Coronavirus & The Law

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A coronavirus outbreak is raising attention and concern worldwide. Dr. Jennifer Nuzzo and Prof. Lawrence Gostin will discuss the outbreak. What can be done about it? What do we know, and what remains unknown? Join the call to learn about the law and policy options available against this urgent national security crisis.

Dr. Nuzzo is an epidemiologist and Senior Scholar at the Johns Hopkins Center for Health Security. Her work focuses on outbreak detection and response. Dr. Nuzzo has advised national governments on pandemic planning efforts, and also worked as a public health epidemiologist for the City of New York.

Prof. Gostin directs the O’Neill Institute for National and Global Health Law at Georgetown University. He also directs the World Health Organization Collaborating Center on National and Global Health Law. Prof. Gostin served on two global commissions about the 2015 West Africa Ebola epidemic.

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International and National Security Law Practice Group, was recorded on Wednesday, March 11, 2020, during a live teleforum conference call held exclusively for Federalist Society members.  

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled, "Coronavirus and The Law." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Doctor Jennifer Nuzzo, who is an Epidemiologist and Senior Scholar at the Johns Hopkins Center for Health Security. Her work focuses on outbreak detection and response. Dr. Nuzzo has advised national governments on pandemic planning efforts, and also worked as a public health epidemiologist for the City of New York.

 

We also have Professor Lawrence Gostin, who directs the O’Neill Institute for National and Global Health Law at Georgetown University. He also directs the World Health Organization Collaborating Center on National and Global Health Law. Professor Gostin also served on two global commissions about the 2015 West Africa Ebola epidemic. After our speakers give their opening remarks, we will then go to audience Q&A.

 

Thank you for sharing with us today. Jennifer, the floor is yours.

 

Dr. Jennifer Nuzzo:  Great. Well, thank you. Thank you so much for having me and allowing me to talk about this really important topic. I speak a lot about COVID-19, and every time I speak, I feel like I have to update my remarks because it's very much a fluid situation. So I'm going to do my best to describe for you what we are seeing now and make some suggestions for areas where I think we are going to have to apply additional attention about recognizing that this is very much a situation that's dynamic, and these matters could change quite a bit, particularly as we gain new insights into the virus and the pandemic that we're seeing.

 

So since we first discovered this virus—it was first identified in Wuhan, China at the end of December—we've really learned a lot. We are now in a situation where we're faced with over 100,000 cases being reported globally, 4,000 deaths, more than 4,000 deaths, and, as of today, more than 100 countries have been reporting cases.

 

      In the U.S., the latest numbers are that we are now above 1,000 cases, and these cases are being reported in pretty much all but 10 states. The majority of the cases found in the United States at this point are among people who have not traveled, indicating that there is substantial local transmission going on in our communities.

 

      I think it's important for us to recognize that one of the very key details that we've learned about the virus that causes COVID-19 is that it is capable of causing a spectrum of illness. So initially, the first case reports were among hospitalized patients who were experiencing viral pneumonia, but what we have now learned is that about 80 percent of the cases reported to date experienced mild illness and don't require hospitalization. And that's, I think, an important factor for us to consider in thinking about how best to respond to this virus.

 

      For those who have experienced severe illness and death, the risk factors that have been identified are older age and underlying health conditions, and those two are not necessarily concurrent. So if you are somebody with an underlying health condition who is not elderly, you are potentially at risk. Obviously, if you fall into both of those categories, then that's also quite a difficult situation.

 

      What we don't fully have a handle on right now is the size and scope of the epidemic. Although it has been, I think, quite promising the speed with which countries have been able to stand up testing for what is essentially another quarantined virus. The fact -- if countries haven't yet reported cases, it could very well be determined by how much they're testing or whether they are in fact testing yet.

 

      And that's very much true, I think, here in the United States in terms of where we're likely to see cases, which states have them and which don't, how the degree to which states are able to test will very much determine how many cases they may be reporting.

 

      Another complicating factor in our ability to understand just the trajectory of this pandemic and how severe it might be is the 80 percent number I mentioned, that those mild cases. If somebody's infected and they become ill but they're not ill enough to seek medical attention, even if they live in a country where testing is widespread, they may not be captured by surveillance. So if we are in a situation where we are undercounting the mild cases, it makes it very difficult for us to understand the severity of this virus.

 

      Much of the surveillance for this virus has been bias towards finding severely ill patients. Much of the testing in many countries has been directed at hospitalization and testing people who are sick enough to wind up in a hospital. And so that may be sort of skewing our understanding of how severe the virus is.

