A man protesting Ohio’s health orders at the state Capitol on May 1. Gov. Mike DeWine later repealed most of them only to start reimposing orders on Tuesday as coronavirus cases continued to surge. Capital Journal photo by Marty Schladen
Ohioans were living with the coronavirus for about two months before GOP lawmakers initiated what would be a nearly yearlong effort to squash the state health department’s ability to issue public health orders.
The earliest version of the idea was to limit any order issued by the Ohio Department of Health to a two-week window. After that, a small panel of lawmakers would need to approve the order for it to stay in effect any further.
“We are clearly on the downside of the curve, there is no longer a risk of overwhelming the health care system,” said now-former Rep. John Becker to the House State and Local Government Committee, setting one of the first legislative attacks on the health department in motion via Senate Bill 1.
“I’m not sure there ever was, but that argument did make sense to me initially.”
A review of emails obtained by public records requests, committee hearings, interviews and contemporaneous media reports highlight just how absent public health was from efforts to wrest power from the health department during a pandemic.
In several instances, abortion politics, coronavirus infections among lawmakers, and overly rosy assessments of the pandemic from Republican leaders played a larger role in the legislation than the coronavirus itself.
SB 1 died an unusual death last May when every state Senator — even the bill’s sponsors — voted it down. Its supporters gave varying explanations from the Senate floor. They said it didn’t have an emergency clause, meaning it wouldn’t take effect for 90 days; and it was clumsily drafted.
Then-Senate President Larry Obhof, one of the most powerful Republicans in the state, later told constituents that Senators killed the bill, in part, because it could have expanded women’s access to abortion.
“A prominent Right to Life organization pointed out that the language, as written, could allow lawsuits challenging health orders that regulate or close abortion clinics,” he said in an email obtained in a public records request.
“Thus, the language could have been used to protect abortion clinics.”
The concern came from a letter the Greater Columbus Right to Life sent to lawmakers. Ohio Right to Life, which operates independently of the Columbus organization, disagreed, according to its director, Michael Gonidakis. However, he tried to stay out of it.
“We had no desire to be involved in that debate,” he said in a recent interview.
Sen. Tim Schaffer, R-Lancaster, later wrote on Facebook that the bill would have limited the state’s ability to “shut down illegal abortion clinics.” Then-Speaker of the House Larry Householder, R-Glenford, prior to being indicted in an alleged racketeering scheme, commented on the post. He told the senator to “grow a pair” and called his rationale “bullshit.”
SB 1 was hardly unique. Lawmakers have introduced a flurry of bills aimed at curbing ODH’s public health powers. Several passed at least one chamber including:
- A bill to require written consent before epidemiologists can begin contact tracing, the practice of determining who an infected person may have transmitted COVID-19 to. The proposal would likely have slowed down a time-sensitive process.
- The “Truth in COVID Statistics” bill, whose sponsor accused ODH of playing up the scary COVID-19 data and hiding the rest.
- A bill that would remove all penalties for flouting COVID-19 orders, stripping the mandates of their teeth.
- A bill that prevented the closure of any businesses as part of a pandemic response in most circumstances.
- A bill removing all COVID-19-related restrictions on county fairs.
- Senate Bills 1 and 311, both of which would allow lawmakers to strike down public health orders with a simple majority.
The Ohio Department of Health, the Ohio Hospital Association, the Ohio State Medical Association, and a vast majority of health professionals pleaded lawmakers to kill Senate Bill 311, another bill to grant themselves the ability to vote down public health orders. It also would have banned statewide lockdown orders from ODH.
Undeterred by surging hospital rolls and a crush of COVID-19 deaths, the Senate passed the bill in September. The House passed it in November.
“Senate President Larry Obhof: Everybody thought that by the summertime, things would lighten up. And then they didn’t.”
Both chambers had to navigate plague among their own members to pass the bill.
The Senate delayed its September vote on SB 311 after a member contracted COVID-19, according to an email obtained via public records request.
“We had hoped SB 311 would pass this past Wednesday, but session didn’t happen due to a member whose vote we needed coming down with coronavirus,” a Roegner aide emailed to a constituent in September.
At the time, Andy Chow of Ohio Public Radio/TV’s Statehouse News Bureau reported that state Sen. Bob Peterson, R-Washington Court House, tested positive for COVID-19, which required Obhof to quarantine.
In the House, Becker, an early COVID-19 skeptic, missed the SB 311 passage vote due to a “mystery fever” along with fatigue, sore throat and mild congestion, he wrote on Facebook. At least five lawmakers contracted COVID-19 in early December, including two Democrats who were hospitalized.
The House passed SB 311 with 57 Republican votes — three short of enough to override Gov. Mike DeWine’s eventual veto. On the last full legislative day of the session last year, Obhof claimed the House didn’t have enough healthy members in attendance to override the veto.
Obhof opted against initiating the override in the Senate.
“I think there was a core group of people in my chamber, and I’m sure there was in the House because I heard from some of them, who said maybe this isn’t the right time to have this fight,” Obhof said in an interview.
A rosy outlook
Since May, Ohio Republicans have insisted COVID-19 isn’t as bad as health officials say.
