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Author: Richard Jaffe

Contact tracing: some analysis, perspective, and a conditional prediction

Contact tracing: some analysis, perspective, and a conditional prediction

The vaccine concerned and many others are worried about contact tracing, so for whatever it’s worth, here are some initial thoughts.

First, let’s get on the same page. Last month, the CDC published information about it. Here it is:

“Certain core principles of contact tracing must always be adhered to:
• Contact tracing is part of the process of supporting patients with suspected or confirmed infection.
• In contact tracing, public health staff work with a patient to help them recall everyone with whom they have had close contact during the timeframe while they may have been infectious.
• Public health staff then warn these exposed individuals (contacts) of their potential exposure as rapidly and sensitively as possible.
• To protect patient privacy, contacts are only informed that they may have been exposed to a patient with the infection. They are not told the identity of the patient who may have exposed them.
• Contacts are provided with education, information, and support to understand their risk, what they should do to separate themselves from others who are not exposed, monitor themselves for illness, and the possibility that they could spread the infection to others even if they themselves do not feel ill.
• Contacts are encouraged to stay home and maintain social distance from others (at least 6 feet) until 14 days after their last exposure, in case they also become ill. They should monitor themselves by checking their temperature twice daily and watching for cough or shortness of breath. To the extent possible, public health staff should check in with contacts to make sure they are self-monitoring and have not developed symptoms. Contacts who develop symptoms should promptly isolate themselves and notify public health staff. They should be promptly evaluated for infection and for the need for medical care.”

Here is the url and it includes more details:

There are (at least) two important parts to this statement of principles:

1. There appears to be some privacy protection built in insofar and the source of the possible exposure is not provided. That’s to the good.

2. There is no compulsory language in the CDC’s statement of core principles with respect to contract tracing (though there are two “should[s]” if you have symptoms, and “should” seems close to compulsory.

ONE BIG CAVEAT/LIMITATION: This CDC statement is just a guideline and does not have the force of law. Meaning, it is not binding on the state and local governments, which are the governmental entities which carry out contact tracing and quarantine policies and regulations.

And therein lies the problem and the source of the fear of many.

Every state has or can have its own take on these guideline/principles. If past conduct during the pandemic is any guide, I would expect the democratic led states to be more intrusive and authoritarian in terms of contact tracing and quarantine than red states. That is either a good thing or bad, depending on your perspective.

These differences will in the near term find its way in to different approaches to contact tracing.

Just for grins, I used my legal case search tool to do a national all-state and federal search for “contact tracing.” I did not find any authority on its legality or jurisprudential limitations. In the last two months, the term has appeared in over a half dozen federal and state cases involving prisoners trying to get out of jail because of pandemic using contact tracing data to support their argument. I also found some older cases mentioning the term in the context of prior epidemics, including AIDS. However, I did not find any case law either upholding contact tracing or rejecting it on privacy or any other grounds. If there is some case so holding, shoot me an email with the case citation.

Speaking of privacy, here is a little context and comparison. In AIDS contact tracing, they were asking about sexual partners. It does not get more intrusive than that, especially if the person had multiple sexual partners and/or partners, the sex of whom, the exposed person might not have been happy about sharing. My recollection of the times was that initially, people, especially gays who frequented the bath houses and gay bars, protested about their privacy rights. And in the beginning, AIDS was viewed as a gay and drug addict disease. Meaning there was considerable stigma attached to the contact tracing. However, once that community and the rest of the world realized how deadly the disease had become, and with the onset of treatments imported from abroad, there was much less privacy concerns about contact tracing.

Comparing that (sexual) and stigmatizing contact tracing to current tracing seeking information about who you were closer than six feet for more than 10 minutes seems pretty benign (usually anyway).

As I see it there are three big unresolved issues or uncertainties with contact tracing:

First: Will it be voluntary and without penalty for refusal to provide contact tracing information

Second: Will the data be collected by humans in interviews or will the data be collected actively or passively from phones via apps, blue tooth and GPS.

Third and most importantly: Whether there will be compulsory and enforceable quarantining for the healthy, non-infected contacts who refuse to self-isolate?

Historically, and as a general rule, government agencies have attempted to use persuasion rather than compulsion in the contact tracing context, and there has not been much resistance to contact tracing during the last few Asian and African epidemics. Of course, the that could change if a significant number of people in a hotspot refused to provide contact information. The most recent reported example is what is going on in the state of Washington. Government authorities are making it clear that contact tracing is now voluntary (but up until recently businesses were required to log customer contact information, to be used by the authorities in case of any an outbreak which could be connected to that business). Here’s a recent article describing this recent change in policy.

Could that change (or go back to mandatory reporting by stores and other commercial operations)? Possibly, if there is a second wave, and if too many people refuse to provide contact information. But because of the answer to the next question, I don’t think that is going to happen?

How will with contact information be collected?

So far, there seems to be a governmental preference for live contact tracers, mostly because of privacy concerns about turning everyone’s cell phone into a personal tracking device providing real time data to government/big brother about everyone’s movements.

However, I do not think that human contact tracing will be adequate after the country fully reopens, if there is a second wave, as opposed to isolated hot spots. There are just too many contacts/data points to be collected in big cities, if their hundreds of new cases every day. If there is a second waive, the cities who are hit will have to perform all or some part of the contact tracing via apps phones and computers.

Are there privacy concerns about this? Absolutely. Will there be lawsuits challenging the apps and regulation requiring compliance? For sure there will be. Will they succeed? Probably not as long as there are safeguards and time limitations on the data collection.

Beyond privacy concerns, there are practical and logistics challenges. If it is app based, versus passive, systems, how do you compel or cajole everyone to download the app?. Stores and restaurants could require a tracking apply to get in, like stores now require face masks. Public spaces would be more difficult if not impossible, unless there are fixed entry and exit points.

The main takeaway is that contact tracing is thought to be an effective tool in preventing the spread of a virus like COVID-19. Therefore, it seems a safe bet that if the human contact tracing systems becomes overstressed, as is likely to be the case if there is a large second wave in big cities, highly efficient and cost-effect technological solutions will be employed, giving due consideration (read: lip service) to privacy concerns. As I often say in these posts, the constitution is not a suicide pact, and your privacy rights do not include the right to put me at risk for a lethal communicable disease.

