Legal Basis of Public Health Orders issues by a Local Health Officer

In understanding public health emergencies, we need to look to the federal and state laws that come into play. Right now, we are dealing with the misunderstanding by a small, vocal group of county residents over the legal basis of a public health order. Most of the answers needed can be found right in federal and state law.

In an April 2020 article from the American Bar Association (ABA) we can learn how: Two centuries of law guide legal approach to modern pandemic (americanbar.org). The article reminds us:

“Under the U.S. Constitution’s 10th Amendment and U.S. Supreme Court decisions over nearly 200 years, state governments have the primary authority to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions.”

At the state and local level, the powers and duties of a local health officer are established in state law under the Revised Code of Washington:

RCW 70.05.070: Local health officer—Powers and duties. (wa.gov). The first three powers and duties listed for the local health officer are (emphasis added):

(1) Enforce the public health statutes of the state, rules of the state board of health and the secretary of health, and all local health rules, regulations and ordinances within his or her jurisdiction including imposition of penalties authorized under RCW 70A.125.030 and 70A.105.120, the confidentiality provisions in RCW 70.02.220 and rules adopted to implement those provisions, and filing of actions authorized by RCW 43.70.190;

(2) Take such action as is necessary to maintain health and sanitation supervision over the territory within his or her jurisdiction;

(3) Control and prevent the spread of any dangerous, contagious or infectious diseases that may occur within his or her jurisdiction;

WAC 246-100-070 covers violation of public health orders:

(1) An order issued by a local health officer in accordance with this chapter shall constitute the duly authorized application of lawful rules adopted by the state board of health and must be enforced by all police officers, sheriffs, constables, and all other officers and employees of any political subdivisions within the jurisdiction of the health department in accordance with RCW 43.20.050.

(2) Any person who shall violate any of the provisions of this chapter or any lawful rule adopted by the board shall be deemed guilty of a misdemeanor punishable as provided under RCW 43.20.050.

(3) Any person who shall fail or refuse to obey any lawful order issued by any local health officer shall be deemed guilty of a misdemeanor punishable as provided under RCW 70.05.120.

To be clear, it is a misdemeanor to violate a public health order.

The 14th amendment provides equal protections to citizens of the United States:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Does this amendment give some citizens the right to harm other citizens? In JACOBSON v. COMMONWEALTH OF MASSACHUSETTS it has been upheld since 1905 that:

‘…the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.”

In essence, the public health order which ensures that those residents who are vaccinated can eat in a restaurant without being in an indoor area with unmasked, unvaccinated people does not violate the equal protection under the 14th Amendment . The order provides that those unvaccinated can still eat restaurant food, either outside or by take-out until it is safe again for all of us to eat together in restaurants. To compare this to the rights that are actually protected under the 14th amendment is a huge stretch of imagination and all together inappropriate.

We need to get this pandemic under control. We need for people to take care of each other. In absence of that ability, we will continue to have public health mandates. I support Dr. Berry , Governor Inslee and the governmental public health system in our state in their efforts to keep us safe. In an emergency, we take care of the most vulnerable until we are all safe again.