COVID Data and Governors’ Authority: Beyond Phase 1

By Robert Nelson, MD

The 14th Amendment to the U.S. Constitution states, in part, that…

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Every state has its own criteria for declaring a public health crisis. The Model State Emergency Health Powers Act that was was floated following 9-11, proposed a model legislation designed to update protocols among the states to account for bio-weapons and infectious agents; and to standardize the approach among the States. There were many concerns about infringement on civil liberties and over-reach abuse from Governors. But even though it never became law, most states already had similar, albeit outdated, protocols allowing their executive branch to declare health emergencies. These states’ laws currently on the books give governors the authority to varying degrees to deprive people of use of property (business closures, etc…), prohibit peaceful assembly of groups (religious gatherings, weddings, family events, etc…) and even confine citizens to their homes during times of public health emergencies (enforceable with fines or imprisonment) all without due process of law, if certain thresholds are met; and by extension of logic, those emergency measures may continue if those same threshold criteria remain operational.

Even if we set aside the contradictions between the 14th Amendment and the power granted to States’ Governors under EHPA-like laws — given the substantial knowledge amassed about the risk of COVID-19 infections, we must question whether the criteria for sustaining a “public health emergency” still meets operational thresholds.

Based on definitions in the original model state Emergency Health Powers Act, the original cases of human-to-human COVID-19 infections certainly met the criteria for “new…infectious agent” and initial reports out of Europe and Asia justified viewing the threat as having high potential for “…a large number of deaths…” and “…widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of persons…”

There was reasonable agreement among many experts, and based on the death and devastation we saw in Italy, that COVID-19 cases could overwhelm the hospital systems’ ability to provide care for the sickest patients. This was a valid concern and represented an unacceptable risk if the calculus was accurate. Most agree, the initial reaction to temporarily shut down normal societal operations was justified.

But data coming mainly in March and April strongly suggested the initially justified fear was over-stated. And despite evidence that predictive models repeatedly over-estimated cases and fatalities, even with distancing measured factored in, many Governors have not taken their foot off the regulatory gas peddle or seriously thought of changing directions even though the evidence shows that most people are not at high risk.

So given the criteria required for declaring a public health emergency detailed above, and in light of drop in case load and data showing a much lower over-all fatality rate than originally estimated, are we still at risk for…”a high probability of a large number of deaths, a large number of serious or long-term disabilities, or widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of persons.”(?)

According to the facts, the answer is “NO.” Here’s a summary of supportive data:

• COVID-19 appears to have a very high infectivity, which means it spreads horizontally (not just close household contacts) within a population very quickly. It likely spreads quicker and easier than Influenza, which is highly contagious. It is very hard to effectively stop the spread as data from New York indicates.
• Aggregate data from around the world and compiled by many government agencies indicates that over 80% of cases are very mild with virtually complete recovery.
• Anywhere from 15 – 40% may be asymptomatic
• A look at the New York data, undeniably the epicenter in the U.S., shows…
  • risk of death in people 18 – 45 to be about 0.01% or 10 per 100,000
  • For people under age 18 years, the death rate approaches zero
  • Two-thirds of fatal cases occurred in patients over 70 years of age
    • More than 90% of those fatal cases had underlying serious illnesses
  • Even for people ages 65 to 74, only 1.7 percent were hospitalized
  • For those who don’t have serious underlying medical illness, the chance of dying from COVID-19 is very small, regardless of age and especially if under 50
  • Nearly 25% of NYC residents tested show antibody to COVID, so real number of cases could be at least 12x more than the number of confirmed cases meaning that the true case fatality rate is much lower than we thought initially
• Herd immunity helps act a human shield, or firewall so to speak, to protect those at risk by simply cutting down on the chance they will come in contact with someone who is infected. In the absence of a vaccine, herd immunity is the best way to protect the vulnerable and thus cut down the death rate.
• In April, approximately 1,200 patients were surveyed from 113 New York hospitals over a three-day period and 66% of those admitted with COVID-19 infections were sheltering at home; most were over 51 years old, retired or unemployed; and 96% of the surveyed patients had co-morbidities, which means nearly all had another chronic medical condition prior to catching coronavirus.
• “Authors of a new study conducted by researchers at the World Health Organization and Stanford University say there is no evidence of increased transmission of COVID-19 in Wisconsin following the state’s April 7 primary election.”
• The State of Georgia’s “shelter-at-home” order expired on April 30 and many businesses were permitted to re-open on April 24 providing they observed distancing guidelines and gloves and masks where appropriate. Between April 14 – 27th, the average daily death rate was 37. From 4/28 – 5/11, there were 29 reported deaths per day on average. There were 1,500 patients hospitalized with COVID on May 1, compared to 1,133 on May 11.
• Sweden mandated very few closings and relied on voluntary compliance with distancing measures, allowing businesses and most schools to remain open throughout the pandemic. It’s death toll was somewhat higher and its Nordic neighbors who utilized mandatory shut-downs but Sweden’s death rate was lower than many western European countries such as Spain, France, Belgium and Great Britain which utilized very strictly enforced lock-down measures. And despite Sweden’s liberal approach, its healthcare system was never over-ran like in Italy.

Let’s summarize what we know.

There is no clear correlation to when various States went into lock-down and the time to peak or the magnitude of cases or deaths per 100,000. There is a similar non-correlation between countries across the same metrics.

Prevalence studies indicate number of infected people is MUCH higher than most realized suggesting COVID-19 is highly contagious yet very mild in vast majority of people. This also suggests restrictive lock-downs are minimally effective. A higher prevalence indicates a much lower case fatality rate than was originally published.

Herd immunity is vital to protecting the vulnerable. Prolonged distancing slows the herd immunity, which is likely to be the quickest and safest way to protect those most at risk.

Opening the economy gradually will be important to support the efforts of our communities to continue vigilant case monitoring and appropriate care for severe cases.

The goal of not overwhelming healthcare resources was successful. But many of those who had legitimate concerns which triggered an emergency declaration have failed to critically evaluate new data, and worse still, they have failed to fully come to grips with the consequences of keeping society and their economies locked-down.

The ability of millions of citizens to earn a living and provide for their families and keep businesses afloat (and the jobs that accompany those businesses) was/is severely compromised by overly aggressive, often coercive and sometimes punitive restrictions on basic freedoms. The negative fallout from the lock-down of 2020 will continue to pile up long after the risk from the virus has been forgotten. More people may end up being harmed by the disruptions in healthcare delivery and the loss of “non-essential” jobs, than were saved by trying to prevent the spread of a COVID-19. Ironically, the reaction to the threat of the virus could result in our self-inflicted death unless we learn to live with it.