 

      The best global estimates -- and they're really quite terrible, I have to say about severity. And one of the reasons why they're quite terrible is essentially what we're doing right now is dividing the total number of deaths into the total number of reported cases. And that gives us a very imperfect and, in my view, inaccurate measure of severity. That number has changed. It was initially about two percent for a long time, which is alarming in itself. But with substantial epidemics in Italy and Iran, that number has jumped up to above three.

 

      I don't believe that this is a fully accurate calculation because, as I said, I think we are only capturing or at largely capturing the severe illnesses and undercounting the mild illnesses. But nonetheless, even if it were a much lower percentage, even one percent or even a fraction of a half of a percent, multiplied by the total number of people who could become infected, that's quite a number of severe illnesses and deaths. And so health authorities right now are particularly worried about what a surge of patients, particularly if they all occur at one time, what that could mean for health systems and their ability to accommodate those patients.

 

      For these reasons, you will likely hear discussions in pretty much every state at this point talking about what measures can be taken, particularly to reduce the -- not the total numbers of people infected but potentially to try to slow the spread of the disease in an effort to what they call flatten the curve. This idea that we may not be able to change the total number of people who become infected, but perhaps, we can spread it out over time.

 

There are a number of measures being considered. You've probably heard in many states conversations about cancelling large public gatherings or discussions about -- obviously, as they identify cases, they're going to be trying to identify the contacts of those cases and potentially place those contacts under a 14-day quarantine until they can be assured that they are not infected.

 

Other measures on the table are probably school closures. You've probably heard about in Westchester, trying to shut down the buildings, so going beyond sporting events and concerts but also considering closing places of worship and businesses, other places where people can gather.

 

      In my view, most of these decisions are being made on an ad hoc basis with varying levels of input from health authorities. Sometimes, they're being made for political purposes. I think there haven't been very strong guidelines coming from the federal government. As a result, a number of states are trying to figure out what to do based on their understanding, based on their resources, and based on what their local situation and capacities are.

 

      As we think about how best to respond to this virus, I am very much interested in trying to maximize the resources that we have. And so I think that there are a lot of things that we potentially could do, that some of which have varying levels of a surety in terms of what impacts they would have. But nonetheless, I think there are some things that rise to the top of the list. And so I very much hope that states above all consider these measures.  

 

      The first one is we absolutely need to encourage sick people to stay home. This is probably the single most important thing that we can do. Isolating the sick is a very tried and true public health method. If people are sick but not sick enough to be in a hospital, they should be isolated at home. And some of these people will probably need support in order to be able to stay home for the duration of their illness.  

 

      Obviously, if people are sick enough to require hospitalization, then they should be able to access care, but we don't want just sick people just showing up unannounced at health facilities. And so finding some way to connect people to care in a way that will minimize exposures is quite important.

 

      We obviously have to think about protecting health care workers and making sure they have the personal protective equipment and other resources they need in order to be able to treat patients and to treat patients safely in a way that won't put themselves or other patients in harm. And clearly, stories about shortages of personal protective equipment are quite alarming.

 

      I think the ultimate goal of our efforts should be key -- I mean, most important in our goal to try to control the spread of this virus should be to reduce the numbers of people who become severely ill and die because those individuals are going to require the most amount of health care resources and critical care resources, in which we have probably the least amount of extra in the system.

 

      And so for that reason, I think it's critically important that we think about how to protect those groups that we know are most vulnerable to severe illness. That includes the elderly, people with underlying health conditions, people who live in congregate settings like group homes and prisons and other places that may have these underlying health conditions.

 

      The goal here is just not entirely just trying to change the total numbers of people who get sick but to reduce the total numbers of severe infections. And this I believe will have the greatest impact in reducing the burden on our health system.  

 

      We also need to try to prevent -- or not prevent but provide alternate forms of care or in many cases information to people who may otherwise show up to emergency rooms simply because they're looking for information or they're looking to be tested, but they're not severely ill or don't require hospitalization. This happened a lot during 2009 during the H1-N1 pandemic, and it was a particularly alarming situation because it really puts a strain on emergency rooms and it also potentially creates opportunities for transmission.

 

      So we need to find a way for -- some time this group is called The Worried Well. There are people who are going to want to access care because they may not have another place to get it. Maybe -- I know my personal physician's office sent a note saying if you have symptoms of COVID-19, think about not coming to our office. And so as primary care providers perhaps take themselves offline in terms of fighting this virus, I think that will put additional strains on our hospitals.

