The Legal Response to COVID-19: Legal Pathways to a More Effective and Equitable Response

COVID-19 is the new disease this country had been preparing to take on for decades.1 So far, the response has been a failure, with huge human and economic costs. While peer countries have managed to get the pandemic under a degree of control, the United States seems pathologically unable or unwilling to prevent rising cases and deaths. This is not a failure of resources: although decades of cutting health agency budgets is a big part of our problem,2 we remain a country rich in money and expertise. This is not a failure of individual courage; from health care workers through transport workers to people who produce and deliver food supplies, essential workers have shown up and done their jobs at significant personal risk. This has been, first and foremost, a failure of leadership and the development or implementation of an effective response. The law is integral to effective emergency preparedness and response.3 It sets out the powers and duties of officers and agencies, creates standards of conduct and performance, channels resources to individuals and institutions, and sets limits on arbitrary or discriminatory exercise of authority in times of crisis.4 Law is also an important factor in the background: as a pervasive force in social life, law both contributes to and is a means of reducing health inequities and their effects.5 The story of American pandemic response is sweeping and complicated. Crucially, the COVID-19 failure has, in important ways, also been a legal one. This failure occurred across multiple dimensions. Fundamental tenets of the US constitutional system and its customary functioning have been openly challenged by a federal administration that abstained from leadership and encouraged a Darwinian competition among states for scarce resources. Decades of pandemic preparation focused too much on plans and laws on paper, while ignoring the devastating effects of budget cuts and political interference on the operational readiness of our local, state, and national health agencies. The politicization of public health, from mask-wearing to the favored status enjoyed by some states, is a powerful exhibit in any evaluation of the continued health of the rule of law. Both inside and outside of the public health domain, our laws and the policies they are built on have failed to prevent racial and economic disparities in the pandemic's toll and, in-deed have aggravated them. COVID-19 has exposed too many empty promises of equal justice under law. COVID-19 has shed a brutal, unforgiving light on the weakness of many of the key structures that are meant to ensure the health and safety of our fellow citizens. Fundamental laws and policies, from policing to health care to privacy that have been ignored or band-aided over the years, have been exposed as totally inadequate. There has been a massive failure in legal implementation. Ample legal authority has not been used consistently, properly, or transparently as executive leadership has failed in many states and cities. In some states, governors or legislatures have reacted to COVID-19 with laws that reflected bad or inadequate policies, delaying state action and interfering with better-advised local measures through preemptive laws and orders. While the practical results of these failures are plain to see, their exact causes and what is required to reverse these legal failures are less obvious. This commentary summarizes key findings and recommendations from a collection of 36 topical legal assessments written by more than 50 independent legal experts.6 The authors have issued more than 100 specific legal recommendations for the president and Congress, governors and state legislatures, and mayors and city councilors across the country. The editors have organized them, and present them here, in 6 priority areas: Using Government Powers to Control the Pandemic; Fulfilling Governmental Responsibilities in a Federal System; Financing and Delivering Health Care; Assuring Access to Medicines and Medical Supplies; Protecting Workers and Families; and Taking on Disparities and Protecting Equal Rights. We begin with a description of the assessment process. The Assessment: Why and How For the public health law community, the seriousness of the COVID-19 threat was recognized and discussed as early as January and initial legal analyses began appearing the next month.7,8 Few of us predicted the extent of the failure of leadership and implementation that unfolded over the next few months, but nearly all of us saw that equity in intervention and disparities in impact would require legal attention and that there would be important legal questions to resolve in many specific domains such as housing, workplace safety, and vaccine development and procurement. In late March, a group of lawyers associated with the George Consortium (a network of public health law scholars and practitioners9) and the informal public health law network of Robert Wood Johnson Foundation grantees—all of them experiencing a surge in demand for legal information from the press, health agencies, advocacy groups, and individual practitioners—worked together