Face Masks- The Pros and Cons

by Colin G. Meeker, Attorney at Law

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On April 28, 2020, Governor Mike DeWine announced that the State of Ohio will not require that customers entering retail establishments wear face coverings. DeWine clarified that face coverings would still be mandated for employees unless wearing a face covering is not advisable by a healthcare professional, goes against industry best practices, or is not permitted by federal or state laws and regulations. This comes a day after DeWine issued an order requiring face-masks for customers visiting retail establishments. Below we analyze the different Pros and Cons of having the government tell us that wearing face masks is now required when we work or interact with others.  

Below are two important Pros for Governor DeWine’s order mandating that face coverings be worn:

Pro 1: When you cough or sneeze, droplets spread through the air. Wearing face masks, such as the CDC’s approved N95 mask, filters at least 95% of airborne particles. When you wear a N95 mask, or something similar, and when you cough, you help prevent the spreading of particles such as COVID-19. Similarly, when someone near you coughs, particles, such as COVID-19, have a difficult time entering your body.

Pro 2: With the requirement of wearing face masks comes with it the huge benefit of reopening Ohio’s economy. Enough said.     

There are two sides to every story. Below are eight Cons which citizens of Ohio must consider prior to donning the mask: 

Con 1: Wearing face coverings is not a substitute for social distancing. Ohio recommends that stacking interventions is necessary to maintain Ohioans’ safety. According to the government, even with face masks, large group settings should still be avoided to prevent the spread of COVID-19. 

Con 2: Locating N95 or other similar surgical masks is increasingly difficult. People are resorting to making homemade masks for when they go out in public. According to many state’s departments of health, homemade masks are designed to contain coughs and sneezes and prevent disease transmission to others. However, homemade masks are not effective in protecting the wearer from breathing in aerosols. Scarves and bandanas can be used if necessary, however they should be washed after each use and should not be worn damp or when wet from spit or mucus. Bottom line is that many Ohioans will be going out into public with less-than-adequate homemade masks. The question arises whether Ohio’s face mask requirement really protects its citizens from COVID-19.  

Con 3: For communities commonly profiled by the police, wearing a mask is tantamount to asking for trouble. In other communities, anti-mask provisions have long existed. For example, some states, counties, and municipalities adopted anti-mask provisions to target Ku Klux Klan’s use of masks and hoods to hide their identities when terrorizing black people. Some of these anti-mask laws are still on the books today. In Ohio, according to Ohio Revised Code section 3761.12, “No person shall unite with two or more others to commit a misdemeanor while wearing white caps, masks, or other disguise.” Hypothetically, if you are fishing the shore of state park waters with your children, you could be charged for trespassing (a misdemeanor due to the government closing state parks) and, if you are wearing a white N95 mask, you could be charged with violating O.R.C. 3761.12.  

Con 4: Ohio Department of Health Director Dr. Amy Acton stated, “We are going to be looking at a year of using these (face-masks) in new ways, so keep making them. This is something we’re all going to get used to.” The problem here is that there does not seem to be an end in sight for using face-shields. The government is not telling us when the requirement will be lifted or what needs to happen prior to doing so. 

Con 5: Ohioans are hopeful that restaurants will be open soon so we can all go out and enjoy the food we love. However, how do Ohioans meet the requirements of DeWine’s face-shield requirement and eat at a restaurant at the same time. Will Ohioans have to take the mask off to take a bite and then immediately put the mask back on? More important are the religious implications here. On Sundays, Catholics everywhere consume the Eucharist – the body and blood of Jesus Christ. Often during flu season, churches will not serve the blood of Christ to parishioners. However, never have I witnessed a mass, even during flu season, where the body of Christ was not served. If one must wear masks while they are at church, how can they participate in Communion at mass?    

Con 6: During Governor DeWine’s press conference where he mandated face-masks, there was no mention on how violations would be handled. Police officers cannot enforce laws where no penalty exists. This major flaw in DeWine’s order puts Ohio citizens and law enforcement at risk. Such vague and excessively broad criminal laws give police dangerously wide discretion.

Con 7: Ohio is recommending a course of action that goes against the Centers for Disease Control and the World Health Organization. The Centers for Disease Control recommends wearing masks, but hasn’t gone as far as to make them mandatory and suggests not wearing surgical masks to keep the supply going for health care workers. The World Health Organization makes a distinction between medical masks and other types, saying there is no evidence that they are beneficial for healthy people in a non-medical setting. The WHO stated as follows:

There is currently no evidence that wearing a mask (whether medical or other types) by healthy persons in the wider community setting, including universal community masking, can prevent them from infection with respiratory viruses, including COVID-19.

Again, the question arises whether Ohio’s face mask requirement really protects its citizens from COVID-19?     

Con 8: In The United States of America, we enjoy our freedoms because of our great Constitution. Some argue that orders requiring the use of face-masks are unconstitutional infringements of our liberty and privacy rights. They argue that these rules violate our right to freely move about and infringes on our ability to make our own medical decisions. Others argue that the face-sheild order violates the Constitution’s Commerce Clause by requiring people to engage in commerce. 

An Ohioan could argue that DeWine’s order applies to the richest and the poorest alike. No guarantee exists that everyone within Ohio has a mask that meets the approval of the Department of Health. Due to the fact that Ohio is not providing free face-masks to its citizens, the order forces citizens into commerce. Congress is prohibited from forcing individuals to engage in commerce when all that person wants to do is go outside.

There are many other constitutional legal issues to Governor DeWine’s order requiring face-masks, as well as his other orders like Ohio stay-at-home order. As constitutional legal challenges occur across the United States, Blakemore, Meeker & Bowler Co., L.P.A. will keep you informed of any major updates. 
In closing, think about our Pros and Cons when you wear your mask in public. Health is always a top priority, however our great countries’ freedoms should not be infringed upon in some cases. As Samuel Adams once said, “The liberties of our country, the freedom of our civil constitution, are worth defending against all hazards. And it is our duty to defend them against all attacks.”

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