 

      So I see those as being most important measures that can be taken, and one of my concerns in responding to this pandemic is that there are many other things that we can be doing, and I feel that the government officials and public health authorities in many places are being pulled in a million different directions and not adequately, in my view, focusing on these high priority measures.

 

      So I think when you have a situation where there are limited resources, it is important for us to make sure we at least check off those items that are at the top of the list. So I think I'll stop there, and maybe, Larry, you can offer some insights and then we can circle back to questions.  

 

Prof. Stephen Vladeck:  Well, I thought that Jennifer did a really, truly magnificent job, and I think she clearly highlighted the most evidence-based interventions. The questions I've been being asked, and I just wrote an article for Health Affairs on this, is whether or not we could in America or should have a large-scale cordon sanitaire.

 

Most people use the term mass quarantine, which is not quite accurate. But the newspapers have been referring to this as a lockdown. As we know, the Chinese have locked down or closed off travel and intersect interaction within the City of Wuhan and the wider Hubei Province, affecting up to 70 million people.

 

      Italy had similar tools that they used for Northern Italy, and now, it's -- originally, it was a quarter of the population. Now, it's most of the country, and the question is could that happen in the United States? Should it happen in the United States? And so let me just talk for a minute about whether it's a wise idea to implement those kinds of measures in the U.S., and if not, what would be a better public health and legal strategy for us to use, which I think is actually quite close to what Jennifer is suggesting, which I agree with.

 

      So I think I -- if you could imagine the idea that we would seal off, wall off New York City, San Francisco, Chicago, or even a smaller city like South Bend, Indiana -- And while Governor Cuomo has recently said that he's called in the National Guard for a containment center in New Rochelle, I think he was just being dramatic, because it's not anywhere near the kind of lockdown that people imagined. It's really more social distancing of the kind Jennifer talked about.

 

So I think that a mass quarantine -- I'll just use that colloquially even though cordon sanitaire is the proper term. Cordon sanitaire literally means a guarded border where no one can enter or exit, but I'll use mass quarantine because it's the popular term. I think it would be unconstitutional in the United States, and I think it would be hard to enforce, maybe impossible to enforce. And I think it'd be unethical.

 

      So why is it unconstitutional? Well, the Supreme Court has never really had a major case on quarantine, although it's had cases related to things like vaccination and the famous case of Jacobson v. Massachusetts. So we know that states have very substantial police powers, but the Supreme Court has opined on civil commitment of the mentally ill, and other courts have said that civil commitment of the mentally ill and quarantine are equivalent measures because they're both civil confinements. The person has committed no crime, and the justification is to protect the public. And the courts have said, and the Supreme Court said in its civil confinement cases, that this is a massive depravation of liberty. And, indeed, it is.

 

      And so in order to do a proper quarantine, you need to have an individualized risk assessment that the individual does pose a significant risk to the public on a clear and convincing evidence standard. And that would certainly apply if somebody was in close contact with a diagnosed case of COVID-19 and that they could be quarantined. In fact, I foresee that there'll be hundreds of thousands, if not millions, of self-quarantine in the United States in the coming weeks.

 

      Nonetheless, a mass quarantine would be unlawful. I think it would violate most state public health statutes, but also, it'd be unconstitutional because there'd be no individualized risk assessment. It would be disproportionate, and there would be less restrictive alternatives, like evidence-based quarantine or social distancing of the kind that Jennifer mentioned.

 

      So I think it'd be unconstitutional. But even if somehow, the courts upheld it or it wasn't challenged, I think it's inconceivable that could happen in the United States because the U.S. is not China. We wouldn't tolerate the system of social control, control of freedom of the press, intrusive surveillance, and even citizen informers that have occurred in China with its lockdown of Wuhan.

 

      And so I think it would be impossible. I couldn't see armed guards throughout every bridge in the city in New York City preventing people from moving. But what I could see is measured isolation in quarantine if the person was exposed or reasonably should be exposed. I could see social distancing, people working from home remotely, learning from home remotely at universities. I can see closure of mass events, canceling of mass events, political rallies, searches, and business conventions.

 

      I can absolutely see if those are vital, and I could also see temporary school closures. We're already beginning to see that. We're probably going to see more of it. So in summary, we want to have a careful balance between civil liberties and public health. One doesn't trump the other. And while public health is, I think, the most important value, it's not the only value.

 

      And so we have to keep our heads not panicked but take this very, very seriously because we're in a serious national and global health emergency and do so on the basis of science and evidence. What works, what doesn't work, and what we can do to protect the public without draconian measures. So that's really what I thought I could add as a law professor and the director of the WHO Center on Global Health Law. And now I'm happy to stop, and the both of us can take questions or have a conversation.

