[Epistemic status: Perhaps slightly more knowledgeable than an educated layperson. I’m a lawyer, but this isn’t my specific area of expertise. It gives me no joy to write this, and it makes me queasy to publish it. But I’m going to do it anyway. It needs to be said.]
In facing the first modern pandemic, it’s likely that the greatest impediment to saving human lives and restoring our economy in the US isn’t going to be lack of scientific or technical expertise, but rather our approach to certain legal problems, and, more broadly, the general failure of our regulatory and administrative systems.
There are five issues that might broadly be characterized as legal choices that will limit how effective our response will be to COVID-19. In no particular order:
- We care about patient consent more than comprehensive testing.
- We care about preserving privacy of patient health information more than developing a nationwide bulletproof, digital track-and-track regime.
- Our multi-competency, multi-tiered administration of our public health regime creates too many points of failure.
- State and local governments just don’t have that much control over the public.
- Many states’ broad exemptions for vaccination programs may mean what should be the final endgame to COVID-19 might not be so final.
The choices we’ve made with respect to all of these legal issues—they’re all sub-optimal, at least insofar as it comes to limiting the spread of a deadly contagious disease.
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As scary as the COVID-19 outbreak has been, it’s been equally impressive to see how quickly and how effectively many have responded to the crisis.
With unprecedented speed, the scientific and technology communities have mobilized to combat COVID-19. Trillions of dollars worldwide have gone into research for finding a vaccine, for identifying antibodies, and other ways to ameliorate the symptoms, causes, and contagiousness of the disease.
There are no fewer than 78 legitimate vaccine programs under development, and the ambition to move forward with those programs at speed is unlike anything ever seen before. Previously, the record to get to market with a vaccine was close to five years. Some COVID-19 programs aspire to solve the puzzle and get to market in less than a year.
In the last week, researchers at Rutgers discovered what they believe to be a much less invasive saliva-based COVID-19 test, and they have plans to produce the test at scale soon.
Google and Apple joined forces to create a track-and-trace app. It’s hard to imagine a tech problem those two companies couldn’t solve by working together.
From a technological and scientific perspective, there are positive signs everywhere you look: Remdesivir and Gilead, Abbott Labs, Bill Gates—there are armies of talented and competent people working on this problem. Only a fool would bet against so many smart people doing great things to combat this disease.
Sadly, it might not matter.
Because as many positive developments are happening on the science and tech side, there are just as many negative things happening on the political, administrative, regulatory, and legal side.
I fear that all of the good work we’re doing with science and technology might be undone by the stubborn refusal of the public to participate in the necessary steps to put the science and technology to work.
Problem #1: Ubiquitous Testing at Scale Won’t Succeed If Many Refuse to Take the Tests
Early in the lockdown process, Nobel-prize winning economist Paul Romer (and son of long-term Colorado governor Roy Romer), wrote a series of blog posts explaining how a systematic, nation-wide testing program, with isolation for positive cases, could allow us to effectively re-open our country and let most people move on with their lives.
Romer showed that this could work even if our tests weren’t very good.
But there are a few problems with this approach (of which Romer is almost certainly aware, since he’s far more intelligent than I am).
First, the testing program is massive—well beyond the scale of anything the US is ready to do at this stage. Second, the testing program assumes compliance by all involved, both in the testing process and in complying with the isolation for those testing positives.
The first problem I suspect we’ll solve sooner or later. The second one I’m not so confident. Absent very rare exceptions, patient consent to medical treatments is sacred in this country. Even with a global pandemic killing hundreds of thousands (if not millions), and arguably some legal precedent that might enable us to do so, federal, state, and local officials have not shown the initiative or the will to conduct a systematic testing regime with persons who do not wish to participate.
If you’ve ever been in an emergency medical situation, perhaps you may remember being asked if you would agree to a blood transfusion if it were necessary to save your life. They ask this question because many people—Christian Scientists in particular—refuse transfusions, even in life-threatening situations.
Simply put, if people don’t want medical treatment, we don’t treat them. That applies in all situations, even in pandemics, and even when that choice could cause other people to die.
To cite one particularly egregious recent example of this, in early March, one of the first known outbreaks of Americans for COVID-19 was on board the Grand Princess cruise ship. According to the San Francisco Chronicle, 2/3 of the people on the cruise ship were never tested before they re-entered the population.
You can design the most ingenious testing process to combat the disease, but if a critical mass of the population refuses to comply, it won’t matter.
This isn’t an empty concern. The incentives for many will be heavily skewed in favor of not taking the test. If you don’t take the test, you can plead ignorance and go about your normal life.
Imagine a healthy 19-year-old with little if any personal health risk associated with the virus. If he tests positive, he’ll be quarantined for at least two weeks, even though he might be totally asymptomatic—and that’s after having been forced to hang out at home for months. If he doesn’t test, however, he’ll be presumed healthy and allowed to hang out with his friends, work, socialize, and do all the fun things that 19-year-olds do.
Some kids will voluntary take tests and comply with whatever suggested protocols our officials devise. Others will ignore them and likely face no consequences.
If, as in the case of the Grand Princess cruise ship, more than 60% of the population refuses to participate in a test, track, and trace program, and local, state, and federal governments are uninterested or unable to enforce compliance, it may not matter how effectively technologists and scientists can scale our testing programs. If the majority of the population won’t participate on a consistent basis, the programs won’t be able to provide the public confidence that our public spaces are safe.
Problem #2. We’re Not Going to Use Patient Health Information to Create a Comprehensive, Mandatory Track-and Trace Regime
We already have the technology that would enable us to create a comprehensive track-and-trace system for every American with a cell phone.