Will there be compulsion for self-isolation based on positive contacts?

The first and preferred will be persuasion. The second method will be more persuasion. The third might be social pressure. At some point, however, compulsion will be tried by some local or state government authorities. You all recall the recent New Jersey Ebola case where a health care practitioner returning from Africa refused to self-isolate. With increased contact tracing, and especially as things go back more towards normal, there might be more of these types of cases which will end up in the courts. Despite the constitution not being a suicide pact, it is not a slam dunk that all courts will for a healthy asymptomatic person into isolation. So, my answer is that that I wouldn’t be surprised if some democratic states or counties try to legally enforce self-isolation for people who been identified as having been in contact with an infected person, but I think some courts might reject it. In another post in the very near future, I will get into the legal weeds about the arguments for and against compulsory self-isolation for heathy people, via an extensive discussion of an old case. It’s a good story and you folks will like it a lot!

Can they take away your kids if you and your wife test positive?

I recently read something stating that in an Oregon regulation posted on social media, and frankly, it shocked me, until I realized that there is much misinformation and exaggeration on social media. Still it seemed insane to me, at least the way it was described. I looked around the internet, and found a response to what was circulated on social media by the Oregon authorities.

In short, the authorities say that it would only happen if the both parents are too sick to take care of their kids, that it is voluntary, and only if the parents could not find someone else they know to take their kids.

Here it is:

I guess that makes me feel a little better, but keeping an eye on this would be a good idea.

Rick Jaffe, Esq.

Breaking News (and some welcome push back from a State Supreme Court and Elon Musk)

Breaking News (and some welcome push back from a State Supreme Court and Elon Musk)

Two significant things happened today. Alameda Country appeared to back down and allow Tesla to reopen its plant after Elon Musk threatened to move his business out of state. Good for him and good for Tesla. Hopefully it will all work out, worker health-wise.

Second, the Wisconsin Supreme Court has just overturned the extension of the Governor’s stay-at-home order. I haven’t read the opinion yet, but it does cite (or a justice said) with disapproval, the U.S. Supreme Court’s Korematsu decision, which rounded-up and interned Japanese Americans because the possible threat they posed to national security, even though there was not a shred of evidence or a single case of spying from that community. I often cited that decision as an example of how far the government can go when it perceives a threat, even in the absence of evidence.

This is very good news for the people who oppose the continuation of the lock-down edicts around the country. Many people have been wondering how the authorities can get away with what is in effect house arrest. For sure, the states do have very broad police powers to protect the public, but many have argued that the states have gone too far and that the lock-down has gone on long enough.

When the shelter-in place started, I thought it was a reasonable thing to do, in order to protect the public and have some time to amass more data points about the virus. But it has now been two months, and while there are more data points, there is still much confusion about some of the key medical issues. But what is painfully clear is the increasing catastrophic economic damage that is occurring to lower and middle-class people, despite the bail outs which as usual, go mostly to corporations and the rich.

The lock-downs imposed by the Governors raise an important question about the relationship between the government and the governed:

Who decides how much economic ruin is tolerable to mitigate sickness and death?

Before this Wisconsin decision, it was assumed that the Governors have the right to call the shots and make the final decisions. Witness Georgia’s Governor last month overruling some beach communities’ decisions to continue the lock-down. However, recently some cities or counties have decided not to follow state mandates, both ways. Meaning, countries have opened in the face of a state lock-downs (California), and countries have and are attempting to continue lock-downs despite a state order to open up (Texas).

It is a chaotic situation for sure. We are engaged in a massive experiment, which is going to have serious and life altering consequences for many, and specifically death for some, and financial ruin for others.

That raises the fundamental question: who should make the call in deciding whether to open things up and cause more illness and death, (regardless of how cautious or measured the reopening is) or keep people locked-up in their homes, thereby increasing extreme financial harm and collateral health damage to probably many more. (But of course, death is death and there is nothing worse, as Governor Cuomo often says.)

And we have to consider that the federal government does not appear to be able to give meaningful financial help to most people and small businesses.

One final factor which needs to be considered. None of the government officials who are calling for or supporting the lock-down are suffering adverse financial consequences from the lock-down. They all keep receiving their pay checks while they implore others to stay at home for the good of the people, and passionately cajole their constituents to bravely face the financial consequences from which they are immune. But I suppose that is nothing new.

So, what’s the answer: Who should make the decision?

Polls consistently show that most people are concerned about opening up too soon. But on the other hand, recent data shows that in the past week, people are starting to go out more. Putting these two data points together may suggest that people are proceeding cautiously despite the technical lock-down status. Maybe the media is getting the message wrong. It’s not that people want the lock-downs to continue. Rather they want to make their own decisions about how much risk they are willing to take.

So, why not open everything up, at least in places that have not been ravished by the disease, like most parts of California, and let people make their own choices. Might this lead to a dramatic increase in cases and deaths? Very possibly. There are some data points, like Sweden which cast some doubt about that. But in fairness and in reality, most of the data points about reopening, both here and abroad suggest that reopening is going to increase cases and deaths, perhaps dramatically and tragically so. Can not a country decide to make that decision?

Some seemingly hard decisions are not really that hard

A disproportionately high number of deaths are in nursing homes and otherwise with older people with co-morbidities. Opening up completely surely puts those people in much greater risk. However, our species has institutionalized the slaughter of hundreds of thousands or millions of young men in their prime every century via the most lasting of human rituals, war. People and governments regret it, but it does not stop them from taking actions which can and has decimated a large part of a generation.

On the other hand, unlike young men who go off to war, the old with co-morbidities can voluntarily shelter-in-place or just not go out unless absolutely required, like what most people have been doing for the past two months. The government can require more testing at these facilities and other health measures to deal specifically with the nursing home problem, without imprisoning the rest of society.

