida federal district judge in April invalidated the federal government's transportation mask mandates in a case brought by the Health Freedom Defense Fund, a group focused on "bodily autonomy." The Biden administration is fighting that ruling.

Missouri Attorney General Eric Schmitt has sued and sent cease and desist letters to dozens of school districts over mask mandates, and set up a tips email address where parents could report schools that imposed such mandates. The majority of his suits have been dismissed, but Schmitt has claimed victory, telling KHN "almost all of those school districts dropped their mask mandates." This year, legislators from his own political party grew so tired of Schmitt's lawsuits that they stripped $500,000 from his budget.

"Our efforts have been focused solely on preserving individual liberties and clawing power away from health bureaucrats and placing back into the hands of individuals the power to make their own choices," Schmitt, who is running for U.S. Senate, said in a written response to KHN questions. "I'm simply doing the job I was elected to do on behalf of all six million Missourians."

Numerous Republican attorneys generals teamed up and won a Supreme Court decision staying the OSHA vaccine mandate for large employers, building on the legal arguments brought by Liberty Justice Center and others. That decision was cited in the recent Supreme Court case rolling back the Environmental Protection Agency's authority to regulate the carbon emissions that cause climate change.

A 'Shared Ecosystem'

Religious liberty groups were drawn into the fray when states early in the pandemic issued broad restrictions on recreational, social and religious gatherings, sometimes limiting attendance at worship services while keeping open hardware and liquor stores. Although their legal efforts were unsuccessful in the first months of the pandemic, they gained traction after Trump nominee Amy Coney Barrett, a stalwart conservative, was confirmed as a U.S. Supreme Court justice in October 2020, following the death of Justice Ruth Bader Ginsburg, a steadfast liberal.

Minnesota Gov. Tim Walz, a Democrat, rewrote an executive order after receiving a letter from the Becket Fund for Religious Liberty, a leading religious litigation group, announcing that Catholic and Lutheran churches would be opening with or without permission. In November 2020, the Supreme Court's newly constituted majority prevented New York from enacting some COVID restrictions through a shadow court docket.

"Courts started saying, 'Show me the proof,'" said Mark Rienzi, Becket's president and CEO. "And when you start saying that 'casinos, good; churches, bad; Wall Street good; synagogue, bad,' those things at some point require some explanation."

In February 2021, Barrett joined other conservative justices in ruling against California in South Bay United Pentecostal Church v. Newsom, ending state and local bans on indoor worship services and leaving the state on the hook for $1.6 million in attorney's fees to the conservative Thomas More Society. That April, the U.S. Supreme Court struck down California and Santa Clara County rules limiting gatherings in private homes that prevented people from participating in at-home Bible study. Plaintiffs' lawyers arguing that case had clerked for Barrett and Justice Clarence Thomas.

American Juris Link, meanwhile, helped build out a list of COVID-related cases for lawyers to reference and connected lawyers working on similar cases, Donnell said.

Peter Bisbee, head of the Republican Attorneys General Association, a political fundraising machine, sits on American Juris Link's board; Donnell said the two talk regularly. Bisbee said the groups have no formal connection but share a common cause of shrinking the "expansive regulatory administrative state."

Liberty Justice Center's Suhr said litigation groups like his operate in a "shared ecosystem" to curtail government overreach. "I have not been invited to any sort of standing weekly conference call where a bunch of right-wing lawyers get on the call and talk about how they're going to bring down the public health infrastructure of America," he said. "That's not how this works."

Still, he said, everyone knows everyone else, either through previous jobs or from working on similar cases. Suhr was once policy director for former Republican Gov. Scott Walker of Wisconsin, as well as deputy director of the student division of the Federalist Society.

'It's Not About Public Health'

No equivalent progressive state litigation network exists to defend the authority housed in government agencies, said Edward Fallone, an associate professor at Marquette University Law School and expert in constitutional law.

The difference, he said, is funding: Private donors, corporate interests, and foundations with conservative objectives have the deep pockets and motivation to build coalitions that can strategically chip away at government oversight.

On the other side, he said, is often a county attorney with limited resources.

"It's almost as if government authority is not getting defended, and it's almost a one-sided argument," he said. "It's not about public health, it's about weakening the ability of government to regulate business in general."

Public health is largely a local and state endeavor. And even before the pandemic, many health departments had lost staff amid decades of underfunding. Faced with draining pandemic workloads and legislation from conservative forces aimed at stripping agencies' powers, health officials often find it difficult to know how they can legally respond to public health threats.

And in states with conservative attorneys general, it can be even more complicated. In Missouri, a circuit court judge ruled last year that local public health officials did not have the authority to issue COVID orders, describing them as the "unfettered opinion of an unelected official."

Following the ruling, Schmitt declined the state health department's request for an appeal and sent letters to schools and health departments declaring mask mandates and quarantine orders issued on the sole authority of local health departments or schools "null and void."

"Not being able to work with the schools to quarantine students — that really inhibited our ability to do public health," said Andrew Warlen, director of Missouri's Platte County Health Department, which serves the suburbs of Kansas City. "It's one of the biggest tools we have to be able to contain disease."

The legal threats have fundamentally changed the calculus for what powers to use when, said Brian Castrucci, president and CEO of the de Beaumont Foundation, a nonprofit dedicated to improving community health. "Choosing not to use a policy today may mean you can use it a year from now. But if you test the courts now, then you may lose an authority you can't get back," he said.

By no means have the blocs won all their challenges. The Supreme Court recently declined to hear a Becket lawsuit on behalf of employees challenging a vaccine mandate for health care workers in New York state that provides no exemption for religious beliefs. For now, the legal principles that for nearly 120 years have allowed governments to require vaccinations in schools and other settings with only limited exemptions remain intact.

Several lawyers associated with these conservative groups told KHN they did not think their work would have a negative effect on public health. "I honestly think the best way for them to preserve the ability to protect the public health is to do it well, and to respect people's rights while you do it," said Becket's Rienzi.

Connecticut Attorney General William Tong, a Democrat, decried the wave of litigation in what he called a "right-wing laboratory." He said he has not lost a single case where he was tasked with defending public health powers, which he believes are entirely legal and necessary to keep people alive. "You destroy government, and you destroy our emergency response powers and police powers — good luck. There will be no one to protect you."

As public health powers fade from the headlines, the groups seeking to limit government authority have strengthened bonds and gained momentum to tackle other topics, said Paul Nolette, chair of the political science department at Marquette University. "Those connections will just keep thickening over time," he said.

And the pressure against local governments shows no signs of stopping: Schmitt has set up a new online tips form similar to his efforts on masking — but for parents to report educators for teaching critical race theory.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. It is an editorially independent operating program of KFF (Kaiser Family Foundation).

Copyright 2022 Kaiser Health News. To see more, visit Kaiser Health News.

Lauren Weber
Anna Maria Barry-Jester