4/4/20: LAWYERS WITH HEALTH POLICY EXPERTISE EXPLAIN HOW THE U.S. COVID-19 RESPONSE CAN AND SHOULD BE NATIONALIZED SO THAT STRATEGY IS UNIFIED. Also Dare Bulletin No. 28.

covidsign
Homeowners on South Dogwood Trail give a big-banner thank you to “all our heroic health care providers.”

The Beacon is gratified by the positive reader response we received from yesterday’s post about Dr. Harvey V. Fineberg’s six-step national plan to defeat COVID-19 by early June.

Dr. Fineberg, an M.D.-Ph.D. with the independent, nonprofit, and nongovernmental National Academy of Sciences, outlined his eradication campaign in an editorial in The New England Journal of Medicine (NEJM) titled “Ten Weeks to Crush the Curve.”

See Dr. Fineberg’s article at https://www.nejm.org/doi/full/10.1056/NEJMe2007263?query=featured_home

Today, we offer more expert advice and commentary to help you become more informed about the viral pandemic.

We strongly believe that the choices and decisions we all make—including our public officials—must be based on evidence, not on anecdote, emotion, denial, shaky conjecture, and/or wishful thinking. What we don’t know, we simply don’t know, and we shouldn’t guess or posture.

This pandemic is actually the second one declared by the World Health Organization in the past dozen years. The last one occurred in 2009 when a novel strain of influenza A/H1N1 virus emerged.

(Since then, I have attended two seminars in Washington, D.C., on emerging infectious diseases, including one conducted by Dr. Anthony Fauci, and can tell you that the fear expressed by Dr. Fauci and the other specialist was that a new lethal influenza would emerge. Preparation for such an event is never far from such experts’ minds.)

You may recall when President Obama and the U.S. Centers for Disease Control and Prevention were encouraging people, especially those over age 65, to get the so-called “swine flu” vaccination to protect themselves from contracting the new influenza subtype.

Fortunately, much was already known then about influenza A viruses, which cause epidemics of disease in the United States every winter (i.e., flu season), and a vaccine to combat the H1N1 strain quickly became available.

Nonetheless, the CDC reported that nationally more than 60 million people were sickened, and 12,469 died, from the 2009 swine flu. The seasonal flu vaccine that people now get includes protection from the H1N1 “swine” virus.

No vaccine was ever developed for the strain of coronavirus that emerged in 2002, however.

Known as severe acute respiratory syndrome coronavirus 1 (SARS-CoV-1), that virus strain was largely contained to Asia. The United States had relatively few cases of SARS—mostly on the West Coast—and no one died here. SARS-CoV-1 had roughly the same incubation period as SARS-CoV-2, but it was much less contagious than the new coronavirus strain threatening us now.

A UNIFIED RESPONSE WILL NOT VIOLATE THE U.S. CONSTITUTION

Today we feature a NEJM opinion column written by two attorneys with doctorates in health policy: Rebecca L. Haffajee of the University of Michigan School of Public Health, and Michelle M. Mello of the Stanford Law School and the Center for Health Policy/Primary Care and Outcomes Research at the Stanford School of Medicine.

In their article, “Thinking Globally, Acting Locally—the U.S. Response to Covid-19,” the authors address “major weaknesses” in the United States’ “federalist system of public health governance, which divides powers among the federal, state and local governments.”

By the federal government, they refer to everyone on the federal level, not just the Trump Administration.

The authors contend that SARS-CoV-2 is “exactly the type of infectious disease for which federal public health powers and emergencies were conceived,” because “it is highly transmissible, crosses borders efficiently, and threatens our national infrastructure and economy.”

But, as we all know, the response to COVID-19 has been on a state-by-state basis, and, in some localities, such as our own, even county-by-county.

