COVID-19 Hits Home: The Salience of Individual and Collective Grief for Legal Scholarship

Guest Blogger

For the Balkinization Symposium on Death and Legal Scholarship

Linda McClain

There are numerous lenses through which legal scholars have studied the COVID-19 pandemic, alongside the many different ways we (as legal scholars) experience it as individuals and as members of families, communities, and polities. As the pandemic enters its third year, an incomplete list would include the lenses of public health, battles over science and medicine, disagreements over the constitutional limits of religious liberty, political polarization, global geopolitics, xenophobia, and the pandemic’s exacerbation of preexisting inequalities of race, class, and gender (what symposium contributor Catherine Powell calls the “color and gender of COVID”).  Perhaps unsurprisingly, gender is the scholarly lens through which I first looked at COVID-19. Several months into the pandemic, Naomi Cahn and I began an article on the “gendered complications of COVID-19,” focusing on ways that the pandemic was highlighting and making worse various forms of gender inequality and inequity in the U.S. and the intersecting impact of gender, race, and class in the lack of an infrastructure supporting gender equity. Focusing on inequities around work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly women of color—in providing essential but undervalued care work, we argued for a “feminist recovery plan.”

With Joanna Grossman, I critiqued the “serious, indeed lethal, consequences” of Trump’s bravado about the pandemic and his reckless disregard for public health and safety as a dangerous performance of masculinity (dubbed by some “toxic mask-ulinity”).

More recently, I have begun (with symposium contributor Aziza Ahmed) a more extensive interdisciplinary, intersectional, and comparative analysis of the pandemic through the lens of gender as co-editor of the Routledge Companion to Gender and COVID-19 (forthcoming 2023).

I have come to realize that, regardless of which other lenses one uses, a powerful and crucial lens is viewing the pandemic as a mass death event. As scholars Yuna Kim, Katherine M. Millar, and Martin J. Bayly argue: “The pandemic is a mass death event, and assessments of the political and normative impact of the pandemic should center their focus on individual and collective experiences of death, loss, and grief.”  

Symposium organizer Mary Dudziak powerfully explores this through comparing the experience of pandemic deaths to those from prior U.S. wars, writing: “paradoxically, the scale of casualties can obscure the human consequences of catastrophe and war.”  Mary identifies the challenges of statistics and counting and what numbers hide.  Kim, Millar, and Bayly also enlist the war/pandemic analogy, suggesting that COVID-19 as a mass death event “defies existing narratives,” such as deaths from a “‘just’ or popularly supported war.” Instead, the pandemic brings “ambiguous” and “bad” deaths, as mourners face “ambiguous loss,” feel such deaths were “unjust and preventable” and (especially early in the pandemic) were denied the usual grieving processes. The state seems either “culpable” for such deaths or “powerless or irrelevant” in failing to provide security; as a result, there is the “potential for both unacknowledged or unrecognized trauma to unsettle the social order” and political authority.

My own personal experience with loss and grief due to the pandemic has brought this home to me forcibly. Throughout 2020, I watched with alarm as MSBNC daily reported the growing numbers of new cases and reported deaths, concerned (like so many) for the safety of my parents and others at higher risk. By year’s end, however, perhaps because of the twin events of the development of vaccines and the election of a new Administration that promised to confront the pandemic and help America heal and “build back better,” my daily confrontation with numbers lessened. I felt some optimism.  And yet, in 2021, the numbers continued to rise.

As Mary Dudziak observes: “Covid-19 tables and graphs both reveal and conceal.” For example, during the week of September 24-30, 2021, Florida had over 37,000 new cases of COVID-19. Yet that statistic, alone, does not reveal that my father, Robert Charles McClain, was one of those new cases. Mary powerfully quotes an observation that, with COVID, “you take your loved one to the hospital, and you never see them again.” This contributes to the feeling of “bad deaths” and ambiguous loss. However, I was able to see my father in the hospital during two trips that I made to Florida and have now-precious conversations with him. My father’s hospitalization also occurred just a few weeks before his 87^th birthday, which I had planned to celebrate with him in what would have been my first air travel since the pandemic. Instead, my feeling of ambiguous loss or preventable death stems from the fact that, although he was vaccinated (although not yet boosted), he was hospitalized for COVID-19 and pneumonia just days before a long-awaited, needed heart procedure. That procedure, I believe, was delayed somewhat due to the impact on hospitals of the COVID-19 surge in Florida.  My father, his wife, and my siblings and I went through a confusing—truly nightmarish—several weeks of ups and downs with ever changing medical information and reports as COVID and pneumonia interacted with my father’s underlying heart problems and damaged his lungs, leading to other complications.

My father died in the hospital on November 10. That week, “Florida saw 221 deaths involving COVID-19, and the United States saw 6, 879 deaths related to COVID-19.” But did my father’s (in my view) untimely death “count” as a COVID death or was it yet another of so many “ambiguous deaths” of which COVID may or may be the official cause?  My father’s official death certificate gives as the cause of death “natural,” naming “acute respiratory failure” and the underlying heart condition for which he was not able to recover enough to have surgery. The COVID and pneumonia which led to his hospitalization appear only as “other significant conditions contributing to death but not resulting in the underlying cause.” Thus, while for me, the role of COVID in my father’s death is indelible, that loss may not register or “count” as a COVID casualty.

Mary Dudziak and others have written about how COVID deaths differ from deaths that follow more familiar scripts or narratives, like war-time deaths. My father was a retired Major in the United States Air Force and a veteran – the day he was taken by ambulance to the hospital, he was wearing his favorite cap, with the logo “Korea-Vietnam Veteran.” Although he retired from active duty several decades ago, turning to a long career as an attorney in private practice, his identity as a veteran remained salient for him. For that reason, he had arranged (long before his illness) to be buried with military honors in a nearby national cemetery. Viewed through the lens of numbers, my father was one of over 800,000 Americans who had died from COVID-19 as 2022 began, and his was death one of over 5.4 million deaths globally. I am just one of millions of American and multiple millions, globally, who are mourning loved ones lost to COVID. Even to type these numbers is staggering—they are even larger one month into 2022. Through another lens, my father’s choice about his burial located him in a narrative deeply meaningful to him, with familiar rituals and symbols – the horse-drawn wagon carrying the flag-draped coffin and the flag given to the family.

At the level of personal grief, I have rituals of remembrance, like poring over cards and photos,reading Don Quixote, a book my father loved and spoke of while in the hospital, and learning new piano music by his favorite composers. But what does this experience of loss and grief mean for me as a scholar? How will confronting COVID as a mass death event shape the work that I continue to do on the pandemic? I do not know the full answer to these questions yet, but, as a beginning, I take inspiration from Han, Millar, and Bayly:

 “There is no guarantee that the post-COVID-19 world will be necessarily more ethical or laudable than the present one. Thinking clearly and carefully about the experience of mass death brought on by COVID-19, however, seems to be a prerequisite to imagining a more ethically desirable future after the pandemic.”