Given the continuity of the COVID-19 pandemic, the Supreme Court of Justice of the Nation ( SCJN ) validated that state governments can implement in their entities the mandatory use of face masks for residents as a health prevention measure.
This occurred after a reform to the State Health Law of Nuevo León was declared constitutional in 2021, ordering the mandatory use of face masks in public spaces, shopping malls, and public transportation.
The sanctions for not complying with the measure can be economic with fines, jail time of 36 hours, or community work of 8 hours.
The document indicated the following: “ The use of face masks will be mandatory on public roads and spaces or for common use, inside establishments whether they are commercial, industrial or services, work centers of any branch, shopping centers, as well as for users, operators, and drivers of public or private passenger or cargo transport services, prior determination and approval of the respective guidelines by the secretariat.”
The reform was approved with 26 votes in favor and 12 against. It was a proposal from the National Action Party ( PAN ), which received the support of the members of the Institutional Revolutionary Party ( PRI ).
Given this, the National Human Rights Commission filed unconstitutional action 48/2021 and demanded the invalidity of Decree 443.
Therefore, today, the SCJN recognized the validity of articles 119, section XI and 129 Bis of the State Health Law of the State of Nuevo León, which was amended by Decree 443 published on February 10, 2021, where the power of the authorities was added to declare the use of face masks mandatory during the health contingency.
“Although the General Health Council and the Ministry of Health have constitutional powers to deal with health emergencies, it does not follow that the actions of the federal entities related to the care of health emergencies are limited to the activities that the Ministry of Health (federal) entrusts them, especially if such emergencies originated from a communicable disease”, said Arturo Zaldívar Lelo de Larrea, president of the SCJN.
Minister Ana Margarita Ríos Farjat agreed that the General Health Council and the Ministry of Health are in charge of issuing the health emergency, but pointed out that this does not mean that the state authorities do not have a health impact on their entities to dictate the measures they deem pertinent.
“There is no provision in the Constitution or in the General Health Law that establishes that the health security measures issued by the state authorities are without effect in the context of an extraordinary general health action, or that only the federal health authority may adopt those measures in this context,” she said.