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COVID-19 Vaccine Hesitancy and (Mis)perception of Risk

Published online by Cambridge University Press:  11 July 2022

Joanna K. Sax
Joanna K. Sax*
Affiliation:
California Western School of Law in San Diego, CA
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Abstract

This Article tackles the critical problem of COVID-19 vaccine hesitancy and provides a normative framework for legal policies to address such hesitancy in the ongoing pandemic. The foundation of this Article rests in decision-making theories that allow policymakers to understand individual misperception of risk as compared to evidence-based assessment of risk. Vaccine-hesitant individuals assign a high risk to the COVID-19 vaccine and a low risk to the disease—a perception that is disconnected from the science. The backbone of this Article is the timeline of the COVID-19 pandemic and the underlying science of the disease and vaccines. The timeline provides a factual background to demonstrate how vaccine hesitancy to the COVID-19 vaccine emerged. The instant pandemic also demonstrates changes in how individuals see themselves in society, receive information, and are persuaded by economic forces. This Article combines the individual’s decision-making process with modern day variables to suggest interventions that can undo anti-vaccine damage. While the novelty of the normative framework provided herein is instructive for current COVID-19 vaccine hesitancy issues, this framework can be applied to other areas in which individual’s perceptions of risk are disconnected from evidence-based assessment of risk.

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Articles
Information
American Journal of Law & Medicine , Volume 48 , Issue 1 , March 2022 , pp. 54 - 90
Copyright
© 2022 The Author(s)

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Footnotes

†

Professor Joanna K. Sax is the E. Donald Shapiro Professor of Law Professor Sax is grateful to Nicole Nazari for her helpful research assistance. In addition, Professor Sax thanks the peer reviewers for their insightful comments and the editorial team at the American Journal of Law & Medicine. The author can be contacted at [email protected]

References

1 The long-term consequences of the inappropriate assignments of risk are also acute, such as with climate change. See Obama White House Archives, A Historic Commitment to Protecting the Environment and Addressing the Impacts of Climate Change, (last visited Feb. 2, 2022), https://obamawhitehouse.archives.gov/the-record/climate [https://perma.cc/LJY8-LNN8] (“President Obama believes that no challenge poses a greater threat to our children, our planet, and future generations than climate change[.]”).

2 The term “novel coronavirus” is used to denote the virus that causes the disease COVID-19. The scientific term for this coronavirus is “SARS-Co-V-2.” The term “COVID-19” denotes the disease caused by the coronavirus/SARS-Co-V-2. See Nat’l Inst. Of Allergy and Infectious Diseases, Coronaviruses, https://www.niaid.nih.gov/diseases-conditions/coronaviruses [https://perma.cc/MPR8-APHT] (last visited March 23, 2022).

3 It is unclear if the early reports in November 2019 of a plague were actually the early infections of the novel coronavirus. Sui-Lee Wee, Pneumonic Plague is Diagnosed in China, N.Y. Times (Nov. 13, 2019), https://www.nytimes.com/2019/11/13/world/asia/plague-china-pneumonic.html [https://perma.cc/HN9D-ARV7]; Jamie Seidel, Scientists Rush to Find ’Patient Zero’ in a Bid to Stop the Coronavirus, N.Z. Herald (Feb. 1, 2020, 12:23 AM), https://www.nzherald.co.nz/world/scientists-rush-to-find-patient-zero-in-a-bid-to-stop-the-coronavirus/DI6H6BARB45F2IEPLIOMYKIVRI/?c_id=2&objectid=12305211 [https://perma.cc/2KR9-6H7G]. Jon Cohen, Wuhan Seafood Market may Not be the Source of Novel Virus Spreading Globally, Science (Jan. 26, 2020, 11:25PM), https://www.science.org/content/article/wuhan-seafood-market-may-not-be-source-novel-virus-spreading-globally [https://perma.cc/DNU8-8C7W].

4 Li-Li Ren, et al., Identification of a Novel Coronavirus Causing Severe Pneumonia in Human: A Descriptive Study, 133 Chinese Med. J. 1015, 1015-1024 (2020), https://journals.lww.com/cmj/fulltext/2020/05050/identification_of_a_novel_coronavirus_causing.3.aspx [https://perma.cc/5XF8-6QMY] (“A novel bat-borne CoV was identified that is associated with severe and fatal respiratory disease in humans.”).

5 Stephanie Hegarty, The Chinese Doctor Who Tried to Warn Others about Coronavirus, BBC (Feb. 6, 2020), https://www.bbc.com/news/world-asia-china-51364382 [https://perma.cc/2WZ2-M9F8].

6 COVID-19—China, World Health Org. (Jan. 5, 2020), https://www.who.int/csr/don/05-january-2020-pneumonia-of-unkown-cause-china/en/ [https://perma.cc/SZ64-8BEN] (“Based on the preliminary information from the Chinese investigation team, no evidence of significant human-to-human transmission and no health care worker infections have been reported.”).

7 The Facts Regarding Taiwan’s email to Alert WHO to Possible Danger of COVID-19, Taiwan Ctrs. for Disease Control (Apr. 11, 2020), https://www.cdc.gov.tw/En/Bulletin/Detail/PAD-lbwDHeN_bLa-viBOuw?typeid=158 [https://perma.cc/KSP8-R7JU ] (“On December 31, 2019, Taiwan sent an email to the International Health Regulations (IHR) focal point under the World Health Organization (WHO), informing WHO of its understanding of the disease and also requesting further information from WHO.”).

8 Eric Lipton et al., He Could Have Seen What Was Coming: Behind Trump’s Failure on the Virus, N.Y. Times (Apr. 26 2021), https://www.nytimes.com/2020/04/11/us/politics/coronavirus-trump-response.html [https://perma.cc/F4T5-AGMF] (“The National Security Council office responsible for tracking pandemics received intelligence reports in early January predicting the spread of the virus to the United States, and within weeks was raising options like keeping Americans home from work and shutting down cities the size of Chicago. Mr. Trump would avoid such steps until March.”).

9 CDC Advises Travelers to Avoid All Nonessential Travel to China, Ctrs. for Disease Control & Prevention (Jan. 28, 2020), https://www.cdc.gov/media/releases/2020/s0128-travelers-avoid-china.html [https://perma.cc/PJ2C-6KD8] (“In the United States, there have been 5 cases of 2019-nCoV detected in travelers returning from Wuhan. No person-to-person spread has been detected in the United States at this time and this virus is NOT spreading in the community.”).

10 On April 17, 2021, the global COVID-19 related deaths surpassed 3 million. Coronavirus: Timeline, U.S. Dep’t Def. (Jan. 19, 2021) [hereinafter “DOD Timeline”], https://www.defense.gov/Explore/Spotlight/Coronavirus/DOD-Response-Timeline/ [https://perma.cc/WB65-WSFB] (citing Johns Hopkins University as the source).

11 Emails from Carter Mecher to Matthew Hepburn, Duane Caneva, James V Lawler, Wargo Michael, Richard Hatchett, Melissa Harvey, Lisa Koonin, David Marcozzi, and Herbert Wolfe (Jan. 28, 2020) [hereinafter “Red Dawn Emails”], https://int.nyt.com/data/documenthelper/6879-2020-COVID-19-red-dawn-rising/66f590d5cd41e11bea0f/optimized/full.pdf#page=1 [https://perma.cc/47K8-V7XU].

12 Red Dawn Emails, supra note 11, Email from Matthew Hepburn to Richard Hatchett and Carter Mecher (Jan. 28, 2020).

13 See, e.g., Red Dawn Emails, supra note 11, Email from Dr. Eva K. Lee to James V Lawler (Feb 9, 2020) (“In order to have true testing capacities/surge., we must select a collection of assays/reagents and make them into standards so that you can handoff to private sectors readily for (mass) production.”).

14 See Norah O’Donnell, The Government Whistleblower Who Says The Trump Administration’s Coronavirus Response Has Cost Lives, CBSNews (May 18, 2020), https://www.cbsnews.com/news/rick-bright-whistleblower-trump-administration-coronavirus-pandemic-response/ [https://perma.cc/C5UH-529T].

15 COVID-19, Ctrs. for Disease Control & Prevention (last visited July 12, 2021), https://www.cdc.gov/coronavirus/2019-ncov/index.html [https://perma.cc/FD65-PDJY].

16 See, e.g., World Health Org. (@WHO), Twitter (Jan. 14, 2020, 6:18 A.M.), https://twitter.com/who/status/1217043229427761152?lang=en [https://perma.cc/KFQ7-ZCLX] (“Preliminary investigations conducted by the Chinese authorities have found no clear evidence of human-to-human transmission of the novel #coronavirus 2019-nCoV) identified in #Wuhan, #China.”).

