HARRISBURG, Pa. (WHTM) — Pennsylvania issued a school mask mandate on Aug. 31, and many parents have been fighting it ever since. They insist the health secretary cannot legally require masks, and on Wednesday, that question landed in the Commonwealth Court.

The case is not about whether masks keep kids safe — most people concede they probably do. At issue is whether the health secretary has the power to mandate masks without a disaster declaration.

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Tom Breth, the attorney for the families who are opposed to masks, said, “If it’s not there in the rule or regulation, it’s not — for lack of a better phrase — a tool that is available to the secretary of health.”

Commonwealth Court Judge Ellen Ceisler asked, “What if there was an outbreak of Ebola? How long does it take to pass a regulation? It could take months.”

Breth posited, “This statute as written may be completely inadequate to address a pandemic. That doesn’t change the fact that it’s the law.”

The state’s lawyer, Chief Deputy Attorney General Karen Romano, insisted that the health secretary does have the legal authority to impose the mandate and that it is the right thing to do. “This isn’t a means willy nilly selected, either; it’s recommended by CDC, it’s recommended by American Academy of Pediatrics,” Romano said.

But the judges focused on the law that says the health secretary can quarantine and surveil those with a disease, not everybody else.

“Anyone who’s in a building with someone who’s positive with COVID is exposed to that communicable disease, and that’s why the measure is necessary,” Romano said.

“But I don’t believe that the mask mandate takes into consideration whether or not an individual has been exposed to the communicable disease. You’re making the assumption everyone has been or is,” Commonwealth Court Judge Christine Fizzano Cannon responded.

Commonwealth Court Judge Patricia McCullough added, “Nowhere in there does it say you can restrict the movement or infringe upon everybody. You have to be a person with — not exposed, but with — a communicable disease.”

The judges also expressed concern that the state health secretary usurped power from the handful of counties that have their own health departments. It is unclear how long Commonwealth Court will take to issue a ruling, and there is certainly a chance either way that it will be appealed to the Supreme Court.