Sunday, June 7, 2020

When Should Force Be Used To Protect Public Health?

By Jacob Sullum - June 07, 2020 at 06:00AM

During an April 2 interview with Chris Wallace on Fox News, Surgeon General Jerome Adams compared deaths caused by COVID-19 to deaths caused by smoking and drug abuse. "More people will die, even in the worst projections, from cigarette smoking in this country than are going to die from coronavirus this year," he said.

Wallace questioned the analogy. "Dr. Adams," he said, "there's a big difference between opioids and cigarettes, which are something that people decide to use or not to use, [and] the coronavirus, which people catch. It's not an individual choice."

The distinction that Wallace considered commonsensical is not one that public health officials like Adams recognize. As they see it, their mission is minimizing "morbidity and mortality," whether those things are caused by communicable diseases or by lifestyle choices.

Equating true epidemics with metaphorical "epidemics" of risky behavior distracts public health agencies from their central mission of protecting people against external threats such as pollution and pathogens. It undermines their moral authority by implying that the rationale for that uncontroversial mission also justifies a wide-ranging paternalism, and it damages their credibility by involving them in high-handed, manipulative propaganda.

The ambiguity about what it means for the government to protect public health also makes it harder to think clearly about the limits of state power in responding to literal epidemics. The classical liberal tradition has always recognized that the state has a legitimate role to play in protecting the public from contagious diseases. When we are confronted by an actual public health crisis like the COVID-19 pandemic, the question is not whether the use of force can be justified but whether a particular policy is appropriate. That question is hard to answer when there is a high degree of uncertainty about the threat posed by the disease and the cost of limiting its spread.

The Vaping 'Epidemic'

Before the new coronavirus came along, the U.S. Centers for Disease Control and Prevention (CDC) spent a lot of time and effort warning us about a very different kind of "epidemic": an increase in e-cigarette use by teenagers, coupled with an outbreak of vaping-related lung injuries. The first concern did not involve any sort of disease; the latter did, but unlike COVID-19, the condition that the CDC dubbed "e-cigarette, or vaping, product use-associated lung injury" (EVALI) was not contagious. And contrary to the CDC's misleading nomenclature and dangerously misguided initial advice, the two developments appeared to be completely unrelated.

Even under a broad understanding of public health, the CDC's conflation of EVALI with vaping in general was counterproductive, impeding the harm-reducing shift from conventional cigarettes to nicotine delivery systems that are far less dangerous. By fostering confusion about the relative hazards of smoking and vaping, the CDC hurt its own credibility on the eve of a public health crisis in which policy makers and the rest of us were expected to rely on its expertise.

As Chris Wallace probably would agree, vaping is something people choose to do. In that respect it resembles many other phenomena that politicians, bureaucrats, and academics have described as public health problems, including smoking, drinking, illegal drug use, overeating, physical inactivity, riding a motorcycle or bicycle without a helmet, gambling, playing violent video games, and watching pornography. COVID-19, by contrast, is something that happens to people.

There is a strong argument for coercive measures to deal with a potentially deadly disease that moves from person to person. That argument is much less compelling when we are talking about actions that may lead to disease or injury but do not inherently endanger other people.

The tendency to describe nearly anything that large numbers of people do as an epidemic when others view it as pernicious elides this crucial distinction. If protecting public health is presumed to be a legitimate function of government, an open-ended definition of that term is a prescription for constant political meddling in personal choices through taxes, regulations, prohibitions, and state-sponsored nagging. Likening choices to contagious diseases invites the government to act as if those choices, and the personal tastes and preferences underlying them, are morally no more important than a microorganism's evolutionary imperative to reproduce by infecting human hosts.

Once a particular pattern of behavior has been defined as an epidemic, that framing can lead to policies that make no sense even if you accept the collectivist calculus at the heart of public health as it is currently understood. That is what happened with vaping, which the CDC was predisposed to view as problematic, a prejudice that colored its depiction of EVALI. Even though it was clear early on that vaping-related lung injuries overwhelmingly involved black-market cannabis products, the CDC repeatedly intimated that legal, nicotine-delivering e-cigarettes might kill you. That message endangered public health by falsely implying that people—teenagers as well as adults—would be safer if they smoked.

Only belatedly did the CDC recalibrate its guidance to focus on the potential hazards of THC vapes, "particularly from informal sources like friends, family, or in-person or online dealers." It also foregrounded a warning that "adults using nicotine-containing e-cigarette, or vaping, products as an alternative to cigarettes should not go back to smoking"—advice that surely is equally sound for teenagers who vape instead of smoking.

