Previous articles in the series are here and here.
From the Boston Globe (possible paywall protection): When Biogen held its meeting of the firm's international leaders in a Boston hotel in February, they apparently had no idea it would be a super-spreader event. Attendees congregated in meeting rooms, on escalators and in elevators, at cocktail receptions and meals. Masks and social distancing weren't much of a thing back then. Current estimates of the number of coronavirus infections in four easter Massachusetts counties that are traceable to that two-day event: 20,000. And that number could be too conservative an estimate.
The "connected" quote is in reference to the spread from the tony Marriott Long Wharf hotel to at least "122 people living in Boston-area homeless shelters and employees who work there, the study says. It’s unclear what path the virus took to get there."
Lesson learned? Not necessarily, as illustrated by last week's decision by a number of universities to cancel the return to on-campus classes after clusters of infections broke out among undergraduates (Inside Higher Ed, 8/25/20).
It is well known that average life expectancy in this country declined from 2014-2017, followed by a slight (~1 month) increase in 2018 (CDC, Jan 2020), leaving the average still below its high in 2014. An important new article in JAMA (on-line and free) by Larry Gostin and co-authors James Hodge and Donna Levin consider "Legal Interventions to Address US Reductions in Life Expectancy." Here, in brief, is their case:
Age-based, geographic, and socioeconomic status disparities collectively diminish average life expectancy. Midlife “diseases of despair” (eg, suicides, drug overdoses, and alcohol-related conditions), firearm violence, and obesity also are contributing factors for reduced life expectancy, especially in rural counties, the industrial Midwest, and Appalachia. Life expectancy gaps among the richest and poorest 1% of the population are estimated to exceed 10 years for women and 14 years for men. Stated simply, poorer, less-educated individuals in the US live considerably shorter lives. This pattern of inequality has been highlighted further during the COVID-19 pandemic.
Among multiple causes, weak laws at all levels (federal, state/tribal, local) contribute to regional differences in life expectancy, suggesting a need for responsive legal reforms. Universal health coverage is vital, but “upstream” prevention aimed at known risk factors undergirded by law also contribute to increased life expectancy. Post–COVID-19 public health laws can address specific social determinants beyond the health sector—such as by focusing on connectedness, education, environment, housing, food, income, and transportation—and potentially narrow vast health equity gaps among underserved at-risk populations.
The second installment in the WSJ's series -- "China’s CDC, Built to Stop Pandemics Like Covid, Stumbled When It Mattered Most" -- focuses on the breakdown, primarily in surveillance, which didn't discover the outbreak in Wuhan until it had already started to spread to the rest of the world. The story in China is distressingly similar to the story in the U.S.: Public-health infrastructure was underfunded, understaffed, and degraded to the point that it couldn't do the job it was designed to do.
As expected, the writing is superb. Also as expected, the series is still behind a paywall. It's too bad. A lot of other news outlets are putting their COVID-19 coverage on-line for free as a public service.
The first installment was in today's paper: "A Deadly Coronavirus Was Inevitable. Why Was No One Ready?" The series is off to a pretty strong start, with some useful historical data and trends, good stuff on SARS, lessons learned from EBOLA (not caused by a coronavirus, but a highly infectious disease), and a straightforward narrative describing the international response.
Unfortunately, there are only a few paragraphs on the developments, historical and present-day, that produced a public-health disaster in the U.S. Maybe there will be more in subsequent articles.
And the articles are behind a paywall. (Really, WSJ? Many papers and journals are making their COVID-related articles available for free because, you know, they are in the public interest).
For now, I still highly recommend two articles by Ed Young in The Atlantic that I've mentioned previously (here and here). Yong is somewhat less diplomatic than the WSJ when it comes to describing the failures in policy and in practice during the first half of 2020, and I for one am grateful for his forthrightness.
I'm happy to report the publication of the SMU Law Review's Symposium, "Cruzan and the 'Right to Die'" in Vol. 73, No, 1 (2020). The authors who wrote for the Symposium are the thought leaders around the country. I want to thank them for their wonderful scholarship and urge everyone reading this to check out their articles. (All are available in PDF from the link above.)
The motivating idea behind the Symposium was "where are we now, 30 years after the U.S. Supreme Court's decision in Cruzan? Here are our authors and their topics:
Can we finally put to rest the certifiably false assertions by Trump and Cornyn that children are immune to or not affected by the coronavirus? Positive cases in children (under the age of 19) increased by 97,000 in the last two weeks of July alone (WaPo, 8/10/20). It really doesn't matter whether increased testing or increased numbers of infections (or, most likely, some combination of the two) are behind this number. (A) The number disproves claims that kids are, by virtue of being kids, safe from infection. (B) The true number of positive cases is probably quite a bit larger than the reported number (which is true of all reported numbers).
