On Monday, an unqualified Trump-appointed federal judge in Florida ended the national mandate requiring face masks on airplanes and public transit, representing a major victory for those who have decided that the worst thing about a global pandemic that has killed nearly one million Americans is the minor inconvenience of wearing a face mask.
But the Covid-19 pandemic is not over. There’s still an average of 37,000 new cases and 400 deaths every day, and on April 12th, U.S. Secretary of Health and Human Services Xavier Becerra extended the country’s Public Health Emergency status until at least July. And allowing a judge to single-handedly change public health policy sets a dangerous precedent that could shape how this pandemic ends, and those of the future are handled.
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Although this rollback is perfectly timed for those who believe they deserve to get out and enjoy their summer, many medical experts are less enthusiastic about the development. This includes Peter Hotez, MD, PhD, co-director of the Center for Vaccine Development at Texas Children’s Hospital and dean of the National School of Tropical Medicine at Baylor College of Medicine, who points out that the current dominant variant, BA.2, is the most transmissible one yet — “right up there with measles.”
“I do think we need to reach a point eventually where we’re not wearing masks — and that includes not having mask mandates on air transportation, buses, and trains,” Hotez tells Rolling Stone. “I get that. I just wouldn’t have done it now, as cases are going up.”
But instead of waiting a few weeks until we’re on the other side of the curve and BA.2 cases are decreasing — which Hotez says would have been a far safer approach — the youngest of Trump’s judicial appointees and member of the Federalist Society (a national organization of conservative lawyers) decided that it was time for us to throw caution to the (possibly virus-laden) wind and ditch the masks now.
Immediately, choruses of “but people can still wear masks if they want to” rang throughout the land, with President Joe Biden chiming in Tuesday afternoon to say that it’s up to individuals to make mask-related decisions for themselves. But it’s not that simple, Hotez says, noting that while wearing a mask does offer someone a level of protection, when everyone masks up, “the likelihood of a lot of virus transmission goes way down.”
And where does this leave the millions of Americans who are immunocompromised, or live with young children who are unable to be vaccinated? Oh, you know, just bearing the burden of the pandemic so that other people can resume living a “normal” life. But as infuriating and unethical as that is, that’s always been the plan. It just happened a little sooner than expected.
After everything we’ve been through, it’s enraging, almost inconceivable, that we’d give up on mask mandates at this point and give the virus another opportunity to make the rounds — so close to what could have been the beginning of the end of this phase of the pandemic. But that’s exactly what’s happening. It’s as if those so adamantly against masking requirements can’t let go of the pandemic and refuse to move on, doing whatever they can to ensure that community-level spread of the virus continues.
And while so-called fans of freedom — and the right not to have to consider the health and welfare of other people — applauded U.S. District Judge Kathryn Kimball Mizelle’s decision, others think her recent flex from the bench sets a dangerous precedent.
“The federal courts shouldn’t be making policy decisions or substituting the judges’ opinions for that of a government or public health agency — and that’s exactly what happened,” says Lawrence Gostin, JD, a professor of global health law at Georgetown University. “Basically, this judge said that Congress didn’t empower the CDC to require masks on mass transit, but it’s total nonsense.”
So, to recap: Mizelle’s take on mask mandates is that the Centers for Disease Control and Prevention overstepped its bounds when it attempted to control and prevent the spread of an infectious disease. “I can’t think of a more classic case where the CDC was acting lawfully,” Gostin tells Rolling Stone. “I would go even further: if the CDC can’t require masks on a flight from New York to San Francisco, then it can’t do anything.”
Of course, the CDC has made their share of missteps throughout the pandemic, including but not limited to inexplicably taking an honor system approach to mask requirements for people who remained unvaccinated in May 2021, and failing to mention Long Covid as one of the potential outcomes of a Covid-19 infection in the vast majority of their public health messaging. But taking away the agency’s authority would only make things worse.
“I don’t want some random federal judge in Florida making public health decisions for the nation,” says Hotez. “And I don’t want to set a precedent that every time the CDC makes a recommendation, some federal judge tries to overrule it for political gain.”
Gostin echoes that sentiment. “What I really worry about is that [the ruling] is handcuffing the CDC so they won’t be able to act decisively for the next pandemic, or health emergency,” he adds. “And that, for me, is a very troubling sign.”
So, after taking the day to mull it over, the Department of Justice (DOJ) announced late on Tuesday afternoon that it would appeal the Florida district court’s decision — if the CDC determines that the mask mandate on airplanes and public transit “remains necessary for public health.” But at that point, the Transportation Security Administration (TSA) and most major airlines (including American, Delta, United, Southwest, and JetBlue) had already announced that they would no longer enforce the mask mandate. Amtrak, Uber, and Lyft had done the same.
None of the organizations — including the one that’s an agency of the federal government — waited for the CDC to weigh in, instead changing their masking policies based on the opinion of a judge with no apparent understanding of science or public health law, and their own self-interests. Even if the DOJ does appeal the decision, the damage — in terms of both passengers’ immediate safety, and the authority of the CDC — has been done.
“In the past, my hope was that we get through BA.2, masks come off on planes and everything else, we use the new CDC forecasting center to monitor the virus, and when we get the word that [Covid cases are] going up again, we ask people to put masks on again,” Hotez explains. “And now this all becomes undermined by one federal judge with a political agenda.”
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