FOR IMMEDIATE RELEASE August 18, 2020

CONTACT Liz Voyles, Brass Ring Communications liz@brassrc.com, 202-297-9641

New Report: 50 Top Legal Experts Find U.S. Policy Response to COVID-19 Dangerously Lacking, Recommend Steps to Safeguard Health, Civil and Human Rights

WASHINGTON, D.C. - As the nation continues to address the ongoing COVID-19 pandemic, which has resulted in over 170,000 deaths so far and a severe economic recession, 50 top national experts offer a new assessment of the U.S. policy response to the crisis. The research details the widespread failure of the country’s leadership in planning and executing a cohesive, national response, and how the crisis exposed weaknesses in the nation’s health care and public health systems. In Assessing Legal Responses to COVID-19, the authors also offer recommendations on how federal, state and local leaders can better respond to COVID-19 and future pandemics. Their proposals include how to strengthen executive leadership for a stronger emergency response, expand access to public health, health care and telehealth; fortify protections for workers; and implement a fair and humane immigration policy. 

Sponsored by the de Beaumont Foundation and the American Public Health Association, the report was produced by Public Health Law Watch in cooperation with the Center for Public Health Law Research at Temple University Beasley School of Law, Center for Health Policy and Law, Northeastern University School of Law, Wayne State University Law School, the Hall Center for Law and Health, the Network for Public Health Law and ChangeLab Solutions.

Expert assessments in the report show that our country's failure in COVID-19 response in many ways has been a legal failure. Key findings include:

  • Ample legal authority has not been properly used in practice – evidence shows a massive failure of executive leadership and implementation at the federal level, and in many states and localities.

  • Decades of pandemic preparation overemphasized documenting plans and failed to account for how severe budget cuts to public health, from the U.S. Centers for Disease Control and Prevention, to state and local health departments, would drive outcomes. These budget cuts were combined with political interference that had a deleterious effect on the operational readiness of the nation’s local, state and federal health agencies. 

  • Legal responses have failed to prevent racial and economic disparities in the pandemic’s toll, and in some cases aggravated them.

“The U.S. response to the pandemic has been a comprehensive failure,” said Wendy E. Parmet, Matthews University Distinguished Professor of Law and Professor of Public Policy and Urban Affairs at Northeastern University. “When we compare U.S. outcomes to those of the rest of the world, we see that a hollowed-out government that politicized resource allocation and suppressed science has served the American people poorly. There are things that legislatures and executive branch officials can do today to help bring America back from this crisis, and this report lays out what leaders should do next. The losses so far have been devastating, but they do not need to continue unabated. We are hopeful leaders can still change course.”

“While peer countries have managed to get COVID-19 under control, the United States still faces rising cases and deaths, even after the American people have made extraordinary sacrifices to flatten the curve,” said Donna E. Levin, JD, National Director of the Network for Public Health Law. “This is largely due to the failure to mount a unified response. Scientifically-informed national guidance, coordination, education, standards and funding for states and localities are essential for the longer-term response and recovery. Law and policy are the drivers of these measures and should ensure that our most vulnerable and impacted communities get the support they need.” 

“This virus is a threat to everyone, but has not affected everyone equally,” said Sarah de Guia, JD, CEO of ChangeLab Solutions. “COVID-19 has exposed too many empty promises of equal justice under law. For instance, too often, the law treats ‘essential workers’ as expendable workers. Inequitable protections and access to health care, especially among low-income communities and people of color, is a major national weakness that must be addressed urgently to prevent further loss of life in this emergency, and in future crises. Although law alone cannot solve the nation’s health disparities, better use of legal tools can help turn things around in the near term.” 

“COVID-19 was the new virus this country had been preparing to take on for decades – and when the emergency arrived, the government failed to protect the American people,” said Scott Burris, JD, Professor and Director of the Center for Public Health Law Research at Temple University Beasley School of Law. “Pandemic preparation over the past two decades focused too much on plans and laws on paper, ignored the devastating effects of budget cuts, and failed to prevent political interference on the operational readiness of our local, state and national health agencies. In too many key offices, the last person with pandemic expertise had already left, and just hadn’t turned off the lights.”