Yong's current piece focuses on the inadequacy of our response to the coronavirus. He and Krys mentioned his two-year-old article, also in The Atlantic, that predicted our inability to respond to a pandemic: "The Next Plague is Coming. Is America Ready?" (July/August 2018).The article pretty well nailed what came to pass, with the added factor -- now all too apparent -- of the total lack of coherent leadership from our president, which Yong details in the current article.
Both articles are indispensable reading (if you can get past the paywall). Also, Yong is a prolific writer and his Atlantic articles since January are worth checking out.
Even after the critical-care hurricane passes, we are looking at COVID-19-related thunderstorms for the years ahead.
We are used to thinking about the impact of COVID-19 in light of short-term effects: hospital beds, ventilators, staffing, schools and businesses, local and national economy, etc. It makes perfect sense. These are the places and concerns where the pandemic first hits us. But researchers are starting to look at the longer-term effects, beginning with the health care needs of individuals with long-term and even permanent health problems as a result of their exposure to the novel coronavirus.
Even after (that is, when and if) Reuters ran this story last week:
With mounting evidence that some COVID-19 survivors face months, or possibly years, of debilitating complications, healthcare experts are beginning to study possible long-term costs.
Bruce Lee of the City University of New York (CUNY) Public School of Health estimated that if 20% of the U.S. population contracts the virus, the one-year post-hospitalization costs would be at least $50 billion, before factoring in longer-term care for lingering health problems. Without a vaccine, if 80% of the population became infected, that cost would balloon to $204 billion.
This of course is on top of the year-in, year-out bill for health care B.C. (Before COVID-19). According to the Centers for Medicare and Medicaid Services, "U.S. health care spending grew 4.6 percent in 2018, reaching $3.6 trillion or $11,172 per person. As a share of the nation's Gross Domestic Product, health spending accounted for 17.7 percent."
If we're aiming for herd immunity without a vaccine available, 80% is a good number, but in terms of the human misery, economic dislocation, and impact on health care providers (institutional and individual), getting to 80% is a disaster. And $204 billion represents a 5.67% bump on top of the underlying 4.6% growth rate that is pretty much baked into our national health care costs.
We may get a vaccine that will be at least partially effective, and we may get out the required hundreds of millions of doses (in this country along, let alone the billions needed worldwide). The infection rate, therefore, may be less than 80%. But a 20% infection rate still puts an enormous burden on the system, especially primary-care physicians and specialists including cardiologists, pulmonologists, endocrinologists, neurologists, and gastroenterologists.
And that burden will not be shared equally by states and regions. Massachusetts has more physicians per capita than any other state. There may be shortages in the years ahead, but they are unlikely to be as severe as in states that already have physician and other health-provider shortages. Many of those states are in the South (including the the Southeast and Southwest), where restrictions have been lifted too broadly and too soon and where COVID-19 spikes have been the most pronounced since July.
Brain death/death by neurologic criteria (BD/DNC) is described in every jurisdiction in the U.S. as the irreversible cessation of all brain function, including that of the brain stem. The universal acceptance of this seemingly straightforward criterion masks an unsettling reality: "There are inconsistencies in concept, criteria, practice, and documentation of brain death/death by neurologic criteria (BD/DNC) both internationally and within countries." That's the opening salvo by an international, multidisciplinary group that has published its findings and recommendations in an important new paper in JAMA.
As summarized by the panel: "This report provides recommendations for the minimum clinical standards for determination of brain death/death by neurologic criteria in adults and children with clear guidance for various clinical circumstances. The recommendations have widespread international society endorsement and can serve to guide professional societies and countries in the revision or development of protocols and procedures for determination of brain death/death by neurologic criteria, leading to greater consistency within and between countries."
In the same issue, Dr. Robert Truog at Harvard Medical School and Boston Children's provides a useful editorial on the report. His bottom line: loss of consciousness, loss of spontaneous respiratory drive, and the irreversibility of both conditions are the source of inconsistency and confusion. Research as to all three factors is desperately needed and devilishly difficulty to carry out. And even if that research is performed and is successful in establishing clinical criteria for their determination, much work will remain to be done, e.g.:
Bringing these recommendations to the entire international community will require a 2-pronged approach. First, evidence to support the existing tests needs to be bolstered, and this may require greater use of advanced neurodiagnostic techniques. A key question will be whether the whole-brain biological standard for defining BC/DNC will remain tenable, or whether this concept should be replaced by the values-based brainstem standard. Second, since much of the world does not have access to advanced technologies, the World Brain Death Project will need to focus on development and validation of tests that rely on the clinical examination and widely available diagnostic tools. This will be essential if the capacity for accurately diagnosing BD/DNC is to become accessible to all clinicians around the world.