A harder issue is the disproportionate effect the disease is having on minorities

It is a well publicized facts that black and brown minorities are disproportionately getting sick and dying. I understand that there are two main reasons for this: Poor minority people have to go to work because they work in essential services and come into contact with more people than white middle class people who are sheltering in place. I don’t mean to be cavalier, but ending the lock-down for everyone should even things about a bit, disease wise. Why shouldn’t white middle class people face the same risks as essential service folk, especially if it is their choice to do so. The second reason I hear about is inadequate medical care. I take that to mean that minorities have more co-morbidities due to worse health care. I do not think there is a solution to that in the short term.

Herd Immunity

And let’s not forget herd immunity. Most of you who read this blog do not believe there is such a thing as herd immunity from vaccines, but even if you are wrong, and even if a vaccine is developed in the next year or two, the country is not going to be closed down until every person willing to take the vaccine gets it. Similarly, who knows when there is going to be an effective treatment. So, my view is let people make their own decision about how much risk they are willing to take, knowing that there will be a large increase in cases and deaths, but if that happens, that will at least speed-up the natural herd immunity process.

The Next Battle
I don’t think we’ll see many lawsuits in New York about this, certainly not calls for opening up in New York City, and upstate New York is starting to open up.

I think the next big battle will be in California and it is taking/will take three forms. I have heard about some lawsuits challenging the Governor’s actions. Will the courts follow the Wisconsin Supreme Court’s lead? Frankly, I don’t even have a guess. The longer California continues to have relatively few cases per capita, the more likely a challenge could succeed.

The second part of the battle are the counties who decide not to follow the Governor’s lock-down orders. Here again, the more counties which disobey and or sue, the more pressure the Governor will be under to retract his order.

Los Angeles is a special situation because 1. it has by far the most cases and deaths, and 2. it has just announced the continuation of the lock-down until the end of June or so (albeit with a very recent modification opening stores for pickup).

Third, the people and their protests. Will the protests grow exponentially and become a force which the Governor will have to accommodate? The protests seemed to have already moved the Governor, and if the protests get bigger and more frequent, I would expect him to give up more ground.

What about the big corporations and Silicon Valley?

Elon Musk is a cowboy and a wild man. I don’t expect many of his tech billionaire friends to follow him, if for no other reasons because of worker liability issues relating to workers who are forced to return and get sick and die. At some point if this thing keeps up, there will have to be some liability protection for employers who open up in compliance with government mandates.

Two Legislative Suggestions:

If the Wisconsin Supreme Court is saying (and like I said, I have not read the decision yet) that a Governor/one of his chief health official in his administration should not have to power to shut down all businesses and order every citizen into a lock-down/shelter-in-place, then good for those judges. After observing things for two months, I now think the kind of decision these Governors are making should only be made with the consent of at least one legislative house (or perhaps even both). It is just too much power in one person. (I know some or most of you want no one or group or government telling you to stay at home, but that might be a bridge too far.)

Second, the decision to shut down a state and force people not to work arguably creates a taking of property without due process (which is usually considered to be a violation of the 5th Amendment, made applicable to the states via the 14th Amendment). Even if not, the people who make these decisions to stop people from working need to have some skin in the game. So, the same law which requires the assent of the legislature should also provide that no state government employee (save state police) can get paid for the duration of the lock-down). If they keep working, then maybe they can get all or some portion of back pay (unlike most citizens who will not make up their lost wages). That might not matter to millionaire heirs like California’s Governor, but it might make some legislators think long and hard about what they are being asked to approve.

Rick Jaffe, Esq.

Ken Stoller’s Medical Board Hearing Update/It’s still scheduled for June 8th, but…..

Ken Stoller’s Medical Board Hearing Update/It’s still scheduled for June 8th, but…..

Maybe coming to your home soon! Here is what is going on:

Rick Jaffe, Esq.

Will Your Child’s Cali. Medical Exemption Be Good When Schools Reopen in the Fall?

Will Your Child’s Cali. Medical Exemption Be Good When Schools Reopen in the Fall?

I have been getting that question a lot lately. It is understandable with all that is going on.
The answer is that I don’t know and I don’t think anyone can know for three reasons.

First, Senator Pan had to give-up some important ground at the end of the last session, via SB 714 which watered down some of SB 276’s more onerous provisions. The biggest problem (from the regulators’ point of view) with the current SB276/714 law is that there is no filing/reporting requirement for grandfathered ME’s. Under the law, ME’s written by a physician who has been disciplined by the Medical Board are revocable by the CDPH, but there is no specific administrative procedure by which grandfathered ME’s of these physicians are submitted to the CDPH. For sure, in an ad hoc manner, schools can forward these exemptions, but some might, some might not. Right now, only one high profile ME writing physician is currently under a disciplinary order which precipitates ME revocation, but by early to mid-next year, there will probably be other physicians whose exemptions are revocable. Will the CDPH find out about these docs and their revocable ME’s? My guess is it will, if Senator Pan has anything to say about it (as discussed below).

But for now, we simply cannot say for sure whether or how many of this one physician’s ME’s will be revoked and by when, or whether there are other exemptions which will be affected during the upcoming school year.

The second reason I can’t tell you whether your child’s permanent medical exemption from all vaccines will be valid for the entirety of next year is because the California Legislature is back in session and it is a good bet that Senator Pan will try to clean-up and get back what he was forced to give up to the Governor who caused the last minute inclusion of SB 714. Alas, we live in a different world now, and it is possible that there is now less daylight between Senator Pan and the Governor. Time will tell.

But I have to believe that Senator Pan is thinking hard about completely eliminating the problem of the 10-12k permanent medical exemptions, because some of these ME’s could be good for years. To the consternation of some, I have speculated about the probable and drastic/worst case scenarios of what he could do this session. Here is that post.

We will know more once he drops the initial version of his new bill, unless he decides to sit this session out because of the pandemic, (which to me seems unlikely).

The third reason I can’t tell you if your child’s permanent exemption will be valid and accepted next school year is because who knows how some schools will react to the pandemic.

What I can tell you is that last year, after SB 276/714 was passed, but before it went into effect, (and even before it was passed), some schools were rejecting permanent, complete vaccine exemptions for seemingly healthy but medically fragile students. It seems a reasonable guess that some, and probably more schools will, on their own, and without a direct legal basis, question or reject these ME’s regardless of whether the issuing physician is under a Board order.

