One Year Later, Department of Health – When Under Oath – Still Cannot Justify “Director’s Stay at Home Orders”

March 19, 2021
Top Ten Takeaways from Government Discovery Responses

Columbus, OH – Recent discovery responses provided by the Ohio Department of Health suggest that even after a full year, the Department remains unable to provide evidence justifying its “Stay at Home Orders.”

On March 22, 2020, the Ohio Department of Health issued its “Director’s Stay at Home Order,” prohibiting “non-essential” businesses and activities. Soon thereafter, the 1851 Center for Constitutional Law commenced litigation to challenge the lawfulness of these orders, winning several cases.

In June, the 1851 Center won a preliminary injunction prohibiting the state from forbidding the opening of amusement and water parks, including Kalahari Resorts, Cedar Point, and Kings Island. But only recently has the Department of Health responded to the 1851 Center’s Interrogatories (questions required to be responded to under oath during the course of litigation), posited on behalf of Kalahari Resorts.

Those Interrogatory Responses display that the State remains unable to provide evidence supporting it policies, failed to track relevant data, and was at time outright bluffing the public:

  1. Though clearly erroneous, Department of Health (“ODH”) stands by the Ohio Attorney General’s April of 2020 misrepresentation to a federal court that the Orders were justified because “approximately 29 percent of confirmed cases of Covid-19 result in hospitalizations and approximately 4 percent of confirmed cases result in death.”  See Interrogatories 10, 20.
  2. ODH still maintains no evidence that “non-essential” businesses and activities increased the risk of Covid-19 harm, other than what ODH now calls its own “rational speculation;” and the Department cannot identify a single instance of Covid-related harm caused by any Ohio “non-essential business.”  See Interrogatories 3, 5, 7, 11, 28 (“Defendant is unaware of any evidence displaying that Plaintiffs’ operations uniquely increase the harm resulting from Covid-19”).
  3. The only evidence ODH proffers in support of the proposition that the “Stay at Home” Orders “reduced serious harm” is that the number of cases within the State never reached the numbers supplied through then-Director Acton’s self-described “guestimates,” more formally known as “curve-flattening models.”  See Interrogatories 6, 27.
  4. Despite claiming that its regulations were driven by “hospital capacity,” “ICU bed occupancy,” and “hospital staffing capacities,” and a desire to avoid “overwhelming” those capacities, when under oath, ODH concedes that it maintains no metric or benchmark as to what constitutes “overwhelming,” and “no information” as to the capacities of Ohio hospitals. See Interrogatories 22, 25, 31, 32.
  5. Despite being unable to provide any evidence that Ohioans’ “non-essential” businesses or activities ever posed a risk, ODH, the Governor, and the Attorney General continue to deride those Ohioans wishing to open and operate as an “apparent desire to elevate profitability over the health and lives of its employees and patrons.” See Interrogatory 19.
  6. ODH continues to insist with certainty that “the non-essential business restrictions did not cause any public or private health harm or economic harm.”  See Interrogatory 34.
  7. In assessing the risk of Covid-19 to the general public, ODH concedes that it failed to track any data related to the coincidence of hospitalizations or deaths with co-morbidities such as obesity, and relied solely on death certificate date to determine the number of deaths proximately caused by Covid-19. See Interrogatories 37, 38.
  8. The only evidence ODH offers in support of the effectiveness of its mask and curfew policies, given that cases, hospitalizations, and deaths increased after those policies were enacted, is “evidence of reduced cases, hospitalizations, and deaths occurring after mask and curfew orders went into effect,” while conceding elsewhere that “it is not surprising that daily cases [after the mask mandate] continued to increase.”  See Interrogatories 12, 17.
  9. ODH refuses to disclose to Ohioans, when under oath, who writes or reviews its pandemic orders or even the “process by which these orders are drafted and codified,” citing “attorney-client privilege.”  See Interrogatory 18.
  10. The end-date of the pandemic in Ohio will be determined by the Governor alone, rather than by “public health experts.”  See Interrogatory 33.

“Recent discovery responses plainly illustrate that the Governor, Attorney General, and Department of Health – when required to justify their policies under penalty of perjury – are unable to provide any factual evidence that Ohio’s lockdown policies either worked or were justified,” explained 1851 Center Executive Director Maurice Thompson. “The lesson is that Ohioans ought to remain skeptical and resistant, rather than reflexively trusting, when public officials insist a restriction on their liberty is necessary to counteract a risk to health or safety.”

Read the State’s Interrogatory Responses here.


The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.