By Jennifer S. Bard
Over the past two years, the Supreme Court has shown unprecedented hostility to efforts by both state and federal government to stop the spread of what every day turns out to be an even more deadly pandemic.
These decisions are devastating, and likely signal a continued attack on government authority, but they are not a reason to give up.
The federal government can still use its vast resources to slow the spread and continued mutation of the virus, by telling people what it knows of the danger, and what it knows about how to mitigate it.
But, to do that, it must make a commitment to the truth about COVID as it is in real time, a very serious current threat to health that is likely to be raging uncontrolled for quite some time, not, as we all might hope, a minimal annoyance fading into irrelevance. Doing so means giving clear and direct official guidance about mitigation to the entities and individuals not constrained by Supreme Court obstructionism who still are able to make decisions to protect the public’s health. It also means ignoring those who seek to minimize or downplay the threat. Let the truth be the rebuttal to their misstatements.
As an example of what should be left behind is this recent statement by U.S. Food and Drug Administration (FDA) Commissioner Robert M. Califf about the availability of booster shots for children over the age of five: “While it has largely been the case that COVID-19 tends to be less severe in children than adults, the omicron wave has seen more kids getting sick with the disease and being hospitalized, and children may also experience longer term effects, even following initially mild disease.”
By starting with an endorsement of baseless statements by COVID minimizers, he weakened what was otherwise a compelling call to get kids boosted.
The FDA has always known that COVID-19 presents severe risks to children, both on initial infection and in the damage it leaves behind. If it didn’t, there would be no justification for a vaccine in the first place. As the virus has continued to mutate into ever more contagious forms, evidence has piled up of the danger to fetuses, young children, and adolescents.
This same policy of trying to please everyone is evident in the U.S. Centers for Disease Control and Prevention’s (CDC) continued obfuscation of its very real concerns about the consequences of COVID and its spread. This is evident not just in the CDC’s watery language used to discuss the virus, but also in the new color scheme for the map communicating COVID risk levels, where the shades indicating danger have become muted pastels.
Even the White House, which claims a serious commitment to promoting vaccination, has pulled back from any of the things it could easily do to get third and fourth shots into the arms of everyone over 50 whose immunity to COVID, whether through vaccination or infection, has long since evaporated.
The government’s passivity might be best understood as coming from a state of shock over the truly crushing defeat by both the federal and state governments to use the law as a tool for protecting and promoting the public’s health. No one likes to lose.
In the past two years, the Supreme Court has rejected some of its most important and longstanding decisions on issues of religion, federalism, and the balance of power. Of most concern, many of these decisions have been made through emergency orders (so-called “shadow docket” rulings) with little to no explanation. Advocates now find themselves in a nightmare version of the Queen of Hearts’ Court in Alice in Wonderland.
Even worse, by refusing, for the most part, to commit themselves in the form of official opinions, the Supreme Court has both frightened and emboldened the rest of the federal judiciary. Federal district and appellate courts unsure of what is and is not binding precedent err on the side of denying protection.
Moreover, by acquiescing to the validity of nationwide injunctions issued by individual District Court Judges, the Court has inspired a series of remarkable rulings, such as the recent decision that the CDC lacks authority to identify effective measures to stop the spread of disease, and that the Commander in Chief lacks authority to make decisions about troop deployment.
Despite these rulings, the federal government still has considerable power to both lead and persuade. For example, by bringing together experts on air filtration and encouraging the involvement of the EPA, the White House Office of Science and Technology Policy is working to get the word out on highly effective and low cost interventions that can provide cleaner indoor air for everyone, such as opening windows and building portable air cleaners. At this point in the pandemic, there is nothing stopping the government from delivering a very clear message: “We don’t know why the Supreme Court isn’t letting us protect you, but still we are very much interested in doing so, and here’s how.”
People need to know that, under current conditions, they are unlikely to be immune based on past infection or vaccination, that masking is only fully effective if everyone wears one, and that those infected and showing symptoms can transmit the disease to others well beyond five days. And when that information changes, updates need to get out quickly.
No communication strategy is perfect, and if we’ve learned anything, it’s that COVID can change very quickly, but it’s well within the administration’s ability to be aware when a message is outdated or being misinterpreted and issue fast and accurate corrections.
What else can the government do? Send help! Just as the federal government has sent out tests and, to some extent, N95 masks, it could send out information about effective masking and instructions about air filtration. Early in the pandemic the Surgeon General sent out a now goofy but then very effective video instructing people how to make masks at home — and millions did. Why can’t these same people be advised to open their windows and make Corsi-Rosenthal boxes?
Providing better information might even be helpful to motivate pushback against the anti-mitigation measures passed by state legislatures or ordered by governors.
It is very likely that the federal government will not soon regain its ability to act through agencies to protect the public’s health. But that doesn’t mean it’s silenced. While private entities like airlines and employers often seek government regulation as political cover (that’s what OSHA and the CDC are for), in many states these private entities can act on their own and might do so if the demand for protection was loud enough. And even if they don’t, the federal government can still make a difference by taking the actions described above to support individuals and better protect the nation’s health and security.