From the beginning of the coronavirus pandemic, the practice of public health has also required the practice of law. As widespread vaccination and other factors have brought case rates down across the United States, state and local governments’ legal authority to impose extraordinary measures in the name of fighting the virus is becoming more limited. Governors and mayors have steadily lifted restrictions not just because infections are down, because vaccinations have increased, or because the public can no longer tolerate pandemic-related restrictions, but also because officials’ power to impose blanket limits on the behavior of individuals and businesses has a defined end: when people have the ability to protect themselves. Nationally, thousands of new coronavirus infections are still occurring every day, but efforts to combat the pandemic from this point on will have to operate within stricter legal constraints than they did in the early weeks of the pandemic.
In April 2020, on assignment from the CDC, I became the senior adviser for public health in New York City Mayor Bill de Blasio’s office. My job was to lead the strategy for fighting COVID-19. In that capacity, I spent as much time talking with lawyers and writing affidavits as I did analyzing the latest COVID-19 research. In those days, “following the science” of public health was fairly straightforward: It meant mandating masks and physical distancing, promoting widespread testing and isolation when necessary, and, crucially, restricting the right of businesses and other entities to welcome people from different households indoors. When New York City and New York State ordered such measures, we were sued by restaurants, bars, and gyms.
Our successful defense against these suits rested on several facts. First, everyone was at risk from COVID-19. Second, in the absence of a vaccine, the only effective way to reduce the risk of illness was to reduce the risk of exposure, and the only way to do that was for everyone to sacrifice for one another by wearing masks, maintaining distance, and exercising constant vigilance. Third, any indoor gathering of people from different households risked transmission to large numbers of people from different social networks. (Where such gatherings were unavoidable, such as in schools, strict precautions were required at all times.) Finally, and most important, widespread community infection could lead to two existential threats: the collapse of the health-care system, and an extended period of mass death on the scale of what New York experienced in the horrific early phase of the pandemic.
Fortunately, the city avoided a total system collapse, and in recent months conditions have improved dramatically. New case rates have plummeted. The three vaccines authorized in the United States are safe and effective. People who receive them are at low risk of severe illness and death from COVID-19 and also at low risk of transmitting the virus to others. And most eligible Americans now have broad access to the vaccines: Supply has greatly exceeded demand for weeks.
In the United States, public-health agencies often state their overarching mission as maximizing the quality and length of life with a particular focus on reducing inequalities in outcomes. But their legal authority to regulate residents’ civil liberties derives from a narrow source: the responsibility to protect public safety, as delegated to states in the police-powers clause of the Tenth Amendment. Just as average citizens lack the ability to stop a terrorist or extinguish a wildfire, they also lack the expertise and technology to address major health threats. Individuals cannot, for example, identify a product that caused an E. coli O157 outbreak and take it off grocery-store shelves.
And yet for public-health agencies to use their authority, expert opinion is not enough. They also need broad community consensus that the government is justified in invoking its police powers. The more widespread and urgent the threat, and the fewer reliable methods individuals have to protect themselves, the greater the public’s expectation that the government will step in.
Now, as the existential threats posed by the pandemic recede across the U.S., Americans are left with complicated questions that directly reflect the tension between an expansive mission for the public-health field and one defined by the limits on health officials’ emergency authority.
Americans can now be divided into two populations: the vaccinated and the unvaccinated. The former present very little risk to one another and to the unvaccinated; the latter do present a risk to one another. Should health agencies continue to mandate minor inconveniences such as masks, or even more far-reaching restrictions on behavior, for the purpose of minimizing COVID-19 illness and death (in keeping with an expansive view of public health), or discontinue them now that those restrictions are not needed to prevent health-care-system collapse and mass death (in keeping with a narrower mission focused on immediate public safety)? Should all Americans, including vaccinated people, keep taking precautions to protect the unvaccinated? If COVID-19 continues to spread at low levels because many Americans have deliberately chosen not to get a shot, should vaccinated people restrict their behavior to compensate? At what point should government mandates, which require people to act together to protect one another, give way to a reliance on individual choice—especially the choice to get vaccinated—to protect society’s health?
