Q&A: Can Ohio's Health Department Legally Shutter The State's Economy?

It’s been a little over three months since Gov. Mike DeWine’s administration issued the first stay-at-home order, effectively shutting down Ohio’s economy during this coronavirus pandemic.

Since then, several lawsuits have been filed by businesses in Ohio, challenging the authority of the state health department to shutter them. Other lawsuits have been filed challenging the rules businesses have to follow to reopen.

To sift through the latest on these cases and their potential effects on the state's coronavirus response, Morning Edition Host Amy Eddings spoke with ideastream’s Matt Richmond.

So tell me, what is the latest from the courts in Ohio?

Well, so far we haven’t had any cases progress past the county level. In Lake County, a judge there sided with gym owners who were challenging the continued closure after other businesses had reopened. And a judge in Erie County sided with water parks who were also challenging a continued closure of their businesses.

But in both cases, the state had set a date for reopening before the decision was issued. And now there are some lawsuits that are maybe a bit more applicable to the current circumstances. There’s one from day cares that are challenging the rules for reopening, things like requiring a reduced ratio of staff to children, and for restaurants where there are rules about physical distancing between parties and about sort of checking people before they come in to make sure they’re not sick. Those lawsuits are still pending.

What’s the argument the businesses are making in court? Is it pretty consistent across the cases?

Well, if you wanted to boil it down to one line, it would be, “Who does Amy Acton think she is?”

She’s the former Ohio director of health and her name is on all the orders requiring closure and setting the rules for reopening.

And all those actions she took are based on two lines in state law that were created in the late 1800s during the fight against tuberculosis and they really haven’t been used since then. One line permits quarantine and isolation for the incubation period of a disease. So, critics are saying that’s 14 days in this case, not months on end.

And the other allows the director of health to take actions to prevent the spread of a disease once it’s arrived in Ohio. Her critics are saying, “Well, where’s the proof that these measures that you’ve taken are actually preventing the spread of the disease?”

Critics say that she’s gone way beyond what the law allows.

And what’s the state’s response to those challenges?

I think a law professor at Case Western Reserve University named Sharona Hoffman summed it up pretty well: “The question is sort of why have a government if they can't do that, if they just have to sit back with their hands tied and allow a pandemic to rage, why are we paying taxes, why do we have a government if they can't bring us safety and ensure our health?”

So the state agrees with that argument and says that the law does put a lot of discretionary power in the hands of director of health and she’s using that power for good reason because this is a serious and unusual threat.

Ohio’s been seeing an increase in positive tests in recent days, with daily totals close to the highest we’ve seen. Do you think this litigation could have a chilling effect on Gov. DeWine’s ongoing response to the pandemic?

I put that same question to Prof. Hoffman and she says that regardless of whether the state and the governor’s office think that they’ll prevail in these cases, that just the existence of all this litigation is going to have a chilling effect. That they don’t want to have to deal with all these cases day in and day out. And so she said she doubts that they’ll see a reversal like what happened in Florida where bars reopened, there was a spike in cases and then they were closed again.

Here’s what she said about that: “There's been such opposition and so much litigation, that even if it becomes critical to the health of Ohio residents, it's not that likely that he will take measures that could really slow the spread.”

And so it will be interesting to see what happens with the cases that are out there right now about restrictions on reopened businesses, at restaurants and day cares and other places and whether those cases move to the Supreme Court quickly.

The governor at one of his press conferences this week said he’s going to revisit those rules and make some changes. He didn’t go into any details. There’s a hearing on the day care challenge in county court next week. And the case has yet to respond to the case challenging their restrictions on restaurants.