Could there be a legal redress, i.e., a basis to sue? Sure, and a few such cases might be filed. Maybe some families will get legal relief, but the worse the pandemic becomes, and the closer to home it hits, the less likely a California judge is going to force an unvaccinated healthy but medically fragile kid back into school over the its objection. But this is just speculation and is based on my feeling that the school nurses are going to be even more skeptical and fearful of the unvaccinated, regardless of how irrational you all think that might be. And while none of you think this is right or fair, many of you probably also fear or think that is how it is going to play out.

What about if your child has an IEP?
Right now, legally, nothing should change, but let’s see what the new bill says, and how the schools react to current events.

So, what should you do about it, right now?
Sorry, I just don’t have any good ideas right now in advance of knowing the contents of new legislation. If there is a new bill introduced, and if it eliminates or jeopardizes your child’s ME, then there will be the lobbying and protests for sure. Also, an as yet unanswered question is whether most of California will continue to avoid the dire effects of the pandemic which other places in the Country are facing.

For now, I think the only thing to do is sit tight and wait to see what happens, but I don’t think you’ll have long to wait to at least get a sense of what is coming.

Rick Jaffe, Esq.

More on what governments can get away with in these COVID-19 times

More on what governments can get away with in these COVID-19 times

Some of my FB friends have asked me to write something about the spate of government orders about social distancing, closures of state parks and beaches, constitutional rights to congregate and associate in public, requiring masks when in stores, and mandatory testing (which I will deal with another time). A few of these issues are simple, but most are not.

Whatever else, this pandemic has certainly provided a real-time lesson on federalism, the essence of which is a shared/sometimes overlapping system of government where power over the people is divided between the states and the federal government. The other big lesson we are/will be learning is that constitutional rights are not absolute, and that the perceived public health rights of the many often prevail over an individual’s rights. This is both constitutional statement of fact by me and a general prediction on how courts are likely to view the some of the legal challenges that have been or will be filed. We are also receiving lessons on the interplay/possible conflicts between state and local/county governments.

Some easy stuff first


State governments have ordered people to wear masks when shopping, and/or stores have required masks as store policy. There is a much, but not universal scientific support for the proposition that if used properly, face protection can stop or lessen the spread of the disease. Challenging this in court seems foolish to me. States have the right to take this relatively benign preventive measure to protect the public. Even without a state or city order, I think businesses can set and enforce this requirement. Many stores and restaurants have some mandatory clothing requirements, like requiring shoes, shirts, no tank tops, or a sports jacket in some high-end places. I don’t see any court overturning an obligatory mask order, period. I recently saw on FB some loon wanting to organize a group protest in Costco (which requires masks as a company policy) to remove masks. Really?

Social Distancing in general

It seems widely accepted that social distancing is having a positive effect on the transmission of the disease. More densely populated areas experienced more disease than less densely populated places. Certain micro environments like meat packing facilities, which employ thousands of people who work in close proximity to each other, are creating hot spots in otherwise non-dense areas with low outbreak rates. To me this supports the logic and common sense of social distancing as a tool of prevention. People point to Sweden as an argument that social distancing is not necessary. However, as we are now learning, relative to other Scandinavian countries, Sweden is not doing so hot, with something like 8 times the death rate of their neighbors. In the face of relatively good and widespread data points that social distancing is working, I do not see a court overturning a general social distancing order in the near future.

Also, keep this in mind: Most courts are physically closed to the public and to their employees. Hearings and such are mostly being handled via telephone or videoconference. Chances are the judge hearing any preliminary injunction motion to reopen a store or reject a social distancing order will be sheltered in place at home and communicating with his staff and the parties by means other than in person. My gut tells me that most judges who are sheltering in place are more likely to bend over backwards to find in favor of the state measure. And as a general rule, as one of the leading vaccine concerned thought leaders once said, “Judges do not want to make a decision which they think could put people at risk.”

But can’t the social distancing orders go too far? And by the way, what about the recent Attorney General’s Memo to be vigilant for state and local government’s which issue orders in violation of the constitution?

Short Answer: yes, and the memo means less than meets the eye.

Longer answer:

Yes, social distancing orders can go too far legally, and if they can and have been struck down. A couple weeks, ago a Kansas district court issued a TRO against the governor’s order that churches cannot have services with more than 10 congregants. There was no similar limitation on stores, and that led the federal judge to tentatively conclude that the Governor’s order seemed to unconstitutionally discriminate against churches. If the Governor had ordered had that 10 person limit on all public gatherings like in stores, it would have survived. So, what I conclude from the TRO decision (and a temporary injunction decision is expected by May 2nd) is that places of worship can’t have different, or at least, more restrictive rules that other public venues.

Non discriminatory actions would have a harder time, like a challenge to Governor’s Newsom’s upcoming order closing state beaches. If there were to be such an argument, it would be that people have a constitutional right to move, associate and congregate at public places which triggers the “strict scrutiny” test, and that a complete ban on people using beaches is not the least restrictive measure to achieve the admittedly important public purpose of the order. A lesser restrictive option might be enforcing social distancing on beaches. They are trying that in Orange Country, but the recent widely publicized packed beach pictures suggest that social distancing is hard to enforce, on beaches anyway.

But beaches are relatively small, while many state parks are very big. In my mind, if there were to be a successful challenge, it would be on the grounds that the order is not the least restrictive means to achieve the public goal because it lumps together state parks where social distancing would likely be more effective with beaches where social distancing is harder because of their smaller areas.

What about AG Barr’s Memo telling his minions to be on the lookout for unconstitutional government restrictions?

Here it is:


I do not see it changing or challenging many current restrictions for a couple reasons, not the least of which is that many states are starting to open up according to a plan, or are talking about doing so. Besides, my sense is that most states are treating churches like other so called non-essential public places like stores and restaurants. Sure, religious people can argue that churches are essential, but so are courts, and they are working via telephone and skype right now, so I would think the courts would say that churches can do the same as them and not endanger the congregants with in person services.

What about protests? To social distance or not, that is the question

Some attack people who are protesting the shelter-in-place orders, especially those who are not wearing masks and not social distancing. My personal view is that peaceful protests is one of the most important rights we have, and I think governments should be extremely hesitant to interfere with that right. That being said, “time, place and manner” restrictions have been upheld by the courts and will continue to be upheld.

