- Telemedicine has become a crucial tool during the crisis. 2017 paper discusses the regulatory barriers that had constrained it [Shirley Svorny, Cato Policy Analysis; earlier here, here, and here]
- “Wondered why it’s been so hard to ramp up production of surgical masks and respirators? Why haven’t private companies flooded into the market to meet peak demand? Because they are regulated medical devices and new versions require FDA approval which can take months to obtain.” [Paul Matzko thread on Twitter]
- Asking former health care workers to “dust off their scrubs” and return for the emergency raises possible liability exposures [Lori Rosen Semlies, Wilson Elser] “Coronavirus could affect med mal rates: Experts” [Judy Greenwald, Business Insurance]
- A closer look at certificate of need laws, which suppress hospital bed supply [Eric Boehm, related audio clip with Jeffrey Singer, earlier and more]
- More on the relaxation of occupational licensure in medical jobs during the emergency [Michael Abramowicz, Jeffrey Singer, earlier]
- Return with us now to those days not so long ago when public health specialists seemed to be in the paper every day inveighing against alcohol, dietary choices, and such like [Elaine Ruth Fletcher, Health Policy Watch last year on World Health Organization (WHO) rumblings against alcohol; JAMA on furious fight over red-meat recommendations]
The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well-meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.
I’m grateful to Ingrid Jacques of the Detroit News for quoting me in her column on this subject yesterday:
“’We have no collective memory of going through this kind of thing,’ says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. ‘It’s an invasion of rights we normally wouldn’t let the government get away with.’
“We’re all getting a crash course on what exactly the government can do in times of crisis. It turns out, it’s a lot….
“… Once the virus subsides, limited??government champions should watch whether all the regulations in effect during the threat go away, too.
“’The government must put away these dangerous weapons once the emergency is over,’ says Olson.”
For a sense of the sweeping powers governments sometimes assert in the name of quarantine, isolation and lockdown—definitely not meant as an endorsement—check this New York Times account. (It at least quotes a former NSC official who says “The American way is to look for better outcomes through a voluntary system.”)
Because courts applying constitutional law tend to treat government power as at its legitimate zenith during a “hot” emergency, and (this is nothing new) grant maximum short-term deference to the authorities at such times, ordinarily robust constitutional rights bend at least until the immediate threat to life has passed.
Freedom to assemble and freedom to worship are central to the First Amendment, yet courts have upheld and would uphold bans on religious and political assemblies in times of epidemic. Second Amendment rights that courts would ordinarily enforce, such as to operate a gun store or get processing for a required permit, may also be suspended without a short-term judicial remedy. Indeed, the judicial remedy needed to enforce any right may fail if the courts are closed owing to an epidemic.
True emergencies do not last. When this is over, as it will be, both the courts’ vigilance and ours must be directed toward making sure the government promptly and fully relinquishes whatever emergency powers it has flexed. We will face a body of opinion intent on pressing that exact advantage, as in this Chicago Sun-Times column from Friday:
If we can fight a war against an enemy we can’t see or touch, we certainly could use draconian measures to fight the gun violence in our neighborhoods as well.
Watch out for this kind of thinking. We’re going to hear a lot more of it.
[cross-posted from Cato at Liberty]
- Get the truckers what they need: reversing itself, Pennsylania agrees to reopen all 17 closed turnpike service plazas, heavily relied on by truck workforce [Ashley, CDL Life]
- No, Senator, Medicare for All would not have kept us safe: “An Epidemic Big Enough to Accommodate Everyone’s Wish List” [Jacob Sullum] Has spending on the federal Centers for Disease Control and National Institutes of Health been squeezed, gutted, etc.? My colleague Chris Edwards checks the numbers;
- This is not the first time epidemics have interrupted the Supreme Court in its work [ABA Journal]
- Medical supplier, speaking anonymously “for fear of FDA retaliation,” says it has large quantities of protective masks ready that cannot be used or even unpacked until FDA gets around to inspection [Tom Rogan, Washington Examiner] As part of liability protection, new bill will allow masks manufactured for industrial uses to be put into health care service [Jeanne Whalen, Washington Post; earlier here and here]
- Good luck and renewed health to David Lat, founder of Above the Law and longtime friend of this site, who’s on ventilation in a New York hospital with a COVID-19 diagnosis [New York Law Journal, his Twitter and Facebook posts]
- Emergency measures have a way of bleeding into later policy: “Politicians Declare Eviction Moratoriums To Combat Coronavirus. Will They Give Up That Power After the Virus Fades?” [Christian Britschgi]
- Certificate-of-need laws in 38 states restrict hospital bed capacity by giving competitors a lever to object. More beds would have helped with emergency preparedness [Jeffrey Singer; more from Eric Boehm; bed crisis feared within weeks]
- White House, Congress negotiate on liability-limit measure aimed at freeing up 31 million expired but usable masks; “3M and Honeywell don’t feel comfortable providing them without assurances they won’t be sued.” [Michael Wilner, McClatchy; latest on HHS proclamation] Between death, business interruption, and enormous disruption to business practice, a landscape of litigation opens up [Bob Van Voris et al., Fortune]
- Proposed executive order would bar import of critical medical supplies from China, closing supposed “loophole” that could save your loved one’s life as shortages of ventilators loom [Ana Swanson, New York Times; Greta Privitera, Politico Europe on triage decisions at Italian hospitals reeling under equipment shortages]
- Courts canceling jury trials as virus spreads [Eric Turkewitz] Supreme Court building closes to public until further notice;
- Newark, N.J. threatens to prosecute persons who make false statements about the pandemic [Mike Masnick, TechDirt (“a masterclass in how not to deal with the problem of misinformation about the coronavirus”); Eugene Volokh (while some kinds of lies can be criminalized consistent with the First Amendment, many of those relevant here cannot]
- Memo to HR: EEOC has advised “that taking the temperature of all employees may violate the ADA under some circumstances, but has indicated that the rules may change during a pandemic” [Daniel Schwartz; employee temperature checks in Singapore]
“After suffering from the initial outbreak of the novel coronavirus (COVID-19), China appears to have succeeded at turning around its spread through the use of highly coercive measures such as widespread home confinement of both healthy and sick persons. Can societies with more individual liberty match its success without losing their character?” My new Cato piece argues that widespread testing has been a key to South Korea’s success and if the United States is to follow up it needs to open up regulatory permissions. With bonus provocation at the end about Bill Gates and billionaires!
