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

When a Tampa-based federal judge voided the nationwide mandate on wearing masks in transportation venues this week, her reliance on wordplay rather than public health principles may well have prolonged the Covid-19 pandemic, which once again appears to be flaring up.

The travel mask mandate had been put in place in January 2021 by the U.S. Centers for Disease Control and Prevention (CDC). In response to a lawsuit opposing it, Judge Kathryn Kimball Mizelle ruled that the mandate went beyond the legal authority granted to the CDC under the 1944 Public Health Services Act. Although the Biden administration has appealed the decision, it isn’t clear how such a challenge would fare in the higher courts. But there is little doubt that the judge’s formulaic ruling missed the real-world historical context in which the public health law was enacted.

The judge’s analysis boiled down to her interpretation of the meaning of one word, “sanitation,” as it is used in the Public Health Services Act. Consulting historical and contemporary dictionaries, the judge concluded that Congress intended sanitation to be “limited to cleaning measures,” while “Wearing a mask cleans nothing. At most, it traps virus droplets.” What’s more, the judge ruled, “sanitation is limited to property,” whereas a mask mandate imposes restrictions on people. In short, Mizelle decided that the CDC’s mask mandate was out of bounds and had to be canceled.

Public health was all about germs

I’m a physician, not a hermeneutic scholar. So instead of engaging in lexicographic scorekeeping, I looked back at the 1940s, when the Public Health Services Act became law, to get some genuine historical context for the CDC’s travel mask mandate. During the first four decades of the 20th century, the U.S. was in a period of “intense anxiety about disease germs,” as historian Nancy Tomes noted in an article in the American Journal of Public Health. To avoid germs, she wrote, men gave up long beards, women shortened their skirts, “housewives began to purchase, store, and cook their food in ways designed to minimize microbial contamination,” and Americans demanded higher sanitary standards in everything from hotels and movie theaters to drinking water and sewage treatment.

The movement to fight tuberculosis, then a big public health scourge, and other public health crusades played a critical role in sensitizing the public to the importance of germs. That’s why President Franklin D. Roosevelt singled out the establishment of a national tuberculosis program in his public statement upon signing the Public Health Services Act on July 1, 1944. Focusing on “war and postwar prevention,” the act would have “dividends payable in human life and health.” Roosevelt made no mention of cleaning up property.

The Public Health Services Act did not entirely break new ground. Instead, it served as a form of “administrative spring cleaning” to coordinate many new programs that had been incorporated into the act during the New Deal and World War II.

To understand what Congress meant when it passed the Public Health Services Act, it’s essential to go back to the programs already in place that had been consolidated by the act. Showcasing the collaboration of health departments that the act strengthened, then-Surgeon General Thomas Parran visited a mobile clinic in Brunswick, Georgia, (staffed by future Surgeon General Leroy Burney, the first surgeon general to declare that smoking causes lung cancer) that “tested and treated residents for venereal disease.” Again, there was no mention about cleaning up property.

Searching for sanitation, sanitary, and sanitize

Rather than searching dictionaries and other context-free compendia for the words sanitation, sanitary, and sanitize, another source I turned to was a review of the International Sanitary Convention of 1944 by British public health expert Philip Graham Stock. By then, the United States had already ratified the International Sanitary Convention for Aerial Navigation of 1933, which focused on preventing the spread of plague, cholera, yellow fever, typhus and smallpox via air traffic. The 1944 convention, continuing its focus on communicable diseases, addressed how to determine the adequacy of smallpox vaccination among contacts, the disinfestation of aircraft to cover insects that might carry malaria, and the adaptation of quarantine measures to the mode of spread of each disease, such as rats and fleas in plague, and mosquitos in yellow fever. Still no mention of cleaning up property.

“More women choose Kotex than all other sanitary napkins”

Perhaps the most salient feature of Judge Mizelle’s word search was its failure to identify one of the most culturally important appearances of the word “sanitary” in early 20th century America: the sanitary napkin. In ads appearing widely in print media, women were told that Kotex was the top-selling brand, that “More women choose Kotex than all other sanitary napkins,” and the brand had more than a million new users. Competitors such as Sanapak touted triple-protection.

“Always describing their products as ‘sanitary’,” wrote Karen Houppert in her book “The Curse,” and “asserting that they were made of ‘surgical cotton’ and ‘hygienically sealed in individual containers,’ manufacturers played to germ paranoia, boasting that millions of modern women were converts.”

Perhaps Judge Mizelle would respond that sanitary napkins were simply another form of “cleaning,” but it would be difficult, to put it delicately, to maintain that they were simply cleaning “property.”

Sanitizing the word “sanitation”

Relying on a doctrine of statutory interpretation that requires every word to have a distinct meaning, the judge asserted that “sanitation” couldn’t possibly refer to the use of protective barriers such as masks to prevent disease, as that would make the accompanying words “fumigation” and “disinfection” redundant.

This argument is simply too absurd to take seriously. The irony is that by engaging in such wordplay, the judge has herself sanitized the word “sanitation,” autoclaving it so that its meaning was thoroughly purged of any connotation of germs.

And that raises a separate and more important issue: Selective, formulaic wordplay should not be used to decide if a federal agency, exercising its own expertise, has the authority to take scientifically supportable measures to block the transmission of a potentially lethal virus.

Jeffrey E. Harris is a primary care physician with Eisner Health in Los Angeles, Calif., and professor of economics emeritus at the Massachusetts Institute of Technology in Cambridge, Mass. The views expressed here are the author’s and do not necessarily reflect the positions of Eisner Health, the Massachusetts Institute of Technology, or any other organization with which he is affiliated.