to launch “COVID-Law Briefings” on Twitter, YouTube, and the “The Week in Health Law” podcast. The group eventually produced 30 briefings over the next 2 months, discussing pressing issues such as emergency powers, prisoner's rights, and rules for rationing care.10 As the scale of the problem and the demand for legal guidance became clear, the group moved to the idea of a comprehensive, written assessment. An editorial committee was formed, and a list of important issues that had already emerged or seemed to be looming was circulated as an initial table of contents. Working through the George Consortium, experts were approached and asked to take on (and refine) topics on the list. Chapters were produced on a tight schedule of just 6 weeks for a first draft. Drafts were reviewed by 1 or more members of the editorial committee, and public health leaders including Joshua Sharfstein, Howard Koh, Brian Castrucci, and Daliah Heller read 1 or more chapters in their areas of expertise. The editors and authors are actively soliciting feedback on the report to inform a final, expanded version planned for the end of the year. Each chapter and its recommendations remain the work of the author (Table). TABLE - Assessing Legal Responses to COVID-19 Assessments and Authorsa Topics Authors A Chronological Overview of the Federal, State, and Local Response to COVID-19 Lindsay K. Cloud, JD; Katie Moran-McCabe, JD; Elizabeth Platt, JD, MA; Nadya Prood, MPH Is Law Working? A Brief Look at the Legal Epidemiology of COVID-19 Evan Anderson, JD, PhD; Scott Burris, JD Tracing, Intrastate and Interstate Quarantine, and Isolation Ross D. Silverman, JD, MPH Mass Movement, Business, and Property Control Measures Lance Gable, JD, MPH Surveillance, Privacy, and App Tracking Jennifer D. Oliva, JD, MBA Conducting Elections During a Pandemic David J. Becker, JD Executive Decision Making for COVID-19: Public Health Science Through a Political Lens Peter D. Jacobson, JD, MPH; Denise Chrysler, JD; Jessica Bresler, JD Federalism in Pandemic Prevention and Response Lindsay F. Wiley, JD, MPH Preemption, Public Health, and Equity in the Time of COVID-19 Kim Haddow, BA; Derek Carr, JD; Benjamin D. Winig, JD, MPA; Sabrina Adler, JD Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Aila Hoss, JD; Heather Tanana, JD, MPH US Withdrawal From the World Health Organization: Unconstitutional and Unhealthy Sarah Wetter, JD, MPH; Eric A. Friedman, JD Private Insurance Limits and Responses Elizabeth Weeks, JD Medicaidʼs Vital Role in Addressing Health and Economic Emergencies Nicole Huberfeld, JD; Sidney Watson, JD Caring for the Uninsured in a Pandemic Era Sara Rosenbaum, JD; Morgan Handley, JD Assuring Access to Abortion Rachel Rebouché, JD, LLM Telehealth in the COVID-19 Pandemic Cason D. Schmit et al Access to Treatment for Individuals With Opioid Use Disorder Corey S. Davis, JD, MSPH; Amy Judd Lieberman, JD Legal Strategies for Promoting Mental Health and Well-being in the COVID-19 Pandemic Jill Krueger, JD Implementation and Enforcement of Quality and Safety in Long-Term Care Tara Sklar, JD COVID-19: State and Local Responses to PPE Shortages Michael S. Sinha, MD, JD, MPH Expanding Access to Patents for COVID-19 Jorge L. Contreras, JD Drug and Vaccine Development and Access Patricia J. Zettler, JD; Micah L. Berman, JD; Efthimios Parasidis, JD, MBE Assuring Essential Medical Supplies During a Pandemic: Using Federal Law to Measure Need, Stimulate Production, and Coordinate Distribution Evan Anderson, JD, PhD; Scott Burris, JD Allocation of Scarce Medical Resources and Crisis Standards of Care Lance Gable, JD, MPH A Pandemic Meets a Housing Crisis Courtney Lauren Anderson, JD, LLM Protecting Workers that Provide Essential Services Ruqaiijah Yearby, JD, MPH Liability and Liability Shields Nicolas P. Terry, LLM Protecting Workers' Jobs and Income During COVID-19 Sharon Terman, JD Using SNAP to Address Food Insecurity During the COVID-19 Pandemic Mathew Swinburne, JD COVID-19 Illustrates Need to Close the Digital Divide Betsy Lawton, JD COVID-19, Incarceration, and the Criminal Legal System Jessica Bresler, JD; Leo Beletsky, JD, MPH Supporting LGBT Communities in the COVID Pandemic Craig J. Konnoth, JD, MPhil Immigration Lawʼs Adverse Impact on COVID-19 Wendy E. Parmet, JD Protecting the Rights of People With Disabilities Elizabeth Pendo, JD Fostering the Civil Rights of Health Angela Harris, JD; Aysha Pamukcu, JD Closing Reflection: The Endless Looping of Public Health and Scientific Racism Patricia Williams, JD Abbreviation: PPE, personal protective equipment.aIndividual chapters and full report available at https://www.publichealthlawwatch.org/covid19-policy-playbook. Equity was a primary concern of this assessment. Law and policy play an important role in limiting or exacerbating health disparities and health inequities. Health disparities are differences in health outcomes that people of different demographic backgrounds experience. Health disparities were all too common in the United States before COVID-19 and have been unmistakable during the pandemic. As Patricia Williams pointed out in her powerful closing reflections on the report, these disparities do not arise from bad individual choices