The Partisan Transformation of American Public Health Law, 1918 to 2020

• Published in: American journal of public health (1971) 2021-03, Vol.111 (3), p.411-413
• Main Author: Witt, John Fabian
• Format: Article
• Language: English
• Subjects: 21st century; Closure; Constitutional law; Correspondence; COVID-19; Covid-19 & History; Epidemics; Federal court decisions; Government; Government mandates; Government Regulation - history; Health Law; Health Priorities - history; History; History, 20th Century; History, 21st Century; Humans; Influenza; Judges & magistrates; Legislatures; Litigation; Pandemics; Partisanship; Politics; Power; Preventive Health Services - history; Public health; Public Health - history; Public Opinion - history; Regulation; Regulations; Social Science; Socioeconomic Factors; State court decisions; State Government; Supreme courts; United States
• ISSN: 0090-0036; 1541-0048
• DOI: 10.2105/AJPH.2020.306106

In "Politics, Pushback, and Pandemics: Challenges to Public Health Orders in the 1918 Influenza Pandemic" (p. 416), Navarro and Markel clear away an influential but incorrect impression about epidemic policy in US history. Figures like Associate Justice Samuel Alito of the US Supreme Court have asserted that the pandemic regulations of 2020 and 2021 are like nothing the country has seen before.1 Navarro and Markel, however, identify powerful continuities between state governments' efforts to contain infection today and such efforts in 1918. The authors document, moreover, parallel cultures of protest a century ago and today against mask mandates, business closures, and school closures. The article particularly focuses on a distinctive new element in our 21st-century pandemic: the rise of novel partisan dimensions in the opposition to regulatory interventions.Navarro and Markel, however, mostly omit a vital new part of the story that supports and extends their basic argument. In the 21st-century epidemic, the United States is witnessing almost entirely unprecedented partisan pushback against public health measures by the courts. The partisan transformation of the courts is indispensable for anyone aiming to understand the similarities and differences between 1918 and 2020. The influenza pandemic of 1918 produced an outpouring of regulations designed to slow the spread of infection-and protest followed. Crowds inveighed against business closures. Local politicians spluttered against costly closure orders. Lawsuits followed, as they have today.