So far, governments have not banned protests, either by car or walking protests, but in California there are permit issues being interposed. I guess this where I draw the line. The banning of a protest against a shelter-in-place order should be challenged, but I don’t think it will come to that, as most governors seem to let them go forward. We will see what happens with the protest in Sacramento tomorrow. The challenge would likely take the form of arrests for protesting without a permit or in violation of the permit or order.

There is another reason why I think these protests should go forward and it is admittedly callous. We are all participating in a giant scientific experiment because the answers to some of the basic questions are not completely known, like the actual death rate from the disease. Citizens who are protesting in public without social distancing are on the front lines of this experiment. I think the whole country is looking to see if new clusters develop in areas or with people who are involved in these protests. The risks seem very low in places like Sacramento and Austin which have very low hospitalization numbers. For many, the risks are worth it. So, for sure, protest to show your displeasure with the shelter-in-place orders, but if you have kids, (like some of my friends who are leading these protests), do them a favor and wear some face protection and stay as safe as you can.

Rick Jaffe, Esq.

What Could Be Next in the California Legislative Vaccine Front

What Could Be Next in the California Legislative Vaccine Front

Supposedly, the legislative session is going to restart on May 4th. But whenever it continues, I would expect Senator Pan and his allies to clean-up and fix the slippage which resulted from SB 714’s amendment of SB 276, and to take advantage of the COVID-19 pandemic.

Although there is not a vaccine for the disease right now, there surely will be, in a year to eighteen months as is the general (possibly) optimistic estimate, or maybe even sooner. Because it might be sooner than a year and because public policy and the law takes time to plan and implement, I expect a 2020 bill to address the new vaccine, if not explicitly, then implicitly to facilitate the quick implementation of the new vaccine’s mandate. (New York has already initiated some steps along the same lines.) I have no special access, but here is my guess as to what the first cut of the new bill will look like:

1. Mandatory reporting of grandfathered exemptions. In SB 276, there was a mandatory reporting/filing requirement for all medical exemptions as a prerequisite of their continued validity. That requirement was eliminated in SB 714 because of the Governor’s push back against SB 276. Seems easy to predict that a new bill will reinstate the mandatory reporting/filing requirement of all ME’s with the public health department.

2. But the filing of medical exemptions is meaningless unless there is some mechanism by which these broad ME’s can be revoked. So, look to the new bill to include the grandfathered ME’s in the review and revocation process which now exists for ME’s written after December 31, 2019. In short, grandfathered exemptions will no longer be immune from review and revocation.

3. Removal of the requirement limiting the addition of vaccines to the schedule. Right now, technically at least, the law appears to prevent the addition of vaccines to the California mandatory vaccine schedule set out in Health and Safety Code Section 120325 (b) unless there is both a medical exemption and a personal belief exemption. (Health and Safety Code Section 120338 provides “Notwithstanding Sections 120325 and 120335, any immunizations deemed appropriate by the department pursuant to paragraph (11) of subdivision (a) of Section 120325 or paragraph (11) of subdivision (b) of Section 120335, may be mandated before a pupil’s first admission to any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center, only if exemptions are allowed for both medical reasons and personal beliefs.” (emphasis added).

Since there is no longer a PBE, look to the new bill to rescind or modify Section 120338. This provision seems to have been part of the give to the vaccine concerned in SB 277, along with the “robust” medical exemption. SB 276/714 put the kybosh on the robust part of the ME, so look to the new bill to finish the SB 277 take back, due to the pandemic.

That would be the minimum of what I would expect the new bill to address, but I think the pandemic presents too big of an opportunity for Senator Pan and his allies to go big and get what they really want. And what they really want is the revocation of all these medical exemptions; by that I mean all medical exemptions from all vaccines throughout childhood/while attending public school.

I would remind you all that under conventional standards, these total and permanent exemptions do not exist except in the minds of the vaccine concerned, and under a minority standard of care which has not yet been confirmed by the courts, (plus the argument that such exemptions were permitted under SB 277). Right now, the law allows for the revocation of total and permanent ME’s written by physicians who have been disciplined by the Medical Board. But hey, we are living through a pandemic, and extreme times call for extreme measures, or so it will be argued.

I think it is a reasonable guess to think that Senator Pan and his confreres are going to try to require COVID-19 vaccination (once it is available), and I don’t see them letting kids who are seemingly healthy, but “medical fragile” back into school without it. Hey, it’s a pandemic! The easiest way to do that would be to rescind all ME’s that do not comply with SB 287/714 2021 guidelines. That would certainly be harsh, but now would be the ideal time to try this because there is more fear than knowledge about how this pandemic will shake-out. Meaning, will it come and go quickly, and not reoccur like all the recent epidemics, or will it come back in waves like the Spanish Flu (where the majority of the 50-100 million deaths occurred during the second wave in the fall of 1918). Look what these folks did with under 200 measles cases (38% of which were from the vaccine) and no deaths.

I hope I am wrong about this, and that Senator Pan and his group will sit this legislation session out on the vaccine issue and not try to take back what they were very begrudgingly forced to give up in 2015 and 2019, but maybe I am being too hopeful. Regardless, it is worth thinking about a plan, and I suspect some are already doing so.

Rick Jaffe, Esq.

Some perspective on President Trump’s call for off-label use of Hydroxychloroquine

Some perspective on President Trump’s call for off-label use of Hydroxychloroquine

The President is getting a lot of flak for basically telling COVID-19 patients to try Hydroxychloroquine or as he has put it, “What do you have to lose.”

The criticism from the medical establishment is that the drug is not proven safe or effective for COVID-19. That is true, but it’s not the whole story.

Most people are or have recently become familiar with the concept of “off label” use, but I suspect few really understand some important aspects of the concept and how widespread it is in medical therapeutics.

A couple of basic points and the economics of the FDA approval process.

Drugs are almost always initially approved for a single use/disease/medical condition. After a drug is approved for one use, it is not uncommon for the drug manufacturer to seek approval for additional indications. Hydroxychloroquine was originally approved in 1955. I do not know what the initial indication was but now it is FDA approved for some kinds of malaria cases, lupus, rheumatoid arthritis and a couple other less common indications.

