Pa. judges hear arguments in two mask mandate court challenges

Opponents of the mask mandate argue that it’s invalid because it did not go through the regulatory review process, violates religious freedom, and interferes with the right to free public education

By: - October 20, 2021 5:12 pm

The Pennsylvania Judicial Center in Harrisburg. (Capital-Star file)

Questions over  whether Pennsylvania’s top health official overstepped her role and violated the law with the most recent K-12 mask mandate continued Wednesday with oral arguments in two Commonwealth Court cases challenging the universal policy.

Judges heard arguments in two combined lawsuits against the mandate enacted in August by acting state Health Secretary Alison Beam, who used powers from the 1929 law establishing the state Health Department, and a 1955 state infectious disease law

The order, which took effect Sept. 7, applies to everyone over the age of 2, regardless of their vaccination status, indoors at K-12 public schools and early childhood education facilities.

Opponents of the mask mandate argue that it’s invalid because it did not go through the regulatory review process, violates religious freedom, and interferes with the right to free public education. Challenges also claim that the mandate side-steps the authority of local health departments and governing boards.

Senate President Pro Tempore Jake Corman, R-Centre, state Rep. Jesse Topper, R-Bedford, and a group of parents filed one of the lawsuits, arguing that no regulations related to masking have passed. In their suit, they also accused Gov. Tom Wolf and his administration of trying to do an end-run on the constitutional changes that curtailed the governor of some emergency response power.

They’ve asked for an injunction to end the mandate immediately.

Beam and the Wolf administration have argued that the mandatory order, which includes exemptions, was enacted amid rising COVID-19 cases in K-12 schools. Many Pennsylvania schools did not have required masking policies for the 2021-22 school year, and state health officials say masking, paired with layered mitigation efforts, is the best way to keep schools open for in-person instruction.

Karen Romano, chief deputy attorney general, reiterated those claims during oral arguments. She said the 1929 law “mandates” that the Health Department must protect the health of Pennsylvanians and determine the best way to prevent a disease from spreading.

“COVID was a new, novel virus that no one could have anticipated,” Romano told the panel of judges, arguing that Beam acted within the law to implement the mandate. “We could still have more novel viruses coming in that we can’t anticipate.”

Thomas Breth, an attorney representing the challengers in the suit filed by Corman, and J. Chadwick Schnee, who represented the second group of challengers, argued that the state Health Department’s power is limited in its ability to apply sweeping restrictions to everyone in the commonwealth. They also argued that the Health Department should have gone through the review process, arguing that there was time to pass a measure for required masking.

“There have been other respiratory pandemics and epidemics in the past,” Schnee said, citing the 2009 swine flu. “That’s certainly ample enough time to probably get a regulation. Certainly, COVID’s been around since the beginning of last year, also a sufficient amount of time.”

When asked by the judges about students being denied access to school for not wearing a mask, Romano compared wearing a mask to go to school to going through security to access a courtroom. 

She said that school officials can enforce the mandate like a dress code, saying that it’s just “one more rule that’s in place.” The mandate, Romano added, could lift when COVID-19 cases decline.

“What changed [were] the facts on the ground, and that’s what we’ve been dealing with for 20 months now,” she said, responding to questions about the last-minute decision from the Wolf administration to enact the mandate. “If you look at the order itself, it cited the numbers in those first two or three weeks that children started school. The numbers skyrocketed.”

The number of COVID-19 cases among school-aged children is more than nine times greater this year in 2020, according to state data. 

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