COVID-19: A most undemocratic affliction

To the west, the scene was a frightening one. But it seemed to be an overreaction by a known totalitarian regime. So business marched on largely unimpeded. Military operations were carried out against Iranian generals, the impeachment and subsequent Senate trial of President Trump reached fever pitch, and almost nobody asked any questions about the effectiveness or propriety of the lockdown in Wuhan.

Then, cruise ships with passengers from all over the world became suddenly marooned off the coast of their scheduled ports. The West again began to pay attention. People were getting sick abroad and largely abandoned by the countries that were supposed to host them. Whether consciously or not, nation after nation adopted the Chinese reign of terror model. 

Ignoring the nature and ubiquity of global travel in 2020, massive lockdowns crept from East to West, as if the virus itself was on some linear path out of Wuhan, China. In February, Italy achieved infamy for implementing some of the most severe restrictions on its population. Spain soon followed, as did parts of the United States.

This strategy reflected a naive belief that the virus could be contained and eradicated through such measures. “The risk to the general public is currently low,” Americans were regularly informed by public health officials. These officials believed they could isolate the infectious — and quarantine the potentially infectious — in sufficient numbers to halt the spread altogether.

But this ignored the reality of how COVID-19 presents in patients. Indeed, some of the infected are blissfully unaware they even have it while others (usually due to age or comorbidity) suffer serious adverse effects and, in rare instances, death. In short, traditional mitigation efforts like localized quarantine were never a viable option to stop the spread of COVID-19 for the simple fact that the disease could be spreading among otherwise healthy individuals. Indeed, as we now know, we cannot stop the spread through such interventions. And even the most stridently enforced lockdowns have only succeeded in delaying the inevitable.

As most are aware, COVID-19 creates a form of Severe Acute Respiratory Syndrome (“SARS”). And while this pandemic is frightening, deadlier viruses resulting in SARS have seen lockdowns roundly rejected as a means of effective amelioration since at least 2005. One article in the Journal of Health Law reviewed the efficacy of lockdowns following the 2002 SARS outbreak.

“Quarantining contacts, where it was attempted, seems to have been both ineffective (in that many, if not most, contacts eluded quarantine) and useless (in that almost none of those quarantined developed SARS). Mass quarantine is a relic of the past that seems to have outlived its usefulness. Attempts at mass quarantine, as evidenced by the experience in China, are now likely to create more harm than they prevent. They do this both by imposing unnecessary restrictions on liberty on those quarantined, and by encouraging potentially infected people to flee from public health officials.”

George J. Annas, The Statute of Security: Post-9/11 Epidemics, 38 J. Health L. 319, 331-42 (2005).

The so-called “relic” Annas spoke of reemerged with COVID-19. And — perhaps due in in part to technological advancements permitting large swaths of society to “work from home” — it was deployed on an unimaginably large scale despite the fact that there is little historical evidence it could actually succeed in mitigating the COVID-19 fatality rate over the long term. 

As the virus spread in the weeks following the initial lockdown, hospitals and health care providers in several notable areas, including New York City, began to experience serious strain on their resources. Frantic reports of wartime triage in parts of Italy spread like wildfire on social media. Doomsday predictions ran amok, claiming that soon this would become the norm at American hospitals if we didn’t “do something.” In the absence of evidence, and seeing what was happening in Italy, New York, and elsewhere, President Trump doubled down on lockdowns. 

He stopped short of implementing a nationwide lockdown. Instead, he and federal health officials embarked on a campaign of  “15 days to slow the spread.” It was thought at the time that this could provide hospitals with the breathing room they needed to secure appropriate PPE and ICU bed space.

In addition, further resources were provided to particularly affected areas like New York and California, with hospital ships and field hospitals readying for use. 

As far as can be seen at this point, “15 days to slow the spread” appears to be the last reasonable public health measure taken by authorities with respect to COVID-19. As time passed, it became clear that New York City had reached its peak already. Governor Cuomo’s strategy of returning COVID-19 positive seniors to nursing homes proved a disastrous move. And New York experienced a massive early spike in deaths, though the disease eventually (and quickly) ran out of steam even in the most populated city America.

