Jim Hartman: Mandating masks, requiring COVID-19 vaccines

On July 27, Nevada Gov. Steve Sisolak issued directive 047 to his original March 12, 2020, COVID-19 Declaration of Emergency reversing course and reimposing an indoor public place mask mandate.

Effective July 30, the directive applied to both vaccinated and unvaccinated individuals in 12 Nevada counties.

The new state mask mandate followed a recommendation from the Centers for Disease Control and Prevention that fully vaccinated people should wear masks in indoor public settings. Though the new federal policy was only a recommendation, an earlier emergency directive issued by Sisolak in May automatically made any “guidance” offered by the CDC binding law in Nevada.

The counties classified by the CDC as having “high” or “substantial” disease transmission were Carson, Churchill, Clark, Douglas, Elko, Esmeralda, Lincoln, Lyon, Mineral, Nye, Washoe and White Pine. Masks are now mandatory indoors in all of these counties irrespective of vaccination status.

Masks remain required for the unvaccinated in the other five counties classified by the federal government as lower risk for disease transmission – Eureka, Humboldt, Lander, Pershing and Storey.

The CDC data is reviewed weekly and already Esmeralda County has potentially dropped off the “high” risk list and Storey added — with resulting confused masking requirements.

The governor’s July 27 directive also mandated masks for all teachers , staff and students in Nevada’s 17 school districts.

With parental backlash and pressure from school superintendents in all Nevada counties, Sisolak backed off his all student mask mandate. He issued Directive 048 on Aug. 4 giving 15 rural school districts in Nevada , those outside Clark and Washoe, the flexibility to determine their own student masking rules.

Only nine states currently have indoor mask mandates. All states except Hawaii and Nevada exempt people who are fully vaccinated against COVID-19. The Nevada state directive requires indoor masking for all people over age 9, regardless of vaccination status.

Nevada’s new masking policy is a complete reversal of the celebrated CDC May 13 recommendation that all fully vaccinated people need not wear masks at all. That recommendation applied whether you were inside or outside.

President Biden proclaimed it a “great day for America” and Nevada followed the CDC recommendation at Sisolak’s direction by ending the mask mandate for those fully vaccinated.

But mask wearing won’t end the pandemic, getting the public vaccinated is the cure. A new “pandemic of the unvaccinated” threatens to reverse much of the progress made this year.

By Aug. 8, only 47% of Nevadans were fully vaccinated, ranking the state 34th in the country. Washoe and Carson exceeded the state average (53%), Clark and Douglas were below average (44%), while Elko and other rurals lagged (30%).

The limits of the voluntary approach to vaccinations may have been reached. How to handle the 30% of unvaccinated adults takes on more urgency as the Delta variant spreads.

The law is clear that state required mandatory vaccinations are constitutionally permissible. That issue was resolved in Jacobson vs. Massachusetts (1905), when a citizen challenged a required smallpox inoculation. A seven-justice Supreme Court majority upheld the state’s constitutional power to act as it did.

The court concluded: “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, freed from restraint.” That decision remains “settled law.”

While no government should order the general public to take a vaccine except in cases of the most extreme health danger, mandatory state required smallpox and polio vaccinations have been upheld by the courts.

Before any COVID-19 vaccination mandate applies, the Food and Drug Administration should expedite full approval of the clearly successful Pfizer and Moderna vaccines. If the government believes COVID-19 vaccination is urgent, it should follow with its own fast-tracked procedures.

Jim Hartman is an attorney residing in Genoa. E-mail lawdocman1@aol.com.