Science, Competing Values ​​and Compromises in Public Health – The Example of Covid-19 and Masking

Public health institutions have long walked the difficult line between respecting individual freedoms and protecting society from disease threats — which has sometimes involved restricting those freedoms. This balancing act has often been met with contentious public debate and legal challenges. In perhaps the most famous example, the power of the state police to protect public health was upheld by the Supreme Court of the United States in its 1905 decision in Jacobson v. Massachusetts. The Court determined that a state can mandate vaccination, thereby compromising people’s right to bodily autonomy, for the purpose of promoting public health – thus upholding the community’s concurrent right to protect itself from a fatal disease.

During the Covid-19 pandemic, negotiating such trade-offs has become much more complex, given a rapidly changing environment and an evolving body of knowledge about SARS-CoV-2. Particularly at the start of the pandemic, decisions affecting individual freedoms had to be made quickly, with little opportunity for public deliberation. Public health authorities naturally made decisions based on pre-pandemic planning based on previous experience with respiratory viruses. However, as the pandemic dragged on, the continued absence of public debate about these trade-offs within public health institutions and among public health experts turned masking into a flashpoint for confrontation between competing rights: the right to bodily autonomy (including the freedom to choose to hide) and the right to be protected from the threat of Covid-19. Far too often, discussions of the implications of various masking policies have been drowned out by absolutist language on both sides of the debate, suggesting, on the one hand, that mask mandates were an unacceptable assault on freedoms, or, on the other, hand, that choosing not to mask was choosing to harm others.

The reality is far more complex and the all-or-nothing disputes that have predominated over the past 2 years have obscured the difficult choices public health authorities must make and the range of factors to consider when considering mask mandates. These factors include, but are not limited to, evidence for the effectiveness of masking in communities with a range of Covid-19 transmission rates, potential harms of wearing a mask in various social settings, and groups people who bear the greatest risk of infection. At the start of the pandemic, when Covid-19 vaccines were not available, when there was limited epidemiological evidence to inform mitigation policy, and when the risk of infection was high, it was perhaps more easy for authorities to make decisions to implement mask mandates. However, things got more complicated as the pandemic evolved. We believe that the decisions that were made during this last stage of the pandemic – after the introduction of highly effective vaccines, and when the trade-off between efficacy and the perceived harms of masking in public spaces were more nuanced – warrant reconsideration by public health facilities.

An example of public spaces impacted by mask mandates are grocery stores. For the average, healthy customer, a mask mandate may be of no use if community levels of Covid-19 are low. But the risk calculation is different for cashiers and other essential workers in these spaces. These workers are more likely than members of the general working public to be black or Latino, to have incomes below 200% of the federal poverty level, or to live with someone age 65 or older.1 These low-income and marginalized racial and ethnic groups have fared disproportionately poorly during the pandemic, as have older adults. In these spaces, the benefits of mask mandates for essential workers may outweigh the inconvenience masks pose to customers, even if levels of community transmission are relatively low. At the same time, these benefits may not outweigh the costs associated with frequent customer confrontations over masking. The ability to make these calculations, which are specific to local contexts, could obviate the need for a general masking policy; these nuances also suggest that the most useful role for public health institutions may be to provide data to support risk assessments and frameworks that could guide decision-making by relevant local leaders.

Another example of public spaces affected by mask requirements and other Covid-related policies are local courthouses. The state has the power to compel people to attend courthouses as defendants, lawyers, witnesses and jury members. Given this power to coerce, the State has a duty to protect people in these spaces. Criminal defendants often reside in communal living quarters (i.e. prisons), where Covid-19 outbreaks have spread rapidly and with deadly consequences, and many are poor and are members of racial groups marginalized. The state also has a responsibility to citizens who expect their health and safety to be protected when serving as jurors for their peers.

To meet these responsibilities while carrying out the essential functions of the justice system during the Covid-19 outbreaks in 2020 and 2021, many courts have adopted risk mitigation measures, including virtual hearings, social distancing in courtrooms, streamlined trial schedules and postponed trial dates, mask warrants, and exemptions from jury service for people at high risk of complications from Covid-19 (or people who were particularly fearful of Covid-19).2 But some of these measures may have compromised the rights of people interacting with the justice system. Reduced trial schedules interfere with the constitutional right to a public trial without delay. Holding trials virtually or distributing jurors in the courtroom to facilitate social distancing can make it too easy for jurors to be distracted and thus influence judgments.3 Masks can affect jurors’ perception of testimony, potentially compromising the right to a fair trial.4 There is no easy way to balance the right to health and safety with the right to equal access to justice for people compelled to participate in the justice system. The role of public health institutions is to make science-based recommendations, but decisions must ultimately consider a wide range of concerns, many of which may be beyond the remit of public health authorities. Public health entities should not make these judgments in isolation, especially without including local stakeholders in the process.

Public health decision-making related to Covid-19 required a complicated balancing act; certain decisions, such as whether or not to close schools, can have significant consequences for an entire generation. A confluence of factors that coincided with the onset of the Covid-19 pandemic – including an impending US federal election and the rise of social media as the dominant platform for public conversation – has limited the ability of health practitioners public to seriously discuss the trade-offs involved in Covid-related decisions.

As the pandemic evolves, we believe it is time to move away from this dynamic and recognize that decision-making in the age of the pandemic requires a transparent balancing of multiple rights. Complex decisions should be widely and publicly discussed by public health institutions. In the same way, it would behoove public health practitioners to stop suggesting in social media posts that nuanced questions have universally correct answers. We believe that the main goal of public health institutions during a pandemic – after the crisis has begun – should be to provide data and decision frameworks that local partners can use in various contexts to weigh various trade-offs. These local partners may include community government leaders, private sector executives, and stakeholders from civic organizations, school boards, and health care facilities. Public health practitioners can look to previous approaches to pandemic preparedness for rich examples of deliberate public engagement to inform decision-making.5 Consideration of multiple perspectives, especially those from groups most affected by public health policies, will allow for more robust decision-making and foster increased public confidence when decisions that restrict freedoms must be made.

About Rachel Gooch

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