By Jennifer S. Bard
Law can be a wonderful tool for promoting and protecting the public’s health. But its inherent bias towards stability is poorly suited to the challenges of addressing rapidly evolving public health crises.
Two current examples — the ongoing opioid overdose crisis, and the COVID-19 pandemic — illustrate the issue starkly.
In both cases, the measures needed to address these two serious crises are hampered by one of the core weaknesses of the U.S. legal system when it comes to addressing serious, ongoing public health crises: there is no mechanism to make swift, responsive adjustments to the law in the face of changing information.
As recognized by then-professor Stephen Breyer in his 1984 work, Regulation and Its Reform, because there is no inherent review process for U.S. laws, the process to change or even repeal a law is as difficult and politically complex as those made to pass them in the first place. There’s a great reason for this — the U.S. Constitution created a law-making process that deliberately balances majority and minority interests, promotes stability, and allows citizens to trust that rules will be consistently applied.
But what works for preserving liberty in a republic isn’t necessarily what works best for promoting and protecting public health. Another flaw noted by Prof. Breyer in using the legal system to solve public health problems comes much earlier in the process, in that there are no requirements to identify measures in advance by which to gauge a law’s success.
In regard to opioid use, this is exemplified by laws passed to control the rates at which the medications are prescribed. These laws have indeed reduced the number of prescriptions, but have had no effect on skyrocketing overdose deaths. This is because these overdose deaths are largely attributable to synthetic opioids, which are being manufactured and sold outside the pharmaceutical supply chain.
This inherent lack of legislative flexibility shouldn’t affect decisions made by regulatory agencies, like the U.S. Food and Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC), which are granted discretion by Congress, or by a state’s own public health agencies, to adapt to changing conditions when doing so isn’t in direct conflict with existing laws. And it is easier to change a guideline or a policy than to amend or repeal a law. But the stigma of reversing course permeates the process. This is exemplified by the CDC’s repeated stumbles in issuing effective guidance to counter the harm of a mutating virus as well as how difficult it has been to implement harm reduction measures to prevent opioid associated deaths. Our legal system’s distrust of, or distaste for, course correction, unfortunately prevents the policy adjustments that are so crucial to public health.
In the case of COVID-19 policy, we are facing the rapid spread of the Delta variant (nothing to do with the MCU) in the U.S. and across the globe. The World Health Organization (WHO) has called for universal indoor mask wearing, to which Los Angeles, Israel, Australia, and many countries in Asia have already responded.
At this point, it is critically important for the CDC to adapt its response to a rapidly mutating virus, as well as to active campaigns opposing both vaccines and mask wearing. And, as has so often been the case during this pandemic, the list of things we don’t know about the virus and its rapidly emerging variants is a long one. For example, it’s not clear whether the increasing hospitalization of young adults and children is because the Delta variant is more contagious, or because it causes a lot more harm. Also, although it seems as if the currently available vaccines mitigate the severity of COVID-19 (including the Delta variant) we know little about what, if any, protection they offer against the long term consequences of infection. Every day brings more information about the mechanisms by which the virus causes long term harm to the brain, the heart, the lungs, kidneys, and other organs. Moreover, as the number of people who have had and recovered from COVID grows, we hear more about the effects the virus has had on people’s day-to-day lives, even if they have been able to avoid the most serious sequalae.
Amid all this news of increasing death and risk of long-term illness, the ability of relatively cheap and non-invasive interventions like masks, hand washing, and social distancing to protect both the unvaccinated and the vaccinated from infection with Delta (and the inevitable variants already emerging) should be received with joy and celebration — perhaps equivalent to how condoms, universal precautions, and testing of the blood supply were championed as strategies to protect against HIV/AIDS.
But, at the federal level, there has been no response. And without CDC guidance on which to base legally enforceable local and federal mandates, we cannot provide effective population protection.
In fact, the only recent action on masking was to roll back federal guidance — it’s been about six weeks since the CDC announced its surprising and misguided advice that people who had completed the vaccination process did not have to wear masks inside or out, but people who were not fully vaccinated still should.
The CDC, and the Biden Administration, of which it is a part, argued that lifting the mask mandate would be an incentive for people to become vaccinated. This was despite evidence that, excepting pockets of vocal protestors, most people in the U.S. accepted the need to wear masks in order to prevent infection.
This changed guidance had the immediate and completely predictable consequence of ending the practice of routine mask wearing in public spaces in the United States. Yet despite the immediate, vehement, and continued protest of every credible public health professional, they have yet to reconsider.
Since then, mask mandates and the routine wearing of masks in public places has essentially ended, just as a new variant of the virus, which is far more infectious, has swept through the United States, and as opposition to vaccination has hardened to the point where rates of voluntary vaccination have likely stabilized to a point where they are unlikely to increase.
If anything, those spreading anti-vaccine messages have gotten more successful in their messaging. Those most likely to spread the virus, young adults, have heard and are concerned about difficult-to-counter rumors that they will impair future fertility. And although extension of the vaccine’s emergency use authorizations to children ages 12 and up can help increase the population’s vaccination rate, these same rumors are of serious concern to many parents.
By refusing to recognize changing circumstances and issue new guidance reflecting the need for indoor masking, the CDC is putting the nation at risk for the start of another disrupted school year (which is already happening in the UK), as well as the horror of the deaths of ever-younger patients and the risks of long-term COVID in children.
Just as those using synthetic opioids are disserved by the inflexibility of the legislative system, those at risk of infection or re-infection with COVID-19 (everyone) are also jeopardized by this tradition of not changing course, regardless of the looming iceberg ahead.
Note: I have presented this argument in a less compressed form in an article to be published later this fall in the Brooklyn Law Review, now available in very rough form on SSRN.