Anti-Mask Protests Are Using Disability Rights Laws to Avoid Following State Orders

As of Wednesday, May 20, 13 states currently have orders mandating that Americans wear masks in public, according to U.S.-based science collective #Masks4All. These orders differ in scope, but most establish the need to wear a mask in high-density public spaces, including businesses, public transportation, and public parks. Anti-mask protestors are using U.S. laws protecting the rights of disabled people to avoid wearing protective face coverings in public.

Many are following recommendations made by a legal guide circulating online that advocates for people’s right not to wear a mask. The legal guide was posted online in April and continues to gain recognition among conservative groups across social media platforms. James Marter, a Republican candidate for the 14th Illinois District, posted the guide to his Facebook page on May 3.

The guide directs individuals to inform business owners that they have an undisclosed medical condition that prevents them from wearing face coverings. Their right to refuse to wear a mask is supposedly covered by the Americans with Disabilities Act and Health Insurance Portability and Accountability Act. The guide further instructs individuals to warn business owners that ADA violations result in a $75,000 fine for a primary violation and $150,000 for subsequent violations.

According to the language of the ADA, protections for people with disabilities do not apply when doing so would be a “direct threat” to public health and safety. A direct threat is defined as a “significant risk to the health or safety of others that cannot be eliminated by a modification of policies.” Although the U.S. Department of Justice has declined to comment on these claims, the 2019 novel coronavirus would likely qualify as a “direct threat” and therefore should supersede ADA protections. Moreover, an anonymous spokesperson from the U.S. Department of Health and Human Services told Insider that these actions are not “issued or endorsed by the US Department of Health and Human Services.”

A second guide posted by conservative blogger Vladislav Davidzon on Twitter suggests that protestors cite Roe v. Wade because the ruling established the constitutional right to privacy. The right not to self-incriminate, covered under the Fifth Amendment, is also being invoked by protestors.

These guides are one particular iteration of a series of anti-mask and anti-shutdown protests. Escalating antagonism regarding government precautions has incited several instances of violence in recent weeks.

In reality, wearing protective face coverings in public spaces is a way to protect disabled people. People with pre-existing conditions are high-risk for coronavirus complications, and disabled people have been disproportionately affected by the coronavirus pandemic due to decreased access to essential medical care. Disability law professor Doron Dorfman writes: “The cruel irony of this phenomenon? Anti-maskers are attempting to use disability law in ways that put disability communities at greater risk.”

Sources: Newsday 5/21/2020; The Insider 5/19/2020; Washington Post 5/15/2020, Washington Post 5/5/2020; Time 4/24/2020

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