"Just as the economic fallout of COVID-19 has increased the likelihood of evictions, evictions might also increase the risk of COVID-19 transmission in the short term. Households may be rendered homeless by eviction or will need to double up in shared space, resulting in diminished ability to socially distance and increased risk of COVID-19 transmission."However, the immediate health effects of eviction extend far beyond COVID-19 risk. For individuals and families who become homeless, especially those who become chronically homeless, the health risks have long been recognized. Mounting evidence suggests that psychosocial stress and material scarcity following an eviction may carry profound and lasting health consequences. Among adults, evictions have been associated with several interrelated conditions, including all-cause mortality, emergency department utilization, sexually transmitted infections, HIV-related treatment outcomes, drug use, exposure to violence, mental health hospitalization, suicides, and depression. Health conditions and high levels of health care costs also increase vulnerability to evictions in a manner that can perpetuate a longstanding cyclical pattern of economic and housing instability and poor health."For children, experiencing evictions during the COVID-19 pandemic may cast a long shadow, impacting their health and well-being as adults. Children whose mothers experience evictions during pregnancy are more likely to be born with low birthweight or preterm than are children whose mothers are not evicted. In early childhood, evictions are associated with food insecurity and lead poisoning, which over time can compound and cause lasting deficiencies in children’s physical, mental, and emotional development."Evictions during COVID-19 are also likely to perpetuate and worsen racial health inequities at both individual and community levels. Structural racism drives inequities in labor and housing markets, resulting in increased risk of both COVID-19 and eviction for Black and Latinx individuals. Black and Latinx individuals are also more likely to live in communities characterized by high levels of eviction with important spillover effects on health."
No one should be shocked that a liar who has made almost 20,000 false or misleading claims during his presidency would lie about whether the U.S. had the pandemic under control; that a racist who gave birth to birtherism would do little to stop a virus that was disproportionately killing Black people; that a xenophobe who presided over the creation of new immigrant-detention centers would order meatpacking plants with a substantial immigrant workforce to remain open; that a cruel man devoid of empathy would fail to calm fearful citizens; that a narcissist who cannot stand to be upstaged would refuse to tap the deep well of experts at his disposal; that a scion of nepotism would hand control of a shadow coronavirus task force to his unqualified son-in-law; that an armchair polymath would claim to have a “natural ability” at medicine and display it by wondering out loud about the curative potential of injecting disinfectant; that an egotist incapable of admitting failure would try to distract from his greatest one by blaming China, defunding the WHO, and promoting miracle drugs; or that a president who has been shielded by his party from any shred of accountability would say, when asked about the lack of testing, “I don’t take any responsibility at all.”
IRBs have transformed since the late 1990s from committees of peer reviewers – fellow academics making ethical judgements on the basis of scholarly expertise, but paying little attention to the letter of the regulations—to “compliance bureaucracies,” wherein full-time IRB administrators do much of the heavy lifting, often behind the scenes. Babb defines compliance bureaucracy as “a nongovernmental office that uses skilled staff—compliance professionals—to interpret, apply, and oversee adherence to government rules” (P. 5.) In this transformed governance environment, faculty board members still participate in terms of voting on whether to approve a project or expedited research protocols, but their work is simply not possible without IRB staff. This transformation, Babb argues, was due primarily to the growth in IRB scrutiny in the late 1990s by the Office for Human Research Protections (OHRP), which is situated in the federal Department of Health and Human Services. In turn, there was consequential growth in funding from research institutions to invest in IRB administration to better manage the risk associated with OHRP audits and enforcement actions. IRBs today are led not by peer reviewers, then, but rather a professionalized service of research administrators who know the nuances of IRB management.
Texas’ uninsured rate has been climbing along with its unemployment rate as COVID cases also surge in the state. Before the pandemic, Texas already had the highest rate and largest number of people without insurance among all states. And 20% of all uninsured children in the U.S. live in Texas.The uninsurance problem has only gotten worse in Texas in 2020. According to recent data from Families USA, a consumer health advocacy group that supported the Affordable Care Act, 29% of Texas adults under 65 don’t have health insurance so far this year.The group found that about 659,000 people in the state became uninsured between February and May as job losses soared. Texas is one of 13 states that has not expanded Medicaid under the ACA.
“It is important that we all know the situation that we’re facing in the county, not only the community but the hospital is overwhelmed right now,” Vera said. “Our backs are to the wall.”
“We are not gods or anybody to make a decision for who should live or who should die. However, when you have a mass-casualty situation there are guidelines that makes you work in a more efficient manner and to help save the maximum number of people,” said Vazquez, who added in his entire career as a physician he has never experienced such a desperate mass medical situation.