Drs. Haffajee and Mello say “strong, decisive national action” is “imperative,” and describe the federal response to date as “alarmingly slow to develop, fostering confusion about the nature of the virus and necessary steps to address it.” States and localities (such as Dare County) have been at the front lines of the response, but, not surprisingly, they have exercised their public health powers “unevenly,” according to the authors.

Although, constitutionally speaking, the states—and through their delegated authority, cities and counties—have primary responsibility for public health, and the federal government’s more limited authority focuses on measures to prevent interstate or international spread of disease, this structure applies only during ordinary times, the authors contend.

In “extraordinary times,” such as we are experiencing now, states and the federal government can “activate emergency powers to expand their ability to act swiftly to protect human life and health.”

Indeed, all 50 states and the federal government have declared emergencies, although not all states have issued stay-at-home orders, and President Trump has so far declined to impose a national stay-at-home order.

The executive powers that result from declarations of emergency can range, Drs. Haffajee and Mello write, “from halting business operations, to restricting freedom of movement, to limiting civil rights and liberties, to commandeering property.”

Unquestionably, the first three restrictive actions have occurred via executive orders, but there is nothing unconstitutional about any of them.

Usually the fear of such restrictions, according to the authors, is that government officials will over-react and impose unduly coercive measures. They give as an example N.J. Governor Chris Christie’s decision to order a nurse returning from Sierra Leone into quarantine during the 2014 Ebola outbreak, even though her case did not merit it under the CDC’s guidelines.

Today, with the COVID-19 outbreak, the authors say, “the federal government has done too little,” and “misleading early statements from federal officials about the gravity of the threat” has encouraged public sentiment against taking steps that would “impose hardship on families and businesses.”

During a public-health crisis, however, hardship and sacrifice are to be expected.

Arguing that the “defining feature of the U.S. response to Covid-19 . . . continues to be localized action against a threat that lost its local character weeks ago,” the public-health specialists urge the federal government to promote a “unified” national response. Just like Dr. Fineberg, they advocate for a national strategy and suggest the following:

*A convening of governors and state directors of public health for the purpose of reaching consensus on a “coordinated set of community mitigation interventions and a timeline.” No one is talking about a realistic timeline based on the best available evidence. (This suggestion is akin to Dr. Fineberg’s step one of establishing unified command.)

*The use of congressional spending power to “further encourage states to follow a uniform playbook for community mitigation that includes measures for effective enforcement of public health orders.” Congress could threaten to withhold some federal funds—e.g., for schools and highways—from states that do not comply.

*The leveraging of Congress’s interstate commerce powers “to regulate economic activities that affect the interstate spread of SARS-CoV-2.” They offer as an example restricting large businesses from having employees travel and operate across state lines in ways that expose them to risk. Those businesses that do not provide their employees with adequate personal protective equipment and paid sick leave, they state, “could be declared a threat to public health.”

Among the other federal actions they recommend is an implementation by the CDC of interstate travel restrictions on those people with known exposure to or symptoms of COVID-19.

“[W]hen epidemiologists warn that a pathogen has pandemic potential,” Drs. Haffajee and Mello conclude, “the time to fly the flag of local freedom is over. Yet national leadership in epidemic response works only if it is evidence-based.”

Going forward, the U.S. response must be both national and rational.

You may access their article at https://www.nejm.org/doi/full/10.1056/NEJMp2006740?query=featured_home

(FYI, the National Academy of Sciences is one-third of what is known as the National Academies. The other two-thirds are the National Academy of Engineering and the National Academy of Medicine. The mission of all three is to advise the nation and the world on challenges that they are confronting.)

IN DARE COUNTY TODAY

Today’s Dare County Emergency Management bulletin, No. 28, reminds people of the “uncertainty” of knowing who may be carrying the virus and of the “understanding that this virus is highly contagious.” You are urged to “continue to be vigilant and follow guidelines for practicing social distancing, having direct contact with immediate family members only and good hygiene.”

See https://www.darenc.com/Home/Components/News/News/6075/1483

Ann G. Sjoerdsma, 4/4/20

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s