Last week, U.S. District Judge Kathryn Kimball Mizelle struck down the CDC’s transportation mask mandate using a bizarre misinterpretation of the 1944 Public Health Service Act. In what law professor Erin Fuse Brown called a “breathtaking amount of political judicial activism,” an un-elected conservative judge in Tampa single-handedly halted the CDC’s transportation mask mandate.
After news of the ruling broke, videos soon went viral showing flight attendants and pilots making gleeful mid-flight announcements pressuring travelers to remove their masks. People erupted into loud cheers and ripped masks off––as if the dynamics of viral transmission suddenly, magically differed as the result of Mizelle’s ruling. “Wearing a mask cleans nothing. At most, it traps virus droplets,” Mizelle wrote. "But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyances.” Mizelle framed the issue as being about the freedom of travelers who, like plaintiff Ana Daza, have “anxiety aggravated by wearing a mask,” not about mitigating infections.
However, despite this unilateral ruling, the reality of Covid infections have not changed: high levels of community spread continue to contribute to the durability of the pandemic, the virus has hardly been “defeated.” Regardless of these facts, which remain constant, the sociocultural winds have shifted, as many desperately cling to their sick, sad fantasy that the pandemic is always already over.
The group which brought the suit that led to Mizelle’s ruling is a nonprofit based in Idaho called the Health Freedom Defense Fund. They are a vocal part of anti-vaccine advocacy networks, and their mission states that the “Health Freedom Defense Fund stands for freedom, choice, and the most basic of human rights, bodily autonomy.” As Yasmeen Abutaleb, Hannah Sampson and Ann E. Marimow reported in The Washington Post:
The group was founded last year by [Leslie] Manookian, and has found support from some Republican lawmakers who have vehemently opposed federal action to impose vaccine and mask mandates. Its website…includes a video of an interview with Manookian in which she says she has suffered severe vaccine injury and calls vaccines “poison.”...In its news release announcing the July anti-mask-mandate lawsuit, the group falsely said that “recent studies have shown that masks do more harm than good,” including by exposing those wearing them to high levels of carbon dioxide––both statements that have been repeatedly debunked.
Judge Mizelle stated that the mask mandate was both “arbitrary and capricious,” and that it was unduly restrictive of freedom of movement. “Anyone who refuses to comply with the condition of mask wearing is––in a sense––detailed or partially quarantined by exclusion [from their means of transportation],” Mizelle wrote. The argument Mizelle makes is common among Covid-denialist and anti-vax pundits. Her analysis appropriates and inverts what is known as “the social model of disability”; this framing, used by disability activists for decades, argues, in part, that socio-political barriers contribute just as much to inaccessibility as physical ones. Mizelle’s distortion of the social model is wielded to terrifying ends, subsequently furthering the inaccessibility of the social and built environment in the Covid-era.
On an equally disturbing note, Judge Mizelle’s ruling validates the removal of masking mandates as fulfilling an accessibility requirement for all public spaces and transportation, liberating those who, she feels, are oppressed by pandemic protections. If we take Mizelle at her word, she is intervening on behalf of those suffering serious mental health symptoms, like anxiety, as a result of mask mandates. Not only does Mizelle’s opinion pit the needs of one group of vulnerable people against each other, it explicitly makes value judgments as to whose suffering is the most important.
At best, this is an instance of conservatives weaponizing conflicting access needs in the service of undermining cross-disability solidarity to achieve political economic ends. The problem is not that Mizelle is addressing issues of pandemic anxiety, but that she’s creating a hierarchy of suffering in which the medically vulnerable are deprioritized relative to the needs of those who are “done with Covid.” At worst, and yet far more likely, this is a blatant appropriation of people’s real pain and vulnerability leveraged to ends which will further secure the Covid pandemic’s durability.
Reluctantly, the Biden Administration has finally announced that they plan to fight Mizelle’s ruling, though their significant delay was cause for much alarm among disabled, immunocompromised, or otherwise medically vulnerable people (and the people in their lives). And for good reason. As Artie, Phil and I argued on our recent public episode of Death Panel, called “We Have the Tools,” the Administration’s first impulse to do nothing demonstrates an impressive lack of urgency. Quickly and forcefully committing to fight this ridiculous ruling should be the bare minimum. We need to expand our vision of how the pandemic response can reflect the needs of the most vulnerable to the benefit of all.
Judge Mizelle argued that the end of the transportation mask mandate offers freedom for those who have experienced “anxiety”; in actuality, however, her ruling more forcefully retracts the right to free movement and travel from medically vulnerable people, violating their right to freely travel as guaranteed by the Americans with Disabilities Act (ADA). Due to high levels of Covid-19 infections throughout the United States, with cases increasing +39% over the last two weeks, masking mandates in public places and on all transit is an urgent and necessary disability accommodation under the ADA and the Air Carrier Access Act (ACAA).
