The Show Me State Says "Let Her Rip!"

arstechnica  |  As COVID-19 cases and hospitalizations rise sharply in Missouri, local health departments are abandoning efforts to stop the spread of the pandemic disease, saying their hands have been tied by the state's attorney general and a recent court ruling.

One local agency, the Laclede County Health Department, northeast of Springfield, announced that it has ceased all COVID-19-related work, including case investigations, contact tracing, quarantine orders, and public announcements of current cases and deaths.

"While this is a huge concern for our agency, we have no other options but to follow the orders of the Missouri Attorney General at this time," the department wrote in a Facebook post on December 9.

Laclede county, which has around 35,000 residents, is averaging 17 new cases per day, a 71 percent increase over two weeks, and test positivity sits at around 9 percent. Hospitalizations have risen 48 percent in the last two weeks. Only 35 percent of the county is fully vaccinated.

Overall, Missouri is currently seeing a surge in COVID-19 cases. The state is averaging over 2,700 new COVID-19 cases per day, a 68 percent increase over the past two weeks. Daily hospitalizations are averaging over 1,700, a 45 percent increase over the past two weeks. Approximately 52 percent of the state is fully vaccinated, well below national coverage, and around a dozen of the state's 114 counties have vaccination percentages in the 20s. 

Still, health officials in Laclede and elsewhere are pulling back rather than ramping up health prevention measures, citing a December 7 letter from state Attorney General Eric Schmitt. The letter informed them of a recent court ruling that stripped state health agencies of a variety of disease-prevention powers, particularly regarding issuing isolation and quarantine orders. "You should stop enforcing and publicizing any such orders immediately," the letter read.

Further Reading

Missouri AG wages war on masks as state blazes with delta cases

The ruling comes from Judge Daniel Green of the Cole County Circuit Court, who entered a judgment on November 22 in the case of Shannon Robinson, et. al., v. Missouri Department of Health and Senior Services (DHSS). Robinson and her co-plaintiffs challenged health agencies' powers to issue restrictions to prevent the spread of disease, such as ordering quarantines. Attorney General Schmitt defended DHSS in the case and has refused to appeal its outcome.

Green ruled, essentially, that it was unconstitutional for the state to delegate disease prevention powers to unelected health officials.

"The authority that the DHSS regulations purport to grant to an administrative official to implement control measures and create and enforce orders is open-ended discretion—a catch-all to permit naked lawmaking by bureaucrats throughout Missouri," Green wrote in his judgment.

Specifically, Green ruled that regulations 19 CSR 20-20.040(2) G-I, 19 CSR 20-20.040(6), and 19 CSR 20-20.050(3) all violate the state's constitution (codes found here, highlighted in yellow). Collectively, those regulations charge local health authorities with the responsibility of establishing disease-control measures, investigating clusters or outbreaks of illness, and implementing appropriate control measures when necessary. Those control measures can include isolation, quarantine, disinfection, immunization, establishment closures, notification of people potentially exposed, and communication with the public over potential risks and prevention strategies. Regulation 19 CSR 20-20.050(3) specifically deals with quarantine and isolation powers and authorizes closures of schools and other public and private gathering places.

Green wrote in his judgment that local health officials should refrain from taking actions on communicable disease prevention "that require independent discretion in a manner inconsistent with this opinion."