hand opening white plastic pvc window at home.

It’s Time for the Federal Government to Get Back to Protecting the Nation Against COVID-19

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.

Read More

People wearing masks on bus.

Flaws in the Textualist Argument Against the CDC Mask Mandate

By Stefan Th. Gries, Michael Kranzlein, Nathan Schneider, Brian Slocum, and Kevin Tobia

In Health Freedom Defense Fund, Inc. v. Biden, the United States District Court for the Middle District of Florida ruled that the U.S. Centers for Disease Control and Prevention’s transit mask order, which was issued to stem the spread of SARS-CoV-2, exceeds the agency’s statutory authority, and struck down the mandate through a nation-wide injunction.

The district court’s reasoning exemplifies modern textualism. It focuses on the text of the 1944 Public Health Services Act (PHSA), which the Biden Administration claims authorizes the CDC’s transit mask order. The court relied heavily on the statute’s “ordinary meaning” and especially one word: “sanitation.”

Does the evidence support the court’s linguistic conclusions? Our team — of linguists, social scientists, philosophers of language, and lawyers — took a second look. We conclude that the district court’s approach fails on its own textualist terms. It gives the impression of selective reading of the linguistic record, rather than the careful investigation of meaning that textualism claims to champion.

Read More

children wearing masks.

Reconsidering Mask Mandates

By Carmel Shachar

The desire to get back to “normal” is an understandable one. And despite their prevalence for the last two years, masks don’t fit into most people’s concept of normal.

But removing mask requirements means rejecting yet another public health tool to control the pandemic and protect our health care system.

First, some context: most states haven’t had indoor mask mandates in place for many months. As of February 10th, only Washington, Oregon, California, New Mexico, Hawaii, Illinois, and Delaware had statewide indoor mask mandates. These remaining few states are now taking steps to end mask policies. Some states have narrower mask mandates that apply to schools, and are similarly moving to end such policies.

But the decision to end these mandates is not made in a vacuum. We should be thinking about what other public health initiatives and components should be in place before we lift these protections.

Read More

A half face dust mask and HEPA filter over white background.

Being an Adult in the Face of Omicron

By Jennifer S. Bard

To those who believe that the federal government is a benign force doing the best they can to fight the COVID-19 pandemic and keep us all safe, I have two words of advice: Grow up.

Neither the U.S. Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC), or Dr. Fauci should be anthropomorphized into a benevolent but perhaps out-of-touch parental figure. They are not.

As a matter of law, the government, in contrast to your parents, or school, or perhaps even your employer, does not have a fiduciary duty to protect your (or any individual’s) health and safety. As the Supreme Court said in Deshaney v. Winnebago Country Dept of Social Services, 489 U.S. 189 (1980) and again in Castlerock v. Gonzales, 545 U.S. 748 (2005), individuals do not have an enforceable right to government protection unless the state itself creates the danger. Their duty, if it exists, is to the public in general, which can encompass many factors beyond any one person’s health.

Just knowing that the government, duly elected or not, has no obligation to protect you or your family should be enough to look at its pandemic guidance as minimum, rather than maximum, standards. It should also encourage you to be proactive in taking precautions beyond those “recommended,” rather than seeing these minimal standards as unwarranted restrictions that can be negotiated down.

Read More

Gloved hand grabs beaker with rolled currency.

Leverage COVID-19 Frameworks to Prepare for the Next Pandemic

By Matthew Bauer

How should scientists, policy makers, and governments balance efforts to address the current pandemic with initiatives to prevent the next one?

We have seen this play out before during the 2003 SARS crisis. A burst of research funding and resources were thrown at tackling the health emergency that spread to 29 different countries. Ultimately, enormous efforts across the globe were able to halt the crisis, but as scientific research continued post-outbreak, it became difficult to sustain funding.

Read More

Freeway on-ramp

The Government Needs to Construct On, Not Off, Ramps to Combat the Latest Wave of COVID

By Jennifer S. Bard

Over the past two weeks, the news coming in about the spread of COVID-19 has been eerily familiar. Cases are rising all over Europe, not just in under-vaccinated Eastern European countries, but in England, the Netherlands, and Germany — all of whom have much higher rates of vaccination than the U.S. At the same time, cases across the U.S., including in cities like LA, DC, and Chicago have stopped falling, and are rising rapidly in the Mountain West, including the Navajo Nation. Hospitals in Colorado have already reached crisis capacity.

Whether the increase is attributable to the emergence of yet another variant, or perhaps is a natural artifact of waning immunity, it is very real and demands a level of attention from our federal government that, once again, it is failing to provide.

Yet in the face of now too familiar signs of resurgence, already being called a “Fifth Wave,” not only are the usual minimizers advocating reducing existing measures to prevent spread, but cities and states are rolling back what few protections remain intact. It is in the face of this foolish movement to drop our guard that the federal government is, again, failing to use the powers it has beyond vaccine mandates to create much needed on-ramps for mitigation measures as the country heads into winter.

Read More

Checklist.

Casualties of Preparedness: Rethinking the Global Health Security Paradigm

By Manjari Mahajan

The calls for a new pandemic treaty, like the genesis of the International Health Regulations (IHR), have been anchored within a paradigm of “global health security.” Before undertaking new projects of international lawmaking, it behooves us to examine this dominant paradigm and assess whether it actually leads to the goal of pandemic preparedness across countries. At stake are the future contours of a global normative, legal and infrastructural machinery and whether its animating logics are historically informed, evidence-driven, and geographically equitable.

The prevailing global health security paradigm was institutionalized in international law through the IHR, a policy centerpiece that was most recently revised in 2005 in response to a series of new infectious diseases including AIDS, SARS, and Ebola. At its foundation, the schema identifies the problem at hand as outbreaks of emerging infectious diseases, which become global security threats as they travel across borders. The focus is very much on new and re-emerging infectious diseases, and not ongoing health-related problems in a population. Moreover, this framework is animated by a special anxiety about contagion from poorer, purportedly primordial and volatile countries in the global South to the North.

The emphases on new infections and preventing their travel from the South to the North have resulted in a politics of control and enforcement that carry with it particular normative and infrastructural demands.

Read More

Mexico City 03082021 Feminist march against gender violence, March 8 in Mexico thousands of women protest in the streets for safety and better living conditions, using banners.

Strengthening Global and National Governance for Gender Equality in Health Emergencies

By Anna Coates

An international instrument on pandemic preparedness and response opens a much-needed space to highlight the centrality of gender inequality considerations in health emergency responses.

With an eye to inclusive governance, investment in gender expertise, and strengthening existing normative mechanisms and architecture for gender equality at global and national levels, a new intergovernmental instrument offers an opportunity for future health emergency preparedness and responses to meaningfully contribute to gender equality.

Read More

Many people together around the world. 3D Rendering.

The Pandemic Treaty as a Framework for Global Solidarity: Extraterritorial Human Rights Obligations in Global Health Governance

By Benjamin Mason Meier, Judith Bueno de Mesquita, and Sharifah Sekalala

Rising nationalism has presented obstacles to global solidarity in the COVID-19 pandemic response, undermining the realization of the right to health throughout the world.

These nationalist challenges raise an imperative to understand the evolving role of human rights in global health governance as a foundation to advance extraterritorial human rights obligations under global health law.

This contribution examines these extraterritorial obligations of assistance and cooperation, proposing human rights obligations to support global solidarity through the prospective pandemic treaty.

Read More