17 Transcript of 2019 Novel Coronavirus Response Telebriefing, Ctrs. for Disease Control & Prevention (Jan. 17, 2020), https://www.cdc.gov/media/releases/2020/t0117-coronavirus-screening.html [https://perma.cc/RE7L-8U64] (“Based on the information that CDC has today, we believe the current risk from this virus to the general public is low. For a family sitting around the dinner table tonight this is not something that they generally need to worry about.”).

18 Malaka Gharib, Coronavirus in China: Over 200 Cases, Human-to-Human Transmission, NPR (Jan. 20, 2020, at 2:33 PM), https://www.npr.org/sections/goatsandsoda/2020/01/20/797926447/coronavirus-in-china-over-200-cases-human-to-human-transmission [https://perma.cc/H2HG-8LN6] (“On Monday, Zhong Nanshan, the epidemiologist who leads the committee on the outbreak for China’s National Health Commission, gave a TV interview stating there was evidence of human-to-human transmission.”).

19 First Travel-related Case of 2019 Novel Coronavirus Detected in United States, Ctrs. for Disease Control & Prevention (Jan. 21, 2020), https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html [https://perma.cc/H2HG-8LN6] (“The Centers for Disease Control and Prevention (CDC) today confirmed the first case of the 2019 Novel Coronavirus (2019-nCoV) in the United States in the state of Washington.”).

20 Id. (“The patient recently returned from Wuhan, China, where an outbreak of pneumonia caused by this novel coronavirus has been ongoing since December 2019.”).

21 China Confirms Human-to-Human Transmission of Wuhan Virus as WHO Announces Emergency Meet, Channel News Asia (Jan. 21, 2020, at 2:27AM), https://www.channelnewsasia.com/news/asia/wuhan-pneumonia-coronavirus-china-confirms-human-transmission-12293414 [https://perma.cc/MTS6-LWP9] (“[T]he World Health Organization announced that a key emergency committee would meet this week to discuss the infections.”).

22 Nathaniel Weixel & Peter Sullivan, Top Health Officials Brief Senators on Coronavirus as Infections Spread, Hill (Jan. 24, 2020 at 12:30 PM), https://thehill.com/policy/healthcare/479771-healthofficials-brief-senators-on-coronavirus-as-infections-spread [https://perma.cc/6D26-SLXU] (“Top U.S. public health officials on Friday briefed senators on the spread of coronavirus, which has infected hundreds of people in China and two in the United States.”).

23 Joe Biden, Opinion, FLASHBACK by Joe Biden: Trump is worst possible leader to deal with coronavirus outbreak, USA Today (Jan. 27, 2020, at 4:00 AM, updated Sep. 29, 2020 at 7:22 PM), https://www.usatoday.com/story/opinion/2020/01/27/coronavirus-donald-trump-made-us-less-prepared-joe-biden-column/4581710002/ [https://perma.cc/X9GM-993M] (“The possibility of a pandemic is a challenge Donald Trump is unqualified to handle as president.”).

24 Letter from Patty Murray, Senator, et al. to Alex Azar, Sec’y, U.S. Senate (Jan. 27, 2020), https://www.help.senate.gov/imo/media/doc/01272020%202019%20Novel%20Coronavirus%20Letter%20to%20Azar.pdf [https://perma.cc/6NSC-GWAN] (“We write to express concern about the rapidly evolving 2019 Novel Coronavirus (2019-nCoV_, to urge your continued robust and scientifically driven response to the situation, and to assess whether any additional resources or action by Congress are needed at this time.”).

25 Id. (“Cases have now been confirmed on four continents.”).

26 Health and Human Services Secretary Azar Holds News Conference on Coronavirus, Fin. Markets Reg. Wire. (Jan. 28, 2020) (transcript reprinted from CQ-Roll Call), LEXIS, News Database (Feb. 3, 2020).

27 Press Release, White House, Statement from the Press Secretary Regarding the President’s Coronavirus Task Force (Jan. 29, 2020), https://www.whitehouse.gov/briefings-statements/statement-press-secretary-regarding-presidents-coronavirus-task-force/ [https://perma.cc/9ES4-KPKK].

28 Press Release, Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV), World Health Org. (Jan. 30, 2020), https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov) [https://perma.cc/5T9B-6MZS].

29 Transcript of CDC Telebriefing for the Update on 2019 Novel Coronavirus (2019-nCoV), Ctrs. for Disease Control & Prevention (Jan. 30, 2020), https://www.cdc.gov/media/releases/2020/t0130-novel-coronavirus-update-telebriefing.html [https://perma.cc/YLR3-H829] (“Given what we’ve seen in [C]hina, and other countries with this novel coronavirus, CDC experts have expected to identify some person-to-person spread in the [U]nited [S]tates. We understand that this may be concerning, but based on what we know now, our assessment remains that the immediate risk to the American public is low.”).

30 President Trump Rally in Des Moines, Iowa, C-SPAN (Jan. 30, 2020), https://www.c-span.org/video/?468452-1/president-trump-rally-des-moines-iowa [https://perma.cc/5WH3-9PA6].

31 White House Briefing on Coronavirus Response, C-SPAN (Jan. 31, 2020), https://www.c-span.org/video/?468862-1/white-house-declares-coronnavirus-presents-public-health-emergency-us [https://perma.cc/F8HJ-53VV].

32 Id.

33 Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus and Other Appropriate Measures to Address This Risk, Proclamation No. 9984, 85 Fed. Reg. 6709, 6710, (Jan. 31, 2020).

34 Reuters Staff, Italy government agrees state of emergency after confirmed coronavirus cases: government source, REUTERS (Jan. 31, 2020, 3:00 AM), https://www.reuters.com/article/us-china-health-italy-cabinet/italy-government-agrees-state-of-emergency-after-confirmed-coronavirus-cases-government-source-idUSKBN1ZU1CM [https://perma.cc/KE66-FVQ8]; Extension of Precautionary Measures to Minimise Risk of Community Spread in Singapore, Sing. Ministry Health (Jan. 31, 2020), https://www.moh.gov.sg/news-highlights/details/extension-of-precautionary-measures-to-minimise-risk-of-community-spread-in-singapore [https://perma.cc/P2A6-H4RN].

35 Governor Cuomo Issues Update on Novel Coronavirus and Announces New Hotline Staffed by State Health Department Experts, N.Y. State Off. Governor (Feb. 2, 2020), https://www.governor.ny.gov/news/governor-cuomo-issues-update-novel-coronavirus-and-announces-new-hotline-staffed-state-health [https://perma.cc/2WY6-2L5R] (“New Yorkers can call 1-888-364-3065 with Question or Concerns about Travel and Symptoms.”).

36 Bill & Melina Gates Foundation Dedicates Additional Funding to the Novel Coronavirus Response, Gates Foundation (Feb. 5, 2020), https://www.gatesfoundation.org/Media-Center/Press-Releases/2020/02/Bill-and-Melinda-Gates-Foundation-Dedicates-Additional-Funding-to-the-Novel-Coronavirus-Response [https://perma.cc/D7KT-KAW5].

37 Transcript for CDC Telebriefing: CDC Update on Novel Coronavirus, Ctrs. for Disease Control & Prevention (Feb. 3, 2020), https://www.cdc.gov/media/releases/2020/t0203-coronavirus-update.html [https://perma.cc/7RUR-5VN2] (“As we have reported earlier, CDC has developed a real-time Reverse Transcription Polymerase Chain Reaction or RRT-PCR test that can detect 2019 Novel Coronavirus and respiratory and serum specimens from clinical specimens. On January 24, CDC publicly posted the assay protocol for this test.”).

38 CNBC Television, White House’s Coronavirus Task Force Holds a News Conference—2/7/2020, YouTube (Feb., 7, 2020), https://www.youtube.com/watch?v=pdt2krYW4Fk [https://perma.cc/P8H2-P85W] (confirming 12 confirmed cases in the U.S. at 1:45; noting the risk to the American public remains low at 2:19-2:36).

39 Red Dawn Emails, supra note 11, email from Dr. Eva K. Lee dated Feb 13, 2020.

40 Red Dawn Emails, supra note 11, email from Carter Mecher dated Feb. 18, 2020.

41 Noah Weiland et al., White House Asks Congress for Billions to Fight Coronavirus, N.Y. Times (Feb. 26, 2020), https://www.nytimes.com/2020/02/24/us/politics/trump-coronavirus-response.html [https://perma.cc/D4TV-45FD].