However, the FDA approval process is very expensive, and there are many reasons which cause a drug company not to seek to obtain additional indication approval from the FDA. These factors have led to many drugs being used off-label. Off-label use of FDA approved drugs is extremely common. For example, it is estimated that 30 to 50 percent of cancer patients receive chemotherapeutic agents not approved for the specific cancer for which it is given. In many to most other areas of medicine, off-label use is also quite common. Oftentimes, off-label use is eventually considered the standard of care.

The legal Status of Off Label Use

Here like in many cases, it is necessary to separate federal versus state law.

Under federal law, off-label use of almost all drugs is legal, and up to the discretion of the physician. (The exception being HGH (Human Growth Hormone) because there is a federal statute which limits its use to a few specific conditions). Drug companies are not allowed to advertise or promote the off-label use of their products, but physicians can use them off-label to their heart’s desire, (at least in the absence of some federal emergency regulation or rule). Therefore, general federal law does not bar a physician from using Hydroxychloroquine off-label.

In fact, on March 28, 2020 the FDA issued an emergency use authorization (EUA) to allow Hydroxychloroquine (and chloroquine phosphate products) donated to the Strategic National Stockpile (SNS) to be distributed and used for certain people who are hospitalized with COVID-19. So in some cases now, under federal law, it is no longer even considered off-label use. So arguably, whatever problems there are in using the drug, legally anyway, it is not with the Feds, technically at least.

State Law:

Prescribing drugs constitutes the practice of medicine and is governed by state law. That means state can have different laws. The state medical boards are the primary enforcers of the practice of medicine. Off-label use is generally allowed under the laws of most states, at least so long as the off-label use has acquired standard of care status. I have spent a good chunk of my career fighting with medical boards about non-standard of care off-label use of FDA drugs, and honestly, it is a hit-or-miss proposition.

Besides the physician, the other major player in the Hydroxychloroquine scenario are the private pharmacists who dispense the medications to patients outside of a hospital setting.

So far, the states have adopted three positions on the use of these drugs for COVID-19.

Some states have said nothing.

At the other extreme, Michigan’s Governor banned off-label use of Hydroxychloroquine and threatened providers and pharmacists with board action if they did not comply. That initial ban may have been walked back by her, and in any event, some Michigan hospitals are using the drug to treat the disease regardless of the Michigan Governor’s ill-advised edict.

The third and most reasonable approach has been taken by states like Texas, Idaho and Ohio, which set some preconditions for off-label use of the drug.

The clearest regulation is Ohio’s which requires a positive Covid-19 test result, limits the prescription to a 14-day supply, and requires a new prescription (instead of a refill of an existing prescription) for additional use. Ohio also specifically bars its use prophylactically, which is perhaps implicit in the fact that a prescription requires a positive test result). Nevada limits the drug to a hospital setting, so if you are not sick enough to be a Nevada hospital, you’re out of luck.

Let’s Go Sideways for some perspective

It is now legal to use unapproved drugs which are in clinical trials

Over forty states and federal law now recognizes a “right to try” drugs which are in FDA approved clinical trials, but have not yet completed the FDA approval process establishing safety and efficacy.

In contrast, Hydroxychloroquine was first approved in the U.S. 1955. In 2017, there were five million prescriptions for the drug written in the U.S.

To be fair, advanced Covid-19 patients are far sicker than the average Hydroxychloroquine on-label user. A small Brazilian study released just today indicated that high doses (650 mg) were associated with increased risk of death and were not more effective than a smaller dose (450 mg). So, for sure, the jury is still out on the drug in terms of its safety for this use as well as its efficacy.

But we are in a pandemic which is now killing 2,000 US residents each day, and there is no proven effective treatment or preventative for the disease.

Equally disturbing is the seemingly extremely high mortality rate of patients who are intubated. I’ve heard death rates as high as 60-80 percent. One NY ER doctor (and perhaps others and in other countries) are starting to question whether intubation is appropriate for these patients. This seems like an additional reason why patients ought to be given the choice to try Hydroxychloroquine, since if they progress in the disease and need intubation, the odds of surviving are not good.

Personally, I would probably start with IV Vitamin C treatments, but if that did not work, I have to agree with President Trump in his common sense view since there is no approved treatment, why not try something with some “anecdotal” support, and do it early since the whole intubation/ventilator thing may prove to be exacerbating the problem. The use of this drug on a widespread scale “off-label” during a pandemic is going to present some challenges in terms of data collection and analysis, but I have some ideas about that which I will discuss in the my next post.

Rick Jaffe, Esq

To all you Yahoos who think you have a constitutional right to congregate during a pandemic

To all you Yahoos who think you have a constitutional right to congregate during a pandemic

The short of it is that you don’t.

For at least the last few hundred years, the law has recognized the government’s responsibility to protect the public health via its police powers. That job primarily falls to the states under the 10th Amendment, which provides that all powers not expressly granted to the federal government resides in the states.

There are many cases where state and the federal government have been allowed to lock-up people considered dangerous to the health, welfare or safety of the public. I have discussed the Korematsu case, where over 100,000 Japanese Americans were rounded up and interned in camps away from population areas. The fact that half of them were American citizens didn’t help them one bit. The Supreme Court said that was fine.

You all know that in Jacobson, the City of Cambridge was allowed to compel small pox vaccination (sort of, since there was a $5 penalty if you didn’t vaccinate). The Supreme Court also allowed Kansas to civilly detain a sexual predator after the end of the predator’s criminal incarceration, in order to protect the safety of its citizens.

Most of you probably don’t know that there were widespread contagious disease epidemics during colonial times, mainly yellow fever. In 1798, the Pennsylvania governor issued a ban on travel between New York and Philadelphia.

What about my constitutional rights of freedom to associate, worship and my freedom to do whatever I please?

The rub is that all such rights are not absolute and conditional on other competing rights. Constitutional jurisprudence mostly involves the courts weighing competing constitutional rights. Often, these cases involve the government’s ability to restrict individual rights. In the context of a government’s exercise of its police powers to protect the public health and welfare, the government almost always wins, except in the communicable disease litigation, where you can pretty much delete the “almost.”

