We are about to begin the third year of the COVID pandemic. Restrictions are rapidly winding down throughout the country (and the world). It is the hope and expectation that we are entering the endemic stage of the disease and normalcy will return. Therefore, it is a good time to reflect on things in a big picture way and think about lessons learned from the last two years.

The Upside of COVID Polarization

America is a big country that is now polarized over all the COVID mandates (lockdowns of past, vaccine, masks, and passports for entry to venues). However, except for health care workers and perhaps the military, US citizens have not been mandated to be vaccinated by the federal government (or more precisely, the federal mandates have not been upheld). Masking is also largely a matter of state and local law or the private sector, as are vaccine passports for entry into various venues.

The polarization on these issues is in one sense very good because there are many states which have not bought into the necessity of mandates. We have a de facto giant outcome clinical trial. In states like Florida, it’s like the pandemic didn’t happen, public policy and regulation-wise, except for the deaths and hospitalizations.

I think the most interesting thing about Florida’s approach is that as far as I can tell, it hasn’t done that much worse public health, hospitalizations, and death-wise than other big states. In fact, I think the overall data favors Florida over the Northern states like New York and New Jersey which had much more restrictive policies.

Yesterday, Florida announced that it will not require the covid shot for young children. That will provide additional data points by which the efficacy of the vaccine in children can be judged. I note that Florida has come to the same conclusion as a few European countries. I think it is a wise decision, at least until the CDC stops withholding the data on the efficacy of the vaccine on children.

To me, one of the biggest takeaways from the COVID pandemic regulatory response in this country is that there has been a choice that citizens could make in terms of the level of governmental restrictions and mandates they want to live under. Live with many restrictions in the Democratic states, or live with much fewer restrictions in the Republican-controlled states.

It might be inconvenient or financially infeasible for many of you to have made the move to a place more in line with your beliefs about COVID and mandates. However, you still had a choice. And ultimately, that is what defines a free society. Plus, your right to protest actions by the government that you don’t like. The short of it is that if you live in a place that has more government restrictions than you like, go someplace more in line with your thinking.

I think acknowledging of our basic freedom in this country even during a pandemic is a helpful and healthy perspective, given what we all see on TV every day during the past two weeks.

Our New Global Perspective

Another big picture thing is that because this is a worldwide pandemic, there is data from around the world and conclusions to be drawn from that data. There are places like Israel which is more or much more vaccinated than the US. Big picture-wise, it is not clear that all the extra vaccination has been all that beneficial. Here again, the data and numbers have to be crunched. Let the chips fall where they may.

Sweden made some controversial, anti-infectious disease establishment public policy decisions, and that data has and should continue to be analyzed. There is an idea that the lockdowns didn’t help. That needs to be explored in detail.

I think a huge takeaway is or should be that people in this country should and will have a broader perspective about public health issues and our health care system in general than the previous myopic, ethnocentric, and unjustified pride in our health care system which many Americans share with public health officials.

Is our fee-for-service model part of our problem?

My view is that the whole fee-for-service, private insurance model does not work as well as the system in most other developed countries, which is more like single pay, plus additional pay care for those who can afford it. (my first post in the blog was about the problems with the US health care system and suggested that among other reasons our health care system had such mediocre performance metrics was the fee-for-service model. Here it is if you are interested: https://wp.me/p7pwQD-12

I do not know whether there is a connection between the problems with our health care system and how poorly we have done in the big metrics of COVID. Some think our fee-for-service/private pay model is responsible for a vast over-reporting of COVID hospitalizations and deaths because of financial benefits to hospitals for COVID treatment. I do not have an informed opinion about this issue. However, I am skeptical because the all-cause mortality numbers were up considerably, and in my unprofessional view, consistent with a pandemic causing substantial deaths.

Going forward, and in preparation for the next wave or the next pandemic, I think the biggest question that needs to be asked is how much power should be given to the chief executive of the state and local governments to impose lockdowns that crush businesses and dramatically alter everyday life.

Initially, I thought the “‘flatten the curve’ so lockdown temporarily” seemed reasonable. As indicated, I think there are legitimate questions about the benefit of that approach.

However, beyond the public health efficacy issue related to lockdowns, I now think lockdown decisions should involve legislative bodies. The main reason being is that the chief executive and the top executive health people are typically going to be in the same political party. I think these kinds of major decisions need the input of people with a different political persuasion.

Further, I think a legislative deliberative body is structurally better able to hear minority view opinions than the executive branch. Whether that means prior legislative consent or just a hard and very short limit to executive emergency authority needs to be worked out. Different states might take different approaches. But the idea that one politician can shut down an economy and end normal commerce and life in a state or city now seems to me to be just wrong. Frankly, this kind of legislation is mostly needed in heavily democratic states.