or biological differences between races but the social factors that shape people's lives every day “in the ghettoized geographies that have become such petri dishes of contagion.” These disparities are not inevitable. We as a society have created them. Centuries of oppression through policies, norms, and institutional practices shape individual experience and over time have created the inequitable society we inhabit. Laws and policies too often reinforce health inequities by making resources scarce for many or creating unhealthy environments, especially in poor communities and communities of color. But the tools of law and policy can also be the deliberate intervention to change the fundamental drivers of inequity and increase health equity. We and our authors saw not only inequities throughout the pandemic legal response but also the moral and practical demand—we might even say craving—for cooperation, mutual aid, and solidarity. As Professor Williams concludes, “We can divide ourselves up into races and castes and neighborhoods and nations all we like, but to the virus—if not, alas, to us—we are one glorious, shimmering, and singular species.” Using Government Powers to Control the Pandemic Decades of attention to “legal preparedness” have largely ensured that federal, state, local, and Tribal governments possess significant legal authority to intervene and respond to the challenges faced by communities across the country due to COVID-19. When the pandemic arrived, however, governments were slow to use that authority. Federal government leadership, coordination, and even unprecedented levels of congressional spending have been insufficient to meet the national need. Authors saw too much political interference and too little competent coordination and regulatory enforcement. The federal failure to respect and deploy expertise was front and center. It is difficult to imagine a successful federal response that does not put the Centers for Disease Control and Prevention (CDC) in the lead, but to lead the CDC needs the independence and resources to work with federal to and such as the of Use for and an and the looming of from an with vaccine questions making at the Food and Drug With the executive failure in more than one of the authors to the CDC and the as independent the of the Federal their and them less to political is to the Public Health Services to and that require the and CDC to for guidance and to the pandemic. In the of executive failure or deliberate of is for to and to ensure the collection and of the for use of information in disease control, would do to that individuals from privacy and that arise from and The state response has been in some by and over authority. State the and authority of state executive to disease and and and State health deploy these measures to the health and information with emergency these A more effective response to COVID-19 would have and and to and the of the State powers to these disease measures were on but were used and by of and the information and resources to and state and local on and to State legislatures of and and to with local communities through and State or executive also and legal to people with housing, food and health social and people to with public health guidance as as economic and social State health demographic to COVID-19 response and privacy and for through or Fulfilling Governmental Responsibilities in a Federal System The of authority among federal, state, local, and Tribal between legislatures, and a of American COVID-19 also exposed its There is for and to local needs and but also of and the of essential and the of and the in a For the at the federal government has and essential resources to state, and local have as the the the president of the United States has primary for that federal respond and and with federal the failure of the many of our authors for in the and of the federal ensure that we are for the next and the president an independent of to pandemic preparedness and the response to COVID-19. the pandemic is in a the United States be a also a to reverse the to the United States from the World Health and that also the federal and to American and while the Health and Health as as health There are also recommendations for state and local be to the extent by State as to the that them. State also equity In states not local laws that the pandemic or that economic or States also and local governments for state or that do States laws that require them to with their and work with Tribal governments to into and mutual while Tribal authority and to the health and of their Financing and Delivering Health Care The US health care system to across multiple primary including and the of COVID-19 both these and some The pandemic and its impact on the of health care and on the as of jobs were the of the public or were unable to health before COVID-19 even The health of the of or as the exposed the of the safety for the not all policies the and to COVID-19. is the key to many of the COVID-19 health care in the report and the administration to up with an during COVID-19 and its economic and also to states to For who remain or to remain in health our authors that to workers and their to both the