Bad Advice and Insufficient Information

When the CDC switched gears from vaping to COVID-19, its habit of misleading people, ostensibly for their own good, was still evident. The agency's initial advice about face masks and virus tests gave the public false assurances regarding the danger posed by the epidemic while discounting the lifesaving value of those protective tools.

Until early April, the CDC advised most Americans against wearing face masks in public. "If you are sick," the agency originally said on its website, "you should wear a facemask when you are around other people (e.g., sharing a room or vehicle) and before you enter a healthcare provider's office." But "if you are NOT sick," it added, "you do not need to wear a facemask unless you are caring for someone who is sick (and they are not able to wear a facemask). Facemasks may be in short supply and they should be saved for caregivers."

After much criticism, the CDC revised its recommendations, telling people to "cover your mouth and nose with a cloth face cover when around others." It explained the shift by citing the risk of asymptomatic infection, a phenomenon that scientists had been describing for months.

Like the CDC's face mask recommendations, its COVID-19 testing criteria were driven by a shortage—in this case, a government-engineered shortage. At first the agency monopolized testing, and the kits it shipped to state laboratories in early February were defective. The CDC and the Food and Drug Administration initially blocked researchers and businesses from developing or conducting tests, which aggravated a shortage that made it impossible to get a handle on the size and severity of the epidemic in its early stages.

Making a false virtue of necessity, the CDC set irrationally narrow criteria for testing, initially restricting it to symptomatic travelers from China and people who had been in close contact with them. As of late April, it was still saying that "not everyone needs to be tested for COVID-19."

The truth was that everyone—or at least representative samples—did need to be tested, both for the virus and for the antibodies to it. That was the only way for policy makers to get a clearer sense of how prevalent the virus was, how quickly it was spreading, how lethal it was, and how many people had developed immunity to it. Without wide testing, they could only guess at those vitally important variables, even as they were making policy decisions with potentially devastating economic consequences.

While it was giving bad advice about face masks and tests, the CDC was projecting COVID-19 deaths based on a model that counterfactually assumed the absence of voluntary measures such as hand washing, working at home, avoiding crowds, and limiting social interactions. Such worst-case scenarios, which had a strong influence on state and federal policies, presented a false choice between doing nothing and imposing the sort of sweeping restrictions that we began to see across the country in March: orders closing "nonessential" businesses and instructing Americans to remain at home except for "essential" work or life-sustaining errands.

Another obvious option was the targeted use of isolation and quarantine, coupled with contact tracing, to protect the public from known or suspected disease carriers. But that approach was foreclosed by the test kit shortage, which made it impossible to do the screening that such a strategy requires. And because meager testing resources left state and local officials ignorant of crucial facts about the epidemic, they made policy decisions without the evidence necessary to assess their proportionality or cost-effectiveness.

The Rationale for Coercive Measures

The general case for using force in response to outbreaks of contagious illnesses is straightforward. Someone who carries a potentially lethal pathogen, like someone who dumps toxins into the water or air, endangers other people. Government responses to that threat clearly fit within the justification for state action limned by classical liberal philosopher John Stuart Mill in his 1859 essay On Liberty: "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant."

Mill's principle distinguishes between the broad and narrow conceptions of public health as a license for government intervention. It rules out paternalistic policies such as alcohol prohibition (which he opposed) while allowing the exercise of power over individuals (such as disease carriers) who pose a direct threat to others.

The U.S. Supreme Court has long recognized that states have broad authority, under their general "police power," to protect the public from communicable diseases. "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others," the justices observed in Jacobson v. Massachusetts, a 1905 decision that upheld mandatory smallpox vaccination.

But the Court also said public health authority has limits: "An acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons."

State quarantine laws, which include safeguards aimed at protecting the rights of alleged carriers, reflect that balance between protecting the public and respecting individual freedom. The quarantine regulations in Washington, the first state to report a COVID-19 outbreak, illustrate the tension between those two goals.

Under Washington's regulations, a local health officer can obtain a court order requiring isolation or quarantine by showing there is a "reasonable basis" to believe it is "necessary to prevent a serious and imminent risk to the health and safety of others." Those orders last up to 10 days but can be extended up to a month, based on "clear, cogent, and convincing evidence that isolation or quarantine is necessary to prevent a serious and imminent risk to the health and safety of others."

There are several restrictions on that authority. The health officer must first make "reasonable efforts, which shall be documented, to obtain voluntary compliance" or else determine, "in his or her professional judgment," that "seeking voluntary compliance would create a risk of serious harm." The rules also specify that "isolation or quarantine must be by the least restrictive means necessary" to prevent the spread of a communicable disease.