Under Titles II and III of the ADA, no transit providers, whether public or private, may deny any person with a disability––on the basis of disability––the opportunity to use the transit provider’s service. The category of disability as protected by the ADA is quite broad, and includes a number of medically vulnerable people beyond the most ready and obvious categories of people certified disabled by the state; those with Long Covid are included, as are people who may not personally identify as disabled but who are for whatever reason immunocompromised, e.g. cancer patients or transplant recipients. The ADA has requirements for how these modes of transportation must be made accessible with regard to the built environment, but it also covers how the transportation service must be operated, e.g. bus stops must be announced, etc. The ADA also requires that transportation operators provide disabled people with many types of assistance from help with boarding or exiting to seating accommodations.
The Air Carrier Access Act (ACAA) is a law that extends these protections to include disabled airline passengers throughout their travel covering terminals, planes, and airport transportation or shuttles. The ACAA applies to all flights from, to, or within the United States and requires transportation providers to give “assistance that meets passenger’s disability-related needs.” Removing the mask mandate denies access to transit providers for disabled and medically vulnerable people in violation of both the ADA and the ACAA.
So much of the discourse so far has focused on air travel, but when it comes to protecting the social rights of the vulnerable, the most important issue is actually more humble: poorly-ventilated public transportation, especially buses. In this context, the transportation mask mandate is necessary, because it allows medically vulnerable people to safely commute to and from work, treatment, errands, social outings or many other destinations. Not only is a mask mandate on all publicly accessible transportation well within the CDC’s rights under the 1944 Public Health Service Act, it is also an important tool to protect the vulnerable (and the rest of the body politic!) as cases rise all around us. As many despair, realizing that “the tools” that everyone keeps promising we have to “live with Covid” are not broadly accessible to those who need them the most. Now is the time to increase our demands and increase the pressure on the politicians, systems, institutions and entrenched corporate interests influencing decisions about Covid policy.
The debate about mask mandates is actually a debate about the human, social and economic rights of everyone, not just the medically vulnerable. It is a conversation about the value that our society wishes to place in protecting each other from sickness, about the value of recognizing or rejecting our interdependence, and about the worth of the people whose suffering may soon be minimized as “deaths pulled from the future” or merely the “cost” of reopening. The broad rejection of masking as a solidaristic act, and the turn of the United States’ Covid response towards individualistic frames of personal responsibility, is ultimately a rejection of the right to “social life” for all those who are well within their rights to refuse to consent to needless and repeated Covid infections.
When I say “social life,” I don’t just mean the right to socialize, though that is certainly also part of it. I am instead speaking in terms of what sociologist John Marshall called “social rights,” as in economic participation which predicates the inclusion of an individual in society. Marshall saw “social rights” as distinct from political or civil rights, which primarily pertain to the economic aspects of an individual’s day-to-day existence. To put it more simply, one’s membership in society (or your “social life”) is seen as stemming from the exercise of economic rights. In fact, Marshall theorized that economic participation not only guaranteed an individual entry into “social life,” but was what protected an individual’s membership in society when threatened by loss of abilities or “productivity.” Social rights are highly variable and subject to constantly changing political economic narratives. The removal of mask mandates is thus a retrenchment of social rights for the medically vulnerable.
Let me be clear: Covid is not just a risk to high risk people––it's a risk to everyone. The only way to keep me safe from bad outcomes is to keep you safe from infections. That is not the plan the Biden Administration is asking you to consent to. It’s time to demand that the Biden Administration listen to those calling for protections instead of prioritizing airline executives who claim that their “industry has leaned into science at every turn.”
But this is not just a public health emergency: Covid is also an unprecedented labor disaster. According to analysis by virologist Trevor Bedford, during a normal flu season, about 10% of the U.S. population gets sick once each over the course of about sixteen weeks. During the Omicron wave starting after the 2021 Fall holidays, we saw roughly 40% of the population infected in eight weeks. That is to say nothing about the possibility of reinfection(s), which appears to be possible even between sub-lineages of Omicron. Even if no one dies in future Covid waves, this is a tremendous amount of sickness and suffering. And while many are ready to throw up their hands and give in to pandemic-nihilism, accepting this outcome as inevitable, that is not the solution either.
We should start seeing attacks on masking for what they are: part and parcel to the landscape of Covid misinformation. Anti-mask sentiment has become pervasive amongst liberals, many of whom in the media have recently made a kind of sport out of sociologically-producing the end of the pandemic. To quote The New York Times’ David Leonhardt on Twitter from April 22nd: “Even before a judge struck down the transportation mandate…It was more an aspiration than a reality…Masks are less valuable today than they were a year or two ago.” Leonhardt describes his experience of a flight, stating that the vast majority of passengers were either not wearing them or not wearing them properly, arguing that because masking is not 100% effective 100% of the time, it is effectively useless. Any kind of face covering, even worn only some of the time, reduces some amount of the total virus in the air if that individual is infectious. Obviously, the more effective the mask (and efficacy is predicated on fit first and foremost) the less virus in the air. But that doesn’t make a less effective mask or inconsistent mask wearing functionally useless.
