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Doctors rail against proposed state ban against public masking

A face mask sported by DHHS Sec. Mandy Cohen and NC Emergency Manager Mike Sprayberry at the Emergency Operations Center on May 19, 2020, during the COVID pandemic.
NC Dept of Public Safety
A face mask sported by DHHS Sec. Mandy Cohen and NC Emergency Manager Mike Sprayberry at the Emergency Operations Center on May 19, 2020, during the COVID pandemic.

Cameron Wolfe, an infectious disease specialist at Duke University with a knack for making medicine and science easily understood, is just as straightforward when offering his thoughts on a legislative proposal to ban masking in public.

"Politicizing what is fundamentally a health issue for a cheap shot at the Israel-Gaza debate is unconscionable," Wolfe told NC Health News.

Over the past week, Wolfe has gotten numerous texts from colleagues across the country and around the world asking: "Oh my god, what's going on in North Carolina?"

What's going on is lawmakers in the Republican-led General Assembly have been quickly shepherding House Bill 237 through legislative committees and a vote last week on the Senate floor. The proposed legislation, which awaits consideration by the state House of Representatives, would roll back part of a pandemic-era law that allowed people to wear face coverings in public to help slow the spread of COVID-19.

The rollback proposal comes amid protests on college campuses over the Israel-Hamas conflict in which many of the protesters are wearing masks. Video footage and still photographs from across the country show protesters wearing face masks and sunglasses.

The ACLU of the District of Columbia recommends doing as much to protect protesters exercising their free speech rights from police surveillance. "Face masks and sunglasses not only protect against COVID-19, they also make it more difficult for police to identify you using facial recognition technology," the organization's guidance states.

‘Granny in Walmart’

In North Carolina, Republican lawmakers have described the bill as nothing more than returning the state to law that has existed since 1953. The statute was adopted 71 years ago, in part, to prevent Ku Klux Klan members from wearing masks, hoods and other devices to conceal their identities and voices in public spaces.

“This was not a problem, pre-COVID,” Sen. Buck Newton, an attorney and Republican from Wilson, said last week during legislative debate. “We didn’t see granny getting arrested in the Walmart, pre-COVID. Frankly, I don’t think we’re going to see that when we pass this legislation, and I think those that are suggesting otherwise are stoking fear.”

The law does make some exceptions to the no masking in public rules:

  • --Masks are allowed for traditional holiday costumes, in season.
  • --They are permissible for Mardi Gras celebrations, costume balls and theater productions.
  • --They can be worn in some jobs and trades to "ensure a person's physical safety."
  • --Jill Moore, a UNC School of Government professor, wrote in a Coates’ Canons NC Local Government Law blog post that an exemption also exists for "a person who is a member or member-elect of a society, order, or organization that is engaged in a parade, ritual, initiation, ceremony, celebration or requirement of the society, order, or organization, provided that permission for the activity has been obtained in advance from the appropriate local governing body."

The public health exemption was added to the law in 2020, and as part of that exception a person can be required to remove their mask or covering at the request of law enforcement officers during a traffic stop or when there is "reasonable suspicion of probable cause during a criminal investigation."

Sen. Sydney Batch, a Raleigh Democrat who has spoken often about her experience with breast cancer, pushed back against her Republican colleagues who characterized the criticism of the rollback as a political stoking of fears. She and her family wore masks while she battled cancer until just a few years ago.

“I don’t think that it’s stoking the fears of individuals who walk through this world compromised through no fault of their own,” Batch said. “My issue is, we are removing the specific section that gave people who are immunocompromised or people who were sick and just care about the community — someone walking around with tuberculosis who wants to wear masks to protect everybody else —  is no longer able to do that based on this bill.”

“We talk a lot about freedoms in this chamber, I hear it all the time,” Batch added. “I should have the freedom, my children should have the freedom and my husband should have the freedom to wear a mask in order to protect and save my life without fear of being arrested and charged with a class one misdemeanor, which is exactly what this bill would do.”

Jerome Adams weighs in

Criticism and feedback have come from far beyond the legislature and texts that Wolfe received. Advocates for people with disabilities and the immunocompromised argued that criminalizing mask wearing for medical purposes would create an array of problems.

Former Surgeon General Jerome Adams, who served during the Trump administration, criticized the proposal in a thread on X, formerly Twitter. His wife has been fighting cancer for years.