42 Health and Human Services Fiscal Year 2021 Budget Request, C-SPAN (Feb. 25, 2020), https://www.c-span.org/video/?469633-1/lawmakers-question-hhs-secretary-azar-coronavirus-preparedness-2021-budget&start=1225 [https://perma.cc/YV6M-EE5E]; Transcript for the CDC Telebriefing Update on COVID-19, Ctrs. for Disease Control & Prevention (Feb. 26, 2020), https://www.cdc.gov/media/releases/2020/t0225-cdc-telebriefing-COVID-19.html [https://perma.cc/U2ZZ-W7SR].

43 Id. (“At this time, there’s no vaccine to protect against this new virus and no medications approved to treat it. Non-pharmaceutical interventions or NPIs will be the most important tools in our response to this virus.”).

44 President Donald Trump, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Conference (Feb. 26, 2020, at 6:37 PM) (“We’re rated number one for being prepared.”); President Donald Trump, Remarks by President Trump in Meeting with African American Leaders (Feb. 27, 2020, at 5:22 PM) (“But we have done an incredible job. We’re going to continue. It’s going to disappear. One day – it’s like a miracle – it will disappear.”). While Trump was saying everything was fine, New York was actually responding to the pandemic. See Governor Cuomo Announces $40 Million Emergency Appropriation to Support DOH Staffing and Equipment to Respond to Potential Novel Coronavirus Pandemic, N.Y. State Off. Governor (Feb. 26, 2020), https://www.governor.ny.gov/news/governor-cuomo-announces-40-million-emergency-appropriation-support-doh-staffing-and-equipment [https://perma.cc/ZV9U-9SW3].

45 Campaign 2020 President Trump Campaign Event in North Carolina, South Carolina, C-SPAN (Feb. 28, 2020), https://www.c-span.org/video/?469663-1/president-trump-campaign-event-north-charleston-south-carolina [https://perma.cc/93V7-QEYP].

46 Red Dawn Emails, supra note 11, email from Eva Lee dated Feb. 28, 2020.

47 Red Dawn Emails, supra note 11, email from Carter Mecher dated Feb 20, 2020.

48 Red Dawn Emails, supra note 11, email from Carter Mecher dated March 2, 2020.

49 Campaign 2020 President Trump Rally in Charlotte, North Carolina, C-SPAN (March 2, 2020), https://www.c-span.org/video/?469845-1/president-trump-campaigns-charlotte-north-carolina [https://perma.cc/YM6S-VBRS].

50 Andrew Cuomo, Video, Audio, Photos & Rush Transcript: At Novel Coronavirus Briefing, Governor Cuomo Declares State of Emergency to Contain Spread of Virus, N.Y. State Off. Governor (Mar. 7, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-novel-coronavirus-briefing-governor-cuomo-declares-state [https://perma.cc/BMM6-7LP2].

51 See, e.g., Andrew Cuomo, Video, Audio, Photos & Rush Transcript: During Coronavirus Briefing, Governor Cuomo Issues Executive Order Allowing State to Increase Hospital Capacity, N.Y. State Off. Governor (Mar. 16, 2020) https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-during-coronavirus-briefing-governor-cuomo-issues-executive [https://perma.cc/K73R-MGUT].

52 Governor Gavin Newsom, Cal. Exec. Order No. N-25-20, (Mar. 12, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.12.20-EO-N-25-20-COVID-19.pdf [https://perma.cc/WP39-BHWM]; Andrew Cuomo, Video, Audio, Photos & Rush Transcript: During Novel Coronavirus Briefing, Governor Cuomo Announces New Mass Gatherings Regulations, N.Y. State Off. Governor (Mar. 12, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-during-novel-coronavirus-briefing-governor-cuomo-announces-0 [https://perma.cc/748B-6L8X].

53 Red Dawn Emails, supra note 11, Gerald Parker email from Gerald Parker dated March 14, 2020.

54 President Donald Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, Trump White House Archives (Mar. 13, 2020), https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak [https://perma.cc/4WNR-RMLQ].

55 See, e.g., Andrew Cuomo, Amid COVID-19 Pandemic, Governor Cuomo, Governor Murphy, Governor Lamont and Governor Wolf Direct Temporary Closure of Barber Shops, Nail and Hair Salons and Related Personal Care Services Effective by 8pm Saturday, N.Y. State Off. Governor (Mar. 20, 2020), https://www.governor.ny.gov/news/amid-COVID-19-pandemic-governor-cuomo-governor-murphy-governor-lamont-and-governor-wolf-direct [https://perma.cc/ZHE9-J82Q].

56 See, e.g., Michael D. Shear et al., The Lost Month: How a Failure to Test Blinded the U.S. to COVID-19, N.Y. Times (Apr. 1, 2020), https://www.nytimes.com/2020/03/28/us/testing-coronavirus-pandemic.html [https://perma.cc/F6NF-NG4Y]

57 See, e.g., Lindsay F. Wiley, Democratizing the Law of Social Distancing, 19 YALE J. HEALTH POL’Y L. & ETHICS 50, 75 (2020); Richard W. Parker, Why America’s Response to the COVID-19 Pandemic Failed: Lessons From New Zealand’s Success, 73 Admin. L. Rev. 77, 101 (2021) (“Yet even in November, weeks after South Dakota had become a national hotspot of covid disease and death, the governor of the state refused to adopt a mask mandate, its residents remained free to travel about the country, and the state continued to serve (along with numerous other recalcitrant states) as an incubator of contagion regionally and nationwide.”); Josh Blackman, The “Essential” Free Exercise Clause, 44 Harv. J of L. & Pub. Pol’y 637, 679-80 (2021).

58 San Diego Unified School District, for example, closed its in-person classrooms for over a year. See, e.g., Kristen Taketa, San Diego Unified will stay closed indefinitely while vaccinations, testing scale up, San Diego Union-Tribune (Jan. 14, 2021, 6:00 AM), https://www.sandiegouniontribune.com/news/education/story/2021-01-14/san-diego-unified-will-stay-closed-indefinitely-while-vaccinations-testing-scale-up-slowly [https://perma.cc/7A9Z-U2CQ].

59 Betsy Klein et al., Pence Seeks to Blame CDC and China for Any Delay in US Coronavirus Response—Not Trump’s Initial Failure to Face Reality, CNN (Apr. 1, 2020, 4:12 PM), https://www.cnn.com/2020/04/01/politics/mike-pence-coronavirus/index.html [https://perma.cc/J4TK-VQ7V] (“I will be very candid with you and say that in mid-January the CDC was still assessing that the risk of the coronavirus to the American people was low … The reality is that we could’ve been better off if China had been more forthcoming.”).

60 Reuters Staff, Italy’s coronavirus lockdown measures to be extended to April 13: minister, REUTERS (Apr. 1, 2020, at 1:27 AM), https://www.reuters.com/article/us-health-coronavirus-italy-lockdown/italys-coronavirus-lockdown-measures-to-be-extended-to-april-13-minister-idUSKBN21J4RU [https://perma.cc/AHJ5-4ZQD]; Reuters Staff, Mecca, Medina get 24-hour curfew; Gulf migrant worker districts locked down, REUTERS (Apr. 2, 2020, at 5:24 AM), https://www.reuters.com/article/us-health-coronavirus-saudi/mecca-medina-get-24-hour-curfew-gulf-migrant-worker-districts-locked-down-idUSKBN21K1TV [https://perma.cc/XS8J-H2QP].

61 Lena H. Sun & Josh Dawsey, New face mask guidance comes after battle between White House and CDC, Washington Post (Apr. 3, 2020) https://www.washingtonpost.com/health/2020/04/03/white-house-cdc-turf-battle-over-guidance-broad-use-face-masks-fight-coronavirus/ [https://perma.cc/9VBU-5U7C] (“President Trump announced new guidance Friday that people in the U.S. wear coverings in public to slow the spread of the coronavirus, a reversal of the administration’s earlier recommendations. But Trump immediately said he himself would not choose to do it, even though ‘it may be good’ advice, reflecting the sharp debate in recent days between the White House and the Centers for Disease Control and Prevention.”).

62 See id.; Inst. for Health Metrics COVID-19 Forecasting Team, Modeling COVID-19 Scenarios for the United States, 27 Nature Med. 94, 94 (2020) (discussing that universal mask use could save lives).

63 Josh Margolin & James Gordon Meek, Intelligence report warned of coronavirus crisis as early as November: Sources, ABC News (Apr. 8, 2020, at 6:55 PM), https://abcnews.go.com/Politics/intelligence-report-warned-coronavirus-crisis-early-november-sources/story?id=70031273 [https://perma.cc/8SUBUPSP] (“As far back as late November [2019], U.S. intelligence officials were warning that a contagion was sweeping through China’s Wuhan region, changing the patterns of life and business and posing a threat to the population, according to four sources briefed on the secret reporting.”).

