BUFFALO, N.Y. (WBEN) Back in 2020, when mask mandates were enacted, the legality was questioned, again and again.
Courts heard increasingly tenuous arguments against mask mandates for the past year and a half. Many of these lawsuits relied on constitutional arguments and violation of First Amendment rights. With few exceptions, courts rejected the claims.
Now, with the possibility of mask mandates returning to indoor public places, due to rising Covid rates, attorney Dennis Vacco a partner with Lippes Mathias LLP, says litigation this time around could, and should, be different.
"We saw challenges a year ago to mask mandates back when restaurants were being shut down and attendance at churches was being limited. and, frankly, most of those challenges were defeated," said Vacco.
"In my view," he said new litigation, should challenge the science. "From the CDC on down, everyone's been talking about the science of controlling the pandemic."
Erie County Executive Mark Poloncarz indicated on WBEN's Hardline program Sunday that a return to masking in public places may be necessary.
"We're formulating a response plan right now," said Poloncarz during an interview with Joe Beamer. "All options are on the table. We're not looking at restrictions that shut down businesses. But we are looking at the possibility of a full mask mandate for all public locations," said Poloncarz.
Vacco explains what might be different with legal challenges this time around. "A year ago, we didn't have the science. Litigation going forward needs to change from going after the power of the executive branch to
challenging the underlying science.
There are other factors to consider 18 months into the pandemic. First, there are vaccines available, as opposed to a year ago. Second, antiviral pills could soon be part of a larger toolkit to manage Covid. FDA approval is expected soon.
"New litigation should look different. It should challenge the science," said Vacco. "It should change from the power of the executive branch to challenging the underlining science. Sooner rather than later, the courts are going to have to get beyond the simple fact that during a pandemic, executive authority is broad. It's only broad because of the underpinnings of the problem that government is trying to solve. If litigation can establish facts that show that underpinnings of the mandates are not there or not compelling, then I think you may have a different outcome," said Vacco.