Some pundits have gone even further: they claim that advocating for layered covid protections, or advocating for the social rights of the medically vulnerable, contributes to vaccine hesitancy. In a recent Atlantic column called “‘It’s Just Scaring People, and It’s Not Saving Lives,’” laboratory medicine physician Benjamin Mazer argued that media stories about immunocompromised people feeling left behind by pandemic policies that minimize the role of infections doesn’t just raise awareness about the medically vulnerable, it also fuels anti-vaccine rhetoric. This could not be further from the truth, the medically vulnerable are consistently and vocally pro-vaccine—often advocating for their need to be protected by high percentages of vaccine uptake amongst the population with layered non-pharmaceutical interventions. Regardless, Mazer argues that the “problem,” in his opinion, is an overly broad definition of who “deserves” protection, which results in giving the vulnerable a little more power than he thinks necessary:
For chronically ill people, political power derives in part from group solidarity; the larger the contingent, the louder the voice. Yet in pursuit of visibility and justice, the “vaccinated but vulnerable” category may be expanded well beyond what the science suggests, to include not only organ-transplant patients, but also people with diabetes, asthma, obesity, or high blood pressure. According to this paradoxical arithmetic, half of the country can end up in the “high risk” category by some definition.
Yet, as Mazer himself admits one sentence later: “In truth, we all remain vulnerable to COVID…” With 15% of U.S. Covid deaths in February occurring in people who were boosted, Covid is a risk to many more people than those who fit Mazer’s narrow definition of the “worthy vulnerable.” It is staggering to consider that we are arguing over masking when it seems so overwhelmingly obvious that layered protections are a good thing. This statistic of 15% of February deaths being in people both vaccinated and boosted is not a random statistic: it's from CDC data. It makes absolutely no sense that the very same agency that collected this information is still not recommending masking.
Though reinstating masking protections in the face of these data seems obvious, critics claim that discussion of breakthrough deaths is misleading and falls prey to logical fallacies like base rate neglect because when vaccination percentages in the population overall are higher, probabilistically, more hospitalizations and deaths will occur in vaccinated people as their total number gets larger. Yes, the base rates are not the same, but the vaccine is also not a silver bullet. It’s worth contextualizing the fact that most of these deaths are among people 50+, a population that has near-universally been vaccinated for many months. If breakthrough deaths are an issue of base rate fallacy thinking, then that does not explain the significant increase in deaths between December and January. It is definitely not the case that many more elders suddenly were vaccinated, but basic epidemiology and increased prevalence of Covid infections in a community relying on vaccines alone certainly could explain it. Supporters of Biden’s vaccine-only strategy have argued that this is why discussion of breakthrough deaths contributes to pandemic-anxiety, fear and vaccine hesitancy. In truth, discussion of breakthrough deaths is about policy abandonment of non-pharmaceutical interventions not about vaccine efficacy. Layered protections save lives and support vaccination efforts.
Some of these deaths among the vaccinated and the boosted could have been prevented with a solidaristic approach to masking. Everyone should get vaccinated and boosted, but we can’t use vaccine-availability as an excuse to move away from other measures to control spread. Masks might not be 100% effective, but masks are taking a shot at reducing spread. You miss 100% of the shots you don’t take. These flaws in the logic of popular pandemic metanarratives matter, because they excuse and justify inaction, state abandonment, suffering, sickness, disability and death. As epidemiologists Abby Cartus and Justin Feldman––who have observed, studied and documented similar rhetorical phenomena throughout the pandemic––put it: “There is a bias towards interpreting uncertain and inconclusive research findings about health risks as evidence of no risk, a glaring fallacy that serves the needs of profit.” The effect is that the debate over masking has been captured to reflect the competing interests of businesses, bosses, quarterly profit margins, anti-vaxxers, judges and cranks, leaving those seeking to prevent infections out of the conversation.
Now is the time to embrace our interdependence. To quote Gregg Gonsalves’s recent piece for The Nation, “As the United States turns its back on the immunocompromised, the disabled, those vulnerable to Covid-19 in other ways, it seems like ‘keeping company’ with them is the only honorable thing to do…” Right now, many are trying to downplay the role that infections play in the dynamics of covid. This is a huge mistake, and will continue to cause preventable suffering, sickness, disability and death. You don’t have to accept this. You can keep company with the vulnerable instead.
Our society is driven by contingent logics of austerity, under the constant pressure that there will never be enough care to go around, and you are only entitled to the survival you can buy; but we can and must demand more. We must look to those who have the most complex needs and build our community protections around those needs, instead of prioritizing the needs of the least vulnerable, which is what we are doing now. We cannot rely on pharmaceutical technology alone. We also have to use all of the social, economic, and political technologies at our disposal––just as much tools as vaccines and antivirals––like social distancing, masking, paid leave, eviction prevention, community harm reduction, upgraded ventilation, infrastructure investments, Medicare for All, debt cancellation, decarceration and so much more. These are just some of the potential social and fiscal tools that we could use to help people not just survive the pandemic but thrive in spite of it.
Demand that the Biden Administration use all of the tools we have to protect ourselves. It’s your right to not get sick. It’s time to recognize that keeping cases low and protecting all people from Covid is the only way to live with Covid.