 

Micah Wallen:  All right. Thank you, Professor. We'll now go to our first question.

 

Mary Ann McGrail:  Hi. Mary Ann McGrail, an attorney in D.C. Under the Clery Act, there's an emergency notification requirement, and I'm wondering how that plays out here because it does apply to health issues -- health risks.

 

Prof. Lawrence Gostin:  Can you just explain how that act operates and what it says?

 

Marian McGrail:  The Clery Act requires universities and colleges, institutions of higher education, both to report crimes statistics. But also, it has in it, under a 2008 amendment to the act, an emergency notification requirement so that, for instance, if there is a serial rapist on campus or an active shooter, things like that, the university or college administration has a legal obligation to make an emergency notification to the campus population.

 

      That also appears to apply in health cases, cases where there's a health risk. So I'm wondering how that plays out here.

 

Prof. Lawrence Gostin:  I think clearly -- and I've been very, very active in working with the leadership at Georgetown to try to work on our coronavirus response. I think that it would be wise and perhaps just obligatory to advise the student body of any cases. I know we've done that at Georgetown. We had one at Georgetown Hospital very recently, and it's absolutely essential to do. But I think that's the minimum that universities and schools should do because the truth is is that even if there is no diagnosed COVID cases, there may very well be undetected cases in the student population.

 

      And then so I think we need to certainly tell everything that we know and what we don't know and what we're going to try to do to find out what we don't know. So, yes, I think those kinds of notifications are really health communication 101. We really do need to keep everybody feeling like they're well-informed and protected and tell them the steps they need to take to stay safe. That's a university's highest obligation.

 

Micah Wallen:  All right. We'll now move to our next caller.

 

Dan Cannacook (sp):  Yeah, this is Dan Cannacook from Louisville. I had a question for Dr. Nuzzo. Thank you so much. That was just so informative, and I appreciate that. The question I had for you is as it relates to your professional opinion, at what point do you see, when you look at the statistics and all the things coming in, do you see that the situation is improving or is it getting worse? Are we at some place now where you just don't have enough data, I don't want to say to make a prediction, but to at least say oh, I see some light at the end of the tunnel here?

 

Dr. Jennifer Nuzzo:  Yeah, thanks for that. That's a great question. The challenge here is if we're talking about the United States, as you've probably heard because it's been pretty much dominating news stories on this, we don’t have the kind of testing protocol strategies and reporting initiatives to really help us gain insights that we need. Different states are testing at different volumes, and in our push to expand testing of COVID-19, which I think everybody agrees is absolutely essential, what it means is that we've lost a centralized reporting structure.

 

So now that as states are going to be doing testing at their public health laboratories, it'll be less clear how many tests are being performed. I think we will still hear, of course, numbers of cases found, but we won't know what the denominator is to know of how many people who have these sort of symptoms who have been tested, how many do in fact have COVID-19. That's a really difficult thing.

 

      Additionally, as clinical laboratories come online in terms of being able to do testing, which again, also essential because we need to equip clinicians to treat their patients and to figure out how to isolate them, it's also going to be less clear how many tests are being done and what populations are being tested because I believe in most cases, if a specimen is sent to a clinical laboratory versus a public health laboratory, it will be at the discretion of the individual clinician.

 

      Again, essential that we give clinicians the flexibility. But what it's going to mean is that it's going to be very difficult to track in close to real time this situation beyond just the case report numbers. And so that's going to create difficulties where we're going to probably see clusters of cases being reported by one state. And if the 2009 pandemic is a guide, that will prompt questions about what is going on with state X? Why do they have so many cases, which could very well be tied to just differential approaches to testing.

 

So I think this is going to be really essential, and I feel that we have to figure out a way to track this on a national level because while it's important for a state to know its own situation, which is useful, as you know, people cross state lines. There's just lots of reasons why we need to understand this at the national level. For so long, I think we took the absence of reported cases to mean the absence of infections, but I think now we are finally gaining a window into the fact that there likely have been infections occurring for a long time and quite possibly, severely ill cases and deaths that were just otherwise not caught and just attributed to the category of viral pneumonia.

 

So I don't have a great answer for you. I think we're going to have to look to alternate sources of data as well and things like worker absenteeism, which, again, is not great because some of this may be tied to other factors pulling on us like childcare obligations and needing to care for sick family members. But we may have to consult other data sets, possibly data sets that aren't in purely the public sector reporting chains who have a sense of what impact we are seeing.

