‘Individual right to decide’ fails with virus:
Abbott is politicizing health, safety of Texans
by Josiah Daniel
Austin American-Statesman at A21 (August 22, 2021)
Gov. Greg Abbott has failed to justify his Executive Order GA 38 that bars each 'governmental entity, including a county, city, school district, and public health authority,' and their officials, from 'requir[ing] any person to wear a face covering.'
On Sunday the Texas Supreme Court backed him up by staying the county judges’ orders in Dallas and Bexar Counties that would require citizens to wear masks in indoor public places.
Abbott understands how law and the exercise of power affect ordinary Texans, both in the past and today. Let’s assume that he does have the power to override local decisions about masks. And no one doubts that he has a good heart.
But the basis he announced for not only declining to issue a statewide rule but also prohibiting local governmental units to require masks is flawed.
"Texans," he asserted, "have the individual right and responsibility to decide for themselves" whether to receive the vaccination and wear masks in crowded indoor spaces.
His decision comes amid skyrocketing infections of Covid-19 and its Delta and Lambda variants.
The spread of the virus—yes, it is a pandemic as defined in any dictionary—threatens not just isolated individuals but all citizens of the 254 counties. ICUs are filling to capacity and hospital staffs are inadequate. Texan deaths from Covid-19 aggregate 53,000 in the past 18 months, and more than 2.8 million have fallen ill.
That the continuing spread of disease and death from the virus is a matter of the entire public’s health and safety is crisply highlighted by the news that the governor—who’s fully vaccinated but often without mask in crowded places—is asymptomatically ill with the virus.
Abbott’s logic fails for refusing to act on a statewide basis and also for forbidding local governments from acting locally. As throughout Texas history, not all Texans will voluntarily do the right thing. This is why our ancestors established state and local governments. The interest of the public outweighs privately preferred decisions, and vindicates governmental action, whenever the stakes are high for all.
Consider:
-- Statewide requirements for auto inspections, driver’s licenses, motorist liability insurance, and seat belts are uncontroversially not an infringement of "Texans' individual right and responsibility to decide for themselves" what to do;
-- Local ordinances setting standards for new construction and prohibiting slaughterhouses in residential zones are uncontroversially not an infringement of "Texans' individual right and responsibility to decide for themselves" what to do;
-- Statewide requirements of licensing to practice medicine, to hunt doves, and to drill oil wells are uncontroversially not an infringement of "Texans' individual right and responsibility to decide for themselves" what to do; and
-- Local governmental rules about not disposing your car’s motor oil in a city sewer are uncontroversial
Are orders for the purpose of protecting Texans against the virus of any less importance?
From the earliest days of Texas history, it has been clear that when imminent, grave threats to the public health and safety appear, the government—primarily the local government—may and should take temporary measures to protect the people within its jurisdiction, even if it infringes on 'Texans’ individual right and responsibility to decide for themselves what to do."
Unfortunately, under a mantra of 'individual right and responsibility,' Abbott is politicizing the health and safety of Texans. That is the opposite of statesmanship. Historians are going to judge him on this.
Meanwhile, more Texans are going to suffer than if either the governor or local governments would just require masks temporarily until the pandemic subsides.
Daniel is a retired lawyer and legal historian in Dallas who is writing the biography of Congressman Hatton Sumner.
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