Desolate winter scene.

A Timeline of Biden’s Pandemic Response, Part 4: Winter of Death (December 2021 – Present)

This series, which will run in four parts, has been adapted from “A year in, how has Biden done on pandemic response?” which was originally published on January 5, 2022 on Medium. Read the first, second, and third parts here.

By Justin Feldman

On December 1, 2021, the CDC issued a press release announcing that it had identified a case of the Omicron variant in the U.S. for the first time.

White House insiders admit that they were unprepared for Omicron, just as they were unprepared for Delta. Vice President Harris recently told an interviewer that the administration was caught flatfooted because their scientific advisors never warned that such variants could crop up (at least two of these advisors, Rick Bright and Celine Gounder, begged to differ).

While vaccination still provides powerful protection against hospitalization and death due to infection from Omicron, protection against symptomatic illness is weaker than before, particularly among those who have not received boosters. And though evidence is mounting that the risk of hospitalization and death is lower for each person infected compared to Delta, Omicron’s extremely high transmissibility means that a large fraction of the population will become infected in a short time period, particularly in the absence of additional public health measures.

On December 21, as the highly contagious variant started to sweep the country, President Biden delivered remarks about the new threat. For the hundred million Americans who remain unvaccinated, the president’s speech warned of the imminent risk of hospitalization and death. For the vaccinated and boosted, Biden’s message was: Keep Calm and Carry On, all will likely be fine. And for Wall Street, the speech was meant to provide a crucial piece of reassurance: There would be no federal support for public health measures that restrict commerce.

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Empty toolbox.

A Timeline of Biden’s Pandemic Response, Part 3: We Have the Tools (Sept. – Dec. 2021)

This series, which will run in four parts, has been adapted from “A year in, how has Biden done on pandemic response?” which was originally published on January 5, 2022 on Medium. Read the first and second parts here.

By Justin Feldman

Over the summer of 2021, concern grew that the vaccines were not providing the near-perfect protection against symptomatic disease and transmission that had first emboldened the administration to jettison other public health measures.

It was initially unclear whether the issue was Delta’s higher transmissibility or waning immunity from vaccines, as the first groups had been vaccinated nearly a year prior. There was noticeable concern from CDC, which acknowledged the “war has changed” in a set of leaked slides from July 29, 2021. Of particular concern were case reports from Massachusetts and internationally of high viral loads observed among those who were vaccinated and infected. In late July, CDC reversed course on its mask guidance and recommended indoor masking for all, including the fully vaccinated, in counties with high transmission. In late September 2021, CDC reversed course on its quarantine guidance, which had previously stated that fully vaccinated people should not quarantine after a known SARS-CoV-2 exposure.

These changing epidemiologic realities could have brought about a course correction and a push for other public health policies to complement vaccination. Instead, the administration mostly adapted by shifting its messaging.

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Traffic light.

The COVID-19 Pandemic, the Failure of the Binary PHEIC Declaration System, and the Need for Reform

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Ilja Richard Pavone

The COVID-19 pandemic has raised unprecedented challenges for the global health framework and its long-term consequences are not yet in full sight. The legal and institutional regime aimed at preventing and controlling the spread of infectious diseases, grounded on the International Health Regulations (IHR) was heavily criticized.

The alarm mechanism based on the declaration of Public Health Emergency of International Concern (PHEIC), in particular, has been severely tested. A PHEIC is an extraordinary event that constitutes a potential public health risk through the international spread of a disease outbreak. The WHO Director-General bases his decision to “ring the bell” upon the technical advice of an Emergency Committee (EC) carrying out “an assessment of the risk to human health, of the risk of international spread, and of the risk of interference with international traffic.”

A PHEIC, then, is declared only when an event is already sufficiently acute and has started to spread internationally. It is not an early warning, but a formal alert, and in the case of COVID-19 it was issued with extreme delay only on 30 January 2020, (one month after notification of early cases by the Chinese government), after Beijing had already adopted quarantine measures around the city of Wuhan, and draconian measures to curb the spread of the disease in the country had been announced.

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Vial and syringe.

A Timeline of Biden’s Pandemic Response, Part 2: A Pandemic of the Unvaccinated (May – Sept. 2021)

This series, which will run in four parts, has been adapted from “A year in, how has Biden done on pandemic response?” which was originally published on January 5, 2022 on Medium. Read the first part here.

By Justin Feldman

Framing vaccination as a way to opt out of the pandemic, and understanding the unvaccinated to be political enemies, has helped absolve the Biden administration of its responsibilities to protect the public’s health and facilitated the relentless push to restore “normalcy” (i.e., full economic activity).

The administration knows better: In September 2020, while the vaccines were still being tested, key figures in Biden’s orbit warned that it was unlikely vaccination alone could sufficiently control the pandemic.

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President Joe Biden and Vice President Kamala Harris.

From Shutting Down the Virus to Letting it Rip: A Timeline of Biden’s Pandemic Response

This series, which will run in four parts, has been adapted from “A year in, how has Biden done on pandemic response?” which was originally published on January 5, 2022 on Medium. 

By Justin Feldman

Welcome to our “winter of severe illness and death.”

Hospitals are becoming overwhelmed in various parts of the U.S., and one model predicts more than 120,000 COVID deaths will occur in the first two months of 2022.