On the other side of the coin, I don’t think a governor should be able to forbid local authorities from implementing local governments from imposing things like mask requirements or even vaccine passports. I think that should be a local decision, with the same caveat as above, namely that the mayor or city executive should not herself be able to impose such a mandate without the consent of the city council (or a hard and short limit for an emergency order.) I trust the state more than the feds on these issues. I trust the local authorities more than the state to come up with solutions that better reflect the will of their constituents in a city or county.

What about even stronger legislation like the right to refuse all mandates?

Since the beginning of the pandemic restrictions, there have been many organizations that are against all of the mandates. Initially, that has manifested in lawsuits financed by these entities. The movement is partially morphing into state efforts to grant citizens a legislative right to refuse any kind of mandate. According to righttorefuse.org, most states have either passed or introduced some kind of right to refuse mandates.

I haven’t done a deep dive on the bills or laws, but I suspect that the legislation has passed mostly in red states, and is pending in mostly blue states. I don’t see states like NY, Ca. Il., or the other severely blue states allowing each person to make his or her own decision about future mandates.

But it is in the blue states where limitations on the power of the executive branch is needed the most. That is why I think a more realistic approach is to limit the ability of the governors and mayors to impose lockdowns and other mandates without the approval of the legislative body.

On the other hand, I don’t think this kind of legislation is necessary for the red states since they are controlled by people who are in general opposed to mandates, especially places like Texas and Florida. But since these states are controlled by hard-right Republicans, these are the states which have or are more likely to create these newfound legislative protections. A corollary of all the above, I am fine with a state granting such a personal belief exemption to mandates if that is what the state government wants to do. It is just more data points on unclear public health problems which can evolve over time much as the covid virus has evolved. Might these decisions have adverse consequences? Absolutely, but there are competing interests and we are talking about restrictions on personal freedom, and again, my view is the more local the rule, the more it is likely to reflect the will of the people which is a good thing, albeit, as indicated, one with risks.

Free Speech

The next big issue is free speech, or what is called by pro vacciners “covid misinformation.” This is a complicated issue because it involves social media companies to which the First Amendment does not apply, except to allow companies a “publishers” right to exclude content as they see fit. A possible indirect way to open (and close up that free speech) is to repeal Section 230 of the communications act which immunized social media companies from civil lawsuits. I think that is a low probability. CHD has tried to argue that Facebook is a state actor and hence subject to the First Amendment because of some statements Adam Schiff made, but that hasn’t worked out so far, and I don’t think it will.

My take on it is that the suppression of so-called “covid misinformation” by social media companies is not working. The word is getting out. There are polls showing that Bobby, Del, and others draw more eyeballs than the pro-vax mainstream media. Negative studies and data are getting out to the public.

Physicians are now in the crosshairs

This issue is especially acute when it comes to physicians who speak out against the mandates. The federation of state medical boards has issued a position paper that the medical boards should take action against physicians who do not toe the line on the safety and efficacy of the covid vaccine or other challenges the public health position on mandates. California has introduced a bill to make such speech disciplinable conduct (My last post is about this bill. here is the link to it: https://rickjaffeesq.com/2022/02/15/new-cali-ab-2098-seeks-to-make-public-speech-by-physicians-board-sanctionable/). Other state boards have issued a guideline adopting the Federation’s position (e.g. New Mexico). Some states have pending legislation to allow physicians to speak their minds and bar the state medical board from taking action against physicians who speak out against the vaccines or other mandates. (Tennessee is one such state). I think California and other states which impose such free speech restrictions will be sued for civil rights violations. And that is something I am looking at now.

Finally We need big data crunching and public airing of the results.

If I was worth fifty or a hundred million bucks, I would start a public policy think tank center to figure out what worked and didn’t work in the pandemic response. It would all be on the table: lockdowns, masks, the establishment’s disfavored treatments like ivermectin. The center would also look to the need for legislative changes concerning executive authority as discussed above. Another important topic would be dealing with the whole personal and religious freedom in the face of public health crises. Triage and access to care in the face of shortages would also be on the list of issues to be studied.

We are in a once in a 100-year challenge with a lot of data. Many scientists believe that regardless of what happens with Covid, there will be other pandemics in part because of the interconnectedness of the world.

Smart sophisticated people who have open minds need to get together and figure these things out. It would be great if the center could be affiliated with an American university, but I fear that is not possible because of the influence of the infectious disease/public health Mafia in this country. Denmark or Sweden might be a better option, especially Sweden since it has initiated some public policy decisions against the mainstream public health dogma. But this has to be a “let the chips fall where they may” endeavor, not something like the Tobacco Institute Center for smoking research, or some anti-vax gallery or screed. So, if someone out there has the bucks to make that happen, go for it. Me and many of my friends and colleagues will help make it happen.

Rick Jaffe, Esq.