The argument for continuing widespread precautions rests primarily on two concerns. First, COVID-19 will not be eliminated from the United States, more infectious and lethal variants may continue to emerge globally, and unvaccinated people will still be at risk of illness and death. Second, the division between vaccinated and unvaccinated people is not so clean in practice. Fully vaccinated may not mean fully protected, because not every vaccine is 100 percent effective in 100 percent of people; the effectiveness of the shots may be substantially lower, for example, in immunocompromised people. Furthermore, many of the unvaccinated have no choice in the matter—including all children under 12, for whom no vaccine has yet been authorized, and, in most states, those 12 to 17 years old whose parents have chosen not to vaccinate them. Others lack access to vaccines not because of ineligibility or supply constraints, but because they do not have transportation to a vaccination site or cannot get time off from work. Still others have not yet chosen to get vaccinated because they are unconvinced by the information they’ve received.
Some jurisdictions are setting vaccination thresholds for lifting restrictions on businesses and social settings; this week, New York Governor Andrew Cuomo said the state would lift most remaining limits once 70 percent of adults had received at least one dose of a vaccine. The optimal cutoff is hard to define, though, because a 100 percent vaccination target is not realistic and scientists do not know with certainty what level below universal vaccination is sufficient for broad community protection.
Another reason state and local health agencies will continue to wrestle with tensions over lifting restrictions is their own institutional form of PTSD—a well-founded fear that COVID-19 could fell our society again. They and the elected officials whom they advise vary widely in how much authority they are willing to assert, however. Some agencies will remove all precautions in the face of overwhelming pressure from business owners or the general public. Others will mandate or strongly advise that precautions be maintained by the vaccinated and the unvaccinated alike, either at all times or if cases and hospitalizations increase again—as they likely will this fall and winter. Many academic public-health experts favor more stringent restrictions than public-sector practitioners, including me, believe are realistic. Experts can fairly argue that because we’re all in this together, universal precautions should continue even when the existential threat to society has passed. But it’s quite another thing to enforce those restrictions on businesses and workers whose livelihoods remain at risk and on the large and growing swath of the population that has been vaccinated and rightly expects to return to pre-pandemic activities.
Ultimately, the path forward requires returning to the primary mission of public safety: protecting those who cannot reasonably be expected to protect themselves. In the U.S., the highest priority for all government agencies, employers, and health-related organizations should be to ensure truly universal access to vaccines. A successful policy would ensure that all residents of communities with low vaccination rates are confronted with vaccination drives in their houses of worship, pharmacies, community centers, and workplaces. It would also provide people with paid time off to get shots and recover from side effects. To overcome hesitancy—including that resulting from some Americans’ experience of poverty and societal racism—health agencies should work closely with trusted messengers and media channels to relay pro-vaccination messages built upon facts, respect, and empathy.
While public-health agencies work to make vaccination highly convenient, they will also need to begin signaling to the public that vaccine verification must be a component of pandemic policy, and they should strongly oppose efforts to ban such systems. Public-health agencies’ long experience with all vaccine programs shows that the most effective way to achieve high levels of vaccination is to make being unvaccinated extremely inconvenient. Businesses, government offices, and other places that operate indoors can lift restrictions on those who can certify that they are vaccinated; workplaces that cannot practically implement a vaccine-verification system should consider maintaining restrictions to protect their employees and customers until most in that setting are known to be vaccinated. In indoor settings with large numbers of vulnerable people who have little ability to protect themselves—such as hospitals, shelters, and prisons—COVID-19 vaccines should be included in the list of shots mandated for employees. Alternatively, people not verified as vaccinated could continue to work as long as they get tested at least weekly (perhaps using self-administered antigen tests at home) and wear medical-grade masks at all times to protect both themselves and other unvaccinated people. Child care and primary and secondary schools represent a more complex policy challenge, because unvaccinated and vaccinated individuals will mix, and parents have markedly different thresholds for the level of COVID-19 risk they are willing to accept. (Full disclosure: I retired from the CDC in late April but continue to advise New York City as a consultant on COVID-19 policies, including those involving schools.) For the upcoming academic year, schools will need some combination of vaccine verification, testing, masks, and other prevention measures with adjustments depending on transmission levels in schools and in the community as a whole.
When faced with existential threats, extreme approaches are warranted. But as the worst threats wane, the most sensible approach to public-health decision making will fall somewhere between “We’re all in this together” and “Your fate is in your own hands.” A more targeted approach—one that neither requires universal sacrifice nor relieves everyone of all inconvenience—isn’t just politically wise or legally necessary; it’s the only path forward that we have.