It's Dangerous to Deny the CDC's Right to Mandate Masks

Arthur L. Caplan, PhD


April 28, 2022

This transcript has been edited for clarity.

Hi. I'm Art Caplan. I'm at the Division of Medical Ethics at New York University's Grossman School of Medicine.

Masks are in the news again but not necessarily for good reasons. A federal court judge in Florida struck down the Biden administration's mask mandate. The mandate was going to run out anyway within a couple of weeks, but when the court struck it down, it basically said that the Centers for Disease Control and Prevention (CDC) just didn't have the authority to enforce a mask mandate in public places like airports, train stations, on airlines, and in other places.

I think that decision was very wrong. One could say that all of us are getting tired of COVID-19. It's absolutely clear that there's COVID-19 exhaustion. In talking with your patients, I'm sure many are saying they don't want to wear a mask, they want to go out, and they want to go back to normal.

I'm not sure the virus agrees yet. The virus is still around and highly contagious. It doesn't seem that the new strains that are around are as severe, but there are still many people out there who are immune compromised, and it's very important that they mask and minimize contact with people who might be infected.

The mask mandate partly was a way to protect the millions of people with immunodeficiencies or who had treatments that knocked out their immune system or weakened it. We were asking the country to do something to help the vulnerable.

The country basically kept filing lawsuits in court —many people who just disliked masks and invoked liberty — and they finally found a judge who said, "You're right. I don't think the government has the authority."

I have a couple of points about mask mandates. The data on masks are pretty clear that they work. They're not wonderful. The better the mask, the better the protection. Many people wear cloth masks, which are not very good.

When you get up to N95 masks and better, you get a large amount of protection out of masks. That's why they're so omnipresent in hospitals and surgery and many procedure areas. We know that masks protect doctors, nurses, and staff and protect patients from getting infections. I don't even think it's worth arguing about the data on the value of masking.

It's certainly worth arguing about which masks people should be wearing and whether they wear them properly. I see plenty of people wearing them over their mouths and not putting them over their noses or having them loosely cover their faces. There have been many problems with good compliance.

Put that all to the side. The real fact is that mask mandates are over. We're not going to see them endure. This court decision has basically brought an end to the willingness of, I think, the private sector or anybody else to keep mask mandates in place. I think they're going to just retreat back to where they started, which was hospitals and hopefully nursing homes, where there are highly vulnerable people. There are many reasons to wear a mask — not only for COVID-19 but also for flu and other infectious diseases. I think the rest of society has had it.

If that's true, then a couple of things need to be made clear. Biden and his administration should challenge the court opinion, not because they want to extend mask mandates — I think the public is just done with those — but to establish the principle that they have the authority.

What if a nastier strain of COVID-19 appears that not only is more contagious but also is more virulent? We want to have the authority for the federal government to say that when you are going interstate by travel — by train or whatever it is — you can be ordered to wear a mask. That tool should not be out of the toolbox, no matter what this judge said.

I also think it's important that we start to shift our strategy, going away from masks and going toward test and treat. That's the situation where we make testing widely available and we use antiviral medicines to try to wipe out the virus if you're infected.

You need to get that test and get the medicine into the patient within 5 days of a positive test, but it's clear that the United States is not set up to do this. We don't have the medicine readily available. It isn't clear who's paying for it. It isn't even clear whether we have the tests available to make sure that people test frequently and get to a doctor or a pharmacist if that's how we're going to distribute the antiviral drugs.

If masks are going away, test and treat needs to be empowered. That's something that ought to be discussed with patients. It's something that organized medicine should be pushing both state and federal government agencies to do. We don't want to disarm ourselves when we have another tool ready to go that really would help those who do get infected.

At the end of the day, masks served a purpose. We ran out of gas and our willingness to help our neighbors and protect one another. I think, sadly, we have more selfishness coming to the fore. Court shopping, if you will, to find someone who would say the mask mandate is over — that can't be right.

We don't want to face pandemics of the future without a strong CDC authority. We certainly don't want to face the rest of this year without a strong test-and-treat policy if infections are going to become more prevalent or new variants might appear.

I'm Art Caplan, at the Division of Medical Ethics at the New York University Grossman School of Medicine. Thank you for watching.

Arthur L. Caplan, PhD, is director of the Division of Medical Ethics at New York University Langone Medical Center and School of Medicine. He is the author or editor of 35 books and 750 peer-reviewed articles as well as a frequent commentator in the media on bioethical issues.

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