By Daniel Polonsky
Dr. Anthony Fauci has noted that Australia had the fewest number of flu cases “in memory” during its winter flu season this year. He explained, “The theory is that all the precautions they took to contain the pandemic ‘averted a flu season.’” Australia had slightly more than 21,000 flu cases and only thirty-six deaths during its winter this year, compared to 247,000 cases and 560 deaths last year. It must be noted that coronavirus prevention measures cannot take all the credit for the reduction in flu cases in Australia. Experts explain that the combination of these measures and an unprecedented increase in the number of Australians opting to get vaccinated for the flu led to the flu being a relative non-entity. That said, it is clear that social distancing, mask wearing, and hand washing do more than minimize the spread of the coronavirus; they also protect against the flu, respiratory illnesses, and even the common cold. And some doctors have recommended continuing good public health hygiene practices to prevent the cold and flu post-pandemic—even staying home from work or school when you have the sniffles may reduce the transmission of illness.
In the last decade, the CDC estimates that between nine million and forty-five million Americans contract the flu yearly, with between 140,000 and 810,000 hospitalizations and between 12,000 and 61,000 deaths. If this year has taught us how we could minimize the spread of the flu, the question becomes whether we should continue to implement any coronavirus prevention measures post-pandemic. No one would suggest keeping all the current measures in place. Australian experts credit their school closures as a major factor in their nonexistent flu season, but no one wants to keep schools closed forever. Some public health experts have described virus prevention through a “swiss cheese” metaphor—no single prevention measure is 100% effective at preventing infection, but stacking multiple measures can reduce the spread of the virus by leaving fewer “holes” for the virus to get through. Should some of the less intrusive and less costly coronavirus prevention measures remain in place after the virus is under control? If minimal burdens will lead to less death and illness, then even a cost-benefit analysis would seem in favor of mandating unobtrusive measures that are backed by science, particularly if government subsidies supported the mandates. Some existing measures should continue, and other new ones could be implemented, whether through mandates or public education programs. The question is not whether we should implement virus-prevention policies and practices, but whether we can.
Legally, state governments could likely implement or extend coronavirus prevention measures to prevent communicable disease even absent a pandemic. While the Congressional Research Service has explained that the federal government may struggle to find sufficient authority for enacting public health measures like mask mandates, state governments have no such problem. Much has been written about the constitutionality of mask mandates, business closures, and stay-at-home orders. In short, as the Court explained in upholding California’s Executive Order limiting public gatherings in South Coast Pentecostal Church v. Newsome, “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” Chief Justice Roberts cited Jacobson v. Massachusetts, a 1905 case in which the Court upheld a mandatory smallpox vaccination. The Jacobson Court, like the South Coast Pentecostal Church Court, gave states broad latitude to protect the public, even where public safety measures may restrain the liberty of individuals:
“[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”
Scholars generally agree that even if the deferential Jacobson rule is construed to apply only in emergencies, states still have police power to protect public health. And even where constitutional rights are in question, those rights are not absolute. Laws can infringe on constitutional rights if they are narrowly tailored to further a compelling government interest. Consequently, the vast majority of constitutional challenges to virus prevention measures have failed, with some successful procedural challenges, and other narrow exceptions, particularly for religious objections. It is easy to think of current non-emergency public safety laws that are no less restrictive or coercive than those that could be useful in preventing the spread of respiratory diseases. Smoking bans and mandatory seat belt laws have routinely been upheld against constitutional challenges. States regulate smoking in part because of the significant health risk on second hand smoke—like improper mask-wearing, smoking harms public health in additional to individual health. Clearly, even in the absence of a pandemic, states have the legal authority to pass laws to protect the health of the general public, even if they minorly restrict the liberty of businesses and individuals.
The key obstacles to protecting public health are political and cultural, not legal. Government orders that require individual or financial sacrifice to protect others are often met with resistance, and so government actors may be reluctant to propose continued precautions. Three readily apparent causes of this resistance are American individualism, American distrust of science, and American capitalism. America’s seemingly stagnant culture, and our refusal to exhibit cultural flexibility, is a culprit for our failures of policy.
Even during a pandemic, public health orders have been met with resistance, and the responses to proposed measures are indicative of why politicians might not be willing or able to enact public health measures. For example, when Massachusetts announced that all schoolchildren would be required to get a flu vaccine in order to reduce the overall impact of respiratory illness during the pandemic, a vocal minority responded with protest. Some protested against this measure for the collective good out of a misguided understanding of constitutional protections of individual liberty. One protestor explained, “It’s about my right as a parent to make medical decisions for my family with our family physician.” Others spouted off misinformation that flies in the face of scientific consensus, claiming, “For healthy children there is no strong science [the] flu shot [is] effective,” or that vaccines cause autism. If there is such vehement opposition to mandatory vaccines during a pandemic, politicians may not muster the political willpower to enact them post-pandemic, even if they could save lives. And, of course, some have argued that saving lives is not worth the cost. Texas Lieutenant Governor Dan Patrick famously proclaimed that, as a senior citizen, he, along with other grandparents, would be willing to risk death if it would help the economy.
