Staff

By Caroline Poplin, MD, JD
Of Counsel and Medical Director

When it comes to the coronavirus, I have good news and bad news. The good news is that there are two things we can and should do to fight the virus without locking down the country again, even though we are now way behind the starting line. The bad news? Success requires action from the federal government.

Provide Essential Equipment

First, government must ensure adequate supplies of tests (including swabs and reagents), and standard personal protective equipment by invoking the Defense Production Act (DPA). It appears that the ventilator shortage has been resolved, at least for now, by the one-time use of the DPA for one contract — with General Motors — and medical advances in treating the virus that reduce the need for ventilators.

However, the dire shortage of tests, and slow turnaround times, are a continuing problem as the virus surges again. As recently as last month, the federal government was planning to close seven testing sites in Texas — including in two hotspots, Houston and Dallas — at the end of June. After serious bipartisan pushback from the state, the feds agreed to a 2-week extension for five of the sites.

The ongoing shortage means tests are limited to patients with symptoms, or a doctor’s note — those we could presume would be positive. But the people we really need to test are pre-symptomatic or asymptomatic carriers who might be shedding virus while going about as usual in their communities for up to 2 weeks. That is why we need lots more tests ASAP, so we can test the asymptomatic people in a hotspot, especially as cases climb in 39 states.

We also need to remove barriers to testing. Currently, uninsured people have to pay market price for the test, and are supposed to self-quarantine for 2 weeks, regardless of whether that costs them 2 weeks’ pay or even their jobs. Instead, COVID-19 tests and treatment should be free and available to all, without penalty or citizenship questions.

The president’s insistence that the virus will just “go away” soon, his obsession with optics (such as keeping official case numbers low by limiting tests, without, of course, affecting the true incidence of disease), his bald lie that 99% of cases are “harmless,” and his effort to distance himself from blame for the catastrophe, have all made the problem worse.

The fact that the U.S. is also still short of personal protective equipment (PPE) — N-95 masks, face shields, gowns, gloves, and eye protection for all those who need them — is outrageous and dangerous. As of July 13th, more than 780 healthcare workers had died of COVID-19, a tragic loss for the individuals and their families, but also for Americans who needed their care to recover.

To solve this problem, the federal government (FEMA, perhaps) should have ordered a massive supply of PPE from domestic manufacturers, using the DPA, which President Trump has used hundreds of thousands of times to order vital military products. It should have negotiated a fair price — cost plus maybe 5% profit — then sold the supplies at cost to whoever needed them. The process would be completely transparent, with no unseemly profiteering.

Instead, the process for obtaining PPE has been chaotic and corrupt: states find themselves bidding against one another and the federal government, hospitals have seen supplies they ordered seized by the federal government. A more expensive, ineffective, unaccountable process is hard to imagine. Meantime, the number of cases is soaring.

Protect Essential Workers

Because of the continuing shortage of PPE, it has largely been limited to hospitals and nursing homes where there are already known COVID patients. But the best way to reduce the spread of the virus is to test, and provide PPE, where outbreaks are most likely. That includes places in which people are breathing hard or cannot work at a distance, such as at large manufacturing plants with fast assembly lines where work stations are close together. Whenever people look carefully at such places — meat processors, chicken processors, warehouses like those run by Amazon — we find outbreaks. Protection of workers is necessary for them, of course, but also for us.

Many essential workers must work just to make ends meet. If the plant reopens and they are offered a job and decline for any reason — including fear of illness — workers lose their unemployment benefits. If they are forced to self-quarantine, they are not paid. If they complain, they are fired. So they come in even if they are sick. Because President Trump has declared these businesses essential, state and local authorities cannot easily close them down for cleaning. And many owners refuse to release any information to workers or the authorities: how many workers are sick, how many have died, or who they are.

Doesn’t this sound like working conditions of a century ago — workers forced to risk their lives for a pittance to goose the profits of wealthy owners who risk nothing and can easily afford to pay for PPE and change the configuration of work stations? Upton Sinclair described such conditions in the meat-packing industry in “The Jungle,” published in 1905.

Such activities by employers are illegal now. In the early part of the last century, states passed workers’ compensation laws, requiring employers to compensate workers for injuries and illnesses contracted at work. In 1935, Congress passed the Labor Relations Act, a key New Deal measure which required companies to bargain about wages and working conditions with workers elected by unions. Over the years, unfortunately, anti-union employers have found ways — in Congress and the courts — to water down these protections, but they are still good law.

