Amy Kapczynski –
It is now clear that we are entering a new phase of the global COVID-19 pandemic. The virus appears in new countries around the world each day. New cases are now regularly reported in the United States, and as testing is scaled up, that number will increase, probably substantially. It is clear now that the virus will spread in a sustained way in the community here. The estimated mortality rate derived from the data from China resembles that of the 1919 flu, which killed 50-100 million people around the world. As we are better able to track mild cases, we may find that it is substantially, even an order of magnitude, less deadly. Under every plausible scenario, however, this outbreak is likely to be extraordinarily disruptive. It will surprise no reader of this blog that the US is ill-prepared for this, and that the harms of this pandemic will not be equally visited on all. Yesterday, I worked with a group of more than 450 law and public health experts to put out a public letter addressed to federal, state, and local leaders, to identify essential aspects of an effective and fair response. It may be worth a read for those thinking about the political economy of pandemics. It illustrates some familiar LPE themes, and shows how features of our socio-legal context that drive injustice and inequality will undermine the COVID-19 response.
Slowing the spread of the disease, for example, will be extraordinarily hard without major surge of social support and a commitment to something like basic social solidarity. Measures like contact tracing and isolation and other forms of “social distancing” (closing schools and minimizing public events) are the main mitigation tools we have. But as the letter points out, whether they are effective depends on whether they are enacted fairly, and we put people in a position to cooperate. We cannot expect people to stay home, identify contacts, or seek recommended care and testing, if it throws them or their loved ones into harm’s way. Staying home may create an existential threat for millions of low-wage and gig-economy workers. If we send children home from schools and ask families to care for the mildly ill at home, how will the millions now juggling paid work and care work manage? Immigrants will be discouraged from seeking care and disclosing contacts if they fear immigration enforcement.
The letter calls for direct interventions to try to reduce the precarity in which so many workers, carers, and migrants today in the US live, so that everyone is in a position to cooperate with recommendations that will benefit us all. This includes direct payments or other compensation to individuals who are affected, sick pay, and immediate assurances that the COVID-19 response will not be linked to, or trigger, immigration enforcement. It notes that we need to consider the impact of policing on health, given how jails can drive epidemics. It sets out the legal requirements and risks of carceral measures like quarantine (building in part on earlier work I did with others on the disastrous Ebola quarantines), and makes clear that voluntary measures are more likely to earn cooperation and trust. The letter also demands that our leaders address the potentially catastrophic ways that our for-profit healthcare system intersects with what may be rapidly mounting need for testing and care.
The unifying theme behind all of this sounds an LPE note: we need a state that can deliver essential care to all, or all of us are more at risk. We need more than that, too – we need a state and a democratic politics that is worthy of and responsive to the grave sacrifices we ask of people in moments of collective need. As I worked on this letter, I thought often of the orderlies and nurses, the vast majority women, people of color, and immigrants, who will be asked to put their health at risk to care for others, while someone (who?) cares for their children. What can we say to them about why we are – together – worth that sacrifice? How will we care for them as they care for us?
Most of the public conversation to date about pandemic response has been about coercive measures – the travel bans and quarantines that policymakers fixate on. (With a nod to Cedric Robinson, racism and the carceral state precede pandemics, and infect them from the beginning.). But the most urgent need is for a new politics of care in this pandemic, one that embodies the same vision that animates Medicare for All, our revived and increasingly feminized labor movement, and other claims for new universal care programs.
Expert letters aren’t a politics; this much is clear. The politics will be in what comes next. Responding to COVID-19 means more than stocking up on hand sanitizer. It means organizing with and for the elderly, prisoners, migrants, people with chronic diseases, and the care workers who are most in harm’s way, and whose voice and power are central to any vision of a deepened democracy.
Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School.