Judicial Folly:
The Mask Mandate
as Wordplay

by jeffrey e. harris

jeff harris is a primary care physician at Eisner Health, a community health center in Los Angeles, as well as professor of economics (emeritus) at MIT. His recent research on COVID-19 includes a study of role of the subways in the initial spread of the virus in New York City. This article is adapted from Harris’s analysis posted on STAT, the health and life sciences publication.

Illustration by John Tomac

Published April 30, 2022


I do not know whether the recent decision of a federal judge to void the Centers for Disease Control’s mask mandate will survive appeal. But I do know that the ruling by Judge Kathryn Kimball Mizelle inappropriately relied on wordplay rather than public health principles as justification.

The travel mask mandate, part of a larger federal effort to contain Covid-19, dates back to January 2021. In response to a lawsuit challenging the mandate’s extension, Judge Mizelle ruled that it went beyond the legal authority granted to the CDC under the 1944 Public Health Services Act. Her formulaic ruling, however, missed the real-world historical context in which that 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, she concluded that Congress intended sanitation to be “limited to cleaning measures,” yet “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.

All About Germs

I’m a physician, not a hermeneutic scholar. So instead of engaging with the judge in her lexicographic exercise, I looked back at the 1940s, when the Public Health Services Act became law, to get some historical context for the 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,” wrote Nancy Tomes, an historian at Stony Brook University. To avoid germs, men gave up long beards, women shortened their skirts, while “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, played a critical role in sensitizing the public to the importance of microbes. That’s why President Franklin D. Roosevelt singled out the establishment of a national tuberculosis program in his public statement accompanying signing the Public Health Services Act in July 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.

To understand what Congress truly meant when it passed the 1944 law, 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, 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) which tested and treated residents for venereal disease. Again, cleaning up property didn’t feature prominently.

Selective, formulaic wordplay should not be used to decide if a federal agency has the authority to take scientifically supportable measures to block the transmission of a virus that has killed millions.
What’s in a Word?

Rather than searching dictionaries and other context-free compendia for the words “sanitation,” “sanitary” and “sanitize,” I turned to 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 bubonic plague, cholera, yellow fever, typhus and smallpox via airplane 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 specific diseases — e.g., rats and fleas in plague, and mosquitos in yellow fever. Still no mention of cleaning up property.

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 rise of the sanitary napkin. In ads appearing widely in print media, Americans learned that “more women choose Kotex than all other sanitary napkins,” and that the brand had more than a million new users.

“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 “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 or communicable disease prevention.

Are the benefits of wearing masks in federally regulated travel worth the hassle? Many public health specialists continue to think so. But that’s really not the point here. Selective, formulaic wordplay should not be used to decide if a federal agency has the authority to take scientifically supportable measures to block the transmission of a virus that has killed millions.

main topic: Public Health