Posted by Edmund R. Folsom, Esq.
May 5, 2020 (updates May 8, 2020)
On March 16, 2020, President Trump issued Coronavirus Guidelines for Amererica involving “social distancing,” hand washing and don’t touch your face recommendations. On March 29, 2020, the President announced the extension of the guidelines and branded the effort “30 days to slow the spread.” At that time, the White House told us the latest epidemiology models indicated that following the recommendations could save a million or more American lives. The modelers were predicting as many as 200,000 might die in the U.S. even with aggressive measures in effect. We were told that the cases were going to overwhelm the hospitals. We needed to flatten the curve, slow the spread, prevent everyone getting sick at once. Nobody said the effort would stop the virus from spreading and infecting people. The idea of shutting down the economy, making everyone stay at home, wash their hands frequently and not touch their faces was to flatten the curve, slow the spread, so the hospitals could get on top of things. We needed ventilators – hundreds of thousands of them – and field hospitals, and PPE (which we couldn’t get largely because we rely on China for the stuff, which is a bad mistake).
Back when “30 days to slow the spread” got started, experts were comparing COVID-19 to the 1918 Spanish flu. According to the CDC, the Spanish flu killed 675,00 people in the U.S. It is estimated to have killed 20-50 million worldwide. In 1918, the U.S. population was 103,000,000. The U.S. population is currently over 329,000,00. At the Spanish flu’s 1918 U.S mortality rate, it would kill 2,149,514 Americans today. Nobody has recently said that COVID-19 will kill 2,149,514 Americans. But while lots of people are quick to hammer home that COVID-19 is not the seasonal flu (which, by the way is estimated to have killed 61,000 Americans virtually without mention in 2017-18), it is certainly not the Spanish flu either. Given that COVID-19 is neither the seasonal flu nor the Spanish flu in terms of the threat it poses, what threat does it pose and to whom?
How many people have been confirmed to have COVID-19 and how many of them have died?
As of May 4, 2020, according to Worldometers, there were 1,189,024 confirmed COVID-19 cases in the U.S. and 68,609 deaths. New York and new Jersey combined had 431,321 of the U.S.’s confirmed cases and 32,534 of the deaths, representing 36% of all confirmed cases and 47% of all U.S. deaths. Worldwide, the May 4 numbers were 3,588,348 confirmed cases and 248,818 deaths.
Some experts have predicted that 70% of the U.S. population will be infected by COVID 19. Some have predicted mass death based on a 1% mortality rate –10 times higher than the .1% mortality rate of seasonal flu — and have said it might be necessary to close schools and businesses intermittently into 2022 when they estimate a vaccine might be available. But what is the actual mortality rate of COVID-19? The real-world numbers tell us that about 5.7% of the confirmed positive U.S. COVID-19 cases have died. But that isn’t how a mortality rate is arrived at for an illness like COVID-19. The mortality rate is the rate of death among all the people infected by the virus. And we are finding out that a lot of people who are infected by the Wuhan Coronavirus don’t get very sick – they are asymptomatic or have very mild symptoms. For instance, in Boston, in April, 2020, 196 of 397 residents of the Pine Street Inn homeless shelter tested positive. All 196 were asymptomatic. A story from May 4, 2020 reported that 373 workers at a Missouri pork processing plant tested positive. All 373 were asymptomatic.
For the most part, people aren’t tested for COVID-19 unless they show symptoms. But because health officials took extra precautions at a homeless shelter and at a pork processing plant, they tested everyone at those locations. Otherwise, nobody would ever have known there were 569 asymptomatic people infected by the Wuhan Coronavirus in those places. Then, suddenly, 196 people were added to the Massachusetts positive case tally and 373 more were added to Missouri’s. If you view the Wuhan Coronavirus as death itself– another Spanish flu – that might be cause for absolute panic. OMG, look at the numbers spike!!! But if all 569 people remain asymptomatic or only get a mild case of COVID-19, the lesson to be learned is that, in fact, the Wuhan Coronavirus is not as dangerous as was once believed. And as more testing demonstrates that more people have very mild or asymptomatic COVID-19, the mortality rate declines. The number of deaths becomes a smaller percentage of a larger infected population. And as much as the media spins that as the frightening prospect of asymptomatic carriers lurking among us, it means that COVID-19 is not a threat of serious illness or death for a lot of people. In fact, a lot of people who get it won’t even know they’ve had it.
