Dr. Laura Karas

J.D. candidate, Harvard Law School

As of May 6, 2020, pursuant to an Executive Order, Massachusetts has required use of face masks in public, joining over three dozen other states that had already issued (or have since issued) a similar mandate.  The Order imposes a civil fine of up to $300 per violation and permits businesses to decline entry to persons without masks.  The Centers for Disease Control and Prevention and the Surgeon General (who reversed his position on face masks) both recommend use of a face mask.  But, face mask mandates have sparked considerable controversy.  Some believe that a face mask mandate impinges on liberty; others decline to wear a mask due to discomfort, inconvenience, or disbelief as to its benefits.

Surely, a simple preventive measure, such as a mask, that offers some protection from a potentially deadly virus should be a small concession in the face of a public health crisis of this magnitude.  But in the interest of vigorous debate, let’s consider the arguments against a face mask mandate.  Though face masks are undoubtedly prudent, I explore in this post the latent inequities and underappreciated potential consequences of a face mask mandate.

States operate within the bounds of their police power in mandating use of masks during a public health emergency.  However, if states, cities, and localities require use of masks, perhaps they should have an ethical obligation to ensure equal provision of masks.  Some might argue that this would not be a good use of scarce resources at a time when personal protective equipment for health care providers is itself in short supply.  But, medical masks are not available for sale at most stores, and some masks on the internet can be prohibitively expensive, as sellers take advantage of the prime opportunity to impose a markup.

The natural result is that those who are more privileged have easier access to pre-made medical masks (and thus can better protect themselves and their families) than do less privileged Americans, potentially exacerbating inequities in the viral burden.  And indeed, traditionally disadvantaged groups, including people of color and other minorities, have been harder hit by the pandemic.  Just as wealth should not determine who receives a ventilator or other critical medical treatments, wealth should not determine who can be protected optimally from the virus.  (It is worth noting that other factors have been identified as contributing to COVID-19 inequities, including the high proportion of people of color among essential workers and structural factors in minority communities that make social distancing less feasible.)

Next, creation of a “do-it-yourself” mask at home presumes a certain level of skill and dexterity that some — for example, the elderly or the disabled — may lack.  As for a simple fabric covering, such as a scarf or a bandana, do the benefits outweigh the costs when the covering is made of a fabric with questionable filtration capacity and when the covering fails to form a good seal over the nose and mouth?  The answer is likely yes, though the protection conferred by a cloth mask is far from complete.  (Even commonly worn surgical masks, which fit loosely over the face and do not filter smaller airborne particles, offer an inferior form of protection.)  Many Americans may not understand that the filtration ability of the material from which the mask is made affects the degree of protection, and that not all coverings provide robust protection.

Perhaps most concerning is the possibility that masks may create a false sense of security, leading some Americans to relax physical distancing and socialize in fora in which they otherwise would not have participated.  Worse yet, it could lead them to skimp on important preventive measures, such as regular handwashing.  If the small degree of protection offered by a less-than-optimal face covering is offset by changes in behavior that increase risk, the net effect could be higher rates of infection.

While the use of a mask as a gesture of concern for fellow Americans is laudatory, mandates should not be taken lightly; they must be backed by science and by an understanding of the potential effects of a mandate on human behavior.  For sake of argument, let’s accept two assumptions: (1) a face covering provides some non-zero degree of protection from the virus, and (2) individuals will not substitute face coverings for other preventive measures.  Presumably, then, the aim of a face mask mandate is to achieve a higher rate of compliance than might be achieved with a mere advisory.  However, leaders should be cognizant that a mandate might make some individuals resist compliance, whereas a recommendation or request would not.  In effect, the mandate has converted a virtuous act into fulfillment of a government decree, and that has consequences – both intended and unintended – for human behavior.  Consider this article from the Harvard Business Review, which suggests that nudges can fail when the desired outcome requires not a single act but “a constellation of virtuous behaviors, sustained over lengthy periods of time” (directly translatable to COVID-19 preventive measures), and that nudges that come across too strong can backfire.

Is there some right not to be constrained by a face mask mandate?  At the very core of public health law is a tension (and a requisite balance) between individual rights and the public welfare.  As members of a society governed by a representative, democratic form of government, we have traded some of our freedoms for the benefits government provides, and we similarly may be required to accept some limits on our freedom for the public good.  Such a compromise, however, is not without bounds.  Most Americans would recoil at the accounts of forced quarantine in China, for example, despite the fact that such quarantine efforts exist on the same spectrum as does a face mask mandate.

Many Americans have grown weary of the restrictions that the pandemic has foisted on society, and understandably so.  Although some may be chaffing at the constraints on their liberty, we must recognize that limits on our freedom are part of a grand balancing act that the government must perform continually, especially in the realm of public health.  Ultimately, we must live by the rules that such balancing yields.  But it is also our civic duty as Americans to contest an improper balance and to help ensure that the government gets the balance right.