As I repeatedly say in these posts, the CONSTITUTION IS NOT A SUICIDE PACT and the individual’s right to freedom of movement will always lose to the rights of the public to health and safety.

A corollary is that individuals don’t get to decide what is necessary to protect the public health. In other words, you can do what you want to yourself as long as you are not adversely affecting other people, and you don’t get to decide whether what you are doing adversely affects other people (in public at least).

So, do you have a First Amendment right to attend church during a pandemic where there is a shelter-in place order?

That would be a hard no.

Last week, a New Yorker filed a federal lawsuit arguing just that, namely that the shelter in place order unconstitutionally interfered with his right to worship. He didn’t get a TRO, and he will not get a preliminary injunction from the judge, who ironically, is most likely reviewing the papers from her home, due to the shelter-in place order.

How about a constitutional association right to drink beer with your friends in a public park?

Another hard no.

What judge in her right mind is going to overturn a shelter-in-place order which is supported by the local and statement government and the responsible governmental health authorities and which has hospitalized tens of thousands of people around the world and is killing people at an alarming acceleration?

What about the fact that there is a guy from Stanford and a couple other scientists from impressive universities who say that the shelter-in-place thing is an overreaction/not justified by the data?

Doesn’t matter. Government officials make these decisions. That is the way it works in every country regardless of the system of government. Outside experts can voice their opinions and can have influence on the relevant government public health officials, but that’s about as far as it goes.

How does that change?

I suppose when it becomes so unpalatable to the public that the politicians have to overrule health officials. Trump sent some recent feelers out about reopening the country by Easter, but he was forced to back down due to the push-back from the state and local government authorities. These types of decisions have to be made by consensus.

Is this whole coronavirus hysteria overblown?

I certainly hope it turns out to be overblown, but for now, all responsible government officials think their concern and the restrictions imposed are justified. We will have a better idea in the next few weeks.

A special note to the vaccine concerned

If you are vaccine concerned and/or hate big pharma, there will be some especially tough times for you in the future. The world and your rights are going to look quite different in the post-coronavirus world. Influence makers are talking about things now which a few months ago wouldn’t have been taken seriously.

There are places in the world like Africa where you can’t get in without proof of whatever are the required vaccinations. That will probably expand once there is a coronavirus vaccine, especially if there are multiple waves of the pandemic like there was with the Spanish flu. And speaking of which, the second wave of the Spanish flu was far more deadly than the first. Hopefully that will not be the case with this contagion, but I would bet it is on the minds of the public health officials.

Sadly, this is going to put the whole California medical exemption issue is a whole new context. I suspect many of you already know and fear that. But that is a discussion for another day.

For now, my advice is do not make the problem worse, because the worse it is/becomes, the worse it will be for you down the road.

Follow the recommendations of the authorities, and let’s see what happens.

Rick Jaffe, Esq

How far can the government go to restrict your movement and the first (idiotic) test case is filed

How far can the government go to restrict your movement and the first (idiotic) test case is filed

People want to know how much can the government really restrict their movements. Can the government really stop healthy people from congregating?

I think the short answer to both is yes, at least in the short term, and at least until some court says otherwise, and for reasons I will discuss, I do not see a court overturning a government shelter-in-place order anytime soon. (Ok, maybe that wasn’t such a short answer.)

There are both federal and state law issues and overlapping jurisdictions, theoretically. I say theoretically because as of today, Sunday March 22, 2020, there is no federal quarantine or shelter-in-place order, though the federal government has the power via the CDC and Surgeon General’s office to issue such orders.

Because we are a federal system government, in general, the feds directly control entry into the country and movement between states (via the Commerce clause), while the individual states control movement within the state.

Here is one of the key federal regulations:

Ҥ264. Regulations to control communicable diseases
(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

(b) Apprehension, detention, or conditional release of individuals
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General

(c) Application of regulations to persons entering from foreign countries
Except as provided in subsection (d) of this section, regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to individuals coming into a State or possession from a foreign country or a possession.

(d) Apprehension and examination of persons reasonably believed to be infected
(1) Regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.
For purposes of this subsection, the term “State” includes, in addition to the several States, only the District of Columbia.

(2) For purposes of this subsection, the term “qualifying stage”, with respect to a communicable disease, means that such disease—
(A) is in a communicable stage; or
(B) is in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.”
(emphasis added)

Here is the URL for the CDC’s “Specific Laws and Regulations Governing the Control of Communicable Diseases” which lays out all the laws and regulations applicable to this kind of situation. It is worth looking at.

But the bottom line is that as of now, there is no federal anything with respect to freedom of movement or quarantine, shelter-in-place, yet, (at least if you are currently in the United States.)

Up until now, the shelter-in-place orders have been by city or area (the first was the Bay area) or more recently, states (California, and the mid-Atlantic states, and Illinois).

AB 262: Does it apply?

The Cali. VC community experienced a high degree of panic in the last fall when the legislature passed AB 262. They feared the new law would be used by the local Cali public health departments to take away their unvaccinated children. My view was that was not the intended purpose of the bill, and that the law was really about conveying information and clarifying the decision-making chain of command in the event of an epidemic, so the VC community did not need to be worried about AB 262 in terms of their unvaccinated medically fragile children.

Well, we are in the beginning stages of a pandemic, so I guess it is time to refocus on AB 262, as it might provide the starting point to the answer in California as to how far the state can go. The answer is pretty damm far.

Here is the operative provision of the new state law:

Section 120175.5 is added to the Health and Safety Code, to read:
Section 120175.5 is added to the Health and Safety Code, to read:
(a) During an outbreak of a communicable disease, or upon the imminent and proximate threat of a communicable disease outbreak or epidemic that threatens the public’s health, a local health officer shall do both of the following:
(b) In addition to the actions required under subdivision (a), the local health officer may issue orders to other governmental entities within the local health officer’s jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.
(emphasis added)


Of course, AB 262 does not itself set out enforcement mechanisms, as those are set out by the local health regulations. In my prior post, I linked and explained what the LA Country quarantine rules looked like. I won’t repeat them here, but here is the link to the prior post.