To discuss this in this way is heresy, I realize, but please indulge this heretic a little further before you light a fire under my stake.
Who is being hospitalized by COVID-19 and who is dying from it?
According to CDC data updated May 1, 2020, U.S. COVID-19 deaths by age are as follow:
Total deaths 37,308
Among people up to age 14 9
Ages 15-24 42
Ages 25-34 278
Ages 35-44 707
Ages 45-54 1,929
Ages 55-64 4,688
Ages 65-74 8,001
Ages 75-84 10,196
Ages 85 and up 11,458
From this, we see that deaths among those age 65 and older account for 79.7% of the total. Deaths among those ages 55 and up account for 92% of all CDC-recorded deaths from COVID-19. On the other hand, deaths for those under age 35 account for less than eight tenths of one percent of all deaths from COVID-19. And only 9 of the 37,308 deaths have been of people under the age of 15; only 51 were under the age of 25! As an interesting comparison, the same CDC tabulations report a total of 122 seasonal influenza deaths for those under age 25. In other words, for those under age 25, the CDC has recorded well more than twice as many flu deaths as COVID-19 deaths during the relevant time frame. Males represent 56.5% of all COVID-19 deaths, females 43.5%.
You will note that the total COVID-19 deaths (37,308) recorded by the CDC are significantly fewer than the total COVID-19-probable deaths reported elsewhere. The CDC explains that this is due to differences in record keeping that cause the CDC’s numbers to lag a couple weeks behind. But the percentage of deaths for each age range is unlikely to change much, if at all, over time.
The role of age and underlying conditions in COVID-19 hospitalizations.
One study conducted for the CDC showed that 90% of COVID-19 hospitalizations involved at least one underlying condition. This is consistent with the experience in New York. It would be useful to have absolute numbers of COVID-19 hospitalizations by age, but those are hard to come by. In one study, done in March of 2020, the CDC found that 74.5% of all COVID-19 hospitalizations were of patients age 50 and up. Maine, where I am, does not provide information on COVID-19 hospitalizations by age, let alone by age and comorbidity. It is therefore not possible to use numbers of those hospitalized by age to determine whether the young are also at minimal risk for COVID-19 hospitalizations, but there are good reasons to suspect that hospitalization rates by age follow the same pattern as deaths by age. The public health authorities and media seem entirely uninterested in providing us with this important information. As for deaths, Maine has had none under age 50. The vast majority have been age 70 and older. To my knowledge, Maine has not released information that allows a determination of the average age of those who have died from COVID-19 in Maine, but just about every other state and nation that has released such information shows the average age is above 80 years. In hard-hit Massachusetts, the average age is 82. A May 6, 2020 report in Maine’s Portland Press Herald shows that 249 of Maine’s recorded 1,226 COVID-19 cases have clustered in just 6 nursing home facilities. Those same 6 facilities account for 35 of Maine’s 61 COVID-19 Deaths (57%). That leaves only 26 Maine COVID-19 deaths outside those 6 facilities. It seems that people in nursing homes should be the focus of special efforts to isolate the vulnerable from contact with the Wuhan Coronavirus.
Why does it matter if those under age 55 are at low risk of hospitalization or death from COVID-19?