 

Because the other thing I want to stress is that it's not just about the case numbers, it's about the secondary and tertiary consequences of both the infections caused by the virus due to worker absenteeism, etc., but also our response measures. And if we start seeing breakdowns in certain areas like, obviously, health care is one, but it raises important questions about critical infrastructure in other things. Those are, I think, important sectors that we should be looking to to monitor because deciding if the situation is getting better or worse could be different depending on what the impacts are, and it's not purely just about the case numbers.

 

Dan Cannacook (sp):  Dr. Nuzzo, thank you. I had one more question. So one of the concerns that I have is that there's this freak-out factor that is going on. And so you have in some areas, a freak-out factor of everyone is just shutting everything down, and on the other areas you have hey, let's take it. Let's be vigilant, let's take it serious. I mean, how important is it for the country, the United States, not to freak out right now, but to take it very seriously at the same time, and what balance and what would you recommend, is the country doing enough right now to address that?

 

Dr. Jennifer Nuzzo:  Well, first of all, I think a lot of maybe what you described as the freak out is probably the results of people feeling like they're getting inadequate information, which I think is a fixable problem. So just to say that that should be our absolute top priority is to make sure we are as transparent as we can be and try to put out as much information as we can, particularly monitoring for certain questions that are emerging that people are quite worried about.

 

      I mean, this situation is serious, and it absolutely warrants our attention. As I said in my opening remarks, I feel that we have not done a great job in focusing the attention that I think this situation warrants. And I think we are sort of chasing everything that pops up, and I think that lack of prioritization has visibility. I think people can feel the lack of a focused response.

 

      So I very much want to see states prioritize certain actions, not to say that they can't do other things, but they absolutely, I think, have to focus on the things that I mentioned that they should do. They need to transmit this information to the public, and I think this is utterly essential. There are actions and activities and behaviors that are happening in our communities that are utterly inappropriate, and I think will require leadership to address.

 

      For instance, I talked to health officials in a large U.S. city, and they were expressing frustration at the things that they get called in to deal with including, say, calls from the public saying there's a dentist who just came back from Italy, and there's lights on in his office. Can somebody go and test them because I'm afraid he's going to be infecting everybody. Or school departments calling and saying there's a kid who's coughing in the school, can you come and test them? I mean, they're just getting pulled into a million directions, and I feel that if they are able to establish what their priorities are, that will help them say that these are the areas where we are going to act and here are the areas where we are not going to act.

 

      I also think that we need to model the appropriate behavior, particularly with the reports of attacks and other instincts being targeted and certain members of our community for perceived that they may be more at risk of infection. I know this happened also during Ebola in 2014, and I know a lot of local leaders made a point of going out to certain parts of the community just as a signal that we don’t have to fear our neighbors, and that it is not helpful to us or the response if we turn on each other.

 

Micah Wallen:  All right. We'll move to our next caller.

 

Rod Sullivan:  This is Rod Sullivan in Jacksonville, Florida. I heard somewhere on the news that there's a presidential election going on. I don’t know if that's true or not, but this question about testing kits has become a little bit of a hot potato, and MSNBC has said that it's Trump's fault that we don't have enough testing kits to test people. So my question to you is this.

 

First of all, as I understand it, that the approval to manufacture testing kits comes from the FDA, which is an independent agency, independent from the President. My also understanding is that on February 4, they authorized production of testing kits, and we only discovered this disease in late December. So I guess my question is did they authorize the production of these testing kids soon enough? Is it the President's responsibility? And why is there a bottle neck? Why can't we produce as many testing kits as we need in a short period of time?

 

Dr. Jennifer Nuzzo:  So first of all, this is a general principle I'm very worried about attempts to politicize this response. It's just not helpful to anything. That said, I think there are just deficiencies in our response that we have to be honest about and address them. It's just that's true of -- I've spent 20 years of my career setting response to outbreaks, and there's also deficiencies. No response is ever perfect.

 

      I do think the testing issue was a blind spot, and I think it was in part an unanticipated technical glitch that was not addressed fast enough. And had it been addressed faster, I think we would've been in a better situation than we are now.

 

      The only fault I place, and it's not fault, it's more that I think when you have a situation where individual agencies are acting according to the way the individual agencies do, that tends to limit projecting forward to what the national needs are beyond just the particular roles and responsibilities of individual agencies.

 

And so I think had it been clear from a national perspective that there was a deficiency in the tests that were being developed and deployed by CDC, that a national solution to thinking about well, what are our alternatives? Could we get the FDA to bridge the gap by changing authorizations? Could we, perhaps, use additional tests, the WHO test, for instance, that many other countries are using?

