The order stays mask mandates in Bexar County. City and county officials have been suing the state for the authority to require masks, namely in schools.
“This case, and others like it, are not about whether people should wear masks or whether the government should make them do it. Rather, these cases ask courts to determine which government officials have the legal authority to decide what the government’s position on such questions will be,” the Supreme Court order reads.
“The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels. That status quo should remain in place while the court of appeals, and potentially this Court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”
The case began when Bexar County Judge Nelson Wolff and San Antonio Mayor Ron Nirenberg sued Abbott over his executive order GA-38, which forbids local officials from requiring masks.
As in other lawsuits involving local mask orders, local officials and the state have traded blows tit for tat, moving quickly through the court system. Bexar County officials won a temporary restraining order allowing them to keep mask mandates the same day they sued Abbott. Later, on August 19, the Fourth Court of Appeals reinstated a preliminary injunction to protect the mask mandates just 11 minutes after Abbott filed his response to stop them.
Abbott’s order GA-38 was not his first order to end mask mandates. After implementing and eventually ending a statewide mask mandate himself, Abbott forbade city and county officials from enforcing mask mandates in March. In May, he doubled down and ended mask mandates in schools as well.
GA-38 kept a ban on mask mandates at all levels of government and also barred government officials from requiring COVID-19 vaccines. San Antonio ISD defied this provision as well and may have been the first school district in the state to require COVID-19 vaccines for staff.
As Abbott has noted in court briefs, his authority to issue these emergency public health orders comes from the Texas Disaster Act. The law empowers local officials, namely county judges, to act as the governor’s agents in disaster response. Local officials have used the act to authorize shutdown, curfew, and shelter-in-place orders even when they conflict with the state.
San Antonio and Bexar County have now argued in court briefs that the Texas Disaster Act is unconstitutional. Members of the Texas Legislature from both parties called for reform to the act during the regular legislative session.
While the courts sort out the legal questions, confusion around the science of child mask mandates remains. The Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatricians (AAP) recommend universal masking in all public schools. However, while ample data supports the individual effectiveness of masks and vaccines, the CDC provided no data to show that requiring children to wear masks effectively slows the spread of COVID-19. Public schools are also a unique exception in CDC guidance, which otherwise recommends universal masking only in areas where the virus is surging. Courtrooms, colleges, and jails go unmentioned.
Fortunately, data shows that COVID-19 poses very little risk of death to children. The CDC reports that 385 Americans under the age of 18 have died from COVID-19. For comparison, the virus has taken 624,000 total Americans.
Reflecting similar trends, the state reports that 55,000 Texans have died from the virus, with 64 of them under the age of 20.
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