In mask mandate case, judge ruled on wordplay, not public health

When a Tampa-based mostly federal decide voided the nationwide mandate on wearing masks in transportation venues this week, her reliance on wordplay rather than community wellness principles may perhaps very well have extended the Covid-19 pandemic, which as soon as once more appears to be flaring up.

The travel mask mandate experienced been put in area in January 2021 by the U.S. Facilities for Sickness Command and Prevention (CDC). In reaction to a lawsuit opposing it, Judge Kathryn Kimball Mizelle dominated that the mandate went past the authorized authority granted to the CDC below the 1944 General public Well being Products and services Act. Though the Biden administration has appealed the choice, it is not clear how this kind of a obstacle would fare in the higher courts. But there is little question that the judge’s formulaic ruling skipped the true-environment historic context in which the public health regulation was enacted.

The judge’s assessment boiled down to her interpretation of the which means of just one phrase, “sanitation,” as it is utilised in the General public Well being Expert services Act. Consulting historic and present-day dictionaries, the decide concluded that Congress intended sanitation to be “limited to cleaning actions,” although “Wearing a mask cleans nothing at all. At most, it traps virus droplets.” What is far more, the decide ruled, “sanitation is restricted to property,” while a mask mandate imposes constraints on people. In small, Mizelle resolved that the CDC’s mask mandate was out of bounds and had to be canceled.


General public health and fitness was all about germs

I’m a doctor, not a hermeneutic scholar. So in its place of partaking in lexicographic scorekeeping, I seemed again at the 1940s, when the Public Overall health Services Act grew to become law, to get some authentic historic context for the CDC’s vacation mask mandate. For the duration of the very first four a long time of the 20th century, the U.S. was in a time period of “intense anxiousness about illness germs,” as historian Nancy Tomes noted in an posting in the American Journal of General public Overall health. To prevent germs, she wrote, gentlemen gave up lengthy beards, girls shortened their skirts, “housewives started to invest in, retail store, and prepare dinner their foodstuff in approaches intended to decrease microbial contamination,” and People in america demanded greater sanitary specifications in everything from resorts and movie theaters to consuming drinking water and sewage treatment.

The movement to battle tuberculosis, then a large public well being scourge, and other public health crusades performed a crucial job in sensitizing the general public to the significance of germs. Which is why President Franklin D. Roosevelt singled out the institution of a countrywide tuberculosis system in his public assertion upon signing the General public Wellness Expert services Act on July 1, 1944. Concentrating on “war and postwar avoidance,” the act would have “dividends payable in human lifestyle and wellbeing.” Roosevelt made no point out of cleaning up house.


The Public Health Providers Act did not completely split new ground. Alternatively, it served as a sort of “administrative spring cleaning” to coordinate numerous new packages that experienced been integrated into the act during the New Offer and World War II.

To have an understanding of what Congress meant when it passed the Public Health and fitness Companies Act, it is essential to go back again to the packages presently in place that experienced been consolidated by the act. Showcasing the collaboration of health and fitness departments that the act strengthened, then-Surgeon Standard Thomas Parran frequented a cell clinic in Brunswick, Ga, (staffed by upcoming Surgeon Standard Leroy Burney, the to start with surgeon standard to declare that smoking cigarettes brings about lung most cancers) that “tested and treated inhabitants for venereal disease.” All over again, there was no mention about cleaning up house.

Searching for sanitation, sanitary, and sanitize

Alternatively than seeking dictionaries and other context-no cost compendia for the text sanitation, sanitary, and sanitize, one more supply I turned to was a evaluate of the Worldwide Sanitary Convention of 1944 by British general public health and fitness professional Philip Graham Inventory. By then, the United States experienced presently ratified the Intercontinental Sanitary Convention for Aerial Navigation of 1933, which targeted on blocking the unfold of plague, cholera, yellow fever, typhus and smallpox through air site visitors. The 1944 conference, continuing its emphasis on communicable disorders, resolved how to identify the adequacy of smallpox vaccination between contacts, the disinfestation of plane to deal with bugs that might carry malaria, and the adaptation of quarantine actions to the manner of unfold of every single illness, these types of as rats and fleas in plague, and mosquitos in yellow fever. However no point out of cleaning up property.

“More ladies pick out Kotex than all other sanitary napkins”

vintage Kotex ad
A vintage Kotex ad Courtesy Jeffrey E. Harris via KristensVintagePaper

Maybe the most salient aspect of Decide Mizelle’s term search was its failure to discover 1 of the most culturally important appearances of the word “sanitary” in early 20th century The us: the sanitary serviette. In ads appearing greatly in print media, ladies were advised that Kotex was the prime-marketing brand, that “More women opt for Kotex than all other sanitary napkins,” and the manufacturer had additional than a million new customers. Rivals these as Sanapak touted triple-protection.

“Always describing their items as ‘sanitary’,” wrote Karen Houppert in her ebook “The Curse,” and “asserting that they were being produced of ‘surgical cotton’ and ‘hygienically sealed in personal containers,’ companies performed to germ paranoia, boasting that thousands and thousands of modern females were being converts.”

Most likely Decide Mizelle would react that sanitary napkins were basically an additional sort of “cleaning,” but it would be difficult, to set it delicately, to preserve that they ended up only cleansing “property.”

Sanitizing the word “sanitation”

Relying on a doctrine of statutory interpretation that requires each and every word to have a distinct this means, the choose asserted that “sanitation” couldn’t possibly refer to the use of protective limitations these types of as masks to reduce disease, as that would make the accompanying terms “fumigation” and “disinfection” redundant.

This argument is merely too absurd to choose severely. The irony is that by partaking in such wordplay, the decide has herself sanitized the term “sanitation,” autoclaving it so that its which means was thoroughly purged of any connotation of germs.

And that raises a separate and far more important issue: Selective, formulaic wordplay must not be used to determine if a federal agency, exercising its own knowledge, has the authority to get scientifically supportable measures to block the transmission of a possibly lethal virus.

Jeffrey E. Harris is a primary treatment medical professional with Eisner Health in Los Angeles, Calif., and professor of economics emeritus at the Massachusetts Institute of Technological know-how in Cambridge, Mass. The sights expressed in this article are the author’s and do not essentially replicate the positions of Eisner Health and fitness, the Massachusetts Institute of Technologies, or any other organization with which he is affiliated.