In 1970, Congress passed, and President Nixon signed, the Occupational Safety and Health Act to specifically address worker safety on the job, and created an agency (OSHA) to enforce it and issue standards to address specific problems. Employers’ responsibilities under the act include providing a safe workplace and finding and correcting safety and health problems. That sounds clear enough, doesn’t it? However, as a government lawyer for 10 years (FDA, Environmental Protection Agency), I learned that success of laws like these requires agencies like OSHA to promulgate well-reasoned regulations, to provide the regulated community with details, and to vigorously enforce compliance.

The agency lays out the responsibilities of employers in its pamphlet, “Workers’ Rights“: “Employers have the responsibility to provide a safe workplace. Employers MUST provide their employees with a workplace that does not have serious hazards and must follow all OSHA safety and health standards [boldface original]. Employers must find and correct safety and health problems.”

Under the Trump administration, not only has OSHA failed to issue regulations to protect workers from this particularly contagious virus, but instead has assured employers that “good faith efforts” are enough. Worse, Senate Majority Leader Mitch McConnell (R-Ky.) is demanding a 5-year liability shield for all employers in the bill he is now negotiating in the Senate. That tells me that some employers will fail to take necessary measures (“Too expensive! Impractical!”) unless they are held legally responsible for preventing COVID in the workplace. By contrast, the House bill passed in May would require OSHA to put issue an emergency safety standard to protect workers.

The Bad News

When it comes to the coronavirus, I have good news and bad news. The good news is that there are two things we can and should do to fight the virus without locking down the country again, even though we are now way behind the starting line. The bad news? Success requires action from the federal government.

Provide Essential Equipment

First, government must ensure adequate supplies of tests (including swabs and reagents), and standard personal protective equipment by invoking the Defense Production Act (DPA). It appears that the ventilator shortage has been resolved, at least for now, by the one-time use of the DPA for one contract — with General Motors — and medical advances in treating the virus that reduce the need for ventilators.

However, the dire shortage of tests, and slow turnaround times, are a continuing problem as the virus surges again. As recently as last month, the federal government was planning to close seven testing sites in Texas — including in two hotspots, Houston and Dallas — at the end of June. After serious bipartisan pushback from the state, the feds agreed to a 2-week extension for five of the sites.

The ongoing shortage means tests are limited to patients with symptoms, or a doctor’s note — those we could presume would be positive. But the people we really need to test are pre-symptomatic or asymptomatic carriers who might be shedding virus while going about as usual in their communities for up to 2 weeks. That is why we need lots more tests ASAP, so we can test the asymptomatic people in a hotspot, especially as cases climb in 39 states.

We also need to remove barriers to testing. Currently, uninsured people have to pay market price for the test, and are supposed to self-quarantine for 2 weeks, regardless of whether that costs them 2 weeks’ pay or even their jobs. Instead, COVID-19 tests and treatment should be free and available to all, without penalty or citizenship questions.

The president’s insistence that the virus will just “go away” soon, his obsession with optics (such as keeping official case numbers low by limiting tests, without, of course, affecting the true incidence of disease), his bald lie that 99% of cases are “harmless,” and his effort to distance himself from blame for the catastrophe, have all made the problem worse.

The fact that the U.S. is also still short of personal protective equipment (PPE) — N-95 masks, face shields, gowns, gloves, and eye protection for all those who need them — is outrageous and dangerous. As of July 13th, more than 780 healthcare workers had died of COVID-19, a tragic loss for the individuals and their families, but also for Americans who needed their care to recover.

To solve this problem, the federal government (FEMA, perhaps) should have ordered a massive supply of PPE from domestic manufacturers, using the DPA, which President Trump has used hundreds of thousands of times to order vital military products. It should have negotiated a fair price — cost plus maybe 5% profit — then sold the supplies at cost to whoever needed them. The process would be completely transparent, with no unseemly profiteering.

Instead, the process for obtaining PPE has been chaotic and corrupt: states find themselves bidding against one another and the federal government, hospitals have seen supplies they ordered seized by the federal government. A more expensive, ineffective, unaccountable process is hard to imagine. Meantime, the number of cases is soaring.

Protect Essential Workers

Because of the continuing shortage of PPE, it has largely been limited to hospitals and nursing homes where there are already known COVID patients. But the best way to reduce the spread of the virus is to test, and provide PPE, where outbreaks are most likely. That includes places in which people are breathing hard or cannot work at a distance, such as at large manufacturing plants with fast assembly lines where work stations are close together. Whenever people look carefully at such places — meat processors, chicken processors, warehouses like those run by Amazon — we find outbreaks. Protection of workers is necessary for them, of course, but also for us.

Many essential workers must work just to make ends meet. If the plant reopens and they are offered a job and decline for any reason — including fear of illness — workers lose their unemployment benefits. If they are forced to self-quarantine, they are not paid. If they complain, they are fired. So they come in even if they are sick. Because President Trump has declared these businesses essential, state and local authorities cannot easily close them down for cleaning. And many owners refuse to release any information to workers or the authorities: how many workers are sick, how many have died, or who they are.