64 Donald Trump, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, Trump White House Archives (Apr. 15, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-26/ [https://perma.cc/AYJ2-4659]. (“In order to advance the health and security of our nation and all nations, as we announced yesterday, the U.S. government has put a hold on funding to the WHO – World Health Organization – pending a review of the organization’s cover-up and mismanagement of the coronavirus outbreak.”).

65 Donald Trump, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing Trump White House Archives (Apr. 23, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-vice-president-pence-members-coronavirus-task-force-press-briefing-31/ [https://perma.cc/Y55Y-3CDR] (“Right. And then I see the disinfectant, where it knocks it out in a minute. One minute. And is there a way we can do something like that, by injection inside or almost a cleaning. Because you see it gets in the lungs and it does a tremendous number on the lungs. So it would be interesting to check that. So, that, you’re going to have to use medical doctors with. But it sounds—it sounds interesting to me. So we’ll see. But the whole concept of the light, the way it kills it in one minute, that’s—that’s pretty powerful.”).

66 Greg Miller & Ellen Nakashima, President’s intelligence briefing book repeatedly cited virus threat, Washington Post (Apr. 27, 2020), https://www.washingtonpost.com/national-security/presidents-intelligence-briefing-book-repeatedly-cited-virus-threat/2020/04/27/ca66949a-8885-11ea-ac8a-fe9b8088e101_story.html [https://perma.cc/N5KM-XA9V] (“U.S. intelligence agencies issued warnings about the novel coronavirus in more than a dozen classified briefings prepared for President Trump in January and February, months during which he continued to play down the threat, according to current and former U.S. officials.”).

67 Donald Trump, Remarks by President Trump and Vice President Pence at a Meeting with Governor Reynolds of Iowa, (May 6, 2020), https://www.govinfo.gov/content/pkg/DCPD-202000335/pdf/DCPD-202000335.pdf [https://perma.cc/YH43-4QZS] (“But by doing all of the testing—I’d love to get that chart from yesterday. It’s such an incredible chart. We do many times—we’ve done more testing than every other country combined, wouldn’t you think? So we’re going to have more cases because we do more testing. Otherwise, you don’t know if you have a case. I think that’s a correct statement.”).

68 Id. (“So if do did tests down here, we’re going to have very few cases. If we do tests up here, we’re going to have many more cases. So they keep saying, “They have a million cases.” Well, that’s because we’re doing a lot of testing. Otherwise, Deborah—in fact, I’m doing it because of Deborah. She keeps saying, “Keep going.” We’re going to break—pretty soon, we’re going to need a longer piece of paper.”).

69 White House Coronavirus Task Force Members Testify on Coronavirus Response and Reopening Phases, C-SPAN (May 12, 2020), https://www.c-span.org/video/?471837-1/white-house-coronavirus-task-force-members-testify-coronavirus-response-reopening-phases&live [https://perma.cc/M6BQ-ULE6].

70 Id. at 14:13-16:03 (emphasis added).

71 Max Roth, Mitt Romney to Trump Admin: COVID-19 testing record is ‘nothing to celebrate,’ fox13now (May 12, 2020 at 5:48 PM), https://www.fox13now.com/news/local-news/mitt-romney-to-trump-admin-COVID-19-testing-record-is-nothing-to-celebrate [https://web.archive.org/web/20220222194533/; https://www.fox13now.com/news/local-news/mitt-romney-to-trump-admin-covid-19-testing-record-is-nothing-to-celebrate].

72 Donald Trump, Remarks by President Donald Trump on the Jobs Numbers Report, Trump White House Archives (June 8, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-jobs-numbers-rep]ort/ [https://perma.cc/S9LR-NRRX] (“And I hope that the lockdown — governors, I don’t know why they continue to lock down, because if you look at Georgia, if you look at Florida, if you look at South Carolina, if you look at so many different places that have opened up — I don’t want to name all of them, but the ones that are most energetic about opening, they are doing tremendous business. And that — this is what these numbers are all about”).

73 See, e.g., Oliver Milman, Trump campaign asks supporters to sign coronavirus waiver ahead of rally, Guardian (Jun 12, 2020, 12:35 PM), https://www.theguardian.com/us-news/2020/jun/12/trump-rally-supporters-sign-coronavirus-waiver [https://perma.cc/Y5ZA-NUAG] (actual waiver document on file with author).

74 Katherine Ross, Why Weren’t We Wearing Masks From the Beginning? Dr. Fauci Explains, Street (Jun 12, 2020, 3:07 PM), https://www.thestreet.com/video/dr-fauci-masks-changing-directive-coronavirus [https://perma.cc/A9UQ-JDBD] (“Well, the reason for that is that we were concerned the public health community, and many people were saying this, were concerned that it was at a time when personal protective equipment, including the N95 masks and the surgical masks, were in very short supply. And we wanted to make sure that the people namely, the health care workers, who were brave enough to put themselves in a harm way, to take care of people who you know were infected with the coronavirus and the danger of them getting infected.”).

75 Beth Mole, White House ordered NIH to cancel coronavirus research funding, Fauci says, Arstechnica (June 24, 2020, 7:16 PM), https://arstechnica.com/science/2020/06/white-house-ordered-nih-to-cancel-coronavirus-research-funding-fauci-says/ [https://perma.cc/2PWF-2GDY]; David Lim & Brianna Ehley, Fauci says White House told NIH to cancel funding for bat virus study, POLITICO (June 23, 2020 at 5:41 PM), https://www.politico.com/news/2020/06/23/fauci-nih-white-house-bat-study-336452 [https://per ma.cc/9A7Z-64X7].

76 Vanessa Romo, Trump Administration Moving to Close Federally Funded COVID Testing Sites, NPR (June 24, 2020, 8:45 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/06/24/883154244/trump-administration-moving-to-close-federally-funded-COVID-testing-sites [https://perma.cc/36HV-M8EM] (“Federal officials say the sites have been closing or transferring to state or local control because it’s more efficient to run testing that way. In other instances they argue there are readily available testing sites nearby.”).

77 Reuters, Wearing a mask is ‘not complicated’ says Mitch McConnel, YouTube (July 6, 2020), https://www.youtube.com/watch?v=eJSi2rJ60Ck [https://perma.cc/6KFF-ZNQ9].

78 Nicole Chavez & Kay Jones, A Texas hospital overwhelmed by the coronavirus may send some patients home to die, CNN (July 25, 2020, 12:02 AM), https://www.cnn.com/2020/07/24/us/texas-starr-county-hospital-coronavirus/index.html [https://perma.cc/C2ML-SK7J]. The Starr County’s Facebook page stated the following:

We are seeing the results of socialization during the 4th of July, vacations, and other social opportunities. Unfortunately, Starr County Memorial Hospital has limited resources and our doctors are going to have to decide who receives treatment, and who is sent home to die by their loved ones. This is what we did not want our community to experience. I am working on a Shelter-in-Place Order, but it is only as good as we make it. We must be responsible for ourselves and our loved ones. I have faith that Starr County will do what is good for one another. We can turn this around in two weeks. WE CAN DO IT. STAY HOME as much as possible. God bless you. – Your Judge Eloy Vera.

Li Cohen, A Texas county’s only hospital forced to choose “who is sent home to die as ICU beds near capacity [sic], CBS News (July 23, 2020, 8:49 PM), https://www.cbsnews.com/news/starr-county-only-hospital-forced-to-choose-who-is-sent-home-to-die-as-icu-beds-reach-capacity/ [https://perma.cc/BP5F-KKHM].

79 United States Coronavirus Cases, worldOmeters (July 27, 2020, 11:21 PM), https://www.worldometers.info/coronavirus/usa/louisiana/ [https://web.archive.org/web/20200727232309/https://www.worldometers.info/coronavirus/country/us/].

80 Donald Trump, Remarks by President Trump in Press Briefing, Trump White House Archives (July 30, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-press-briefing-july-30-2020/ [https://perma.cc/9Q3Q-KAP2] (“So, can you assure anybody of anything? I do say, again: Young people are almost immune to this disease. The younger, the better, I guess. They’re stronger. They’re stronger. They have a stronger immune system. It’s an incredible thing. Nobody has ever seen this before. Various types of flu will hurt young people more than older people. But young people are almost immune. If you look at the percentage, it’s a tiny percent of 1 percent. It’s a tiny percent of 1 percent. So we have to have our percent of 1 percent. It’s a tiny percent of 1 percent. So we have to have our schools open. We have to protect our teachers. We have to protect our elderly. But we do have to have our schools open.”).

81 Donald Trump, President Donald J. Trump and His Administration Have Created The Best COVID-19 Testing System in the World, Trump White House Archives (July 31, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/president-donald-j-trump-administration-created-best-covid-19-testing-system-world/ [https://perma.cc/GQA4-HLVF].

