America has entered a confusing stage of the pandemic. It is vaccinating its citizens at an impressively fast clip. COVID-19 cases have come down precipitously since the start of the year. The daily number of new infections is less than a quarter of what it was at its peak in mid-January. But the pandemic is not yet over. Far from it. Hundreds of Americans are still dying of COVID-19 every day. Case numbers are creeping up again. New, more infectious strains of the virus are taking over. Herd immunity is still a long way off.
This confusion raises questions about the next weeks and months that are as complicated as they are pressing. Should states open schools, lift the remaining restrictions on businesses, and get the country moving again? Or should they maintain, or even reimpose, restrictions on daily life to minimize the number of people who will contract COVID-19 in the last stretch of the pandemic?
The only way to answer these questions is to examine whether the original justifications for restrictions still hold, and then distinguish between what governments should do and how private individuals should act.
Americans should not pretend that we have vanquished the virus. To minimize suffering, we should continue to take key precautions, such as wearing masks. But many state restrictions on the lives of ordinary citizens may no longer be proper.
In early March 2020, cases of COVID-19 were growing exponentially in the United States. Medical professionals did not yet know how to treat the sickest patients, or just how deadly the disease would prove. With barely any tests available, health authorities could not monitor the severity of the situation. Medical systems in some European countries were nearing their breaking point.
Faced with that dire situation, I wrote an article arguing “that anyone in a position of power or authority, instead of downplaying the dangers of the coronavirus, should ask people to stay away from public places, cancel big gatherings, and restrict most forms of nonessential travel.”
These measures were supposed to have two goals. At a minimum, they would help to avert the catastrophic situations that were then playing out in France and Italy. Social distancing would “flatten the curve,” ensuring that intensive-care units would not be overburdened, and that the health-care system could continue to function.
Government restrictions were also supposed to realize a second and more ambitious goal: They would buy public-health authorities time to implement a mass test-and-trace apparatus and a quarantine protocol for anyone who might be carrying the virus. The ultimate goal was to eradicate the virus or, failing that, to cut community transmission radically.
America has largely accomplished the first goal. Over the past year, ICUs were stretched perilously thin at some points in some places. Hospitals postponed nonessential surgeries. Many doctors and nurses worked unspeakably hard. But America’s health-care system survived the winter surges and provided assistance to the neediest.
Nor are hospitals likely to buckle over the spring or summer. Cases are at a lower level than they were three months ago, and the occupancy rate across the nation's hospital stands at a very healthy 70 percent. A large share of those Americans most likely to have required hospital treatment if they contract COVID-19 are already vaccinated. Millions more are getting their lifesaving shots every day. And with flu season at its end, Americans won’t see a “twindemic.”
The second goal is now moot—but for a very different reason: America gave up on it. By the end of the first series of lockdowns, the United States had not made any remotely serious attempt to trace the contacts of those who had been infected, much less to ensure that they would be effectively quarantined. Unlike countries such as New Zealand and South Korea, America never succeeded in ending community transmission of the virus.
The new administration has been much more serious about combatting the pandemic than the last. Its success in getting millions of vaccine doses into the arms of Americans every day has been remarkable. But neither the White House nor anyone else in America is working on a realistic plan to test, trace, and isolate patients. Until the country reaches herd immunity, community transmission will continue.
Pandemic-related restrictions vary widely from state to state, from county to county, and even from city to city. In some parts of the United States, such as Texas, mask mandates and restrictions on venue capacity have mostly been lifted. In other parts of the country, including Washington, D.C., restrictions on both indoor and outdoor activities remain in place.
What intrusions into the lives of Americans are still legitimate even though the original justifications have weakened or disappeared? Four broad principles can help answer that question, and guide how public authorities should act during the remainder of the pandemic—or, for that matter, if they face another pandemic in the coming years.
1. Restricting Fundamental Rights Requires Extraordinary Reasons
To protect fundamental rights, Americans are usually willing to tolerate all kinds of serious drawbacks. Even during wartime, newspapers are allowed to criticize the government. Even when guilt is evident, a perpetrator may escape a prison term if prosecutors acquired the necessary evidence in an illegitimate manner. And even though forcing people to stay at home would save thousands of lives during flu season every year, Americans may go about their business freely.
Last year, the threat posed by COVID-19 was sufficiently extreme to justify a time-limited restriction of basic liberties. Averting a breakdown of the country’s medical system, in particular, did qualify as what constitutional scholars call “a compelling state interest” in suspending some fundamental rights for a brief period.
