• Caleb Meriwether

Mask Mandate

This is unrelated to insurance, but I thought you might find it interesting.

Tennessee's Attorney General recently published Opinion No. 20-14, the Constitutionality of Governmental Mandate to Wear Face Coverings. The question presented is whether a governmental mandate requiring face coverings in public is constitutionally permissible. The Opinion answers that, as a general proposition, such a mandate would be constitutionally defensible.

The Opinion mainly relies on the case of Jacobson v. Massachusetts, decided by the United States Supreme Court in 1905. Jacobson presented a constitutional challenge to a law requiring a smallpox vaccination in Cambridge, Massachusetts, in response to a local outbreak. In upholding the law, the Court established a two prong test, stating that "courts are to overturn only those orders that 1) have no 'real or substantial relation' to protecting public health or 2) are 'beyond all question a plain, palpable invasion of rights secured by the fundamental law.'"

The Opinion provides that masks have a real and substantial relation to the epidemic. Health professionals have opined the virus is spread mainly through respiratory droplets. Face coverings reduce the chance that these droplets will escape. And "[e]ven though some may be unconvinced that wearing face coverings [is effective], courts may not second guess governmental officials when the measures they enact in response to a public health emergency are not arbitrary or unreasonable."

Further, face coverings are not a "plain, palpable invasion of rights secured by fundamental law." Requiring a face mask is "arguably less invasive" than requiring a person to be vaccinated. The Opinion also noted there are numerous laws pertaining to the public's safety that have survived constitutional challenges, including the seat belt law and the motorcycle helmet law.

The most succinct constitutional authority from Jacobson is the recognition that "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members."

LEGAL JARGON DISCLAIMER: The foregoing is not legal advice. Even if you construe it that way, it’s probably only worth what you paid for it. I am an attorney but am not yours.

Whether you are a Haven client or not, I’m always available to discuss.