On Friday, June 26, 2020, Dr. Mark Wilson, the health officer of Jefferson County, Alabama, issued an order requiring all residents in the county to wear face masks when in most public settings. There are a lot of good and well-meaning people in favor of this order and a lot of good and well-meaning people who oppose it. Most of the debate between the two groups has focused on whether or not the order is necessary or helpful, but there is a much more important question that should be asked. Before we compare the costs verses the benefits of such an order, we need to ask ourselves if the county health officer has the legal authority to issue this order in the first place.
Dr. Wilson's order includes a full page of justifications for his actions, but only one of those justifications deals with the legality of his order. The legal justification that Dr. Wilson claimed was:
"The Jefferson County Health Officer has the authority to 'institute immediate measures to prevent the spread' of notifiable diseases under Ala. Code § 22-3-5(2) and believes that a face covering ordinance constitutes such measures."
This is the only legal justification that Dr. Wilson has given to support his actions, but this leaves us with a bit of a problem. You see, when Dr. Wilson quoted the law establishing his legal authority, he left out something vitally important. Here's what section 22-3-5(2) actually says about the county health officer's legal authority:
"It shall be the duty of the county health officer ... To make personal and thorough investigation of the first case or early cases of any diseases suspected of being or known to be any one of those enumerated in Chapter 11 of this title that may come to his knowledge or be reported to him; and, should he decide such case or cases to be one of those enumerated in said chapter and in imminent danger of spreading, he shall, IN ACCORDANCE WITH THE LAW, institute immediate measures to prevent the spread of such disease and shall forthwith report the facts to the chairman of the county board of health and to the State Health Officer." (emphasis mine)
That phrase, "in accordance with the law," is a very important and very specific legal phrase. It is used 31 times in the Code of Alabama, and it always means the same thing. Every time that this phrase is used our state's laws, it is used to say that a given action must be conducted in the exact way that the law says it is to be conducted. In other words, this phrase is used to indicate that there are specific steps outlined somewhere in the law which explain what can and cannot be done in that particular situation.
The use of this phrase in regards to measures that the county health officer can take in order to prevent the spread of a disease tells us that there is a list somewhere in the Code of Alabama which states exactly what actions the county health officer is authorized to take. Where do you suppose that such a list might be found? Could it possibly be found in Chapter 11 of Title 22 as the section quoted above indicates? Why, yes. It can, and it is. Here are the FIVE things that Chapter 11 says the county health officer can do:
1) "Whenever the State Health Officer or his representative, or the county health officer or his representative, is notified of any person or persons afflicted with any of the notifiable diseases or health conditions designated by the State Board of Health, he shall, at his discretion, isolate or quarantine such person or persons as further provided in this article. Such quarantine shall be established and maintained in accordance with the rules adopted by the State Board of Health for the control of the disease with which the person or persons are afflicted." § 22-11A-3
2) "Any person reported as having any of the notifiable diseases or health conditions designated by the State Board of Health shall conform to or obey the instructions or directions given or communicated to him by the county board of health, county health officer or his designee, or State Board of Health, State Health Officer, or his designee, to prevent the spread of the disease." § 22-11A-7
3) "Whenever complaint is made in writing to the health officer of a county that a person, not at his own home, is afflicted with any of the notifiable diseases or health conditions designated by the State Board of Health, such health officer shall, thoroughly and promptly, investigate said complaint. If, upon investigation, said health officer is of the opinion that said complaint is well founded, he may cause such person to be removed to such place as may have been provided for such cases in the county, city or town in which such person is found or, if there is no such place provided for such cases, then, to such place as said health officer may deem suitable, subject to the approval of the authorities of the county, city or town, as the case may be. The removal of said person shall be at the expense of said person, or, in case the person is a minor, then, at the expense of his parent or guardian or, if the person be indigent, then, at the expense of the town, city, or county, as the case may be." § 22-11A-8
4) "Any person who the state or county health officer has reason to believe has been exposed to any of the diseases designated under this article shall be tested. Any person who the state or county health officer has reason to believe is afflicted with any of the diseases designated under this article shall seek and accept treatment at the direction of the health officer or a physician licensed to practice medicine in Alabama." § 22-11A-23
5) "When any person exposed to a disease or where reasonable evidence indicates exposure to a disease or infection designated under this article refuses testing or when any person afflicted with a disease designated under this article refuses treatment and/or conducts himself so as to expose others to infection, the state or county health officer or the designee may petition the probate judge of the county in which such person is located to commit him to the custody of the Alabama Department of Public Health for compulsory testing, treatment and quarantine." § 22-11A-24
That's it. These are the actions which the county health officer is authorized to take "in accordance with the law." There is no provision here for a county wide mask ordinance, and since that provision is not listed in the law, Dr. Wilson has no authority issue such an ordinance. Regardless of whether a mask ordinance will actually work, Dr. Wilson has overstepped his authority by issuing that ordinance; and it is incumbent upon us as citizens to inform him of his error.
Bill Fortenberry is a Christian philosopher and historian in Birmingham, AL. Bill's work has been cited in several legal journals, and he has appeared as a guest on shows including The Dr. Gina Show, The Michael Hart Show, and Real Science Radio.
Contact Us if you would like to schedule Bill to speak to your church, group, or club.
"Give instruction to a wise man, and he will be yet wiser: teach a just man, and he will increase in learning." (Proverbs 9:9)