NEW YORK, NEW YORK - APRIL 05: Emergency medical technician wearing protective gown and facial mask amid the coronavirus pandemic on April 5, 2020 in New York City.

Déjà Vu All Over Again

By Jennifer S. Bard

The COVID-19 pandemic has shown us time and time again that whatever progress we make in curbing transmission of the virus is tenuous, fragile, and easily reversed.

And yet, we continue on a hapless path of declaring premature victory and ending mitigation measures the moment cases begin to fall. We need only look back to recent history to see why relaxing at this present moment of decline is ill-advised.

Let’s go back just a few months to May 2021. For a few weeks this past spring, it seemed like our long national COVID-19 nightmare was over.

Three safe and effective vaccines had achieved U.S. Food and Drug Administration (FDA) emergency use authorization. The federal government had launched a massive nationwide effort to provide the vaccine, free of charge, to anyone who wanted it age 18 and up. It looked like the sacrifices that people had been making — wearing masks, staying home, avoiding almost every kind of indoor event — were paying off. Hospitals began to report the presence of zero COVID-19 patients in their ICUs and President Biden’s March goal of a back to “normal” July 4th seemed, to many, reasonable.

But there were already signs that things would not accord to these expectations. Months earlier, in February 2021, a new version of the virus was sweeping through one Indian State after another, resulting in shocking pictures of devastation and death as hospitals ran out of space and oxygen.

Yet, in May 2021, U.S. Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky announced that so much progress had been made fighting COVID-19 in the U.S. that those vaccinated no longer needed to wear masks.

It was a big mistake. The consequences were immediate and predictable: Mask wearing was over. Mask mandates for everyone (including the unvaccinated) disappeared. People began to travel again, eat in restaurants, get their hair cut, go to movies. As summer started, schools at every level, kindergarten through college, planned a return to a fully in-person school year. Articles began appearing everywhere urging sympathy with those who were “afraid” to give up their masks, and even diagnosing it as a mental illness.

By June, Delta had become the primary cause of COVID-19 infection in UK, and hospitalizations and deaths were rising.

By July 4th, the CDC, and most public health folks, already knew that the Delta variant had become the dominant strain of the virus in the U.S. — and that it wasn’t just different, it was far worse — twice as transmissible as the original COVID, and seemingly more lethal. Vaccination rates remained relatively low; fewer than half of all states had met the federal target of vaccinating 70% of eligible adults.

Yet, on July 4th President Biden declared victory over COVID — and things just kept getting worse.

It soon became obvious that in many states, particularly those who had not voted for President Biden, the percentage of the adult population vaccinated was going to be far lower than 70%. It quickly became apparent, and was documented in a CDC presentation, that the disease that had killed so many older Americans was now attacking young adults. Unfortunately, as had been the case with the 1918-1919 pandemic, their vigorous immune systems became their worst enemies.

Young adults have turned out to be a low vaccine population. ICUs began to fill up again, this time with younger and younger patients. Even worse, as families were encouraged to emerge from their pandemic bubbles, young children — who had been shielded at the start of the pandemic — began to be exposed and pediatric ICUs soon saw the consequences.

By mid-to late July, the problem had become a crisis (this was revealed in hindsight from a leaked CDC presentation). Yet, despite having the evidence of growing spread and rapidly filling ICUs, neither CDC nor the administration took any measures to combat spread beyond cheerleading for vaccination. Someday the story will be told, but it was as if the administration was afraid that resuming social distancing measures would be “going backwards,” even though the pandemic was very much surging forwards. This was despite consistent polling that the majority of Americans were consistently in favor of masking and even vaccine mandates.

Finally, on July 26th, CDC reversed course and recommended a return to universal masking. But it took more than a month for federal vaccine mandates to follow. On September 10, 2021, amid a relentless surge, President Biden finally used the power he has as president to mandate vaccination in the military, by federal employees, by employers with more than 100 employees, and on federal property.

One month later, thankfully, case counts are decreasing in many states. And yet, here we go again, declaring victory when there is even less reason to do so now than there was in May. While cases seem to be going down, they are still at record rates. Data from the past week indicates that over 90% of counties in the U.S. have earned the dubious honor of being designated as “high risk of community spread.” Nevertheless, states continue to prematurely roll back the few protections we have to curb the spread of the virus.

For example, a health district in Western Michigan recently announced the rollback of mask mandates. More are sure to follow.

CDC knows this is a bad idea. Back in February, Director Walensky responded to similar rollbacks with direct language that it was “too soon.” It still is. Dr. Anthony Fauci, who continues to play the role of bearer of bad news, also knows this is a bad idea — and has been warning of potential resurgences. Yet on Sunday, at a time when there is still no approved vaccine for children under 12, even he felt compelled to encourage trick-or-treating noting that “particularly if you’re vaccinated, you can get out there… I mean, this is a time that children love.”

COVID continues to spread throughout the globe and the staggering disparities in access to vaccination means that whatever progress we make in the U.S. can be eroded any minute by continued spread of the variants we know about and continued developments of those we don’t. Indeed, over the past few days, cases have stopped dropping in several states, notably Colorado, and Texas and Florida continue to triple down in their determination to block employer vaccine mandates.

Moreover, one of the very earliest reasons to implement social distancing, concern about overburdening the health care system, is still very much a threat. Not only are health care workers exhausted, there is every reason to be worried even now as COVID cases drop that they will be replaced by influenza, delayed diagnoses of serious illness in adults — the consequence of millions delaying preventative care, including cancer screenings — and infectious diseases in children, millions of whom have missed essential vaccinations.

In earlier posts, I have compared our national response to COVID-19 as analogous to those of hapless characters in horror movies who pass up opportunities to flee, only to experience fatal encounters from threats that are in fact still present. Any movement to roll back preventative measures like masking and vaccine mandates while the Delta variant is very much not under control risks the same result.

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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