 

      I think that’s where we fell short, was just that kind of projecting outward to see where could we be in several months? What kind of testing would we need in order to have the surveillance that we need to make decisions? How can we stand up testing, not just to find individual cases, but to be monitoring for the occurrence of community transmission, to do surveillance, not just diagnosing patients at the bedside or in hospitals but thinking about how we're going to study the virus as it's unfolding in our communities, trying to identify what the prevalence of infections are in our communities.

 

There's just a number of information needs that we have that we didn't have the surveillance scheme to support. And the only blame I place, and it's not really blame because mistakes are always made in these circumstances, is that we as a nation didn't lean into the situation and project our far enough. And then when we identified potential shortcomings or gaps in our capabilities looming, we didn't think of alternative solutions.

 

      So yes, the fact that we still don't know how to fix this problem entirely because states now, even though they have the testing capabilities, they still have a very limited testing scheme. And if you see in another headline, which is true, that there's now shortages of reagents that the tests are using, so this is going to be an issue going forward for the long term. I think we, just as a nation, need to just be looking forward and trying to identify work arounds and trying to red team our response and figure out where our vulnerabilities are.

 

Micah Wallen:  Professor, did you want to add anything?

 

Prof. Lawrence Gostin:  There clearly was a failure to react quickly, partly with CDC, partly it was the FDA. Ultimately, both are executive agencies, and they're under the White House jurisdiction. The task force came late, and I think they're at the White House level with Vice-President Pence. They're now trying very, very hard to roll out the test kits.

 

But it certainly has been an impediment to our understanding of the level and trajectory of COVID in the United States and being able to respond to it. I think we would’ve been better off had we been able to do the kind of wide-spread screening that has occurred in places like China and South Korea and Japan.

 

Micah Wallen:  All right. We'll move to our next caller.

 

Jennifer:  Yes, this is Jennifer in Overland Park, Kansas. And I was just calling or asking, really -- actually, a couple of my questions have already been answered. But what can you guys suggest to help calm the public, to reduce that freak-out factor? I guess the question is what, in an ideal world, would be a response from either the White House or whoever you think would be in the best position for this to help people get a balanced approach?

 

Prof. Lawrence Gostin:  I might just jump in here. I just have a paper out in the National Academy of Sciences on this question about health communication. I think the public is genuinely confused. There have been tensions in the messaging at the federal level. And also there's a great deal of misinformation on social media. I have been working with Facebook and Twitter to see if it's possible to make sure that accurate evidence-based messages are coming through to the public.

 

      What we need is the following. We need a single trusted source of information, probably a senior public health official. The public needs to be told repeatedly and calmly exactly what we know, exactly what we don't know, and what we're doing to try to find out what we don't know.

 

      I've always thought we don't want to downplay the seriousness of it, and we also don't want to panic or make people alarmed. People will be much more comforted if they feel like they're being told by somebody they trust exactly what the situation is now and where we're likely to be headed. I think there's some considerable confusion among many in the public about that, and that may be partly the problem. The messaging should be clear about what we can do to stay safe because there are very clear messages and very clear ways that we can be as safe as we possibly can.

 

Micah Wallen:  All right. We'll go ahead and move to our next caller.

 

Dan Whit (sp):  Hi there, Dan Whit in Cleveland, Ohio. So actually, to the professor's previous statement, I study misinformation and misinformation campaigns for a living. As a comment to the discussion, I've definitely seen a massive uptick, going all the way back to Chinese social media in December but to here in the States now, in targeted misinformation campaigns to induce panic, which is something that, of course, we're going to have to deal with in order to have an informed citizenry response to this.

 

      My question is for the doctor. Given your area of expertise in the previous epidemics and pandemics you've experience in this country going all the way back to the beginning of the 20th century, what does the win condition look like? When do we get to "go back to normal" after novel coronavirus? Furthermore, how does this outbreak influence our response to future outbreaks?

 

Dr. Jennifer Nuzzo:  When this is going to be over, I don't have an answer for you. There's obviously a lot of speculation about whether the warmer weather will reduce the number of reported infections, which when that happens for other diseases, it's not purely because of the actual temperature or humidity, sometimes it is. But it's also that it changes behaviors. People are not likely to be sitting at home coughing on each other as they are in the winter. We don't know for this virus.

 

      Other coronaviruses do have a seasonal component, and certainly, influenza does and the 2009 pandemic, we saw cases of influenza throughout the summer, but they were definitely at a reduced volume. But they did in fact pick up in the fall when schools reconvened. But children are an important driver for flu transmissions, and it's not clear to what extent they drive transmission of this virus. So we don't really know.

