Department of Health Acting Secretary Alison Beam speaks at a press conference. Harrisburg, PA – February 17, 2021
The Wolf administration’s universal masking requirement for K-12 schools and child care facilities went before Pennsylvania’s highest court Wednesday, with arguments surrounding the state’s top health official’s emergency response powers.
Enacted by acting Secretary of Health Alison Beam in September, the mandate was thrown out by a Commonwealth Court panel last month and set to expire on Dec. 4. But after an appeal, the directive remains in place until the state Supreme Court makes a final ruling in the case brought by Republican lawmakers and a group of parents.
Senior Deputy Attorney General Sean Kirkpatrick, who represents Beam and the Health Department, asked the Supreme Court to reverse the lower court’s decision that said the health secretary lacks the authority to impose a mask mandate. Kirkpatrick argued that Beam, and whoever serves in the appointed office, has the power to implement “efficient and practical” means to prevent a disease’s spread.
“The General Assembly created the Department of Health to protect the health of the people of the commonwealth by determining and employing the most efficient and practical means for the prevention and suppression of disease,” he argued, citing the 1905 act that established the department and 1929 administrative code.
In August, Beam and Gov. Tom Wolf, a Democrat, said rising COVID-19 cases and a desire to keep kids in the classroom justified the directive — a measure they said was allowed under the administrative code and a 1955 law on infectious disease control.
The order, which has been in effect since Sept. 7, applies to all students, teachers, and staff at K-12 schools and child care providers, regardless of one’s vaccination status.
At the time, some of Pennsylvania’s 500 school districts had already reopened for the 2021-22 academic year. Most districts were without a mandatory masking policy, and more than 5,000 students had tested positive for the coronavirus.
“The Delta variant was causing a lot more harm to children,” Kirkpatrick said, noting increased cases and hospitalizations. “You also had the concern that students are harmed both in their education and in developing social skills by not being in class, so you had these two competing goals.”
The mask mandate, he said, addressed each concern by letting schools stay open while keeping those learning and working inside safe.
Added mitigation measures, recommended by the Centers for Disease Control and Prevention, give students a higher chance of staying in school rather than having to quarantine and learn remotely, the state Health Department has argued.
“This was a modified version, a modified disease control mechanism that was tailored to address both issues,” Kirkpatrick argued. “Frankly, that’s why we have a Department of Health.”
Responding to a question from Justice Kevin Dougherty, who asked how a mandate from an unelected official “trumps” a parent’s constitutional right to decide what’s best for their child, Kirkpatrick argued that the directive does not prevent kids from getting an education — noting online options.
Justice Christine Donohue noted that other control measures are tied to disease surveillance and asked if masking is the Health Department’s alternative measure to control COVID-19. Kirkpatrick argued that surveillance and study go hand-in-hand for disease control.
But Thomas Breth, who represents the challengers to the mandate, including Senate President Pro Tempore Jake Corman, R-Centre, and state Rep. Jesse Topper, R-Bedford, argued that Beam should have gone through the regulatory process before enacting a mandate.
The Disease Prevention and Control Act is “not ambiguous; it’s clear,” Breth said, arguing that there has to be an “existing regulation.”
“Nowhere in the order does it talk about modified quarantine — never mentioned,” he said, saying that attorneys for the health secretary never mentioned the topic in its Commonwealth Court briefing. “They dipped their toe if you would, in oral argument into the modified.”
The challengers also argue that by not going through the regulatory process, Beam prevented the public from providing feedback and the Republican-controlled Legislature from reviewing its legality.
Legislative Republicans have fought against statewide mandates throughout the COVID-19 pandemic, arguing that sweeping orders violate individual rights. Ahead of the current school year, dozens of GOP lawmakers said local control is the best way to decide mitigation efforts.
Wolf announced last month that local school districts — but not child care facilities — would have power over masking policies, beginning Jan. 17, meaning that a school could implement its own masking policy.
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