Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We often hear that the current COVID crisis came “out of the blue,” that “nobody” was expecting it.* But anyone with a decent grasp of pressing issues in public health knew the risks of pandemics. As I wrote in 2014:
[R]eduction in hospital facilities and other resources, although “efficient” in normal times, may prove disastrous if there is an epidemic. For example, one national preparedness plan for pandemic flu estimated that, in a worst-case scenario, the United States would be short over 600,000 ventilators. “To some experts, the ventilator shortage is the most glaring example of the country’s lack of readiness for a pandemic,” one journalist noted. The lack of “surge capacity” throughout the health care industry is a major infrastructural shortcoming, likely to cause tremendous, avoidable suffering if a pandemic emerges.
So how did we get here? It's critical, in the midst of the COVID crisis, to keep two timelines of missteps and mistakes in mind. There are short-term problems that have only emerged in 2020. And there is a much longer history of disinvestment (and poor investments) in American health care. In other words: ongoing rot has exacerbated the crisis, in Sandy and Jack's temporal framework. It is the toxic combination of these two sets of problems that has left the U.S. one of the epicenters of COVID-related morbidity and mortality.
Foremost now is the extraordinary incompetence—bordering on malevolence—of the current administration. From the defunding of a key pandemic task force, to the hundreds of positions left unfilled at CDC, to misinformation, to testing and PPE supply failures, to the failure to robustly apply the Defense Production Act, to the politicization of emergency aid—countless missteps are now sparking outrage, and will be an indelible stain on the reputation of those responsible.
When the full story is told, it may also turn out that many non-political appointees at FDA, CDC, and other agencies also failed miserably. But the buck stops with the President and his administration when it comes to immediate responses to emergencies--particularly given that extraordinary assertions of such authority have so often been used and abused by the White House. As books like Michael Lewis’s The Fifth Risk have chronicled (as well as dozens of academic studies), this has been an Administration riddled with incompetent, venal, and neglectful political appointees, particularly in science- and data-intensive areas. A terrible leader can scuttle even well-conceived plans and dedicated bureaucrats.
However, there was much wrong with American health care before the daily blunders and falsehoods of the Trump Show. This leads us to the second timeline of crisis, where long-standing inadequacies and disparities lurked like a ticking time bomb, ready to detonate once triggered. As Amy Kapczynski and Gregg Gonsalves have eloquently argued in the Boston Review, “many of the features that threaten to make COVID-19 so disruptive have much longer and deeper roots in our political and social order.” Unwise austerity and excessive workloads for health care providers have all too often been rationalized as “bending the cost curve.” Legitimately concerned about high US health care costs, insurers and policymakers have tried to make health care less expensive. But they have done so in convoluted and ineffective ways, which often serve merely to shift costs (to patients), and to enrich top executives and middlemen.
Insisting that patients have “skin in the game” with high co-pays, deductibles, and co-insurance is a cornerstone of market-driven thinking in health care. But it is a public health nightmare, scaring sick people away from the sort of advice and care that would help us slow down the spread of diseases like COVID. American-style cost-sharing is also a moral disaster, often foisting on the sick and injured the additional insult of financial precarity. But to even bring up that moral point in mainstream health policy over the past ten years was to flirt with irrelevance. Means-testing was simply assumed. All the energy was in “disruption,” “streamlining,” “lean production,” and other applications of brute mass production principles to fragile and delicate realms of caregiving.
Technocrats have also aggressively cut excess capacity that is sorely needed in pandemics. New Jersey’s 300+ page report on hospital “rationalization” (i.e., potential shuttering) does not even mention the words “pandemic” or “influenza” once. The rise of the power of finance and real estate interests, relative to health care providers, helps explain the tragic overcrowding of patients in New York City now. One-time hospitals have been converted to luxury condominiums—the market’s verdict on their “highest and best” use, despite enormous and ongoing unmet health and care needs in the city. Philadelphia’s Hahnemann was also taken off line, in service of gentrification. Moreover, as Gabriel Winant wrote in n+1,
Hahnemann is no outlier. Thirty hospitals closed nationwide in 2019, the worst year yet...Whether rural and poor or urban and poor these hospitals couldn’t bring in enough complicated, remunerative cases to appease their financial masters: they are doing poverty medicine, for people with poor coverage, for conditions there’s no money in treating. Today we have thousands fewer hospitals than we did a handful of decades ago, and hundreds of thousands fewer beds. In 1975, the United States had 7,156 hospitals, collectively operating nearly 1.5 million beds. By 2015, these numbers had fallen to 5,564 hospitals and 897,961 beds—even as the total US population grew from 220 million to 320 million.
In 2013, ProPublica demonstrated how hard it was to find care for heart attack patients in the parts of Queens and Brooklyn now devastated by the coronavirus. Long lines at emergency rooms there are no surprise to those who’ve been following the struggles of safety net hospitals.
For decades, a technocratic policy establishment has failed to treat these problems with the urgency they require. Nor have politicians—and particularly anti-government ideologues and tax cutters on the right—pushed for national advances in health system capacity, consigning that instead to states, communities, and in the reductio ad absurdam of fragmentation, families and individuals. As Kapczynski and Gonsalves conclude,
[W]e have a sea of different insurers and programs, in which both the amount and quality of coverage are determined by who you are and where you live. The resulting arrangement all but guarantees an inadequate national response to a national crisis—rather than one that is coordinated and coherent, able to take advantage of synergies and economies of scale in supply chain management and other operational tasks, to share essential information on the number of cases and their clinical course, and to disseminate emerging knowledge on the best way to care for the sick.
By contrast, strong and competent states in Singapore, South Korea, and Taiwan have listened to experts and have built strong social commitments to public health into their bureaucratic and political DNA. They are likely to suffer far less mortality, and economic disruption, than the US.
What these jurisdictions show is that there is no necessary tension between “saving lives” and thriving economies. To learn from them, we must ensure that new and diverse forms of expertise—from comparative health law and policy, to public health, to health disparities research—inform US policymaking just as much as the conventional health economics (and false rigor of austerity) now exacerbating one of the gravest crises in American history.