‘It Was Like Building a Plane in Flight.’ Health and Legal Experts Look Back on Pandemic Policy

‘It Was Like Building a Plane in Flight.’ Health and Legal Experts Look Back on Pandemic Policy

1.18.2022

By David Howard King

When looking back at his work before the COVID pandemic, Joseph Fins, chief of the Division of Medical Ethics at New York Presbyterian Hospital and Weill Cornell Medical College, says he is haunted by one regret.

In 2015, the New York State Task Force on Life and Law published a report on ventilator distribution in the event of an avian flu. The report examined the 2003 SARS outbreak in Toronto and looked at how New York could be better prepared. “It looked at the scarcity of ventilators and how they should be allocated and developed a scoring system to prioritize ventilators.” According to Fins, the governor’s office never took this issue on. “It wasn’t politically viable because it would scare people,” says Fins.

Fins made the comments as part of a panel of the New York State Bar Association’s Health Law section called “Law and Ethics during the Pandemic: Individual Rights vs. the Common Good” that was moderated by Laura M. Alfredo, senior vice president and general counsel for the Greater New York Hospital Association. The panel took place as part of the New York State Bar Association’s Annual Meeting.

Along with Kapil Longani, who served as counsel of the mayor of New York City during the pandemic, the panel looked back at the ways the health and government sectors could have worked better together during the early days of the COVID pandemic and examined how the outbreak has impacted our Democracy.

Fins explained that things moved so quickly in the early days of the pandemic that it is easy to look back and second guess or assume mistakes were made if you do not understand how science works.

“In the early days of the pandemic we didn’t give steroids, but it turned out steroids were the silver bullet to decreasing mortality,” said Fins. “It was like building an airplane in flight, that’s how science evolves.

Fins said veteran physicians were suddenly in the position of being novices. “In the interface of medicine and the law we like bright line distinction,” said Fins, “but we were in blurry states with dotted lines.”

However, the blurry lines of developing science had major interplay with the considerations and restraints of the political and legal arenas.

Longani detailed the impact of the state legislature’s decision to give former Gov. Andrew Cuomo far ranging emergency powers to deal with the pandemic. “That became very frustrating to people in New York City,” said Longani, who recalled working with the state counsel on tweaking and interpreting executive orders issued at midnight to make sure he was able to convey them properly to the public by 8 a.m.

“How you treat people in Poughkeepsie should not be the same as you treat people in New York City,” said Longani. “There were real issues with that dichotomy. On the other hand, the federal government gave us absolutely no guidance and arguably that’s consistent with the constitution but as a practical matter we could have used more advice.”

Longani relayed how the founding fathers decided not to directly address emergency powers in the constitution and instead left response efforts to localities. “Hamilton and Jefferson went back and forth on this, and they avoided it,” said Longani. “The word ‘emergency’ isn’t in the constitution.”

Longani and Fins agreed that it would have been helpful to have more “bright lines” to guide both the medical and public service fields through the pandemic, rather than leaving all the decisions to one powerful politician. Fins noted that more work could have been done in some areas to ensure that there were clear paths forward, including the ventilator plan as well as other vaccination strategies.

“We don’t want to lose our Democracy to a pandemic,” said Fins who drew comparisons between the emergency we currently face and that of the plague of Athens as described by Thucydides where the once revered Democracy falls into anarchy and disarray when faced with mounting pestilence and death.

Longani complemented Fin’s ancient Roman theme with his own, discussing how in the face of emergency the Roman Senate would appoint an apolitical leader tasked with steering the empire for 6 months. “For hundreds of years there were only three occasions when the Senate extended those powers. Here the governor had powers longer than 6 months– that was emblematic of the value our society put on emergency powers,” said Longani.

Both Longani and Alfredo say they believe the courts are going to begin to start being more skeptical of mandates the longer the pandemic goes on. “I would keep thinking courts were going to push back more robustly,” said Longani. “There were several times I thought the state and city had gone to a place the courts were going to push back via a restraining order, but the courts instead deferred to public health experts. I think the courts over time, if we continue in the pandemic much longer, we will see more that they are going to restrict the authority of state governments to issue these mandates.”

Alfredo says she believes that some of the twists and turns of developing science, new strains and vaccine efficacy may further strain how the courts perceive new mandates on vaccinations or other public health initiatives. “How far are the courts willing to tolerate government intrusion as some people describe it?” asked Alfredo. “Mandates that may have been easily upheld a year ago the courts may look at very differently now that we are dealing with a different animal in Omicron. So where does it end?”

Fins stressed that he believes vaccine mandates are working and are necessary for the public good. He advocated for increased public education around science and public health as well as moral appeals. He said that getting vaccinated speaks to the moral teaching included in almost every religion that you should treat your neighbor as you want to be treated. “Not being vaccinated endangers life. We need to look at this in a utilitarian manner, the lifesaving needs of a vaccine overwhelm the right to refusal. We need to have a little more communitarianism and less libertarianism when it comes to the common good,” said Fins.