Court To State: Can’t Just Claim Health Emergency, You Need Evidence

The Michigan Court of Appeals held in a May 21 ruling that Gov. Gretchen Whitmer did not provide a reasonable basis for proclaiming a health emergency that she used to justify a 2019 ban on flavored e-cigarettes.

The ruling raises questions on just what risks or dangers warrant the declaration of a public health emergency. “Bluntly stated, defendants did not produce evidence that an emergency situation existed,” the court wrote.

Dr. Joneigh Khaldun, chief deputy director for health for the state’s Department of Health and Human Services, had declared a public health emergency, citing a condition called E-cigarette or Vaping Product Use-Associated Lung Injury, according to court documents.

Yet, through Feb. 18, 2020, there had been just three deaths in Michigan due to that condition and just 68 deaths nationwide, according to the Centers for Disease Control and Prevention.

By comparison, there were three deaths in Michigan in 2018 due to salmonella infections, according to the state.

The ruling has additional relevance in the context of the extraordinary powers Whitmer assumed under a state of emergency she declared in response to the COVID-19 pandemic. The courts could require the state in such cases to be more specific about claims of public health endangerment.

The Court of Appeals wrote about vaping, “Bluntly stated, defendants did not produce evidence that an emergency situation existed such that a period of delay would make any relevant difference in preserving the public’s health, welfare, or safety.”

Coincidentally, on the same day, Shiawassee County Circuit Judge Matthew Stewart refused to grant the state’s request for a preliminary injunction to shut down the business of Owosso barber Karl Manke.

The state had claimed that barbers do not offer an “essential service,” which would let them remain open during the coronavirus epidemic, and that by opening his doors, Manke presented a public health risk.

Judge Stewart said the state didn’t prove its case, according to The Detroit News.

The judge said the threat “must be actual and not theoretical.”