- After a crackdown on saloon drinking backed by Theodore Roosevelt and others, creative New Yorkers opened 1500 new “hotels” and complied with rules linking alcohol to food by serving desiccated sandwiches meant not to be eaten [Darrell Hartman, Atlas Obscura on Raines Law]
- “‘The evidence is very, very strong that there’s a powerful potential health benefit if you can’t get people to quit entirely, to get them to switch from cigarette smoking to vaping,’ Olson said.” [Scott McClallen, Center Square] Here comes Massachusetts to make things worse [Jeffrey Singer]
- If you suppose that transcontinental air travel is worsening the risk of global pandemics, then you may suppose erroneously [Johan Norberg “Dead Wrong” video]
- Zoning will not bring slimness: “Fast-Food Bans Are a Dumb Idea That Won’t Die” [Baylen Linnekin] Having a supermarket enter a food desert has at best a minor effect on healthy eating [Hunt Allcott et al., Quarterly Journal of Economics, earlier]
- The imperialism of public health: wealth inequality, affordable housing declared topics for action by the public health profession [Petrie-Flom]
- “From the 1910s through the 1950s, and in some places into the 1960s and 1970s, tens of thousands — perhaps hundreds of thousands — of American women were detained and forcibly examined for STIs…. If the women tested positive, U.S. officials locked them away in penal institutions with no due process….. During World War II, the American Civil Liberties Union not only failed to oppose the Plan; its founder, Roger Baldwin, sent a memorandum encouraging its local branches to cooperate with officials enforcing it.” [Scott W. Stern, History.com]
- Public health campaign against arsenic-tainted wells in Bangladesh appears to have inadvertently increased child mortality in places where alternative was surface water, which is more likely to carry microbial contamination [Nina Buchmann, Erica M. Field, Rachel Glennerster, & Reshmaan N. Hussam, Cato Research Briefs in Economic Policy No. 180]
“Were there really more than twice as many sessions on global warming as on obsessive compulsive disorder? Three times as many on immigration as on ADHD?” Blogger and medical professional Scott Alexander at the American Psychiatric Association convention: “If you want to model the APA, you could do worse than a giant firehose that takes in pharmaceutical company money at one end, and shoots lectures about social justice out the other.” [Slate Star Codex]
- London ban on transit ads depicting “bad” foods winds up nixing images of Wimbledon strawberries and cream, bacon, butter, cheese, jam, honey, and Christmas pudding [Scott Shackford]
- And more: British medical journal The Lancet wants to do some highly non-consensual poking and jabbing at your midsection, with the aim of making you lose weight; highlights include funding activist campaigns, cutting business out of policy discussions, and routing policy through the least accountable international organizations [Christopher Snowdon, The Spectator; more from Snowdon on state-subsidized anti-food advocacy in Britain; Nina Teicholz]
- Pushing back on the Lancet panel’s guideline that each person be allowed no more than one egg and less than 3.5 ounces of red meat a week [Mark Hemingway]
- “The Problem With Nudging People to Happiness” [Randy Barnett reviews Cass Sunstein’s On Freedom]
- “Pharmaceutical Freedom: Why Patients Have a Right to Self Medicate”, Cato Daily Podcast with Jessica Flanigan and Caleb Brown;
- “Proposed Anti-Soda Bills in California Would Ban Big Gulps, Mandate Warning Labels on Vending Machines” [Christian Britschgi] “Medical Groups Endorse New Taxes and Marketing Restrictions on Soda — For the children, of course” [Baylen Linnekin]
- Sued if you do, sued if you don’t: drugmaker faces lawsuits over failure to provide Fosamax warning that FDA told it not to provide [Jim Copland, James Beck on Merck Sharp & Dohme v. Albrecht, pending at Supreme Court]
- On new APA masculinity guidelines, Sally Satel cuts to the point: will they improve the success of therapy for people seeking help? [Washington Post]
- What does it mean to say the opioid litigation might follow the tobacco model? [Rob McKenna, U.S. Chamber] Citing fate of earlier gun lawsuit filed by city of Bridgeport, state judge dismisses four lawsuits filed by Connecticut cities against opioid industry [Daniel Fisher, Legal NewsLine]
- I do miss the days when leaders of the public health profession focused on communicable diseases like typhus rather than running after Bloomberg grants to promote soda bans [Joel Grover and Amy Corral, NBC Los Angeles]
- Cooking the books on infant mortality: about those Cuban life expectancy stats [David R. Henderson]
- As artificial intelligence begins to make inroads into medical diagnosis, liability issues loom large [Beck, see related linked earlier]
How much risk did that recent “no level of alcohol drinking is safe” study find? For the one-drink-per-day group, “a total of 400,000 bottles of gin [was] associated with one extra health problem.” [David Spiegelhalter via Flowing Data] If one of those bottles should happen to fall, 399,999 bottles of gin on the wall…