82 Logan Lutton, Coronavirus case numbers in the United States: JULY 31 update, Med. Econ. (July 31, 2020), https://www.medicaleconomics.com/view/coronavirus-case-numbers-in-the-united-states-july-31-update [https://perma.cc/7APF-C45Q] (“Patient deaths: 144,139”).

83 Matthew Wellington et al., Shut Down, Start Over, Do It Right, US Pirg (Nov. 17, 2020), https://uspirg.org/resources/usp/shut-down-start-over-do-it-right [https://perma.cc/WEW7-HB6X].

84 Alex Fitzpatrick, Why the U.S. is Losing the War on COVID-19, TIME (Aug. 13, 2020, 11:19 AM), https://time.com/5879086/us-COVID-19/?utm_source=reddit.com [https://perma.cc/C955-HPUW] (emphasis added).

85 Justine Coleman, COVID-19 now No. 3 cause of death in US, Hill (Aug. 17, 2020, 7:43 PM), https://thehill.com/policy/healthcare/512427-COVID-19-now-no-3-cause-of-death-in-us [https://perma.cc/NX7B-SGKB].

86 Robbie Whelan, COVID-19 Data Will Once Again Be Collected by CDC, in Policy Reversal, Wall St. J. (Aug. 20, 2020, 2:04 PM), https://www.wsj.com/articles/troubled-COVID-19-data-system-returning-to-cdc-11597945770?mod=e2tw&AID=11557093&PID=9101088&SID=0FOF37732195255840930&subid=FlexOffers.com%2C+LLC&cjevent=17e30e8ee36111ea80bd00510a1c0e11&tier_1=affiliate&tier_2=moa&tier_3=FlexOffers.com%2C+LLC&tier_4=1607582&tier_5=https%3A%2F%2Fwww.wsj.com%2Farticles%2Ftroubled-COVID-19-data-system-returning-to-cdc-11597945770%3Fmod%3De2tw [https://perma.cc/JD6M-7FPQ] (“The U.S. Department of Health and Human Services is reversing course on a change to the way hospitals report critical information on the coronavirus pandemic to the government, returning the responsibility for data collection to the Centers for Disease Control and Prevention.”).

87 See Matthre Impelli, Nearly 9,000 Florida Children Diagnosed with Coronavirus in Two Weeks as Schools Reopen, Newsweek (Aug. 25, 2020, 4:07 PM), https://www.newsweek.com/nearly-9000-florida-children-diagnosed-coronavirus-two-weeks-schools-reopen-1527587 [https://perma.cc/236M-93EG]; COVID-19: South Korea closes Seoul schools amid rise in cases, BBC (Aug. 25, 2020), https://www.bbc.com/news/world-asia-53901707 [https://perma.cc/6NS7-66BB].

88 Richard Harris, FDA’s Hahn Apologizes for Overselling Plasma’s Benefits As A COVID-19 Treatment, NPR (Aug. 25, 2020, 1:44 PM), https://www.npr.org/sections/health-shots/2020/08/25/905792261/fdas-hahn-apologizes-for-overselling-plasmas-benefits-as-a-COVID-19-treatment [https://perma.cc/TLJ7-9NYW].

89 Kenneth Chang et al., In Signs of Progress, Fewer Than 1% of New York’s Virus Tests Are Positive, N.Y. Times (Sept. 16, 2020, https://www.nytimes.com/2020/09/06/world/covid-coronavirus.html [https://perma.cc/VS4L-WL9K].

90 Alexis C. Madrigal & Robinson Meyer, The Fog of the Pandemic is Returning, Atlantic (Sept. 10, 2020), https://www.theatlantic.com/health/archive/2020/09/how-many-people-america-testing-coronavirus/616249/?scrolla=5eb6d68b7fedc32c19ef33b4 [https://perma.cc/T2FG-KPWD] (“But some evidence suggests that these tests are being used on a much wider scale than is understood: Thousands, if not tens of thousands, of antigen tests may already be happening every day without their results appearing in any public data. Just as dark matter can’t be observed directly, even though it makes up much of the universe, this “dark testing” does not show up in the data but may already account for a substantial chunk of the coronavirus testing done in the U.S.”).

91 Associated Press, Dakotas lead U.S. in growth of coronavirus cases as both states reject mask rules, LA TIMES (Sept. 12, 2020, 1:01 PM), https://www.latimes.com/world-nation/story/2020-09-12/dakotas-lead-us-in-virus-growth-as-both-reject-mask-rules [https://perma.cc/DL59-EB62] (“Coronavirus infections in the Dakotas are growing faster than anywhere else in the nation, fueling impassioned debates over masks and personal freedom after months in which the two states avoided the worst of the pandemic.”).

92 Jessie Yeung et al., The latest on the coronavirus pandemic, CNN (Oct. 31, 2020, 1:41 AM), https://www.cnn.com/world/live-news/coronavirus-pandemic-10-30-20-intl/index.html [https://perma.cc/ZU23-3EE7].

93 Associated Press, California Under New COVID-19 Rules For Next Three Weeks, KPBS (Dec. 7, 2020), https://www.kpbs.org/news/2020/dec/07/california-imposes-new-COVID-19-rules-hospitals-st/ [https://perma.cc/6T2Q-UMNC].

94 A major highlight was vaccine development. The development of COVID-19 vaccines is nothing short of tremendous. The ability to develop COVID vaccines rested on decades of research. The ultimate strategy against COVID lays in vaccines. We are lucky in this sense because scientists cannot create vaccines against every virus. As noted by HIV researcher at UW-Madison, we’ve been studying HIV for 40 years and we still not have a vaccine. Wisconsin Alumni Association, COVID-19 Vaccines and Side Effects, YouTube (Mar. 30, 2021), https://www.youtube.com/watch?v=iEDXfzl21Yo [https://perma.cc/WBU9-BD95] (remarks by David O’Connor).

95 The complete SARS-CoV2 genome was published on January 7, 2020. Severe acute respiratory coronavirus 2 isolate Wuhan-Hu-1, complete genome, NCBI (Mar. 18, 2020), https://www.ncbi.nlm.nih.gov/nuccore/MN908947 [https://perma.cc/7AH8-UQ9U].

96 Michael A. Martin et al., Insights from SARS-CoV-2 sequences, 371 Science 466, 466-67 (2021), https://science.sciencemag.org/content/371/6528/466 [https://perma.cc/RS2S-UR3M].

97 Yang Zhang, Genome-wide Structure and Function Modeling of SARS-CoV-2 Virus, U. Mich., [hereinafter “Zhang Lab”] https://zhanglab.ccmb.med.umich.edu/C-I-TASSER/2019-nCov/ [https://perma.cc/GH58-HJK8].

98 Id.; Chengxin Zhang et al., Protein Structure and Sequence Reanalysis of 2019-nCoV Genome Refutes Snakes as Its Intermediate Host and the Unique Similarity between Its Spike Protein Insertions and HIV‑1, 19 J. Proteome Res. 1351, 1355 (2020).

99 Zhang Lab, supra note 97; Zhang et al., supra note 98.

100 See Do COVID-19 vaccines protect against the variants?, Mayo Clinic, (May 5, 2022), https://www.mayoclinic.org/coronavirus-covid-19/covid-variant-vaccine [https://perma.cc/7FHR-DRXB]; Tracking SARS-CoV-2 variants, World Health Org. (July 6, 2021), https://www.who.int/en/activities/tracking-SARS-CoV-2-variants/ [https://perma.cc/TNY8-AMBW].

101 Id.

102 Vaccine efficacy, effectiveness and protection, World Health Org. (July 14, 2021), https://www.who.int/news-room/feature-stories/detail/vaccine-efficacy-effectiveness-and-protection [https://perma.cc/S3H5-ZZGA] (“Based on what we know so far, vaccines are proving effective against existing variants, especially at preventing severe disease, hospitalization and death. However, some variants are having a slight impact on the ability of vaccines to guard against mild disease and infection.”).

103 See Tanya Albert Henry, COVID-19 therapeutics: What the evidence shows, Am. Med. Ass’n (Mar. 29, 2021), https://www.ama-assn.org/delivering-care/public-health/COVID-19-therapeutics-what-evidence-shows [https://perma.cc/TU7N-53KH] (“Effective vaccines mean that the COVID-19 pandemic may be more controlled in the coming months, but the SARS-CoV-2 virus will likely remain a part of our everyday lives. That makes it important for physicians to have therapeutics in their toolbox to treat patients at all stages of disease progression—today, as well as in the future.”).

104 COVID-19 Vaccine Effectiveness, Ctrs. for Disease Control & Prevention (Dec. 17, 2021), https://covid.cdc.gov/covid-data-tracker/#vaccine-effectiveness [https://perma.cc/SH6A-J48W] (“Getting vaccinated against COVID-19 helps protect people from getting sick or severely ill with COVID-19 and can also help protect the people around them. CDC continues to monitor how well the vaccines are working.”)

