State Legislatures Reshape Public Health Legal Authority
August 12, 2024 | Jessica Baggett, Andy Baker-White, Maggie Davis
During the 2020 and 2021 legislative sessions, state and territorial legislatures enacted at least 70 bills into law across 25 states, impacting public health legal authorities. While some jurisdictions bolstered legal authorities for public health leaders, many others restricted public health powers both procedurally (e.g., limiting the duration of an emergency order, requiring legislative oversight of public health emergencies) and substantively (e.g., prohibiting public health measures from restricting gatherings in places of worship). In 2024, at least 28 state legislatures considered bills that would reshape public health’s legal authorities to address the spread of infectious disease.
States Expand Legal Authority Supporting Access to Healthcare
Assuring equitable access to healthcare is a cornerstone of community health promotion and disease prevention. To support healthcare access, states have issued statewide standing orders supporting access to immunizations, opioid antagonists, HIV post-exposure prophylaxis (PEP), and other well-established, evidence-based medical interventions that protect population health. In 2021, North Carolina enacted HB 96, directing their health director to issue standing orders that authorize certain pharmacists to dispense and administer FDA-approved nicotine replacement therapy (NRT), self-administered oral or transdermal contraception, and PEP. The law also authorized certain pharmacists to administer all FDA approved vaccines in accordance with ACIP protocols to people six years and older. In accordance with the law, when the North Carolina Board of Pharmacy and Medical Board established statewide protocols and tools that would allow continued access to these interventions, the North Carolina Department of Health rescinded the standing orders for FDA-approved NRT, contraception, and PEP. The department maintains standing orders facilitating access to COVID-19 vaccines, therapeutics, and testing along with orders supporting access to opioid antagonists.
During the 2024 legislative sessions, two states enacted laws to expand the authority of public health officials to issue standing orders and facilitate access to care. Hawaii enacted SB 3122 in June 2024, providing the state health official broad authority to issue standing orders for people 18 years and older to receive evidence-based services recommended by the United States Preventative Services Task Force, such as public health preventions (e.g., access to preexposure prophylaxis for HIV). Similarly, Washington enacted SB 6095 in March 2024, authorizing the state health official to issue prescriptions or standing orders for any “biological product, device, or drug for the purposes of controlling and preventing the spread of, mitigating, or treating any infectious or noninfectious disease or threat to the public health.” Under Washington’s new law, the health officer can issue standing orders for a wide range of biological products to prevent disease, including vaccines, antitoxin, and blood components.
Legislative Threats to Preventing the Spread of Disease
Several state legislatures pursued efforts to limit public health’s legal authorities to prevent the spread of infectious or communicable diseases. In 2023, Texas enacted SB 29 limiting governmental authority to close private businesses and require face coverings or vaccines to prevent the spread of COVID-19. In March 2024, Utah enacted HB 405, which removed the state health officer’s authority to issue isolation or quarantine orders and constrained local public health official’s authority to issue an isolation or quarantine order to a set of narrow, specific conditions. That is, unless the local legislative body agrees that a new, drug resistant, or reemerging pathogen likely to cause high mortality or morbidity needs containment.
South Carolina considered two bills in 2024 that would have limited the state health official’s ability to respond to infectious or communicable diseases. First, the South Carolina Senate considered S 975, which would have limited the public health departments isolation and quarantine authority during a public health emergency to only people diagnosed with or exposed to the disease for which the emergency was declared. This would constrain the health department’s ability to mitigate the spread of disease by limiting their ability to issue quarantine orders to a person exposed to a disease, which may be difficult to identify (e.g., a novel virus without clearly identified methods of transmission). Although this bill did not pass the Senate, sections of the bill undermining vaccine confidence were incorporated into S 915, which initially focused on restructuring the state’s health agencies, including the Department of Public Health, into an umbrella agency called the Executive Office of Health and Policy. In addition to language from S 975, which would undermine vaccine confidence, another amendment to S 915 would have required the Department of Public Health to receive governor approval for agency efforts to prevent, mitigate, and control the spread of infectious disease including isolation or quarantine measures. While it failed to pass the chamber for the end of session, such requirements could delay and disrupt the response to a disease outbreak.
The Kansas legislature has considered bills for at least three consecutive years to remove the state health officer’s authority to issue isolation or quarantine orders. Most recently, in February 2024, the Kansas Senate passed SB 391 which remove that authority and the ability to direct law enforcement officers to assist in enforcing public health measures. However, in April 2024, it failed to pass the Kansas House before the end of session and did not advance.
Additionally, during the 2024 legislative sessions at least four states—Idaho (S 1287), New Hampshire (HB 1156), Oklahoma (SB 426), and Wyoming (HB 91)—considered bills asserting that the World Health Organization (WHO) had no jurisdiction in the state. In July 2024, Oklahoma enacted SB 426, prohibiting state officials from enforcing any requirements or mandates issued by WHO, including potential mask and vaccine requirements. The validity of this legislation is unclear since WHO has no authority to dictate health policy and only makes recommendations.
ASTHO’s Continued Support for Appropriate Public Health Authority
ASTHO anticipates state and island legislature to continue reshaping public health authorities in future sessions and recently published a technical package to support public health leaders in maintaining sufficient legal authorities to protect public health. Additionally, ASTHO is a partner in the Prevention Measures Law Project, which helps state, tribal, local, and territorial health agencies assess and test the sufficiency of their existing laws and policies to respond to and mitigate infectious or communicable disease outbreaks. ASTHO will continue monitoring this important public health issue and provide relevant updates.