"As a physician I am deeply concerned about North Carolina's potential total ban on mask-wearing. It’s disturbing to think immunocompromised and cancer patients could be deemed criminals for following medical advice aimed at safeguarding their health," Adams said in one post.

Wolfe and other physicians in North Carolina share the former surgeon general's concerns.

"It's obviously outrageous and also not a very well-thought-out approach," said David Wohl, an infectious disease specialist at UNC Health. "This is really smacking of political point-making. People cover their faces for all sorts of reasons."

Wolfe and Wohl stressed throughout the pandemic the importance of relying on science to try to combat the spread of COVID-19. They pushed for that as political battles were waged over mask mandates, business and school shutdowns, and vaccine hesitancy and protests. Research shows that masking played a large role in the decrease of influenza spread during the pandemic. One strain of the flu virus, the B/Yamagata, became extinct during the pandemic as a result of masking and social distancing, researchers say. 

"We know masks work for all respiratory viruses," Wohl said.

What to tell patients

Wolfe said he still will counsel his immunocompromised patients and their families about the benefits of masking up even if the General Assembly rolls back the pandemic-era public health clause.

“This is not going to change my conversations around what is rational," Wolfe said.

"My recommendations need to be grounded in science," Wolfe added. "If anything, the last four years have really concreted the science around masks.”

Wohl said he would advise his patients to protest legislation that makes it illegal for them to wear masks to protect themselves or family members from diseases they might pick up while out and about on errands, in the grocery store or participating in the community.

Sen. Natasha Marcus, a Davidson Democrat, tried to persuade Republicans in her legislative chamber that people had become more accustomed to masking for public health reasons since the pandemic.

“We can’t go back to when pandemics didn’t happen,” Marcus said last week, “People now want to be able to wear their masks when they’re on a plane, when they’re shopping, whatever it is, and that should not be a criminal act.”

Newton, the Republican senator who sponsored the bill, tried to downplay the talk of widespread arrests of people wearing masks for medical reasons during the debate last week.

“I think some of us are wondering what the real motivations are of folks on the other side of the house, scaring the bejesus out of everybody and making them feel like if they have a need at times to wear masks because they’re immunocompromised somehow, they’re going to get arrested,” Newton said during Senate debate.

Heading to court?

Banning masks, even for medical purposes, is likely to generate lawsuits, some say.

Tara Muller, a policy attorney with Disability Rights North Carolina, sent a letter to state senators last week contending that the bill, if passed, would lead to violations of the NC Persons with Disabilities Protection Act, the Americans With Disabilities Act, and the Individuals With Disabilities in Education Act, or IDEA.

“These disability rights laws guarantee people with disabilities equal access to public spaces and the right to be reasonably accommodated as needed for equal access,” Muller said in her letter. “When people with disabilities are denied access to their communities, institutionalization and segregation from the community is a real possibility and one which violates their rights pursuant to the Olmstead decision to live in the most integrated settings.”

The Olmstead decision is a landmark 1999 Supreme Court ruling that bars the intentional segregation of people with disabilities from their communities.

Sen. Lisa Grafstein, a Raleigh Democrat and attorney who has represented Disability Rights North Carolina in court, said prohibiting masks would add an unnecessary and unfair burden onto the disability community.

“One of the things that we see in the disability community is people being quizzed over why they’re behaving in such a way — why you need X, Y or Z,” Grafstein told legislators last week. “There are requirements under federal law about what you can and cannot ask people about their disability, and to me it opens up a tremendous problem for storekeepers for law enforcement to get into into the business of discussions with shoppers or people on the street about why they’re wearing a mask and what their specific health condition is.”

Elizabeth Barber, policy director at the ACLU of North Carolina, also raised questions about free speech issues with lawmakers before the Senate voted last week.

“This bill is part of a broader attack on democracy we are seeing at the state legislature,” Barber said.

This article first appeared on North Carolina Health News and is republished here under a Creative Commons license.

North Carolina Health News is an independent, non-partisan, not-for-profit, statewide news organization dedicated to covering all things health care in North Carolina. Visit NCHN at northcarolinahealthnews.org.

Anne Blythe, a reporter in North Carolina for more than three decades, writes about oral health care, children's health and other topics for North Carolina Health News.