105 See Atthar Mirza & Emily Ruahala, Here’s just how unequal the global coronavirus vaccine rollout has been, Wash. Post (Apr. 22, 2021), https://www.washingtonpost.com/world/interactive/2021/coronavirus-vaccine-inequality-global/ [https://perma.cc/43PQ-4HGH].

106 Shingai Machingaidze & Charles Shey Wiysonge, Understanding COVID-19 vaccine hesitancy, 27 Nat. Med. 1338, 1338 (2021) (“Promoting the uptake of vaccines (particularly those against COVID-19) will require understanding whether people are willing to be vaccinated, the reasons why they are willing or unwilling to do so, and the most trusted sources of information in their decision-making.”); COVID-19 Vaccines for People with Allergies, Ctrs. for Disease Control & Prevention (Mar. 25, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/specific-groups/allergies.html [https://perma.cc/67ZX-RASV].

107 Lindsay Kalter & Ralph Ellis, CDC: COVID-19 Is A ‘Pandemic of the Unvaccinated’, Web MD (July 16, 2021), https://www.webmd.com/lung/news/20210716/delta-variant-rising-COVID-case-counts-every-state [https://perma.cc/8EVN-CFS5] (“COVID-19 cases are continuing to spike in communities where vaccination rates are low, leading to what CDC Director Rochelle P. Walensky, MD, called ‘a pandemic of the unvaccinated.’”).

108 Learn More about COVID-19 Vaccines From the FDA, U.S. Food & Drug Admin. (July 12, 2021), https://www.fda.gov/consumers/consumer-updates/learn-more-about-COVID-19-vaccines-fda [https://perma.cc/VGR3-F3M6] (“ … the FDA determined that the available data for each vaccine provides clear evidence that the known and potential benefits outweigh the known and potential risks of each vaccine.”).

109 COVID-19 daily death counts were in the thousands at times. See COVID-19 Projections, Inst. for Health Metrics & Eval., (July 19, 2021), https://COVID19.healthdata.org/united-states-of-america?view=infections-testing&tab=trend&test=infections [https://perma.cc/KLB3-Z7FL].

110 Daniel Kahneman, Thinking Fast and Slow 137–45 (2011) (“Paul Slovic probably knows more about the peculiarities of human judgment of risk than any other individual. His work offers a picture of Mr. and Ms. Citizen that is far from flattering: guided by emotion rather than by reason, easily swayed by trivial details, and inadequately sensitive to differences between low and negligibly low probabilities.”).

111 Paul Slovic & Ellen Peters, Risk Perception and Affect, 15 Current Directions Psychol. Sci. 322, 322 (2006) (“Fortunately, most of the time people are in a calmer state, being guided by much subtler feelings. We shall focus this review on a ‘faint whisper of emotion’ called affect. We use the term affect to mean the specific quality of ‘goodness’ or ‘badness’ (a) experienced as a feeling state (with or without consciousness) and (b) demarcating a positive or negative quality of a stimulus. We have used the term ‘the affect heuristic’ to characterize reliance on such feelings.”); Paul Slovic et al., The Affect Heuristic, 177 Eur. J. Operational Res. 1333, 1333–35 (2007).

112 Slovic & Peters, supra note 111.

113 See Ellen Peters et al., Affect and Decision Making: A “Hot” Topic, 19 J. Behav. Decision Making 79, 81–82 (2006).

114 See Slovic & Peters, supra note 111, at 322 (“fear amplifies risk estimates”); Paul Slovic, Perception of Risk, 236 Sci. 280, 283, 285 (1987) (“Factor 1, labeled ‘dread risk’ is defined at its high (right-hand) end by perceived lack of control, dread, catastrophic potential, fatal consequences, and the inequitable distribution of risks and benefits. Nuclear weapons and nuclear power score highest on the characteristics that make up this factor.”); see also Michael Siegrist & Bernadette Sutterlin, Human and Nature-Caused Hazards: The Affect Heuristic Causes Biased Decisions, 34 Risk Analysis 1482, 1488-89 (2014).

115 See, e.g., Slovic & Peters, supra note 111, at 323 (describing work by Alhakami and Slovic in which they found an inverse relationship between perceived risk and perceived benefit, in other words, that people assign a low benefit to a perceived high risk. “This finding implies that people judge a risk not only by what they think about it but also by how they feel about it. If their feelings toward an activity are favorable, they tend to judge the risks as low and the benefits as high; if their feelings toward the activity are unfavorable, they tend to make the opposite judgment-high risk and low benefit (i.e. the affect heuristic [internal citation omitted].”).

116 Annual United States Road Crash Statistics, Ass’n for Safe Int’l Road Travel (July 20, 2021), https://www.asirt.org/safe-travel/road-safety-facts/ [https://perma.cc/P68E-AGC9] (“More than 38,000 people die every year on U.S. roadways’ … An additional 4.4 million are injured seriously enough to require medical attention.”).

117 David Sharpardson, Aviation deaths rise worldwide in 2020 even as fatal incidents, flights fall, Reuters (Jan. 1, 2021, 3:57 PM) (“Aviation consulting firm To70 said in 2020 there were 40 accidents involving large commercial passenger plants, five of which were fatal, resulting in 299 fatalities.”).

118 The false link between vaccines and autism has perpetuated feelings of fear and dread. See, e.g., A.J. Wakefield et al., Ileal-lymphoid-docular hyperplasia, non-specific colitis, and pervasive developmental disorder in children, 351 Lancet 637, 637–41 (retracted) (1998).

119 Joanna K. Sax, Biotechnology and Consumer Decision-Making 47 Seton Hall L. Rev. 433, 447 (2017).

120 Andrew Satin & Jeanne Sheffield, The COVID-19 Vaccine and Pregnancy: What You Need to Know, Hopkins Med. (Aug. 23, 2021), https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/the-COVID19-vaccine-and-pregnancy-what-you-need-to-know [https://perma.cc/6E5F-CF76] (“No, getting the COVID-19 vaccine will not affect your fertility. […] Confusion around this issue arose when a false report surfaced in social media saying that the spike protein on this coronavirus was the same as another spike protein called syncitin-1 that is involved in the growth and attachment of the placenta during pregnancy.”).

121 See, e.g., id. (“During the Pfizer vaccine tests, 23 women volunteers involved in the study became pregnant, and the only one in the trial who suffered a pregnancy loss had not received the actual vaccine, but a placebo.”). The assignment of a low risk to the COVID-19 vaccine can also be connected to the mishandling of the pandemic by the federal government, including, for example, the statements by President Trump that young people are immune and that the virus will disappear. See discussion supra, Part II.

122 Daniel Ellsberg, Risk, Ambiguity, and the Savage Axioms, 75 Q. J. Econ. 643, 657 (1961).

123 Id. at 656. In this experiment, participants were presented to two urns, one with a known ratio of white and red marbles and another urn with an unknown ratio. When asked which urn the participants preferred to obtain a red marble, the participants preferred the urn with the known ratio. Of course, the urn with the unknown ratio may have only had red marbles in it—which would mean that their chances of picking the winning marble color was one hundred percent. Nevertheless, Ellsberg demonstrated the aversion to unknown information, even if a chance existed that the unknown information provided a lower risk. Id.

124 Id.; see also, Colin Camerer & Martin Weber, Recent Developments in Modeling Preferences: Uncertainty and Ambiguity, 5 J. Risk & Uncertainty 325, 333–41 (1992) (describing empirical studies of ambiguity).

125 See Laura L. Blaisdell et al., Unknown Risks: Parental Hesitation about Vaccination, 36 Med. Decision Making 479, 480 (2016).

126 Id.

127 Id. at 482.

128 Id.

129 Id.

130 Angela Betsaida B. Laguipo, Over half of COVID-19 cases are spread by asymptomatic carriers, CDC study finds, News Med. (Jan. 11, 2021), https://www.news-medical.net/news/20210111/Over-half-of-COVID-19-cases-are-spread-by-asymptomatic-carriers-CDC-study-finds.aspx [https://perma.cc/M2CJ-4KCY] (“In a new study conducted by researchers at the U.S. Centers for Disease Control and Prevention (CDC), over half of SARS-Co-V-2 infections are believed to be transmitted asymptomatically.”).

131 See, e.g., Daniel C. DeSimone, COVID-19 variants: What’s the concern?, Mayo Clinic (July 15, 2021), https://www.mayoclinic.org/diseases-conditions/coronavirus/expert-answers/COVID-variant/faq-20505779 [https://perma.cc/356S-JNKV].