 

      The other thing that we don't know is whether or not it will go away. The incidences have fallen as largely as we've depleted the number of people who are susceptible to infection. The 2009 influenza virus just circulates every flu season, and it's hard because it just changes a little bit each year. So if you have gotten it in the past, you can get it again in the future. That's what we just don't know.

     

      Obviously, I don't anticipate that this level of chaos that we're feeling right now, and this level of pressure will go on forever, but I can't tell you for how long this kind of urgent, acute response state will go on.

 

      The efforts that you're hearing about to potentially try to reduce the transmission of the virus, these kind of social distancing and non-pharmaceutical intervention, the best estimate, the best calculations is that these measures may not change the total number of people who become infected but just spread it out over a longer period of time. That would obviously be helpful from offloading numbers from the healthcare system, but it might mean that we're in it for longer.

 

Micah Wallen:  All right. We'll move ahead to our next caller.

 

Caller 6:  Hi. Thanks for the informative discussion. Legal question, and I appreciated the comments earlier related to quarantine and civil commitment. I wonder if you might comment on the attempts to ban mass gatherings, like what Santa Clara County has done out here on the West Coast, trying to ban gatherings of 1000 or more. Beyond the obvious First Amendment problems with doing something like that, I'm wondering if you're aware of any specific precedents, meaning legal or just anecdotal, where that's been attempted in the past for public health reasons?

 

Prof. Lawrence Gostin:  Sure. That's a very good question. I'm not aware of any court cases. I'm not aware of where it's ever been challenged. It's certainly been done before. I think it's a highly effective strategy. My belief, my gut instinct, is that the courts would, as long as it wasn't entirely overbroad and inappropriate, as long as it was based upon good evidence, I think it would be upheld by the courts.

 

      I don't see a First Amendment issue because it's content neutral. It doesn't affect any particular message, and it doesn’t target any particular group. And secondly, there's a compelling state interest which is public health and public safety. And since it's recommended that we have social distancing like that from CDC and WHO, I foresee that it would be upheld and probably not even challenged.

 

      We're in the political season now so we're going to have to be thinking about the Republican and Democratic conventions, for example, or political rallies or business conventions. Now, already, most of these large mass gatherings are canceling on their own, even the World Bank Annual Meeting was canceled. And the Consortium of Universities for Global Health in D.C. canceled so many events.

 

      So I foresee that we're going to see more and more closure of mass gatherings, and I think it's, so long as it's proportionate, I think it's going to be upheld and actually quite a wise thing to do. One of the things we've seen from evidence around the world, and Jennifer can add to this, is that COVID seems to spread quite rapidly in an amplification way in congregate settings.

 

We've seen it in churches, nursing homes, cruise ships, prison systems, and so there's no reason to believe that the virus wouldn't behave in the same way with other congested settings. So I do believe that it's proportionate, content neutral, and would, if challenged, would be upheld by the courts.

 

Micah Wallen:  All right. We'll go ahead and move to our next caller.

 

Jason:  Hey, my name is Jason. I'm a law student. I have a health question and a legal question. Although, I think the health question's probably more interesting. I am wondering whether there's any downsides to the recent actions by a lot of colleges and universities of basically taking all their students who maybe have honestly been exposed to coronavirus.

 

I know a couple schools that just got off of Spring Break. Students were back for a few days, and they said okay, everyone should go home. Is that dispersal of students any possible danger of spreading coronavirus to communities and areas where they weren't before, i.e. any issues coming from this sort of dispersal of students?

 

And then, I think less interesting legal question, a lot of these schools have given maybe five days' notice and told students pack up, you're going home, and they're kicking students out of, say, dorms and out of -- sometimes university-run apartments. Any potential legal issues with breaking those leases or not giving the sort of notice required under state law?

 

Dr. Jennifer Nuzzo:  I can address the health question. So I think it's an interesting point. I just don't think we know where anyone is being exposed at this point and whether they're exposed. It's possible they could've been exposed at school, and now, we're dispersing it, but it's also possible they could be exposed in the community.

 

This is one of the challenges we have with the kind of testing scheme that we -- and even the limits that the United States have had from a laboratory testing capability standpoint. It's just many other countries aren't even testing at this level so that they can understand where in the country the virus is and where it isn't.

 

      I think absent any real information, I think the concern about what congregate settings mean has just driven the response versus thinking about potentially exporting cases to other states etc.

 

Micah Wallen:  All right. We'll move to our next question.

 

Fred Young:  This is Fred Young in Wisconsin. I have a medical question. Is it possible for an individual to become infected, recover, and then at a later date be re-infected?

