The mandate ‘singles out toddlers and treats them differently than similarly situated groups throughout New York City,’ Michael Chessa told NR.
New York City’s mask mandate for toddlers did not sit well with Michael Chessa, an attorney from Brooklyn who is overseeing an appeal of the motion in state court.
In an interview with National Review last week, Chessa explained that the initial appeal focuses on the “arbitrary, capricious nature” of the mandate, without reference to health effects.
“It singles out toddlers and treats them differently than similarly situated groups throughout New York City,” Chessa said, explaining that the mandate was “passed and enforced by an administrative agency,” instead of via the City Council.
New York City toddlers continue to be required to wear masks in preschool and daycare, in possibly the last mandate of its kind in the U.S. The requirement covers children ages two to four, a demographic that is free to go to school maskless in the rest of New York State.
A Staten Island judge blocked the toddler mask mandate on April 1 in response to Chessa’s motion, but Mayor Eric Adams said at the time that the city would appeal the decision because of a rise in Covid cases caused by an Omicron subvariant. A New York appeals court ruled on Friday that the mandate can remain in effect while the case plays out. That process “could take months,” Chessa wrote on Twitter following the Friday ruling.
The mandate has drawn opprobrium from parents who contend that the risk of Covid to young children is so minimal that the drawbacks of wearing masks outweigh the benefits. One of Chessa’s children is a toddler, and as such falls under the current masking requirements.
“I think one of the problems with this issue and with so many issues is that it’s not framed properly by our public-health officials,” Chessa said. “There’s fear here that should be properly allayed by the public-health officials doing the right thing and explaining the risks properly to parents, rather than making them feel like this group is somehow uniquely vulnerable, which according to the science they really aren’t.”
The New York health department has argued in court filings that ending the mandate would cause “irreparable harm.” New York’s health commissioner and other officials have argued that masking is necessary in part because no Covid vaccine is authorized for children under five.
“Even though COVID is generally less dangerous for children, it can result in hospitalization, as well as MIS-C, long COVID, and possibly other long-term complications,” a Health Department spokesperson said in an email last week to National Review.
“Other available tools to mitigate the spread of COVID-19 such as physical distancing and hand-washing are difficult to enforce among young children, making these tools less effective,” the spokesperson said. “Universal masking, therefore, presents one of the strongest, if not the strongest defense against COVID-19 for settings with children ages two to four.”
The weekly hospitalization rate for children ages zero to four has hovered at one to two per 100,000 people since the week ending March 26, according to city Health Department data. That rate is higher than the hospitalization rate for older children over the same period but is comparable to the rates for adults ages 18–54, many of whom have been vaccinated for Covid.
As of Tuesday, 2,312 children ages zero to four had been hospitalized with Covid in New York City since the start of the pandemic, compared to 1,333 children ages five to twelve, according to Health Department data. The Health Department has reported 36 deaths among Covid-positive children ages zero to 17 since the pandemic began.
The U.S. Centers for Disease Control and Prevention’s guidelines state that children ages two and up may wear masks to shield themselves from Covid, but that guidance is rejected by other health authorities. The World Health Organization states that “children aged 5 years and under do not need to wear a mask.” The European equivalent of the CDC, the European Centre for Disease Prevention and Control, only recommends masks for children over twelve, and counsels against masks for children in primary schools. The U.K. government has also recommended that primary- and preschool-age children not wear masks in classrooms.
Chessa said the risk of serious illness and death from Covid for young children is negligible enough that masking toddlers is not necessary. However, Chessa noted that he does not oppose other parents of toddlers who would like their children to continue wearing masks.
“This is not an anti-mask lawsuit. It’s not saying that other parents who wish to have their toddlers masked couldn’t do so,” Chessa said. “The lawsuit is just parental choice, in terms of giving parents who don’t want their toddlers masked the ability to send their kids to daycare and school not masked.”
In the meantime, the mandate remains in place.