This report provides critical legal analysis and recommendations, rooted in empirical evidence and expert analysis. Each author wrote about how the law has been used, misused or under-used in the response to COVID-19. It addresses not just the legal doctrine, but also matters of implementation, including both the use of strategies and resources. The authors express concern with the efficacy of containing COVID-19, as well as protecting human and civil rights, equity and ethics.

The authors provide more than 100 recommendations for legal action in response to COVID-19. These include calls for urgent action now, as well as longer term changes that reflect the way the pandemic has exposed deeper problems in American law and policy. They include recommendations for federal, state and local levels.  

The recommendations focus on the following key objectives:

  • Grounding legal measures in the best available science.

  • Collecting and assessing accurate data.

  • Improving and expanding access to health care, both now and post-pandemic.

  • Increasing and maintaining funding for public health emergency preparedness through a dedicated public health emergency fund.

  • Reforming the public health and health care systems to enable them to respond more effectively and equitably during a pandemic, and reduce disparities.

  • Addressing the affordability and availability of broadband service throughout the United States.

Topics and Authors

Summary of Findings and Recommendations for Action - Editorial Committee: Scott Burris, JD, Temple University Beasley School of Law; Sarah de Guia, JD, ChangeLab Solutions; Lance Gable, JD, MPH, Wayne State University Law School; Donna Levin, JD, Network for Public Health Law; Wendy E. Parmet, JD, Northeastern University School of Law; Nicolas P. Terry, LLM, Indiana University Robert H. McKinney School of Law

Part I: Using Government Powers to Control the Pandemic

A Chronological Overview of the Federal, State, and Local Response to COVID-19 - Lindsay K. Cloud, JD, Katie Moran-McCabe, JD, Elizabeth Platt, JD, MA, Nadya Prood, MPH, Temple University Beasley School of Law, Center for Public Health Law Research

Is Law Working? A Brief Look at the Legal Epidemiology of COVID-19 - Evan Anderson, JD, PhD., University of Pennsylvania; Scott Burris, JD, Temple University Beasley School of Law 

Contact Tracing, Intrastate and Interstate Quarantine, and Isolation - Ross D. Silverman, JD, MPH, Indiana University Richard M. Fairbanks School of Public Health and Indiana University Robert H. McKinney School of Law

Mass Movement, Business and Property Control Measures - Lance Gable, JD, MPH, Wayne State University Law School 

Surveillance, Privacy, and App Tracking - Jennifer D. Oliva, JD, MBA, Seton Hall University School of Law

Conducting Elections During a Pandemic - David J. Becker, JD, The Center for Election Innovation and Research

Part II: Fulfilling Governmental Responsibility in a Federal System

Executive Decision Making for COVID-19: Public Health Science Through a Political Lens - Peter D. Jacobson, JD, MPH, University of Michigan; Denise Chrysler, JD, The Network for Public Health Law; and Jessica Bresler, JD, Northeastern University

Federalism in Pandemic Prevention and Response - Lindsay F. Wiley, JD, MPH, American University Washington College of Law

Preemption, Public Health, and Equity in the Time of COVID-19 - Kim Haddow, BA, Local Solutions Support Center; Derek Carr, JD, ChangeLab Solutions; Benjamin D. Winig, JD, MPA, ThinkForward Strategies; and Sabrina Adler, JD, ChangeLab Solutions

Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Pandemic - Aila Hoss, JD, University of Tulsa College of Law; and Heather Tanana, JD, MPH, The University of Utah S.J. Quinney College of Law

U.S. Withdrawal From the World Health Organization: Unconstitutional and Unhealthy - Sarah Wetter, JD, MPH, O’Neill Institute for National and Global Health Law, Georgetown University Law Center; and Eric A. Friedman, JD, O’Neill Institute for National and Global Health Law, Georgetown University Law Center

Part III: Financing and Delivering Health Care

Private Insurance Limits and Responses - Elizabeth Weeks, JD, University of Georgia School of Law

Medicaid’s Vital Role in Addressing Health and Economic Emergencies - Nicole Huberfeld, JD, Boston University School of Public Health and School of Law; and Sidney Watson, JD, Saint Louis University Law School

Caring for the Uninsured in a Pandemic Era - Sara Rosenbaum, JD, George Washington University; and Morgan Handley, JD, George Washington University

Assuring Access to Abortion - Rachel Rebouché, JD, LLM, Temple University, Beasley School of Law