Early in the pandemic, Dr. Amy Acton, then-director of ODH, emphasized the need to “flatten the curve” — slow down the rate of viral transmission to prevent an overload on the health care system, and to wait out a vaccine.
As far back as April, Republicans worked the phrase into the past tense.
“The curve has been flattened and Ohio will not come close to exceeding its capacity to care for its citizens,” said Sen. Kristina Roegner, SB 311’s lead sponsor, in an April 23 op-ed.
Rep. J. Todd Smith, R-Farmersville, made similar comments in May.
“We have either flattened the curve by some of the measures that have been put in place or it was just overstated to what the effect would be, but either way, we’re now looking at people’s lives being crushed financially,” he said during a committee hearing.
In June, 19 lawmakers wrote a letter to the governor declaring that “Ohio smashed the curve long ago. Mission accomplished!”
In an interview, Obhof said he may have underestimated the gravity of the pandemic early on.
“I think that we thought it’d be done sooner,” he said. “When [House Majority Leader Bill] Seitz and I talked about this in April and May of last year, we’d say, ‘In June, let’s do an after-action report.’ Because everybody thought that by the summertime, things would lighten up. And then they didn’t.”
When asked about the conversation, Seitz said last week it’s fair to say “none of us” anticipated the pandemic would still be going on today.
“To the extent that we believed it would end well before now, that was not an ‘error’ on our part, but rather, a belief based on ’15 days to slow the spread’ and on subsequent comments, I believe in July, that the mask mandate would result in ending COVID-19 within 6 weeks,” he said in an email.
“In other words, to the extent that we believed well before now, it was based on the information furnished to us by the executive branch.”
Despite Seitz’s belief that the mask mandate would end the pandemic within six weeks, he and the GOP caucus have consistently voted down mask mandates at the Capitol for House members and staff.
At the time Seitz and Obhof were having these discussions, a few hundred Ohioans were contracting COVID-19 on a given day. Since then, on the worst days of the (still raging) pandemic, more than 13,000 Ohioans contracted COVID-19. On Dec. 16, a record 205 Ohioans died of COVID-19.
The surge in COVID-19 deaths this winter was disturbing but hardly surprising. Public health experts warned for months that respiratory diseases surge in the winter, and cold weather drives people inside where transmission is more likely.
Last spring, Democrats struck a different and demonstrably more accurate, tone. Rep. Fred Strahorn, D-Dayton, warned that legislation like SB 1 would make then-ODH Director Dr. Amy Acton’s job more difficult, and would likely cost lives.
“I don’t think people are understanding the gravity of this,” he said. “This isn’t going away next month. Until there’s a vaccine, we are going to live with this for over a year.”
“People are going to die, whether we pass this today or not … The question is, are we going to do things to make fewer people die? Or are we going to put up barriers in place so more people die.”
Acton would go on to resign in June after massive protests opposing the lockdowns, flush with men carrying assault rifles, formed outside the Capitol. Similar, though less militaristic protests arose outside her home.
Throughout the debate, Republicans have insisted it’s an issue of the separation of powers. They say it’s an issue of checks and balances.
Early in the pandemic, the argument goes, the governor and ODH needed free reign to issue orders as they saw fit. But in a prolonged emergency, lawmakers, who have consistently voted down in-house mask requirements and regularly downplay COVID-19, must have greater say.
“This isn’t about politics, this is about representation,” said Rep. D.J. Swearingen at the May 6 hearing. “This is about input.”
Sen. Rob McColley, R-Napoleon, who sponsored several of the measures, insisted in an interview the legislation is about checks and balances, not the coronavirus specifically, nor the governor, the health director or anyone else.
Only one Republican in the legislature (her term ended at the end of 2020) has consistently opposed the moves against the health department: Sen. Peggy Lehner, R-Kettering.
During a floor speech in May, Lehner, an anti-abortion lawmaker, questioned how “pro-life” principles apply to a pandemic that has killed 17,000 Ohioans.
“For years, I, and many of the sponsors of Senate Bill 1 and 311, have said we must put life first,” she said. “Over and above personal liberties of any kind. Suddenly, that argument has gone out the window. Now our personal liberties are replacing the protection of life in the state of Ohio.”
When the House passed SB 1, the pandemic death toll in Ohio was 1,459.
When the Senate passed SB 311, it hit 4,883. When the House passed it, 7,321.
When the Senate passed Senate Bill 22 (the latest version of the same idea): 17,058.
Leaders in the legislature, when asked, were unfazed by the rising statistics.
“A lot of folks have died from COVID-19, and does that affect what we did or what I think about Senate Bill 22? And the answer to that, of course, is no. I’m very much in support of the bill,” said Senate President Matt Huffman, R-Lima, in a press conference.
House Speaker Bob Cupp, R-Lima, made similar remarks, though he noted a recent reduction in infection rates and hospital burden.
“I think this is an institutional question, a matter of checks and balances,” he said. “It really doesn’t depend on any specific statistics.”
Roegner declined an interview request and did not answer specific questions. In a statement, she reiterated her support for SB 22.
“We must be able to respond in a manner that allows Ohioans to both protect and provide for their families,” she said. “When asked why not just trust the executive branch with this sweeping power, I can answer that with three words: Whitmer, Newsome [sic] and Cuomo.”
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