How did we get here? How is our Democratic president — who ran, in part, against Trump’s horrid pandemic response — letting the virus rip? How did we get to a point where a key organizer of the Great Barrington Declaration, a right-wing libertarian campaign opposed to public health measures, has stated that Republican and Democratic states alike have adopted policies in line with their philosophy? As hospitals fill up around the country, why are political leaders doing nothing to at least try to “flatten the curve”?

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The Mexican-American border, with some construction still ongoing on the American side.

Pandemics without Borders? Reconsidering Territoriality in Pandemic Preparedness and Response Instruments

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Raphael Oidtmann

The COVID-19 pandemic has (yet again) disclosed that, in contemporary international law, the notion of borders resembles a distinct emanation of legal fiction, i.e., “something assumed in law to be fact irrespective of the truth or accuracy of that assumption.” This characterization of international borders holds particularly true with a view towards managing, containing, and countering the spread of highly contagious pathogens: especially in the context of responding to the global COVID-19 pandemic, it has hence become apparent that the traditional conception of borders as physical frontiers has been rendered somewhat moot. On the contrary, the pandemic experience has proven that a more flexible, fluid, and functional understanding of (international) borders might be warranted, also with a view towards (re-)conceptualizing international health law.

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Geneva, Switzerland - December 03, 2019: World Health Organization (WHO / OMS).

Towards Member-driven International Pandemic Lawmaking

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Ching-Fu Lin and Chuan-Feng Wu

The COVID-19 pandemic has blatantly exposed the flaws of the World Health Organization (WHO) and its International Health Regulations (IHR) in addressing cross-border communicable diseases. Commentators have examined the IHR’s decades of struggle in fulfilling its objectives to control cross-border pandemics such as COVID-19, pointing out problems over the level of obligation, precision of language, delegation of power, settlement of dispute, and lack of enforcement power, among others. What has been overlooked, however, is the crucial question of whether the institutional design of the IHR enables the WHO and its Member States to deliver good global pandemic governance.

We argue that the IHR is ill-designed: its rules and mechanisms are disproportionately tied to the Director General’s (DG) exercise of power, rendering insufficient member access to and participation in core decision-making and greater tendency of regulatory capture. For example, the IHR failed to facilitate the timely declaration of a Public Health Emergency of International Concern (PHEIC) due to the DG’s and the Emergency Committee’s misinterpretation and misapplication of rules allegedly driven by political considerations. On 23 January 2020, even when COVID-19 cases had already been found outside of China, thereby indicating the risk of cross-border transmission (IHR Article 12(4)(e)), the second meeting of the Emergency Committee decided to confine the definition of “international spread” to “having actual local spread of COVID-19 in a country beyond China,” instead of “having the potential for, or a risk of, cross-border transmission,” and refused to declare a PHEIC. The WHO is also criticized for abusing its bureaucratic influences to further the agendas of individual Member States like China, letting politics override science.

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Society or population, social diversity. Flat cartoon vector illustration.

The Right to Participation in Global Health Governance: Lessons Learned

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Sara (Meg) Davis, Mike Podmore, and Courtenay Howe

What should the role of those most affected by pandemics be in future pandemic governance and co-ordination mechanisms?

Drawing on human rights standards and principles, and on existing structures in the HIV, TB and malaria sectors, we argue that the human right to participation should extend to permanent seats and votes for civil society and affected communities on governance boards.* Our argument is informed by an analysis by STOPAIDS, Aidsfonds, CSSN and Frontline AIDS, by consultations led by STOPAIDS, and by the examples of the Global Fund to Fight AIDS, TB and Malaria (“the Global Fund”), Unitaid, and the Access to Covid Technologies-Accelerator (ACT-A).

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Linking entities.

A Shared Responsibility Model

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Sharon Bassan

Piecemeal and fragmented policymaking during COVID-19 underscored the need for an equity-focused global health agenda. Several international health law mechanisms, such as the International Health Regulations (IHR) and “soft law” frameworks, try to bring together relevant stakeholders to the table, help ensure international sharing of medical information, and facilitate equitable distribution of the benefits of research in developing vaccines and therapeutics. Nevertheless, their application during COVID-19 did not result in an effective global governance. Most responses were nationally-focused, lacked global commitment and solidarity, failed to notify the WHO of novel outbreaks, and were non-compliant with its professional recommendations.

Many agree that the solution should be multileveled and structural­ — a result of the connection and cooperation between participants. The prism of the “shared responsibility model” provides an interesting opportunity to consider potential global health governance models for emergency actions. My refined version of the model is based on Iris Young and Christian Barry’s suggested models, and includes two pairs of parameters, engaging and assigning. Engaging parameters locate the involved actors, and explain why they are assigned responsibilities. Assigning parameters address the type of duties each actor bears, and the site where they are expected to take action.

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Vial and syringe.

Addressing IP Barriers in the Context of a Pandemic Treaty

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Paul Ogendi

Tackling the question of how to address the needs for sharing scientific research, pooling technology, and know-how in diagnostics, therapeutics, and potential vaccines in future epidemics is fundamental to any pandemic treaty discussion. Moreover, we also need to consider how such a treaty might address potential conflicts with the Trade Related Intellectual Property Rights (TRIPS) agreement.

First of all, market-based solutions do not work in the context of global pandemics as has been demonstrated in the COVID-19 pandemic that is currently ravaging the world. Market-based solutions demand putting too much faith in the private sector, both in terms of capacity (supply chains, etc.) and in terms of equity. By relying on the private sector in the context of COVID-19, many countries are struggling to secure adequate personal protective equipment, testing kits, and more importantly life-saving vaccines.

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