But that brief period is now over. The compelling interest that motivated those restrictions—a breakdown of the medical system—is no longer valid. Restrictions on fundamental freedoms, such as the right to worship or assemble, are no longer justifiable.
2. Resist the Status-Quo Bias
Governments, like individuals, suffer from a strong “status-quo bias.” If a policy is already on the books, they give great weight to its positive effects and concentrate on the potential downsides of changing it. If it has not yet been implemented, they give much less weight to its positive potential, and much more to the problems it might create.
Last year, this status-quo bias made virtually every government around the world reluctant to impose restrictions that could have slowed the spread of the pandemic and allowed them to contain the virus. Now the same bias is tempting governments to sustain extraordinary restrictions. Because lifting restrictions may well result in some additional deaths, public officials are hesitant to give Americans back their basic freedoms.
Relatedly, some who argue in favor of continued restrictions have come up with a new justification for keeping the old rules. We finally have lifesaving vaccines, they say, so we might as well put up with far-reaching restrictions until we achieve herd immunity. But that rationale would imply that the state can restrict basic rights whenever the lives of some of its citizens are at stake—a principle that would give governments an excuse to curtail fundamental freedoms at just about any juncture.
The blatant moving of the goal posts is a worrying precedent for future emergencies. Governments should not keep extraordinary restrictions on liberty after the original justifications expire.
In balancing fundamental rights against the demands of public health, governments should not err on the side of perpetuating unprecedented intrusions.
3. Focus on What You Can Achieve Without Restricting Fundamental Rights
Not all rules and regulations are made equal. Mask mandates are one example of a restriction that can do a lot of good without imposing life-altering changes or interfering with basic rights. However cumbersome or annoying Americans may—understandably—find mask wearing, rules requiring masks are far less intrusive than those imposing a curfew or restricting indoor worship. Mask mandates make a comparatively large contribution to public health while placing a comparatively small burden on the freedom of individual Americans. States can legitimately keep them in place until the number of cases declines significantly from current levels.
Stricter-than-usual regulations on how businesses can conduct themselves are also legitimate. Restaurants and gyms have always had to comply with basic safety standards. During a pandemic, these safety standards should be more demanding. States are justified in requiring that such businesses test their staff for infections, ensure that indoor spaces are properly ventilated, and ask customers for their contact information so they can be informed of any potential exposure to COVID-19.
4. Trust Your Citizens
New evidence indicates that those who have been fully vaccinated are not only unlikely to fall seriously ill from COVID-19; they are also highly unlikely to contract the virus and spread it to others. This is excellent news, and it suggests that those who are vaccinated can resume something close to normal life.
Those who have not yet been vaccinated, however, do remain at substantial risk of suffering from serious disease or spreading the virus. Even as some restrictions are lifted, these people should—both for their own sake and for that of others—continue to be careful. If possible, they should abstain from such activities as indoor dining, attending dinner parties, and worshipping in crowded spaces.
The debate about which restrictions to lift has almost entirely focused on what the state should command its citizens to do or not to do. State authorities can also encourage their citizens to do the right thing. As the vaccination program speeds up, governments should move away from imposing the same rules on everyone. But instead of introducing a “vaccine passport,” which is likely to meet with enormous resistance, they should simply advise citizens as to what’s safe depending on their vaccination status.
Translating principles into concrete policies is never easy, and I do not mean to pretend that the four guiding principles I have outlined here will magically save local authorities from having to make choices that are genuinely hard. Like any large-scale emergency, pandemics present terrible trade-offs. No amount of clever moral reasoning can make them disappear. And because the pandemic is much worse in some parts of the country than in others, and because states should respond to conditions on the ground, governments will reasonably make different decisions in different places. The rules should not be identical in Texas and Michigan. But these four principles do have concrete implications for the future.
Governments should keep mask mandates in place so long as they are driving down transmissions, keep strict rules about ventilation, and require restaurants and entertainment venues to keep track of their customers. Meanwhile, governments should lift many of the restrictions that do represent a fundamental imposition on citizens. Remaining restrictions on houses of worship are no longer justifiable. Every child in the country must finally be able to attend school in person. And because outdoor gatherings do not seem to have driven major spikes in infections over the past year, they should lift many of the restrictions on the size of those events. In general, governments should recall that the decrease in mobility and business activity followed changes in case numbers more closely than it did the imposition of legal restrictions. Americans have the capacity to heed common sense.
Let’s stop pretending that the rules that made sense in April 2020 still make sense in April 2021—and lift those restrictions that no longer have a compelling justification.