Some states, like Georgia and Florida, began to reopen for business following the initial 15 days. Governors who dared allow their people to take risk allocation and mitigation into their own hands were decried as “heartless” and accused of “murder.” Still, the death toll and case rate in these areas never approached the levels of America’s hardest hit spot, New York City. And while there necessarily was an increase in cases and deaths following even the most modest return to “business as usual,” no area in the United States, apart from New York City, ever had their hospital resources seriously tested.

Yet nine months on, modified versions of the lockdowns remain in most places. And some are even going back to regional or statewide lockdowns, often still purely by executive order. Schools remain largely virtual, which is a tremendous disservice to the next generation, who, by all accounts have almost no vulnerability to COVID-19. Sports are allowing few, if any, in-person fans.  Movie theaters remain shuttered and might very well never return in the form and numbers we are used to. Concerts and festivals have ceased.  Once prominent liberal powers like England have instituted bizarre and utterly unenforceable restrictions like “the rule of 6.”

Moreover, it has become abundantly clear that healthy individuals under 50 are generally not at serious risk of complications from COVID-19.  Still, in most places, movement and attendance restrictions apply regardless of age.

Perhaps more confounding, the very same leaders who convinced us of the once laudable goal of “15 days to slow the spread,” have now insisted that “herd immunity is not a viable option.” And that even subjecting oneself to the lightspeed COVID-19 vaccine won’t guarantee a “return to normal.”

The question must be asked: When did the goal of “ensuring access to near-term hospital resources,” (i.e. 15 days to slow the spread) become “life as we know it must stop for years.” And further, how is it that we have allowed these decisions to be made completely on the fly almost entirely by executive officials? What law was passed by what legislature to carry out these draconian measures? Where is the right to due process? Why haven’t legislators put their opinions about the appropriate degree of measures required, if any, on the record in the form of vote?

Supreme Court Justice Gorsuch recently noted the limits of similarly capricious executive conduct.

“[W]hile the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

To be sure, there was an emergency in March of 2020, and it is likely that executive action at that time by Mayors and Governors was constitutionally (and morally) permissible. But we are now rapidly approaching Year 2 of this pandemic. The emergency, such as it was, is categorically over. And the people deserve a voice in determining just how much freedom they are reasonably willing to cede in a dubious effort to control a virus that is so clearly beyond our capacity to control. This is particularly true in the United States of America.

The continuing hubris of politicians and public health officials to attempt to control the actions of their population in the face of a relatively moderate danger is staggering. They cannot point to the effectiveness, nor reliably quantify the results, of any strategy they have thus far implemented. The “true” danger is always two weeks away. “You’ll see,” they say, “just wait two weeks.” But two weeks comes and goes, and the world keeps spinning.

Indeed, a cursory comparison of nations and U.S. states that adopted different strategies proves how utterly worthless everything has been at actually stopping COVID-19. Sure, a certain amount of spread can be delayed via lockdowns, but at what cost? And more importantly, to what end? Are we content to hobble our lives and our futures in perpetuity to fight a losing battle against this invisible enemy that largely spares everyone it encounters? If so, should we not at least have a say in the matter through an actual vote by our representatives?

If COVID-19 is still an emergency, it is one of our own making. And we cannot allow our leaders to justify unilateral actions destroying lives and livelihoods under the guise of some vague “emergency powers.”

What appears most important to those in power at this juncture is security-theater. In other words, creating the appearance of “doing something” that makes people feel safe, even if it has little to no effect on their actual safety. It is truly reminiscent of the nuclear blast “duck and cover” drills of days gone by. Perhaps there was a brief time at the beginning of the COVID-19 where such theater was worth as much as it cost, but that is no longer the case.

If lockdowns are to be the policy going forward, laws must be passed by politically accountable legislatures where diversity of thought and rigor of debate can be had. Executive action, unilateral action, is no longer acceptable.

Now is the time for politicians to sign their names to the dotted line. After all, this is what they signed up for. They must make their opinions known, explain them, and stand by them. Because their actions affect the lives and longterm livelihoods of the people. 

And almost a year after this emergency began, the people deserve a say.