Starr County has an eight-bed COVID-19 unit at its hospital, but currently there are 28 patients with three on ventilators and life support, including one in the emergency room. Vazquez said physicians will be using a mass-casualty treatment plan devised by physicians in North Texas to determine who gets treatment and who does not.“The number of cases we see in the ER are growing every day; 50% of cases in the ER are COVID. The situation is desperate. We cannot continue functioning at Starr County Memorial Hospital the way things are going. The numbers are staggering,” Vazquez said.
The Centers for Disease Control and Prevention published the statement, along with new “resources and tools,” Thursday evening, two weeks after Mr. Trump criticized its earlier recommendations on school reopenings as “very tough and expensive.”
“This is taking us down,” Jacqueline Fincher, an internist and the president of the American College of Physicians, told me. “We’re not going to have a vaccine and herd immunity for probably a year—so, is this sustainable for a year? The reality is, it’s probably not, certainly not for most small practices.” If many of them go out of business, the consequences for Americans’ health could be profound and enduring. What’s at stake is not just a pattern of health outcomes but the shape of the health-care system as a whole. The way that patients interact with their doctors and the path that American health care takes in the future may be about to shift.
The procedural posture of this case presents a very narrow question that is further limitedInstead, the majority pretty definitively (and inappropriately) purports to decide the constitutional merits of the case, coming close -- according to Justice Gabriel -- to rendering an advisory opinion.
by the applicable abuse-of-discretion standard: Did Mother raise a bona fide issue as to whether CCMC—a private hospital—is a state actor that violated Mother’s due process rights, thereby showing a probable right to relief on her § 1983 claim? This is the operative question this court has been asked to answer; thus, our answer should be so limited. [Dissenting opinion of Justice Gabriel at 2]
Professor Farber has hit the nail on the head. Constitutional rights aren't suspended during a pandemic, nor has SCOTUS endorsed a special "pandemic standard of review." As the Jacobson case amply demonstrates, courts should apply the usual due-process standard of review, taking into account the special circumstances confronting state and local governments when contagion hits their communities.AbstractWhen emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination.
Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used “business as usual” constitutional analysis that ignore the crisis conditions under which the government must contend with today.
During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to utilize the usual tests, but with allowances for the government’s need to take precautionary actions despite high uncertainty.
Here's a précis of an important paper by three professors at the University of Arizona College of Law (Toni Massaro, Justin R. Pidot, and Marvin Slepian). After all the dumb (mostly anti-mask and anti-shutdown) rhetoric about how constitutional rights don't go away in a pandemic, here's some common sense about how our present crisis fits into the constitutional scheme.The COVID-19 pandemic has unleashed a torrent of legal and political commentary, and rightly so: the disease touches every corner of life and implicates all areas of law. In response to the disease, governments, civic institutions, and businesses have struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another.
Public perceptions about the disease, and our responses to it, have substantially fallen along predictable ideological lines. For example, the willingness of individuals to social distance may indicate something about their risk tolerance, but also about their political affiliation. Our ability to launch a unified response to COVID-19 has, in other words, been affected by rifts that generally infect American political life.
How we manage these divides over pandemic response matters, because the costs of disunity are high. Those who fear the risk COVID-19 poses to their lives depend on others to participate in mitigation efforts; those who fear the risk our response to COVID-19 poses to their livelihoods depend on others to willingly reengage in economic life. Common ground, while elusive, is essential to America’s response to this pandemic, and the next one that will surely follow.
We argue that ingredients for consensus already exist, even if they are obscured by political and policy rancor. Americans share the common goal to safely return to families, jobs, schools, places of assembly, pubs, parks, and the myriad of other settings that make up human lives and we share a fidelity to basic constitutional legal norms that can inform how we safely return.
This Essay identifies four constitutional principles to shape pandemic policies and enable them to garner broad public acceptance: substantive and procedural rationality, respect of fundamental liberties, equal treatment, and flexibility to enable government to nimbly and effectively address emergencies that threaten life itself. Fidelity to these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals, and individuals will cooperate only if they have confidence in the ability of institutions to protect safety, liberty, and equality.
Here's a GAO Report (GAO-20-646SP, July 7) that provides a relatively nontechnical but still useful introduction to herd immunity.
. . . and kill nine? This makes no sense. From The New York Times (7/18/20):The White House is pushing to eliminate billions for coronavirus testing and tracing from a relief proposal drafted by Senate Republicans.
The draft suggested allocating $25 billion to states for testing and contact tracing, as well as almost $10 billion to shore up the Centers for Disease Control and Prevention and $15 billion to bolster the National Institutes of Health, according to a person familiar with the tentative plans, who cautioned that the final dollar figures remained in flux.
The Trump administration has instead pushed to eliminate all of those funds and has also called for cutting billions of dollars set aside for the Pentagon and the State Department to help counter the outbreak and potentially distribute a vaccine at home and abroad.