The health status of individuals subject to orders "must be monitored regularly to determine if they require continued isolation or quarantine," and they "must be released as soon as practicable" when the health officer determines that they no longer pose a threat. Isolated or quarantined individuals have a right to petition for release, with the assistance of court-appointed counsel, in which case the government has to "show cause" for their continued detention.

Such due process protections are not merely theoretical. In 2014, Kaci Hickox, a nurse who had treated Ebola patients in Sierra Leone, successfully challenged a three-week home detention order issued by Maine's Republican governor.

To meet the standard set by Maine's quarantine law, the state had to present "clear and convincing evidence" that Hickox posed a "public health threat" and that a 21-day quarantine was "the least restrictive measure" to deal with it. Charles LaVerdiere, chief judge of the Maine District Courts, ruled that any potential threat posed by Hickox, who had tested negative for the virus, could be adequately addressed by "direct active monitoring" to detect the onset of symptoms should she become ill. Since Hickox "currently does not show any symptoms of Ebola and is therefore not infectious," LaVerdiere said, forcibly confining her to her home was not justified.

From Quarantines to Lockdowns

Targeted quarantines like the one that Hickox challenged are a far cry from the stay-at-home orders that state and local governments issued in response to COVID-19. Those policies were not based on an allegation that any particular individual or group posed a public health threat, and it's likely that the vast majority of the people affected by the orders were not actually carrying the virus.

In early March, a week before local and state governments began imposing COVID-19 lockdowns, Vox asked Lindsay Wiley, a health law professor at American University's Washington College of Law, about the legality of such policies. Wiley said "a mandatory geographic quarantine" would "probably be unconstitutional under most scenarios" but noted that the issue had never been squarely addressed.

"The courts would typically require government officials to try voluntary measures first," Wiley explained, "as a way of proving that mandatory measures are actually necessary. Furthermore, any mandated measures would have to be narrowly tailored and backed by evidence….To pass constitutional muster, an order not just urging but requiring all people within a particular area to stay home would have to be justified by strong evidence that it was absolutely necessary and that other, less restrictive measures would be inadequate to slow the spread of disease."

Around the same time, Cornell law professor Michael Dorf noted the disjunction between lockdowns and the standards prescribed by quarantine and civil commitment laws. "In normal times, the government may not confine people for the public safety absent 'clear and convincing evidence' that they pose a danger to themselves or others," he wrote in a Verdict essay. "One would hope that during a pandemic the courts would construe that standard on a population basis rather than one by one. Thus, while there may not be clear and convincing evidence that any particular asymptomatic individual poses a threat, there is such evidence for the population as a whole."

Even if it were possible to make such a judgment about "the population as a whole," it would require evidence concerning the prevalence of the COVID-19 virus that policy makers did not have when they imposed the lockdowns. Without early and wide testing, politicians had no idea how many Americans were infected, let alone how prevalence varied from one part of the country to another. For the same reason, they did not know how lethal the virus was, a factor that surely should figure in decisions affecting the liberty and livelihoods of so many people.

There is historical precedent in the United States for trying to reduce the spread of disease by legally restricting social and economic activity. During the 1918 Spanish flu pandemic, for example, St. Louis banned public gatherings and closed schools, movie theaters, and pool halls. San Francisco shuttered "all places of public amusement." But the restrictions of that era were not as pervasive or as broad as the measures implemented in response to COVID-19, which confined hundreds of millions of people to their homes except for government-approved purposes.

Lockdown supporters thought the experience with the 1918 epidemic reinforced the case for more aggressive and uniform measures. They argued that cities like St. Louis and San Francisco fared better than cities like Philadelphia, which acted later. If more cities had imposed broad restrictions early on, they suggested, the death toll from the pandemic—which ultimately killed some 50 million people worldwide, including about 675,000 in the United States—might have been lower.

They may be right about that. But if the effectiveness of those measures remains unclear a century later, what chance did state and local officials have of making wise decisions about COVID-19 in the heat of the moment without knowing how many people were carriers, how many were asymptomatic, how many had developed immunity, or how many could be expected to die from the disease? Uncertainty about those basic facts made it impossible to properly weigh the costs and benefits of the course they chose.

Even as it rejected the plea of a man who objected to mandatory smallpox vaccination in Jacobson, the Supreme Court allowed that judicial intervention might be appropriate when regulations go "far beyond what was reasonably required for the safety of the public." But as politicians across the country shut down the economy this spring and ordered people to stay home until further notice, they did not have the information required to make that judgment.


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