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Nebraska's attorney general is suing to stop Omaha's mask mandate

RACHEL MARTIN, HOST:

As the number of COVID hospitalizations starts to fall in many states, they are rising sharply in others. Nebraska is one of those states. Most ICU beds there are full. At the same time, a lawsuit challenging a mask mandate gets underway today in Omaha. Nebraska Public Media's Bill Kelly reports.

BILL KELLY, BYLINE: The Omaha City Council allowed its original mask mandate to expire in May of last year, when there were hopes COVID would start to fade with summer's arrival. Instead, when the new year came, it brought the highly contagious omicron variant. Now, all area hospitals are reporting ICU units close to capacity. Staff are falling ill as well. And in mid-January, the University of Nebraska Medical Center went to crisis-level operations. That means preparing to ration medical services if needed. Chief Medical Officer Dr. Hans Frankel (ph).

HARRIS FRANKEL: We've anticipated that this day could come. We have prepared for this event. But never before in the history of the institution has this had to be undertaken.

KELLY: Lindsay Huse is the public health director for Douglas County, home to Omaha and the University Medical Center. She says circumstances compelled her to act.

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSAY HUSE: We're not doing everything that we can to help contain this astronomical spike in cases.

KELLY: Huse says the more infectious variant is being compounded by the unvaccinated falling ill and the healthy not taking sufficient precautions. Speaking to county commissioners two weeks ago, she said...

(SOUNDBITE OF ARCHIVED RECORDING)

HUSE: I can't sit by and know that I could have done more and didn't do more. Later today, I plan to use my authority to order a mask mandate for the city of Omaha.

ANGELA HEWLETT: Yeah, this was incredibly welcome news.

KELLY: Dr. Angela Hewlett is an infectious disease specialist at the university hospital.

HEWLETT: When we heard about the mask mandate - and honestly, it was almost like we were cheering in the hallway.

KELLY: Not cheering - Pete Ricketts, Nebraska's Republican governor. Throughout the pandemic, he's vehemently opposed government mandates. He says the health department in Douglas County can't issue them without state approval.

(SOUNDBITE OF ARCHIVED RECORDING)

PETE RICKETTS: When public health officials act outside the law, it undermines the faith in all of our public health structure here. So this is really discrediting what public health officials do by acting outside the scope of the law.

KELLY: Attorney General Doug Peterson filed the suit, saying Douglas County's mandate is an attempt to evade state law. He claims, in this instance, the health department's unelected director didn't have the authority to issue health directives.

(SOUNDBITE OF ARCHIVED RECORDING)

DOUG PETERSON: I want to be really clear. This is not a legal battle on mask mandates - are they good or are they bad? That's not the question. As the attorney general, that's not my role to make that determination.

KELLY: The suit a Nebraska court is taking up today resembles battles around the country, including in Texas, Missouri and Montana. Retired law professor Peter Jacobson represents the Network for Public Health Law.

PETER JACOBSON: What I think we're seeing is using a once-in-a-century pandemic to alter the way public health is provided. And we're moving it from the professionals, the public health professionals, and shifting responsibility to the politicians.

KELLY: Nebraska's Legislature is among at least a dozen considering measures that would further restrict powers granted local health departments in the name of protecting individual liberties.

For NPR News, I'm Bill Kelly in Omaha.

(SOUNDBITE OF ARP'S "NSUKU") Transcript provided by NPR, Copyright NPR.

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