The numbers show us that young people are at very low risk of serious illness. The numbers also show us who is at high risk. Shouldn’t our social isolation efforts be more narrowly focused, aimed at isolating the high risk from contact with the virus? At the outset of this pandemic, we had very little information. We were told we might be facing the next Spanish flu, an indiscriminate killer that might kill millions in the U.S. alone. What could we do? We locked everything down, closed everything up in an effort to “flatten the curve” and prevent the health care system from being overwhelmed. Governors issued orders requiring people to stay at home except to conduct officially sanctioned activities, to stay at least 6’ away from others when outside the house. Some Governors, including Maine’s, issued orders barring people from entering their states without quarantine. This approach has shuttered vast swaths of the economy. Perversely, it has caused medical practices and hospitals to lay off staff, caused elective surgeries and even cancer treatments to be interrupted. It has shut down restaurants, hotels and motels, movie theaters, convention centers, department stores.
But, in fact we now know that COVID-19 presents a very low risk of serious illness or death to a very large portion of the population – the relatively young and those without underlying health conditions, and a very substantial risk of serious illness and death for a relatively small segment of the population – the elderly, and especially those with underlying health conditions and those in nursing homes. Why, then, do we continue to approach the problem as if everyone is equally at serious risk of hospitalization and death? What is the benefit of allowing policy to be driven by a widespread death paranoia that shutters the economy, puts millions on unemployment, and destroys businesses all around us? Is there no better approach that targets the high risk for protection and leaves the low risk to run the economic engine that until now has sustained us? Does the problem we face actually require putting more people on unemployment than at any time since the great depression, destroying businesses people have spent their lives building, barring residents from leaving their houses other than for a short list of government sanctioned activities, barring interstate travel unless it’s followed by a 2-week quarantine, requiring everyone to wear masks in public, and stoking death paranoia in the society at large?
Does the U.S. Constitution speak to any of this?
I won’t bother discussing the Maine Constitution for a couple of reasons. First some of what might stand in the way of Maine’s COVID-19 restrictions has to do with provisions that exist exclusively in the U.S. Constitution – the commerce clause, the privileges and immunities clause. Second, when it comes to constitutional protections that individuals enjoy against governmental overreach, the Maine Supreme Judicial Court has found essentially nothing in the Maine Constitution that affords any greater protections than the U.S. Constitution’s Bill of Rights. The following U.S. Constitutional provisions potentially bear on Maine’s lockdown actions.
– U.S. Constitution Amendment I
Congress shall make no law…abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
To the extent Maine government might move to limit free speech, to limit peoples’ right to gather for peaceful protest, to petition the government for redress of lockdown-based grievances, Maine government would infringe on these first amendment rights. Reasonable limitations on time and place are one thing. Any attempt to prevent the exercise of these rights altogether is another. This has not been an issue in Maine. In other states, governors have gone further and have even suggested that people should limit their speech to “virtual protests.” In other words, “Your protests should be limited to online chatter, easily ignored.” To the extent the Governor’s lockdown order infringes on people’s right to peaceably assemble for religious services, the First Amendment is also implicated.
Note that the First Amendment expressly prohibits “Congress” from abridging the protected freedoms. The U.S. Supreme Court has held that the First Amendment, as well as the Fourth Amendment (discussed below), is binding on the states, through the due process clause of the Fourteenth Amendment.
– Amendment IV
The right of the people to be secure in their persons…against unreasonable…seizures, shall not be violated.
The Fourth Amendment protects against unreasonable seizures of the person. Controlling a person’s movements by force of law — stay-at-home orders, not allowing healthy people to return to Maine from travel elsewhere without a 14-day quarantine – involves significant curtailment of free movement. Do these measures constitute a Fourteenth Amendment “seizure” of the person? If so, are the seizures “unreasonable?” The applicable test for reasonableness balances the government’s legitimate interests in effecting a seizure and the degree to which the seizure furthers those government interests against the degree of intrusion on the individual.
– Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The Tenth Amendment reserves to the States those powers not delegated to the U.S. Government under the U.S. Constitution. For instance, the commerce clause delegates to the U.S. Government the power to regulate commerce between the states. But states retain inherent police power to maintain safety within their borders. The inherent police powers of the states allow them to issue quarantine orders for those suffering from communicable disease, for instance. But to the extent those police powers come into conflict with individual rights under the Bill of Rights, or with powers that are exclusively the U.S. Government’s as is the case with interstate commerce, the exercise of police power must be justified by necessity.
– Article I, Section 8
The Congress shall have Power To regulate Commerce…among the several States.
Maine’s ban on entering the State without a 14-day quarantine is imposed by Executive Order and creates a criminal offense for its violation. The ban extends through August of 2020. Nobody will be allowed to enter Maine during the summer tourist season unless the person submits to a 14-day quarantine. No tourist to Maine will submit to a 14-day quarantine to earn the freedom to wander around for a weekend after the quarantine is done. In effect, Maine’s traveler quarantine rule criminalizes ordinary commerce between Maine and whatever states non-quarantining tourists might come from. Tourism is interstate commerce. A rule that makes it essentially impossible for tourists to be tourists is a rule that makes this particular type of interstate commerce essentially impossible. As a practical matter, Maine’s interstate travel restriction makes it impossible for Maine hotels, restaurants, gift shops, bars, sporting guides – you name it – to engage in commerce with people from other states.
And who from Maine cares to be a tourist elsewhere, or to travel to another state to buy goods or services, only to be required to submit to a 14-day quarantine upon return? By obstructing interstate commerce, Maine’s interstate travel restriction intrudes into an area of authority that is exclusively the federal government’s. This requires that the interference must be necessary. Yet Maine’s travel restriction is so broad that it applies to Maine residents returning from other states that might have fewer COVID-19 cases than Maine. It applies to non-residents entering Maine from anywhere else, no matter the prevalence of COVID-19 in the place from which they arrive. It applies to people regardless whether they have COVID-19 or not. It even applies to people who have recovered from COVID-19 and have developed antibodies, people who might even have donated blood plasma to pass their antibodies on to others. None of this is necessary.
In Railroad Company v. Husen, 95 U.S. 465 (1877), the U.S. Supreme Court struck down a Missouri statute that provided:
No Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into, or remain, in any county in this State, between the first day of March and the first day of November in each year, by any person or persons whatsoever.
Purportedly, this was to guard against diseased cattle entering Missouri. The Supreme Court held that the statute violated the interstate commerce clause, explaining:
While we unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, &c., from entering the State; while for the purpose of self-protection it may establish quarantine, and reasonable inspection laws, it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection.
The police power of a State cannot obstruct foreign commerce or inter-state commerce beyond the necessity for its exercise; and under color of it objects not within its scope cannot be secured at the expense of the protection afforded by the Federal Constitution. And as its range sometimes comes very near to the field committed by the Constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion. (Emphasis added).
Maine’s interstate travel restriction severely interferes with the interstate commerce that is tourism.
– Article IV, Section 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
How does Maine justify barring residents of other states from coming and going freely, other than by justification of absolute necessity? Given the overbreadth of Maine’s interstate travel restriction, how is that breadth absolutely necessary?
Maybe the U.S. Constitution does have something to say about Maine’s restrictions on movement, commerce, etc. Maybe it isn’t just a matter of whether the current policies are wise or unwise.
What is our goal?
Constitutional issues aside, we can’t know whether Maine’s current policy is wise or unwise without knowing exactly what we are trying to achieve. We can’t determine how effective a policy is in helping us reach a goal unless we know what the goal is. And if we determine that a given policy will help us reach our goal, we have to gauge whether there are more effective, less costly ways to achieve that goal. What is our goal here?
