Public Health Authority Under Threat

A future in which all people have what they need for their health and well-being is achievable if Public Health has the power to act and the resources it needs. Despite past mistakes and ongoing learning in the Public Health sector, the answer is clear: continued support for efforts that protect the public’s health and investment in our shared health and safety is key.

​Recently, some states have moved to limit public health authority in response to perceived government overreach and outrage over handling of the COVID-19 pandemic. They seek to prohibit mask wearing, ban the use of quarantine, block employer vaccine mandates, give legislatures unilateral power to stop public health actions, and other moves that stand in the way of Public Health’s mission. Similar challenges played out in the courts, where cases have alleged due process violations, violations of religious liberties, and violations of officials’ scope of authority. These threats compromise Public Health’s ability to respond to COVID-19 and have serious implications for other future outbreaks or threats.

Eroding Authority  

Between legal challenges and a precarious policy landscape, underfunding of public health programs and infrastructure, and turnover of the public health workforce and brain drain of expertise, Public Health faces an uphill battle in delivering the Essential Public Health Services and realizing its vision. Declining trust in institutions make more difficult our efforts to respond to population health threats.

Policy Landscape

The evolving policy landscape poses novel challenges to public health authority, as new laws emerge in state legislatures that curtail the powers of public health officials and restrict evidence-based measures to protect public health, and existing public health orders are overturned in the courts. These new moves to limit public health authority are examined below.

Chronic Underfunding

Public health agencies across the country face chronic underfunding. Underfunding makes it difficult to maintain adequate staffing levels, compensate and support employees, implement essential programs and services, and respond to emergencies. The impact of disinvestment was never more evident than during the COVID-19 pandemic, when response efforts failed to meet demand in many places due to staffing shortages and underinvestment in the Essential Public Health Services.

Workforce Challenges

Over the last several years, public health entities have seen a mass exodus of personnel. During the COVID-19 pandemic and since, many exhausted, burned-out, underpaid, and demoralized public health workers left their jobs, and some, the field. In some places, public health experts and officials were replaced by local voters with officials who committed to reigning in public health authority. Turnover in who is doing the work of public health has implications for institutional knowledge and trust, and creates challenges and opportunities in advocating for public health authority.

Declining Trust

For much of public health history, high levels of trust in institutions (as well as trust in science and expertise!) have aided public health responses. Public trust and trust in institutions has declined in recent decades. In the last several years, many communities witnessed a lack of transparency, inconsistent and unclear communications, and barriers to engagement. For some, these experiences led to perceived failures of and frustrations with the COVID-19 response, pushing trust to a breaking point. Low levels of trust threaten our ability to maintain and regain public health authority. Building public trust sets the stage for expanding Public Health’s ability to act. 

New Moves to Limit Public Health Authority

Some legislatures and courts are taking decisive actions that may impact government’s ability to act to protect public health. Such actions create and perpetuate health inequities and undermine the public’s trust in public health institutions, further eroding authority.

Public Health Emergency Restrictions limit the authority of governors, state health officials, and/or local health departments with regard to public health emergency orders
Reallocation of Public Health Authority remove an emergency power from a governor or health official and give it to the state legislature or another official or agency
Regulating Public Health Measures limit state or local authority to impose a specific public health measures
Public Health Preemption Block local authorities from implementing public health measures using the Supremacy Clause of the U.S. Constitution
State Limits on Enforcement of Federal Law Regulate (often restrict) the enforcement of federal public health laws
Policy Implications
These efforts can limit emergency response efforts by:
  • Restricting the scope of an emergency order
  • Limiting the duration of an emergency order or state of emergency
  • Enabling legislatures to terminate an emergency order
These efforts enable legislatures (instead of public health experts) to make decisions about emergency orders, quarantine, vaccination, mask policies, and other public health measures.
These efforts can limit authority to enact specific public health measures such as:
  • Requiring vaccinations
  • Imposing mask mandates
  • Closing schools, businesses, or places of worship during public health emergencies
  • Imposing isolation or quarantine measures
This legal doctrine allows upper levels of government to restrict or prevent a lower-level government from self-regulating
These efforts reduce implementation and enforcement of federal laws like those that require businesses, schools, and government agencies from requiring proof of vaccination or mandating mask wearing.
Example
In a Wisconsin case filed against Governor Evers, the Wisonsin Supreme Court ruled (March 2021) that the Governor is prohibited from declaring multiple public health emergencies.
Kentucky SB 1, KRS § 39A.090 (enacted February 2021) limits an executive order issued by the governor to 30 days under various circumstances unless the legislature extends the order. It also allows the legislature to terminate an emergency declaration and shifts authority to extend, change or terminate an executive order from the governor to the legislature.
Utah House Bill 308 (enacted March 2021) prohibits governmental entities from requiring individuals to receive a COVID-19 vaccine as a condition of employment, participation in an activity of the entity, or attend events hosted or sponsored by a governmental entity.
Florida Senate Bill 2006 (enacted May 2021) prohibits local governments from closing businesses or keeping students out of in-person instruction at Florida schools, and caps all local emergency orders at seven days.
Wyoming HB 1002 (enacted November 2021) enables public entities to not enforce federal vaccine mandates under CMS and OSHA upon employers, and it allows the attorney general, at the direction and consent of the governor, to participate in litigation to challenge federal vaccination requirements.

Responding to Threats

Amidst these threats, public health stands to leap forward. Stewards of public health across the country are working together to strengthen public health authority and advocate for the public’s health. Examples include governors vetoing bills that would have weakened their emergency powers, like in Louisiana and Michigan, and legislatures advancing policies that strengthen local authority, improve decision-making, and increase transparency. 

 

Why Strengthen Public Health Authority

Restriction and reallocation of public health authority delays response public health emergencies and shifts power away from experts. In contrast, strengthening public health authority can help shore up the public health system by:

  • Authorizing public health officials to handle crises efficiently and create detailed response plans, minimizing the impact of emergencies;
  • Enabling swift and effective response to contain outbreaks of infectious diseases, such as COVID-19; and
  • Providing the tools needed to implement interventions that promote health and address health disparities.

Instead of weakening public health authority, to adverse consequences, we can strengthen it–and secure vital conditions that all people need to be healthy and well. 

Strengthening public health authority requires sustained advocacy and collective action. Through advocacy we can defeat policies that limit and erode public health authority, and support those that expand and secure public health authority. Regardless of who you are or what your role is, you have the potential to make a difference on issues of public health authority.

Through intentional and intersectional advocacy we can protect and expand public health authority. 

The next module covers advocating for public health >

Further Reading

Reflection Questions

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  • What are two ways public health authority is being eroded? What are the implications of this reduction in authority?
  • Share an example of a legislative action that was taken to reduce or limit public health authority? How might this type of action impact public health outcomes?
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