If we wanted to, we could, with the right motivation and administration, upload data from hospitals and other medical facilities where people test positive for COVID-19 into a national database and alert everyone with a cell phone who had contact with the person in the last 14 days to go into quarantine. We could then share that cell phone data with local law enforcement to enforce the quarantine. This would be more effective in controlling and reducing the spread of the virus than anything we’ve done to date.
But we’re not going to do that or anything like it. HIPAA would almost certainly not allow it. There is a narrow exemption from the general HIPAA restriction against sharing health information to communicate with local law enforcement. But taking that information and sharing it across multiple agencies, with the help of tech companies—that’s not something we’re seriously considering.
Similar digital tracing approaches have proven successful in South Korea and Taiwan to limit the spread of the disease. And we have the same technology here. But having the ability to do it means nothing if there isn’t the political will to make it happen. And, if anything, political will seems to be shifting away from, and not toward, more aggressive and restrictive solutions.
Problem #3: If You Leave It Up to 50 States to Fight COVID-19, Some of Them Will Get It Wrong
To paraphrase Nate Duncan of the COVID daily news podcast, one truism of pandemics is that an outbreak anywhere has the potential to affect people’s health outcomes everywhere.
Some states implemented stay-at-home orders in early March. Some waited until April. Some never got around to it. Each of these approaches will doubtless produce different outcomes and different virus trajectories. Some states aren’t ready to lift stay-at-home orders. Some are lifting their stay-at-home orders with only a slight modification of the stay-at-home status quo. Some are allowing for aggressive and major changes immediately.
You and I might have different opinions about which of these will work best. But by leaving it up to the 50 states (and county and local officials), we create at least 50, if not hundreds or thousands, of different policies, which thereby create an equal number of points of failure.
A single state that fails to implement effective control or remediation efforts, even among a subgroup of the population (as we are now learning from Singapore’s example), could lead to a new outbreak among the general population.
While a 50-state regime for determining stay-at-home orders might be the correct interpretation of the Constitution, it leaves the US open to more points of failure than are likely possible to manage. When it comes to eradicating a pandemic, that’s almost certainly a sub-optimal approach.
Problem #4: We Can’t Control All of the People All of the Time
What’s more, it appears that coronavirus is increasingly becoming a political issue, with an increasing percent of the population treating the rejection of stay-at-home orders as an act of political defiance.
There’s an argument to be made that this is more of an issue in the media than it is in real life. Most states that had protests of stay-at-home orders last weekend only had a few hundred protestors. In the context of a country of 330 million people, it’s unclear how much that subgroup really matters.
Squeaky wheels tend to get their grease, however. I suspect that many governors and local officials are making decisions on when to lift stay-at-home orders not based on what they believe to be optimal policy, but rather because of political exigencies.
This is just one more example of where weak political control results in a higher death toll and worse economic damage than might otherwise be necessary.
Problem #5: The Endgame Might Not Be the Endgame if Enough People Refuse to Play
Right now, given the loss of life and economic hardship caused by COVID-19, it might be hard to imagine someone refusing to take a vaccine to prevent it, if one were available. But given widespread mistrust of government and prevailing opinions about vaccines in general, is it so far-fetched to imagine that scientists might develop a vaccine in 18 months, only for 30-60% of the population to refuse to take it?
COVID-19 is a killer. But so were the measles, mumps, and rubella. Plenty of parents today are defying science and refusing a known way to nearly eliminate a known lethal health risk. We shouldn’t be surprised if that process repeats itself with COVID-19.
Some states, like California, have laws that permit only narrow medical exemptions for mandatory vaccination programs. Most states’ laws are nowhere near as strict. Right now, 16 states allow for broad philosophical exemptions to vaccines. Nearly all states allow for religious exemptions—which basically consists of filling out a form that says you have a religious reason to opt out.
Unless states move to tighten these laws now, this debate could well play out with COVID-19 in the coming years. Even after hundreds of thousands of Americans die of this virus, many won’t take the precautions to protect themselves. It’s just a question of how many and how big of a social impact this will have.
It is beyond the scope of this post to comment on whether these above-described policies are optimal under most circumstances or whether they are the best for our society in general. But it would seem self-evident that our current form of government is underperforming what might be considered an optimal policy at the moment.
Perhaps if there were a way to implement what Nick Bostrom describes as “turn-key authoritarianism” in the event of a pandemic, with an enlightened despot technocrat—a sort of American Lee Kuan Yew—available to take over the management of this crisis, things might be better. But turn-key authoritarianism in the hands of Donald Trump holds no more appeal than the current fumbling response of mixed messages, incoherence, and outright deception (And, ultimately, that is the deepest flaw with any form of authoritarian government. Sooner or later that power falls into the hands of a deeply unsavory character).
In the end, the only likely improvements we can make to our system are at the state and local levels and at the margins. While you might not be able to force people to take tests in general, it may be possible to refuse admission into a business or a location if people refuse to take tests. Imagine checks coming in and out of cities, or in and out of restaurants. We don’t have the supply of tests to do this yet, but we probably will eventually. It would be possible to imagine cities, states, and businesses with the resources and the initiative to ensure that persons moving across state borders, entering city limits, or entering certain establishments were being tested.
You can’t force someone to download the new Google-Apple track-and-trace App by law, but you could probably refuse entry to someone into your bar, your town, or your festival if they refused to download a verified COVID-19 tracer app on their phone and show they weren’t infected or at risk. Localized mandatory opt-in programs won’t solve the whole country’s problems, but they might help ensure that certain organizations and events are reasonably safe.
Similarly, we can work at the state level to close loopholes in vaccine exemptions to make sure as few people fall through the cracks there.
These tactics aren’t universal solutions, but they may be effective in saving some lives. Given the government we have, that’s likely the best we can hope for.