At first, the goal of the current policy was to “flatten the curve.” Well, the curve has been flattened. In Maine, we are approaching having twice as many people recovered from COVID-19 as active cases. We have no field hospitals. There was once some talk of setting up field hospitals at the Cross Insurance arenas in Portland and Bangor, but the need was never there. As of May 4, we had a total of 18 people in critical care for COVID-19 and 141 available critical care beds. Nationally, field hospitals that were never used have already been dismantled. The looming ventilator crisis we were warned about less than 2 months ago never came to pass. In Maine, on May 4, we had 11 COVID-19 patients on ventilators. We had 296 ventilators and 395 alternative ventilators available.
Is the goal of our current policy to continue curve-flattening indefinitely? If so, is there no less costly way to achieve it, no more targeted way? Or is our goal to eradicate COVID-19 through social distancing and public mask-wearing? If so, I have not heard any public health expert argue that these measures will achieve that goal. All I have heard the public health experts say about social distancing, stay-at-home, and mask wearing (after they stopped telling us not to wear masks) is that these measures will flatten the curve, slow the spread. If these measures are only capable of buying us time, time for what? Are we supposed to continue the policies until there’s a vaccine? Some people say so. But many people say it will be a long time before we have a vaccine — years maybe — and some say we might never have a vaccine. We aren’t always able to develop vaccines for viruses, you know. Where is the AIDS vaccine, 35 years on? The common cold is a Coronavirus. Where is the vaccine for that? In the meantime, while we wait for the twelfth of never, what goes on in the world apart from COVID-19?
Here in Maine, the following business closure stories appeared in today’s paper: “Smitty’s Cinema in Biddeford will close,” “Tannery in Hartland will close by later summer; 115 out of work,” and “Layoffs in Maine raise questions on severance, notification.” The layoff story reports that 11 Maine businesses filed mass layoff notices with the State between March 20 and April 20, 2020. In the first 6 months of 2019, only 1 mass layoff notice was filed. And we are just in the warm-up phase of business failures. Less than 2 months in, how long do we think businesses can remain closed? How long will businesses dependent on summer tourists last without any customers? We are still nearly 2 months away from a peak summer tourist season that will take place without any tourists due to Maine’s interstate travel restrictions. What economy will be left once we’ve spent a few more months under current policy – a policy intended to flatten the curve, or slow the spread, or get us to a vaccine, or, or something… whatever?
We’d better nail down what we’re trying to achieve, and design targeted methods to achieve it without destroying ourselves economically, and soon, because the patient is bleeding out from the treatment.
Updated Official CDC numbers dated May 8, 2020:
The CDC’s provisional death count for COVID-19 by age, February 1 through May 2 (posted as of May 11), reflects that only .79% of 37,308 deaths recorded by age to that point are of people under 55. For all those under age 25, there are only 51 COVID-19 deaths. For comparison purposes there were 122 seasonal flu deaths in that age group. Males represent roughly 57% of all deaths recorded by sex, females 43%. CDC provisional COVID-19 deaths compiled by week and State record a total of 47,128 COVID-19 deaths and 72,455 pneumonia deaths between February 1 and May 2. Of the pneumonia deaths, 20,819 involved a combination of pneumonia and COVID-19, leaving a total of 51,636 pneumonia deaths and outstripping COIVID-19 deaths by 4,508 during this period.
For Maine, the CDC records the following for the period from February 1, 2020 to May 2, 2020:
COVID -19 deaths – 50
Deaths by all causes – 4,120
Pneumonia deaths – 336
Deaths with COVID-19 and pneumonia – 14
Influenza deaths 31
Deaths from COVID-19, influenza or pneumonia – 403
Related Links relating to continuation of social distancing, stay-at-home and other lockdown strategies.:
Can We Discuss Flatten-the-Curve in COVID19? My Eight Assertions, John Mandrola, MD
The Invisible Pandemic, Johan Giesecke Swedish epidemiology professor, published in The Lancet.
Disclaimer: This post is not legal advice. It is for information purposes only. It is expressly not to be taken as legal advice by anyone.