132 Jack Goodman & Flora Carmichael, Coronavirus: Bill Gates “microchip” conspiracy theory and other vaccine claims fact checked, BBC (May 30, 2020), https://www.bbc.com/news/52847648 [https://perma.cc/9HSB-SGT2] (“A new YouGov poll of 1,640 people suggest that 28% of Americans believe that Bill Gates wants to use vaccines to implant microchips in people—with the figure rising to 44% among Republicans.”).

133 Dan M. Kahan, Cultural Cognition as a Conception of the Cultural Theory of Risk, in Handbook of Risk Theory 726, 726–28 (S. Roeser et al. eds., 2012).

134 Id. at 727 fig.28.1 (showing the group-grid scheme).

135 Id. at 734–35.

136 Id. at 727.

137 Dan M. Kahan et al., Cultural Cognition of the Risks and Benefits of Nanotechnology, 4 Nature Nanotechnology 87, 88 (2008).

138 Kahan, supra note 133, at 753.

139 See, e.g., Kahan et al., supra note 137, at 87.

140 See supra Part III.

141 Kahneman, supra note 110 (“System 1 operated automatically and quickly, with little or no effort and no sense of voluntary control. System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of System 2 are often associated with the subjective experience of agency, choice, and concentration.”).

142 Id. at 58.

143 Id. at 29-30.

144 Id. at 4.

145 Id.

146 Id. at 19-20.

147 Id.

148 Id. at 21-22.

149 Id. at 354-62.

150 See, e.g., id.

151 Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, in Judgement Under Uncertainty: Heuristics and Biases 3 (Daniel Kahneman et al. eds., 1982) (“This article shows that people rely on a limited number of heuristic principles which reduce the complex tasks of assessing probabilities and predicting values to simpler judgmental operations. In general, these heuristics are quite useful, but sometimes they lead to severe and systematic errors.”).

152 Id. at 4, 11, 14.

153 Id. at 4.

154 Id. at 11.

155 Id. at 14.

156 See, e.g., Kahneman, supra note 110 at 137-45 (“Paul Slovic probably knows more about the peculiarities of human judgment of risk than any other individual. His work offers a picture of Mr. and Ms. Citizen that is far from flattering: guided by emotion rather than by reason, easily swayed by trivial details, and inadequately sensitive to differences between low and negligibly low probabilities.”).

157 Joanna K. Sax, The Problems with Decision-Making, 56 Tulsa L. Rev. 40, 65-73 (2020).

158 See id. at 65-73.

159 This problem is spurred, in part, by celebrity pundits spreading false information. Isaac Scher, Dr. Oz is offering Trump advice for handling the coronavirus. Here are 8 times he’s made false or baseless medical claims, Business Insider (Apr. 8, 2020, 12:41 PM), https://www.businessinsider.com/dr-oz-false-misleading-baseless-medical-claims-coronavirus-2020-4 [https://perma.cc/87E7-7UGY].

160 See supra Part III.

161 Abigail Tracy, How Trump Gutted Obama’s Pandemic-Preparedness Systems, Vanity Fair (May 1, 2020), https://www.vanityfair.com/news/2020/05/trump-obama-coronavirus-pandemic-response [https://perma.cc/W5U9-VEZH] (“But officials who worked on past crises and experts on pandemic response believe that Trump’s dismissal—and in some aspects, wholesale discarding—of the Obama administration’s preparedness structures and principles, and the current administration’s ideas about government—that states could and should take take [sic] responsibility, that business could be more effective than government at solving problems at this scale—have left them dangerously unprepared.”).

162 See, e.g., Joanna K. Sax, The Separation of Politics and Science, 7 Stan. J.L. Sci. & Pol’y 10, 14 (2014); 2004 Scientist Statement on Restoring Scientific Integrity to Federal Policy Making, Union Concerned Scientists (July 13, 2008), https://www.ucsusa.org/resources/2004-scientist-statement-scientific-integrity [https://perma.cc/GT3C-2ZBR]. See generally CHRIS MOONEY, THE REPUBLICAN WAR ON SCIENCE (2005).

163 David Brooks, The Second Mountain 6–20 (2019).

164 Id.

165 Id. at 10.

166 See, e.g., Immunization Requirements, Calif. Dep’t Educ. (Nov. 17, 2020), https://www.cde.ca.gov/ls/he/hn/immunization.asp [https://perma.cc/KGS5-78EJ].

167 Jacobson v. Massachusetts, 197 U.S. 11, 11 (1905). In this case, decided in 1905, the Court addressed whether a smallpox vaccine mandate was constitutional. The Court held that a small pox vaccine mandate was enforceable pursuant to the state’s 10th amendment police power. Id. Importantly, the court focused on the data to support vaccination as a way to protect the community. Id.

168 See, e.g., Hugo Martín, Ruckus in the skies: What happens when airline passengers refuse to wear masks, L.A. Times (May 5, 2021, 3:10 PM), https://www.latimes.com/business/story/2021-05-05/airline-passengers-mask-rules-faa-fine-zero-tolerance [https://perma.cc/PK4S-EHGW].

169 See Lois A. Weithorn, & Dorit Rubenstein Reiss, Legal approaches to promoting parental compliance with childhood immunization recommendations, 14 Hum. Vaccines & Immunotherapeutics 1610, 1613 (2018).

170 See, e.g., Campaign 2020 President Trump Campaign Event in North Carolina, South Carolina, C-SPAN (Feb. 28, 2020), https://www.c-span.org/video/?469663-1/president-trump-campaign-event-north-charleston-south-carolina [https://perma.cc/E822-2WES].

171 Trump, supra note 67.

172 A. W. Geiger, Key findings about online news landscape in America, Pew Rsch Ctr. (Sept. 11, 2019), https://www.pewresearch.org/fact-tank/2019/09/11/key-findings-about-the-online-news-landscape-in-america/ [https://perma.cc/7HNA-8836] (“The share of Americans who prefer to get their news online is growing. In 2018, 34% of U.S. adults said they preferred to get news online, whether through websites, apps, or social media. That’s compared to 28% in 2016.”).

173 Matteo Cinelli et al., The echo chamber effect on social media, 118 Proc. Nat’l Acad. Sci. 1, 1 (2021).

174 Ana S. Rutschman, Social Media Self-Regulation and the Rise of Vaccine Misinformation, U. Pa. J. L. & Innov. (forthcoming); see also, David A. Broniatowski et al., Weaponized Health Communication: Twitter Bots and Russian Trolls Amplify the Vaccine Debate, 108 Am. Pub. Health Ass’n 1378, 1378 (2018) (describing how bots and trolls creates confusion that users believe that scientific consensus may not exist for vaccines).

175 Rutschman, supra note 174 (recognizing the problem of misinformation on social media and suggesting soft law approaches to combat it).

176 George Johnson, The Widening World of Hand-Picked Truths, N.Y. Times (Aug. 24, 2015), http://www.nytimes.com/2015/08/25/science/the-widening-world-of-hand-picked-truths.html?_r=0 [https://perma.cc/H4XU-E2XD] (“Google recently tweaked its algorithm so that searching for ‘vaccination’ or ‘fluoridation’, for example, brings vetted medical information to the top of the results.”).

177 Shannon Bond, Just 12 People Are Behind Most Vaccine Hoaxes on Social Media, Research Shows, NPR (May 14, 2021, 11:48 AM), https://www.npr.org/2021/05/13/996570855/disinformation-dozen-test-facebooks-twitters-ability-to-curb-vaccine-hoaxes [https://perma.cc/SG8U-9T7U].

178 See Ben Collins & Brandy Zadrozny, Anti-vaccine groups changing into ‘dance parties’ on Facebook to avoid detection, NBC News (July 21, 2021, 3:01 PM), https://www.nbcnews.com/tech/tech-news/anti-vaccine-groups-changing-dance-parties-facebook-avoid-detection-rcna1480 [https://perma.cc/L3KS-3ERX].

179 See Steve Lubet, “Let’s Be Reasonable: A Conservative Case for Liberal Education,” Faculty Lounge (June 21, 2021, 5:44 AM), https://www.thefacultylounge.org/2021/06/lets-be-reasonable-a-conservative-case-for-liberal-education.html [https://perma.cc/8J6F-RDKF] (discussing Let’s be Reasonable, A Conservative Case for Liberal Education, Jonathan Marks).