The cultural resistance to virus prevention policies is also the reason we need them. In a culture of rugged individualism, where some are unwilling to give up their “right” to a haircut in order to save the lives of others, mandates may be necessary. In a country full of scientific illiteracy and mistrust, where even the President contradicts his CDC Director and calls mask-wearing a “mixed bag,” causing an “infodemic,” mandates may be necessary. In a capitalistic society, where the bottom line justifies all, mandates may be necessary. This is the Catch-22: we need laws because America’s culture prevents widespread voluntary measures, but politicians will struggle to enact mandatory measures because of that same culture.
Law professor Lani Guinier once wrote that meaningful changes depend on ‘culture shifts,’ not just changes in legal rules. Research on how different societies react to pandemics has found that countries with collectivist cultures have been more effective at the social coordination required to recognize and adopt best practices. Author Meghan O’Rourke has described the “shift” Americans must make to fight the coronavirus as a radical shift in thinking from an individual-first to a communitarian ethos. She observed how some Americans discussing mask-wearing and travel in the pandemic made their decisions based on the perceived risk to themselves, rather than recognizing how their actions could put others at risk. She also connected our culture of individual responsibility with our fragmented health-care system, weak social safety net, and even workplaces without paid sick days.
Sick day policies are a perfect example: they are the result of the culture of individualism, scientific illiteracy, and capitalism, and could be fixed through laws if there was political willpower. According to epidemiology professor Robyn Gershon, more than a third of Americans are in jobs that offer no sick leave at all, and their employers are the kind least likely to supply health insurance, so it is harder to get medical proof that they can’t go in to work. And for low-income workers, asking for time off means missing an hourly wage that may be needed to pay rent or buy groceries, not to mention that in many states, there are no labor protections to prevent employers from firing workers who ask for sick leave. Gershon notes that America is a global anomaly in not guaranteeing paid leave of any kind, and America’s office culture often rewards those who go above and beyond, even if it means working while sick. Thus, America’s individualistic, capitalistic culture rewards and sometimes even requires going into work sick if it will make you and the boss more money, even at the expense of coworkers and the public. If we listened to scientists, workers would stay home, but the scientists and experts’ advice is drowned out by the demands of the workplace. Worst off all, Congress has the power to fix this if it can muster the political will. The Families First Coronavirus Response Act grants covered employees two week of paid sick leave when they are unable to work due to coronavirus quarantines. Granted, the Act only covers employees who work for employers with fewer than 500 employees—large companies are inexplicably exempt—but the Act is evidence that paid sick leave could be mandated.
All workers should be guaranteed paid sick leave and be encouraged to stay home when sick. Laws may be able to do the first part, if they can garner political support, but culture shift is needed for the second part. It will take scientific education on how diseases are spread, along with a shift toward collectivism and an acknowledgment that health should sometimes be prioritized over the financial bottom line. And even if companies may lose some money by encouraging sick workers to stay home, it is likely that the country would save on the health care costs for illnesses that could be caught early or prevented. Perhaps the government should step in and subsidize the business losses. Alternatively, the government could mandate sick time as a humanitarian necessity.
The United States needs systemic change in order to prevent preventable deaths, but to enact those changes, there must first be a cultural change. The government has long needed to step in with a healthcare system—but what reforms are politically possible depends on American culture. It is unacceptable that life-saving drugs like insulin cost hundreds of dollars a month, even with insurance. It is unacceptable that half of adults with employer health coverage report that they or someone in their household has skipped or delayed medical care or prescription drugs in the past year because of the cost. It is unacceptable that, by one estimate, 133,000 annual deaths in the United States are attributable to poverty. The government has been unable or unwilling to step in and fix these problems. The pandemic has laid bare public health issues that have long plagued this country, and innovators have also demonstrated that there are measures and programs that work. The government can mandate these preventative measures and help defray their costs, such as through subsidies for small businesses to buy expensive air filters, plexiglass shields, and hand sanitizer. But for politicians to enact these programs, American culture will almost certainly need to change.
Luckily, change is possible. Behavioral scientists tell us that customs can change. Not long ago, restaurants had smoking sections; now, smoking is banned in much of the country. With leadership, social norms can change rapidly. Government officials can lead by example and create sweeping change. Grassroots organizers can also set expectations and help create a culture shift. Some religious leaders are arguing that religious norms favor mask-wearing and preserving life. Laws will play a part, and may even help shift culture, but laws alone will not protect us. If we can create a culture of collective caring, then we may be able to protect each other.
Daniel Polonsky graduated from Harvard Law School in May 2021.
This post was originally published on the COVID-19 and the Law blog