Introduction

Summary

The COVID-19 pandemic has had an enduring effect across the entire spectrum of law and policy, in areas ranging from health equity and racial justice, to constitutional law, the law of prisons, federal benefit programs, election law, and much more. This collection provides a critical reflection on what changes the pandemic has already introduced and what its legacy may be. Chapters evaluate how healthcare and government institutions have succeeded and failed during this global “stress test,” and explore how the United States and the world will move forward to ensure we are better prepared for future pandemics. This timely volume identifies the right questions to ask as we take stock of pandemic realities and provides guidance for the many stakeholders of COVID-19’s legal legacy. This book is also available as Open Access on Cambridge Core.

Think of a play before the actors take the stage, with all the props set up as needed for the action to come. In many ways, Part I of this volume is that stage for much of what is discussed later in the book. The chapters in this part all consider the state of the US health care system as the COVID-19 pandemic started in spring 2020. Which structural factors helped shape the pandemic? Who were uniquely vulnerable to this novel virus? Which policy and regulatory choices played a role in how we first experienced the pandemic?

Understanding the structural stage-setting is important because it can reveal important lessons for how to build pandemic resiliency, either to the current COVID-19 pandemic or to the next infectious disease epidemic. To stretch the metaphor of a stage, Part I seeks to determine if we have the right props for the actors to use or if we need to redo our stage in light of past performances.

The first three chapters of Part I focus on the experience of stakeholders in the health care system, particularly health care workers, as the pandemic begins. In Chapter 1, “COVID-19 and Clinical Ethics: Reflections on New York’s 2020 Spring Surge,” Dr. Joseph Fins provides a firsthand account of a physician’s experience in New York City during the early days of the pandemic. He calls this contribution a “living history,” reminding us not to forget the lessons of the early days by overfocusing on post hoc analysis. Dr. Fins reminds us of the 7:00 pm clapping for health care heroes and hospital systems overrun with patients, a medical setting forced to innovate and create pop-up intensive care units. Dr. Fins’s chapter was deliberately placed first in this volume to encourage readers to recall their experiences in spring 2020. But Dr. Fins also reflects on steps we can take to improve our pandemic response.

In Chapter 2, “Patients First, Public Health Last,” Richard Saver helps contextualize the ethical considerations and challenges that physicians faced during those first days. Saver argues that physicians have been taught to put their patients first, and that ends up deprioritizing public health needs. Our legal system and medical norms, he notes, further enforce patient primacy over the collective good. Physicians are taught that their strong ethical obligations are to the patients sitting in front of them and are then cautioned that they may face legal consequences if they fail to fulfill such obligations. The focus on patient primacy is particularly ill suited to an infectious disease pandemic, and Saver argues that we need to better reconcile clinical ethics, especially as practiced, with public health ethics and to reintegrate the private physician into the public health system. Saver’s work helps give the reader context for many of the choices made by individual health care providers and organizations.

In Chapter 3, “Risk, Responsibility, Resilience, Respect: COVID-19 and the Protection of Health Care Workers,” Dr. William Sage and Victoria Tiase also contribute a firsthand account of the COVID-19 experience for health care workers in New York City. They note that “[t]he COVID-19 pandemic has shown us that the health care system we thought we had is not the health care system we actually have.” Dr. Sage and Tiase compellingly illustrate how the vulnerabilities of patients and providers during the COVID-19 pandemic were two sides of a single coin. Without stronger labor protections for health care workers, especially nurses working in hospitals, patients run the risk of receiving inadequate care or not receiving any care at all. This was particularly salient during the first stages of the COVID-19 pandemic and continues to be true in subsequent years. Dr. Sage and Tiase urge reforms to better engage and support the health care workforce.

In Chapter 4, “Post-Truth Won’t Set Us Free: Health Law, Patient Autonomy, and the Rise of the Infodemic,” Wendy Parmet and Jeremy Paul pull the focus away from health care workers and shift it to the patient side of the equation. They dissect the “post-truth” problem we face, with rampant misinformation with respect to COVID-19 clogging social media and other venues. They then place this “post-truth” problem in the context of informed consent. While informed consent is an important legal and bioethical development, overemphasizing individual choice can lead to the erosion of professional expertise. Parmet and Paul urge bioethicists and health law scholars to consider the role that these fields may have played in nurturing the seeds of “post-truth,” opening the door to the rejection of vaccines and the embrace of ivermectin.

In Chapter 5, “Individual and Structural Factors that Fueled COVID-19 Disparities,” Sadia Coreas, Erik Rodriquez, and Dr. Eliseo Pérez-Stable focus on unpacking the structural factors that led to a dramatic disproportionate burden of COVID-19 illness among people of color. These factors, such as crowded, urban housing and a reliance on public transportation, contributed to a heightened risk of infection among these communities. Similar factors, including greater prevalence of preexisting conditions such as hypertension and severe obesity, likewise contributed to worse outcomes among Black and Latino COVID-19 patients as compared to Whites. They end their chapter by reminding the reader that these structural factors persist, contributing further to significant health disparities, both related to COVID-19 and not.

So what is set on the stage as we begin our tragic play? As our first three chapters argue, there are many policy and regulatory choices that shaped the health care workforce’s initial experience with COVID-19. Professional norms, ethical obligations, and legal responsibilities created devastating vulnerabilities that were exploited by the pandemic. Also on stage is a society-wide turn toward “post-truth” that made individuals vulnerable to misinformation regarding the pandemic. Lastly, we have on the stage health disparities fueled by the social determinants of health, making certain communities more vulnerable to the pandemic.

Collectively, we see a stage that is ill equipped for what lies ahead. All of this stage-setting is important for the reader to remember as they read on in the book and consider how we could better respond to COVID-19 or to the next pandemic.