Do people have no legal rights to challenge these rules?

Look, any one can sue any one for anything at any time (as long as the courts are open or accept filings I suppose), and in fact, the first lawsuit challenging a shelter-in-place order was filed a few days ago. As expected, the TRO was denied and the case is apparently set for a preliminary injunction hearing maybe next week. Here is the article upon which I am basing this.

I think this lawsuit is really stupid, given that we are at the beginning of a pandemic where fear and an overwhelming desire for prophylaxis (“flattening the cure”), rather than an actual catastrophic event (like hundreds of thousands of deaths) is driving the narrative and government action.

What do these folks expect a judge – who is no doubt practicing self-distancing – to do? Go against the national sentiment and say the personal rights of a few people to associate are more important than protecting citizens from death from a plague which most experts think could happen? What judge is going to make a decision which could harm tens of thousands of lives?

As I keep saying, the Constitution is not a suicide pact, and the speech, association and religious rights of the few will always lose to the rights of the many to public health and safety. That was true during the SB 277 legal challenges when the issue was a relatively abstract concept of herd immunity, and it is a zillion times more true during an actual “pandemic.”

There is another saying, bad cases make bad law

So, these three idiots (and their idiot attorney) are going to force a judge to deny their preliminary injunction. Hopefully, they will have the belated good sense to walk away. If they don’t, maybe they continue to litigate the case, or maybe they try for an interlocutory appeal (i.e., an appeal before the end of the entire case, and not being a lawyer in that state, I don’t know whether that’s possible under their rules of court and procedure). If they do, then we will have appellate court authority on the issue. My prediction is that an appeal will go against them citing of course Jacobson. But you really don’t need a crystal ball to see that coming.

Look, there may come a time and place where legal challenges will be necessary, but it’s not now, and not on a direct challenge to a shut-in order.

So, if not now, when?

The time will come, hopefully in the next few weeks to a month, when the fear of the worst-case scenario is past or almost past. At that point, if the government restrictions appear to be unnecessarily oppressive to most people and many experts, AND if the enforced self-isolation/ quarantine becomes indefinite and is by fiat of individuals or the few, (even if they are judges), that might be the time for legal action. I say this because judges generally defer to public health officials and the government to ensure public health, and are reluctant to engage in second-guessing, in general, much more so during an epidemic like what faced the City of Cambridge in Jacobson, and even more so during a pandemic.

If there is to be a successful lawsuit, I predict that it will not be based on First Amendment rights to associate, because as indicated, that right will never win over the public’s right to safety and health, especially during a pandemic.

Rather, it will take a stronger right. The strongest right there is (in my opinion anyway) is the intersection between due process and habeas corpus. Meaning, if they start quarantining people indefinitely without a method of judicial redress, that is when I think the courts will show-up and protect people, and not a moment before.

Rick Jaffe, Esq.

Being prepared for Government overreach and medical mandates in times like these

Being prepared for Government overreach and medical mandates in times like these

I received the following email, and I thought it was worth responding to in a post.

“I hope you and yours are well and staying safe from the viral insanity.
I wonder if you have any advice on being prepared for overreach and medical mandates in times like these? I like to have at least a flexible plan.
I just finished reading Suzanne Somers’ “Knockout”, and watching Real Stories’ coverage on Stanislaw Burzynski… my cousin is currently seeing Dr Burzynski after a cancer diagnosis. I am so very grateful for your heroic and tireless efforts. Thank you. Deeply.
And keep it up, PLEASE!
(name deleted)

(Note: I helped Suzanne a little with her book “Knockout” which help was graciously acknowledged in her acknowledgements, and I represented Dr. Burzynski for many of his legal travails over the course of several decades.)

Some of my recent Stoller updates have indirectly addressed this issue, but the email I just received gave me the idea and reason to address the issue directly.

First piece of advice: Don’t go crazy, don’t over react and keep your powder dry, for now

Right now, what the federal, state and local authorities are doing in the face of the coronavirus pandemic seems reasonable and prudent, at least right now, albeit these actions are unprecedented, in scale or scope.

Let’s see what happens in a couple weeks. It is possible these current efforts will “flatten the curve”, or as the sceptics will say, that the whole thing was overblown. Many of you think the latter, but we should know in the next few weeks if that’s the case.

Second Piece of Advice: Let the experts and the thought leaders do their jobs

There are already rumblings amongst highly credentialed medical types at some of the most prestigious medical institutions (Stanford, Yale and others) questioning whether we are overreacting at the expense of our economic well-being. But as stated, it is too early to tell, but we will have a better idea in a few weeks, most likely. For sure, repost these opinion pieces from the medical elite published in mainstream media. They are a good counterpoint.

Third Piece of Advice: Be vigilant for efforts to suspend civil rights

Look, the government has a great deal of power in public health crises, like the power to issue shelter-in-place orders, and the power to quarantine. I’ve recently read how the Department of Justice is floating an idea that the chief justices of courts be given the right to indefinitely quarantine individuals, without judicial review. That is where I draw the line. If that actually becomes proposed legislation, that would be a point where massive social activism would be necessary.

Similarly, any other attempt to suspend the rule of law in the current circumstances, and by that, I mean where the current total deaths are a fraction of the annual deaths from the flu. I think that is important because any such attempts to restrict actual civil rights would be based on the fear of what could happen, rather than what is actually happening. On the other hand, if we start having hundreds of thousands of people die of this in a short time, then all bets are off, civil rights wise.

Generalized, the worse it gets, the more the government, (even the Trump administration which appears to be beloved by so many in the VC community) will attempt to further restrict movement and have the behavior of citizens conform to the new norms established by the public health authorities. At some point, enough will be too much, unless as stated, we start having crazy numbers of deaths (compared to annual flu deaths, which people either did not know about or accept).

Fourth piece of advice: Be mindful and vigilant of what comes next, and watch out for the Useful Idiots, (for those who have seen Homeland).

I think our country faces a far greater danger than the actual coronavirus, but I will address that in the next post.

But for now, don’t go crazy, keep your powder dry, wait, but be vigilant.

Rick Jaffe, Esq.