federal and state governments to their individual with and end Federal is required to in health care and to COVID-19 and including and to care The federal government increase its for health care safety by federal emergency states to safety and to the Uninsured The federal government that and are to and there is for rules for their health during the pandemic or in the and communities to and State governments be in and to and and to increase and States to state safety their of and use their budgets to to State and governors be of the that the Care be in a before the and to the of their by a and their Local governments for the in the health care but they can do important to health care more For they can to effective care for use by and laws that to the of and to Assuring Access to Medicines and Medical Supplies The United States was for the surge in demand for for control, and From the there was a of personal protective such as and and that would be there were in and for cuts in federal poor leadership, and political the federal government to be for had and or even in its legal to up and health care all of had too much in federal preparation and too little for their were to in an competition with and the federal The for is to be for the need. As the COVID-19 emergency and require to and the and to and in the for essential When the next we have information on the an new and a to meet the surge in and the law also have a role in the development of new and The up its guidance on and of scarce more important is for to at the that social or political just the to do the to a vaccine too While the is is important to ensure that the is by not an In the to an Use for any new and the time is for to for COVID-19 States can use their authority over the of to prevent from and even the has them its Protecting Workers and COVID-19, was that the United States was to many individuals and and housing, food and and workplace in law and policy in the few have health and safety and their While the pandemic has all and the impact has been on the system was already of and the of workers essential and unable to at housing, and food and are all essential to health, and COVID-19 has our society through our done too little to essential workers and our of the recommendations that from this assessment to these of Federal, state, and local governments can all to our peer nations in that workers can to with and orders. The federal government can increase SNAP and for levels of government can increase and for of all and can on during and for a significant of time the COVID-19 The Safety and Health can take more with congressional to every workplace is from COVID-19 and Taking on Disparities and Protecting Equal Rights The COVID-19 pandemic has the and of inadequate and discriminatory laws and policies such as policies, and to health to a Health and racial disparities are by the COVID-19 the response and in the in legal the of and with laws are also to In the of and to for and LGBT communities is to the of health and of among these and their It is that with from and are by both the economic and health toll of the pandemic. The federal government can take important to ensure that health and racial disparities and inequities are not in the response to COVID-19 and These up and guidance on legal and justice and issues to the of COVID-19, and or resources and for communities that are at risk. Federal such as the US of Health and Services of Civil Rights by clear, legal guidance on under the of of the Civil Rights with Disabilities of the and of the and federal ensure resources for federal to with the and of these as as coordination with to also a to the causes of the racial and health disparities from the COVID-19 pandemic to response of to COVID-19, and the federal administration put an end to for and or and health care ensure these are not from health care and or the federal administration reverse the public rule to for to food and health care during this economic The federal administration or and on on and in health housing, and ensure that under the or federal emergency is available to with and and State governments have an important role in policies that can work or limiting health disparities at the local and state State policy equity and the needs of and communities in COVID-19 response through state guidance to local and state and State and the and legal of people who experience under federal and state As states out and they ensure privacy practices in and information and In state governments ensure resources for and with and and states or budget to resources that health The many legal issues by COVID-19 have the for to use law and policy to the health and health equity. Public health have and public health law in the agency or to the agency at or state legal the to but COVID-19 is and there is time to in under in can by a and an effective response in and public health expertise. in can up for a response that is not just effective but also and to essential workers and the among This country is of and the legal recommendations in Assessing Legal Responses to COVID-19 a to successful of the pandemic and of its health, and social We for

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