3D rendering of COVID-19 virus.

Consider the Fundamentals of Viruses When Crafting Law and Policy Responses

By Jennifer S. Bard

Lawyers and law professors are very much part of the ongoing efforts to make policy in response to the COVID-19 pandemic. Like everyone else involved, we face the particular challenge of being confronted daily with what seems to be an ever-changing flow of information about a newly emerged and rapidly mutating virus.

But what may help us better make or evaluate policy is a better understanding of some typical characteristics of viruses that make all of them very difficult to contain, rather than just the unique features of the one threatening us now.

Knowing more about the ways that viruses spread could help us avoid the pitfalls of declaring victory too early, rolling back existing infection control measures, and ending up worse off than we have been at any stage of this pandemic.

My Background

I offer this perspective on viruses based on my education in law, public health, and bioethics, and my experience in the legal and ethical issues of regulating, developing and testing vaccines in context of biodefense/bioterrorism.

Through that work, I learned a lot of very scary things about viruses — things that before now weren’t considered a necessary part of a liberal arts or legal education. And, as a non-scientist, I learned the fundamentals in terms accessible to a lay-person.

I hope this law professor’s overview is helpful in understanding why current claims of victory against COVID-19, combined with a rolling back of mask and social distance measures, should, based on what we know about how viruses behave, be cause for alarm.

The Virus Playbook

From the beginning, there has been a widespread perception that COVID-19 couldn’t be all that serious because it was “only a virus” like a cold or the flu.  That’s a little like saying we shouldn’t clear the beach at a fin sighting because a shark is “only a fish” like a guppy.

While viruses exist along a broad spectrum of potential to cause harm, some of them are indeed very harmful. Smallpox, Zika, polio, and measles are all viruses. The last significant, widely transmitted novel virus to land on U.S. shores was HIV/AIDS, for which there is only recently effective treatment and still no widely available vaccine.

New viruses can emerge anytime, leaving entire populations without any prior immunity or knowledge about their most deadly characteristics.

But there are characteristics inherent to viruses that can shape policy making — even if we don’t yet know all the specifics of its form.

  1. They mutate.

Viruses mutate as they replicate to infect new hosts. While viruses are not alive, they might seem like they are because their method of reproduction results in many small changes that can have the effect of extending their ability to infect new hosts. Much like a “fool me once, shame on you” situation, it is necessary for viruses to change in order to infect a host who has successfully fought off a previous version. If viruses did not mutate, they would eventually either kill all their potential hosts or find themselves in a situation where all the hosts had become immune.

This is why we need new formulations of the influenza vaccine every year, and why it has been so difficult to develop a vaccine against HIV. Viruses change so they can re-infect their hosts.

So, with the understanding that mutations are inevitable, it is always essential to contain the spread of a viral outbreak, either through mechanical prevention (masks, mosquito netting, social distance) or by developing a vaccine effective against its present form before it has time to evolve.

If the virus continues to spread — even if cases are declining — it will mutate, which can trigger a new wave of infections.

  1. They affect different people differently.

COVID-19, like many other viruses, can spread even though the person infected doesn’t feel sick. This is another virus survival tactic — “asymptomatic transmission” — because it encourages spread. People retreat to their sick beds only after they have had the chance to spread the virus to another host.

Without a massive testing program that includes as many people who don’t feel sick as those who do, it is very difficult to counter asymptomatic spread — as we saw here in the U.S. early in the pandemic. The only reliable way to know who has COVID-19 is to screen as many people as possible — something that is falling by the wayside as resources turn towards vaccination.

Along the same lines, the threat of COVID-19 was consistently underestimated because it causes a wide range of symptoms, some more serious than others. This, too, is characteristic of viruses, and is not a reason to be less concerned or to step back from efforts to stop its spread: on the contrary, it’s the very reason why we ought to be vigilant against its stealthy tactics.

  1. They can be worse than they initially seem.

Another way the virus has been underestimated is by assuming the sickness triggered by the initial infection is the full extent of the potential for harm. In fact, an infection can cause considerable damage even when a patient experiences no symptoms. This is why neither COVID-19 death rates nor hospitalization rates within a few weeks of diagnosis capture the full extent of the risks we face.

The working theory of why the 1918-1919 flu pandemic was so lethal for healthy young adults is because they were killed by their own body’s immune response. Scientists now believe that the extent of these cytokine storms may be attributable to genetics, and that they may occur weeks after the virus is gone.

In the context of COVID, a distinct, added concern is “long COVID,” which can cause considerable harm to people, including those who never had any symptoms, long after any direct or inflammatory harm should have subsided.

  1. They can remain dormant in hosts for decades, only to re-emerge and cause further damage.

For the longer term, Dr. Fauci has warned us repeatedly about not just “long COVID,” but also “post-COVID.”  Patients who recover without serious lingering effects may become very sick decades later.

This is because viruses can retreat into the spinal cord at the base of the brain and lay dormant until triggered in the future, either by a different infection or a general weakening of the host’s immune system. The most common example of this is shingles, a latent viral infection that is the product of a childhood chickenpox infection. Also, many adults who had polio as children can have their mobility affected by post-Polio syndrome much later in life. Information about post-Zika syndrome is also emerging.


My purpose in outlining some common features of viruses, which are likely shared by COVID-19, is to explain why so many experts who know a lot about how viruses behave — like Dr. Anthony Fauci, Dr. Megan Ranney, and Dr. Michael Osterholm — feel so strongly that it’s a mistake to roll back protections based on the emerging mutations, despite the current drop in the number of reported cases.

This pattern of cases first surging, then receding, only to come back again months later is characteristic of viruses — that’s what’s meant by “waves” of infection in both the 1918 pandemic and the summer outbreaks of polio in the 1940s and 1950s. Whether a virus really goes away, returns in a new form, or returns much as it left, is something we can only know in retrospect — not at the first sign of retreat.

We all want COVID-19 to go away. It has taken terrible tolls on the whole world in terms of death, sickness, economic devastation, education, and mental health. And those urging caution are not advocating for European-style lockdowns. But based on what’s known about typical virus behavior, we shouldn’t let our guard down about testing, wearing masks, or avoiding crowds in the face of one that has already caused so much harm.

Jennifer S. Bard

Jennifer S. Bard is a professor of law at the University of Cincinnati College of Law where she also holds an appointment as professor in the Department of Internal Medicine at the University of Cincinnati College of Medicine. Prior to joining the University of Cincinnati, Bard was associate vice provost for academic engagement at Texas Tech University and was the Alvin R. Allison Professor of Law and director of the Health Law and JD/MD program at Texas Tech University School of Law. From 2012 to 2013, she served as associate dean for faculty research and development at Texas Tech Law.

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