The Administrative Law Judge has reset the Stoller Medical Board hearing for the week of June 8, 2020. Due to the uncertainty as to the length of the current shelter-in-place order in the Bay area and social distancing, she indicated that the hearing will go forward whether in person, videoconferencing, or telephone(or via smoke signals).
Like almost everyone save the hard-core conspiracy crazies, I am struggling to figure out what to make of all this Coronavires stuff; what should be the appropriate response; what is the worst-case scenario in terms of government reaction, and the legality thereof. Let’s start with the good news about where we are:
Since we are in the third geographical wave of this pandemic (Asia, then Europe), we continue to have many varied real-time scenarios and a plethora of data points to see how this all plays out. If the information coming out of China is correct (and that might be a big if), China is on the back side of the problem. Verification of China’s status (and the status of other Asian countries) could come in the next few weeks from Europe. That means we might be in a better position to assess the risks and how extensive the governmental and societal response needs to be, and for how long. But given the information available so far, it seems obvious that the best thing to do is follow the consensus advice of social distancing and reassess in a few weeks.
The bad news is that now there is talk about waves of infection lasting eighteen months or more. That is going to be complicated because we are not necessarily going to have real time data on that. The wave prediction will just be on the basis of modeling and maybe some prior pandemics, at least until it starts happening somewhere.
That will present some hard societal choices, and that is where the concerns of the pandemic sceptics will have to be taken more seriously. How much do you shut down society and commerce which surely will trigger a deep recession or even a depression because of the risk of a future wave? It seems unimaginable to me, other than in an apocalyptical scenario, that people will be willing to voluntarily live in a social distancing world indefinitely.
Government authority and regulation wise, cities, counties, states and the US government have very robust isolation and enforcement tools to combat an ongoing national communicable disease crisis. I have written about the Los Angeles Public Health Department Public Health Quarantine rules previously. Here is that post:
Many of you know that the Jacobson case, which was the Supreme Court’s first foray into mandatory vaccination, was a result of a small pox epidemic.
I would also remind you that during World War II, the US government interned over 100,000 Japanese Americans, half of whom were US citizens, because of national security concerns, even though there had not been a single case of a Japanese American committing an espionage act. The Supreme Court said that it was OK with them because it was a national emergency. (The case was US. V Korematsu.Here is the link: https://www.landmarkcases.org/cases/korematsu-v-united-states. Might not be a bad idea to take a look at it, because a new iteration of it might be coming to your neighborhood.)
The bottom line is that governmental authorities have plenty of power and precedent to restrict your freedom of movement.
Now the $64,000 question: What about compelled vaccination, meaning forcing people to be vaccinated for Coronavirus? That is a tougher and legally murkier question, and one not necessarily or arguably answered by all the mandatory vaccination cases, meaning cases which say you have to get vaccinated or pay a fine or you can’t send your kids to school, or be a health care worker.
For what it’s worth, one of the most basic constitutional principles or maybe a meta constitutional principle is that the Constitution is not a suicide pact. I think that means that the government will do what it has to do to protect the public as it, rather than each individual decides.
But that is all theoretical and not imminent in terms of possible compelled Coronavirus vaccination for at least two reasons, one practical, and one regulatory.
The practical reason is that by all accounts a Coronavirus vaccine is around year away, making it almost certainly beyond the initial wave. It will be a much different conversation when we are between waves; the implication being, there will not be imminent mass deaths (hopefully). Before the next wave, we will also have processed the data from the initial wave, so more informed decisions could theoretically be made. (And yes, here is where the big pharma could and most likely will be a major player in these policy decisions.)
Second, as indicated, the government has other drastic tools, like quarantine and even internment. I am not saying that will happen, but Korematsu tells us that you can’t count on the courts to protect people against rational or even irrational fear.
Circling back to the present, it seems to me that temporary social distancing is the order of the day. Give it a few weeks, see how the data grows, and perhaps a clearer picture emerges. Let the debate happen amongst the experts (republished by the Facebook warriors), and maybe in the two week to one month period there will be enough new information to make an informed decision about whether to go back to normal or not.
Rick Jaffe, Esq.