Telehealth in the COVID-19 Pandemic - Cason D. Schmit, JD, Johnathan Schwitzer; Kevin Survance; Megan Barbre; Yeka Nmadu, MBBS; and Carly McCord, PhD, Texas A&M University

Access to Treatment for Individuals with Opioid Use Disorder - Corey S. Davis, JD, MSPH, Harm Reduction Legal Project, Network for Public Health Law; and Amy Judd Lieberman, JD, Harm Reduction Legal Project, Network for Public Health Law

Legal Strategies for Promoting Mental Health and WellBeing in the COVID-19 Pandemic - Jill Krueger, JD, Network for Public Health Law−Northern Region

Implementation and Enforcement of Quality and Safety in Long-Term Care - Tara Sklar, JD, University of Arizona James E. Rogers College of Law

Part IV: Assuring Access to Medicines and Medical Supplies

COVID-19: State and Local Responses to PPE Shortages - Michael S. Sinha, MD, JD, MPH, Harvard Medical School Harvard-MIT Center for Regulatory Science

Expanding Access to Patents for COVID-19 - Jorge L. Contreras, JD, University of Utah S. J. Quinney College of Law; Department of Human Genetics, University of Utah School of Medicine

Drug and Vaccine Development and Access - Patricia J. Zettler, JD, The Ohio State University Moritz College of Law and The James Comprehensive Cancer Center; Micah L. Berman, JD, The Ohio State University College of Public Health, Moritz College of Law, and The James Comprehensive Cancer Center; Efthimios Parasidis, JD, MBE, The Ohio State University Moritz College of Law and College of Public Health

Assuring Essential Medical Supplies During a Pandemic - Using Federal Law to Measure Need, Stimulate Production, and Coordinate Distribution: Evan Anderson, JD, PhD., University of Pennsylvania; and Scott Burris, JD, Temple University Beasley School of Law

Allocation of Scarce Medical Resources and Crisis Standards of Care - Lance Gable, JD, MPH, Wayne State University Law School

Part V: Protecting Workers and Families

A Pandemic Meets a Housing Crisis - Courtney Lauren Anderson, JD, LLM, Georgia State University College of Law

Protecting Workers that Provide Essential Services - Ruqaiijah Yearby, JD, MPH, Saint Louis University School of Law

Liability and Liability Shields - Nicolas P. Terry, LLM, Indiana University Robert H. McKinney School of Law

Protecting Workers’ Jobs and Income During COVID-19 - Sharon Terman, JD, Legal Aid at Work

Using SNAP to Address Food Insecurity During the COVID-19 Pandemic - Mathew Swinburne, JD, Network for Public Health Law−Eastern Region

Part VI: Taking on Disparities and Protecting Equal Rights

COVID-19 Illustrates Need to Close the Digital Divide - Betsy Lawton, JD, Network for Public Health Law−Northern Region 

COVID-19, Incarceration & the Criminal Legal System - Jessica Bresler, JD, Northeastern University School of Law; and Leo Beletsky, MPH, JD, Northeastern University School of Law and Bouvé College of Health Sciences

Supporting LGBT Communities in the COVID Pandemic - Craig J. Konnoth, M.Phil., JD, University of Colorado School of Law

Immigration Law’s Adverse Impact on COVID-19 - Wendy E. Parmet, JD, Northeastern University School of Law

Protecting the Rights of People with Disabilities - Elizabeth Pendo, JD, Saint Louis University School of Law

Fostering the Civil Rights of Health - Angela Harris, JD, UC Davis School of Law; and Aysha Pamukcu, JD, 2019-2020 Fulcrum Fellow, ChangeLab Solutions

Legal Responses from a Critical Race Theory Perspective - Patricia J. Williams, JD, Northeastern University School of Law (forthcoming)

This report was sponsored by the de Beaumont Foundation and the American Public Health Association. 

It was produced by Public Health Law Watch in cooperation with the Center for Public Health Law Research at Temple University Beasley School of Law, Center for Health Policy and Law, Northeastern University School of Law, Wayne State University Law School, the Hall Center for Law and Health, The Network for Public Health Law, and ChangeLab Solutions.

To view the full report, please visit COVID19PolicyPlaybook.org. 

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