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6 Actions the Federal Government Should Take in Response to the Delta Variant

By Jennifer S. Bard

Today, the U.S. Centers for Disease Control and Prevention took an important step in protecting the nation’s health by reinstating indoor masking for both vaccinated and unvaccinated alike, in particularly high-risk circumstances. That’s good. And so is the jump in institutions like the Veterans Health Administration requiring COVID-19 vaccination.

But we need to take more forceful action, and it needs to happen faster.

Just over the last few weeks, the Delta variant of the virus has swept through the United States, changing so many of the things we thought we understood about COVID-19. The federal government needs to find a way to forget past mistakes and misjudgments in the face of what can fairly be described as a new threat.

The COVID situation right now is much worse than it was last fall, when the virus was not only less contagious, but people also were far more cautious.

Unless we do something to stop it, every person exposed to the Delta variant will be infected by it, even those already vaccinated. This is because the vaccines we currently have do not offer sterilizing immunity — they do not prevent infection; but rather they prevent severe disease. It’s like the difference between the harm you’d suffer if shot while sitting behind bullet proof glass (no physical contact), versus while wearing a bullet proof vest (possibly a big bruise).

While vaccinated individuals are unlikely to get so sick as to be hospitalized, the consequences of even a mild or asymptomatic infection (the bruise, per the analogy) could be severe. Based on the information coming in from survivors and scientists, the long term effects of infection seem be among the worst of any virus, short of AIDS or Polio.

A virus is, as Dr. Michael Osterholm has repeatedly tried to explain, much more like an unstoppable tornado or a tidal wave than it is like a human entity who can be intimidated.

In general, the more we can see this threat as a force of nature, the easier it should be for those with the power to make policy to drop the pretense that they can hold back the tide of COVID-19 through force of will or stern words.

It isn’t clear to what extent the actions below can stop the harm already barreling towards us, but, absent the intervention of an Avenger, the federal government needs to step up and use the power it has to slow what has become a runaway train:

1. Adopt a zero-infection policy.

Given the track record of this virus for hitting the “worst case scenario” target again and again, we know enough to understand what the long-term burden on society may be if we continue to be casual about the consequences of infections — even among the vaccinated.

To reference Susan Sontag’s exhortation at a Wellesley College graduation, President Biden: “Be bold! Be bold! Be bold!” Own the reality that not everyone will agree on the danger of catching COVID until it’s too late to do anything about it (and maybe not even then, either). So, make a decision that U.S. policy will be to prevent infection and re-infection among the unvaccinated and vaccinated alike.

2. Shift from a vaccine-only approach to one that centers on non-pharmaceutical interventions.

Given how many people, right now, are unvaccinated, we have to develop a defense without them — that is, one that does not rely on hitting a target percentage of vaccinated adults. We need to refocus on masks and social distancing. Because that was working.

The burden of requiring mask wearing is so much lower than that of either vaccination or closing of public places or quarantining of individuals that it needs to be the all-out focus of every resource at the federal government’s disposal. We are lucky that masks work and many of the early supply chain issues have eased and high-quality masks are more available. But if people don’t start wearing them again, we could find ourselves in a dystopian nightmare with coming mutations that infect differently.

Today’s guidance from the CDC is a good first step, but the agency needs to go further. Indoor masking should occur without qualification: all individuals, regardless of vaccination status, should be required to wear masks indoors. Mask wearing should not be limited to only certain settings, like schools.

3. Establish a COVID-19 threat warning system.

We need to establish and communicate an evidence-based COVID-19 threat level. To do this, we must comprehensively test the population to find out where the virus is and to track its effects (including in asymptomatic/vaccinated populations). The CDC’s truly unbelievable decision NOT to track secondary COVID infections is exactly the wrong approach.

Once we establish such a system, we need to let people know what it is and how things are going. Is the National Weather Service at the table? Their experience giving warnings in rapidly shifting situations, like “increased pollution” or “fire conditions,” could be useful.

4. Identify one government official to lead the response and to speak to the public.   

Communication at all levels has been so poor during this pandemic that it is going to be difficult to find a person or a method to restore trust.

Even the series of leaks about a Sunday Camp David meeting preceding the CDC’s decision today undermines the trust of the public that they are being told the truth, even when the news is bad, as well as being given accurate information on what the government is doing and what actions they can take.

But step one is, as has been done in the past, to identify one official either on the basis of their job title (i.e., Surgeon General, Director of CDC), or expertise, to hold daily briefings. And that person must be seen as speaking for the entire federal government.

5. Tell the FDA that extraordinary times require extraordinary actions. They must immediately:

    • Develop a process for approving, in full, the three available vaccines as soon as possible. This fall is too late. Approval would set in motion the “cover” that employers and schools and the military need to mandate vaccination mandatory. Yes, an EUA is probably even better than full approval because it means the trials and the manufacturing of the vaccines are under real-time FDA supervision, but it has become a sticking point. If they balk, ask them if any vaccine has ever been as widely used pre-approval or gone through as much scrutiny as these have.
    • Accelerate clinical trials with children and find a way to issue an EUA for kids under 12. Let parents choose if they want to protect their kids, but respect that many parents would prefer to mask or isolate.
    • Respect and address the concerns people have about post-vaccine side-effects — don’t ignore concerns about fertility, share the animal data and ask the manufacturers for real answers.

6. Elsewhere in the federal government:

    • Instruct every entity under the control of the federal government, from post offices, to aircraft carriers, to immediately implement a masking policy reflective of current scientific standards as to what’s necessary for real protection — people should wear N95 masks, which are now much more available, or close-fitting surgical masks. They may wear whatever logo or fashion-forward masks they prefer over these masks that offer robust protection.
    • Instruct the Department of Education to require masking in every school, college, or university it either funds or regulates.
    • Gather the federal agencies that fund research or regulate it and require each and every one of them develop a masking policy.
    • Ask your cabinet to reach out to the people touched by their agencies to get more information about what populations like farmers, Native Americans, and recent immigrants need to be safe.

By all accounts, we are, this week, at an inflection point.

Without clear federal leadership about the risks, as well as the most effective ways to manage it, we risk disruptions this fall that we could not have imagined last fall. There will never be universal agreement on what measures are necessary and it is very important to identify the least intrusive measures to steer us out of this pandemic. That starts with honest information and good advice for those who want to protect themselves and clear guidelines and consequences for a hopefully shrinking percentage of the population that doesn’t.

We can do two things at once; we can work with Oliva Rodrigo to encourage vaccine uptake, but let’s also listen to Lizzo and wear our masks.

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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