 

Dr. Jennifer Nuzzo:  So we don't know the answer to that question. There have been some reports that have raised this possibility. I haven't seen very compelling evidence to say that that has happened. It doesn't mean that it couldn't happen, but the reports that have surfaced this possibility, and then I think others agree with me, that it was more likely due to prolonged viral shedding. It seems that people who get sick may shed the virus for a long time.

 

That doesn't necessarily mean that they can transmit it for that duration. And that's been a challenge, particular in places where people in countries that are using hospitals to isolate patients. A number of countries have required two negative PCR tests before they will release somebody from the hospital back home. I think a lot of clinicians—and I'm not a clinician, I should stress—believe that that's overkill. That 72 hours after symptoms is probably enough. Is it perfect? Maybe not, but we can't just keep people indefinitely and essentially clog up the hospitals for sure.

 

      So I haven't yet seen compelling evidence of people being re-infected. My guess is that the virus would have to change in some way or to invade the immune system, but that's just a hypothesis.

 

Micah Wallen:  All right. We only have one other question in the queue, so we'll try and squeeze one more question in before we wrap up today.

 

Caller 9:  Yes. Hello. I was following up a little bit on what someone mentioned a moment ago about universities and other major gatherings being -- the effect of this and, of course, we're waiting to see. But I guess what I'm thinking about is what is the ultimate goal? The reason I ask this question is we're still, at this point, well under the number of people each year who die of the flu, for example. And, obviously, we hope we don't get near that, but I guess the point is what is it that we're trying to do? Because our country is undergoing tremendous strain right now, just stress in general and big changes.

 

Is this going to turn out to be a situation where perhaps all of these shutdowns are going to yield an outcome that is worth it or are we in a situation where major, major life changes are occurring and the reality, the death toll, nobody wants anyone to die from an illness, but it happens every day, and so are we going to end up in a situation where the death toll is quite miniscule compared to what we deal with every year? It's just very hard to understand the reaction of what we're seeing.

 

Dr. Jennifer Nuzzo:  It's a challenge. I think the best evidence that we have, and that this isn't just the flu. This is worse than the flu. How much worse? I can't tell you. I think probably what we're seeing in some countries like South Korea might just be a bit more of a model than perhaps what we're seeing in Italy at the moment, but that's just pure guess on my part.

 

      So but this is clearly more serious than the flu. The reason why people will argue for closing mass gatherings is because there's been a lot of modeling done to suggest that if we can implement early social distancing measures, and there's a whole list of different things that we can do, but if we implement them early before, in some cases, one percent of the population is infected, but regardless of the percentage, just early in the response, that we can potentially, they call it flattening the curve, stretch out over time the number of people who become infected so that we can reduce the surge on any given day, week, month, etc. on the health system. That is the ultimate goal of these measures.

 

      Now, which measures you should use to do that? That's very much -- there's an active debate on these. I will tell you my personal preference for closing public gathering is possibly less to do about flattening the curve and more to do about reducing the workload for health officials, who are very much overstretched right now. And I want to make sure I free up their resources so they can focus on the highest priority item.

 

And when there's a large public gathering -- and there are inevitably cases that occur because I just think this thing is moving so fast and so quickly that there will be cases. As you can see in some of these national meetings that have happened, and you hear reports about cases that occur afterward, it then puts a pressure on public health to not only identify these cases but then try to trace all their contacts and try to reduce and then test all these people that came. It just -- it creates a workload that in my view, I'm not sure is worth it.

 

      I also think from an organizational standpoint, and this is very much not a public health answer, but I think from an organizational standpoint, I'm not sure they want the PR being associated with that. There was a conference that occurred in Boston with a biotechnology company, and there's a lot of news articles saying this is the conference that caused the outbreak in Massachusetts. In my view, I think the most important thing -- and people will argue that we should be doing all sorts of different things to try to flatten the curve. I think at this point, I'm very much interested in preserving and focusing our limited public health resources.

 

Micah Wallen:  All right. Well, I will leave it. Before closing us out today, did either of our speakers have any closing remarks or anything else you'd like to add?

 

Prof. Lawrence Gostin:  Jennifer was terrific in our public health response, and so I just wanted to thank you for organizing this. It's been a privilege.

 

Dr. Jennifer Nuzzo:  Yeah. I'll just add my thanks as well. I really appreciated the conversation, and I appreciate the interest in this issue. I know it's a fire hose of information coming out about it but just appreciate the really smart pop-up questions and the opportunity to speak.

 

Micah Wallen:  All right, and on behalf of The Federalist Society, I'd like to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.