180 Samantha Putterman, Social media post misrepresents preliminary data on miscarriages and COVID-19 vaccine, PolitiFact (July 9, 2021), https://www.politifact.com/factchecks/2021/jul/09/facebook-posts/post-misrepresents-preliminary-data-miscarriages-a/ [https://perma.cc/7RNE-2XZ2]; COVID-19: Effects of Vaccines on Fertility and Pregnancy Outcomes, U Penn (May 28, 2021), https://www.med.upenn.edu/CEP/assets/user-content/documents/covid-reports/vaccine-and-fertility-update-final-(003).pdf [https://perma.cc/DKG9-375V] (“There is currently no evidence that COVID-19 vaccination causes any problems with pregnancy, including the development of the placenta.”); Myths and Facts about COVID-19 Vaccines, Ctrs for Disease Control & Prevention (Dec. 15, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/facts.html [https://perma.cc/Q6XN-S5KB].

181 Ctrs for Disease Control & Prevention, supra note 180 (“Receiving a COVID-19 vaccine will not make you magnetic[.]”).

182 Sahil Loomba et al., Measuring the Impact of COVID-19 Vaccine Misinformation on Vaccination Intent in the UK and USA, 5 Nature Hum. Behav. 337, 337 (2021).

183 Ctrs for Disease Control & Prevention, supra note 180.

184 Id.

185 Id.

186 Donald Trump, Remarks by President Trump in Press Briefing, Trump White House Archives (July 30, 2020) https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-press-briefing-july-30-2020/ [https://perma.cc/N8AJ-PV24].

187 See Elizabeth Dwoskin & Aaron Gregg, The Trump administration bailed out prominent anti-vaccine groups during a pandemic, Wash. Post (Jan. 18, 2021), https://www.washingtonpost.com/business/2021/01/18/ppp-loans-anti-vaccine/ [https://perma.cc/ALS2-47NC] (“[f]ive prominent anti-vaccine organizations that have been known to spread misleading information about the coronavirus received more than $850,000 in loans from the federal Paycheck Protection Program [PPP], raising questions about why the government is giving money to groups actively opposing its agenda and seeking to undermine public health during a critical period.”).

188 Geoff Brumfiel, For Some Anti-Vaccine Advocates, Misinformation is Part of a Business, NPR (May 12, 2021, 5:08 AM), https://www.npr.org/sections/health-shots/2021/05/12/993615185/for-some-anti-vaccine-advocates-misinformation-is-part-of-a-business [https://perma.cc/N4NC-TY2A].

189 These variables may be strongly connected. Id.

190 Neena Satija & Lena H. Sun, A major funder of the anti-vaccine movement has made millions selling natural health products, Wash. Post (Nov. 16, 2019), https://www.washingtonpost.com/investigations/2019/10/15/fdc01078-c29c-11e9-b5e4-54aa56d5b7ce_story.html [https://perma.cc/K98G-29ZA].

191 Other forms of economic rewards are garnered by those leading the anti-vaccine movement. For example, well-known anti-vaccine advocate, Mr. Kennedy, receives salaries from their organizations for his work and speaker-fees. Keziah Weir, How Robert F. Kennedy, Jr. Became the Anti-Vaxxer Icon of America’s Nightmares, Vanity Fair (May 13, 2021), https://www.vanityfair.com/news/2021/05/how-robert-f-kennedy-jr-became-anti-vaxxer-icon-nightmare [https://perma.cc/68WW-3TVK]. This article focuses on ‘alternatives to vaccines,’ but other forms of economic renumeration and incentives exist as well.

192 Id.

193 The FDA has declined to define the term natural, thus its use is without a regulatory definition.See Use of the Term Natural on Food Labeling, U.S. Food & Drug Admin. (Oct. 22, 2018), https://www.fda.gov/food/food-labeling-nutrition/use-term-natural-food-labeling [https://perma.cc/75VY-YVJL].

194 Joanna K. Sax, The Tobacco Diaries: Lessons Learned and Applied to Regulation of Dietary Supplements, 73 Md. L. Rev. Endnotes 20, 28-31 (2013).

195 Id.

196 Id.

197 Id.

198 See, e.g., Sheera Frenkel, The Most Influential Spreader of Coronavirus Misinformation Online, N.Y. Times (Oct. 6, 2021), https://www.nytimes.com/2021/07/24/technology/joseph-mercola-coronavirus-misinformation-online.html [https://perma.cc/7TZ6-BYPP] (“An internet-savvy entrepreneur who employs dozens, Dr. Mercola has published over 600 articles on Facebook that cast doubt on Covid-19 vaccines since the pandemic began, reaching a far larger audience than other vaccine skeptics, an analysis by The New York Times found. His claims have been widely echoed on Twitter, Instagram and YouTube.”)

199 See e.g., P. Davies, S. Chapman, & J. Leask, Antivaccination activists on the world wide web, 87 Archives Disease Childhood 22, 22-25 (2002).

200 Beth Mole, supra note 75; Lim & Ehley, supra note 75; Sax, supra note 194.

201 See, e.g., Satija & Sun, supra note 190.

202 Joanna K. Sax, Dietary Supplements are Not all Safe and Not all Food: How the Low Cost of Dietary Supplements Preys on the Consumer, 41 Am. J. L. & Med. 374, 388-93 (2015).

203 See Homeopathic remedies are not a substitute for vaccines, Gov’t Canada (Mar. 6, 2019), https://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2019/69260a-eng.php [https://perma.cc/4JEZ-Q6SM].

204 See, e.g., Satija & Sun, supra note 190.

205 Jonathan Swan, Trump eyes new unproven coronavirus “cure,” AXIOS (Aug. 16, 2020) https://www.axios.com/trump-COVID-oleandrin-9896f570-6cd8-4919-af3a-65ebad113d41.html [https://perma.cc/79LW-URD6].

206 Vaccine hesitancy is not a new phenomenon. Research in this area acknowledges that risk assessment is a component in vaccine hesitancy. See, e.g., Daniel A Salmon et al., Vaccine Hesitancy Causes Consequences, and a Call to Action, 33 Vaccine D66, D66-67 (2015). The problem, which is addressed in this article, is how to close the divide between individual misperception of risk and evidence-based assessment of risk – this problem has not been adequately solved.

207 See Sax, supra note 157 at 73.

208 Blaisdell, supra note 125.

209 See Kahan, supra note 133 at 753–57.

210 Ctrs for Disease Control & Prevention, supra note 180.

211 Cf. Eve Dube et al., Vaccine Hesitancy, Vaccine Refusal and the Anti-Vaccine Movement: Influence, Impact and Implications, 14 Expert Rev. Vaccines 99, 109 (2015).

212 Sax, supra note 157 at 75-76.

213 Vanessa Milne, Seven ways to talk to anti-vaxxers (that might actually change their minds), Healthy Debate (Aug. 31, 2017), https://healthydebate.ca/2017/08/topic/vaccine-safety-hesitancy/ [https://perma.cc/8UHM-9947]; Zachary Horne et al., Countering antivaccination attitudes, 112 Proceedings of the Nat’l Acad. Of Sci. 10321, 10324 (2015).

214 Key Things to Know About COVID-19 Vaccines, Ctrs for Disease Control & Prevention (Dec. 23, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html [https://perma.cc/5RPJ-Q32J] (“COVID-19 vaccines reduce the risk of people spreading the virus that causes COVID-19.”).

215 Kahan, supra note 133 at 755–57.

216 Matthew J. Horney et al., The Psychological Roots of Anti-Vaccination Attitudes: A 24-Nation Investigation, Health Psych. 1, 1 (2018). Although this study did not focus on the United States, the results are informative for the U.S. vaccine-hesitancy problem.

217 Id. Interestingly, this study also analyzed the emotion of disgust towards needles and blood as another root cause of vaccine hesitancy.

218 This is likely true for future pandemics as well. Ernie Mundell & Robin Foster, Fauci Pushes Ambitious Plan to Guard Against Future Pandemics, U.S. News (July 26, 2021, 8:50 AM), https://www.usnews.com/news/health-news/articles/2021-07-26/fauci-pushes-ambitious-plan-to-guard-against-future-pandemics [https://web.archive.org/web/20220222202620/https://www.usnews.com/news/health-news/articles/2021-07-26/fauci-pushes-ambitious-plan-to-guard-against-future-pandemics] (“In an effort to avoid another pandemic in the coming years, Dr. Anthony Fauci wants to launch an ambitious plan to make prototype vaccines that could protect against pathogens from 20 families of viruses that threaten human lives.”).

219 Mark Dredze et al., Understanding Vaccine Refusal, 50 Am. J. Prv. Med 550, 550-51 (2016); Rutschman, supra note 174; Broniatowski et al., supra note 174 at 1378-80.

220 See e.g., Vanderbilt Institute for Infection, Immunology and Inflammation, How does a mRNA vaccine compare to a traditional vaccine? Vand. U. Med. Ctr (Nov. 16, 2020), https://www.vumc.org/viiii/infographics/how-does-mrna-vaccine-compare-traditional-vaccine [https://perma.cc/DEV6-DZKM].