Doesn’t this sound like working conditions of a century ago — workers forced to risk their lives for a pittance to goose the profits of wealthy owners who risk nothing and can easily afford to pay for PPE and change the configuration of work stations? Upton Sinclair described such conditions in the meat-packing industry in “The Jungle,” published in 1905.

Such activities by employers are illegal now. In the early part of the last century, states passed workers’ compensation laws, requiring employers to compensate workers for injuries and illnesses contracted at work. In 1935, Congress passed the Labor Relations Act, a key New Deal measure which required companies to bargain about wages and working conditions with workers elected by unions. Over the years, unfortunately, anti-union employers have found ways — in Congress and the courts — to water down these protections, but they are still good law.

In 1970, Congress passed, and President Nixon signed, the Occupational Safety and Health Act to specifically address worker safety on the job, and created an agency (OSHA) to enforce it and issue standards to address specific problems. Employers’ responsibilities under the act include providing a safe workplace and finding and correcting safety and health problems. That sounds clear enough, doesn’t it? However, as a government lawyer for 10 years (FDA, Environmental Protection Agency), I learned that success of laws like these requires agencies like OSHA to promulgate well-reasoned regulations, to provide the regulated community with details, and to vigorously enforce compliance.

The agency lays out the responsibilities of employers in its pamphlet, “Workers’ Rights“: “Employers have the responsibility to provide a safe workplace. Employers MUST provide their employees with a workplace that does not have serious hazards and must follow all OSHA safety and health standards [boldface original]. Employers must find and correct safety and health problems.”

Under the Trump administration, not only has OSHA failed to issue regulations to protect workers from this particularly contagious virus, but instead has assured employers that “good faith efforts” are enough. Worse, Senate Majority Leader Mitch McConnell (R-Ky.) is demanding a 5-year liability shield for all employers in the bill he is now negotiating in the Senate. That tells me that some employers will fail to take necessary measures (“Too expensive! Impractical!”) unless they are held legally responsible for preventing COVID in the workplace. By contrast, the House bill passed in May would require OSHA to put issue an emergency safety standard to protect workers.

The Bad News

Unfortunately, the Republican party decided years ago that the federal government should be made so small that, per Grover Norquist, he could drown it in the bathtub. The president treats the government like an extension of the Trump Organization: he can do as he pleases — squeeze it for money, reward his friends, and punish his enemies. At the same time, he is not responsible for anything. No Republican will stop him.

Instead, Republicans are certain that everything can be handled more efficiently (at least more profitably!), by private enterprise operating in a totally deregulated free market.

Really??

Now we know.

The Good News

The federal government has the authority, the mandate, and the resources to ultimately defeat COVID19, although it will cost more — in money and in lives — than if we had had a responsible government in January 2020.

But, alas, it appears we must wait for relief until January 2021.

Caroline Poplin, MD, JD, is an attorney and internist in Bethesda, Maryland. She is a former staff internist for the National Naval Medical Center, and currently practices medicine part-time at the Arlington Free Clinic in Virginia. She is also of counsel at Guttman, Buschner & Brooks, a law firm which pursues Medicare and Medicaid fraud.

I was in my late 20s, attending a conference for women lawyers in the 1970s. I sat in the front row of a large auditorium for the keynote address. The speaker was Ruth Bader Ginsburg, the founder of the American Civil Liberties Union Women’s Rights Project. I was mesmerized.

She was all that I wanted to be. To devote one’s life to the fight for civil rights, to use legal skills to effect justice, better yet to make a difference — I could think of nothing greater. And I was not alone; generations of civil rights lawyers looked to emulate her.

Ginsburg’s vision of gender equality was decades ahead of her time. It went beyond just empowering women to compete for “men’s” roles. While stereotypes distorted women’s view of what was possible, they also impeded men, no less trapped in gender-based assumptions. Equality meant that both sexes should be free to assume all of society’s roles without preconceptions. My son can be a caregiver; my daughter can be an executive. When the school administrators wanted Ginsburg to come to school to discuss her son’s misconduct, she famously said, “This child has two parents.”

Her record as an advocate before the Supreme Court was outstanding; she argued six cases before the court, winning five. If she had done nothing else in her life, that alone would have been an extraordinary legacy.

While she continued to be animated by her life’s passion for equality when she joined the court, she was not the “activist” caricature some in the media have portrayed her to be. She was anxious to avoid upending precedent, determined to be respectful of the opinions of her colleagues. She believed in incremental legal change and emphasized the limited role that a court plays in a constitutional democracy.

In Ginsburg’s understanding, courts have a critical role to play in identifying new understandings of the Constitution, but they must do so by “measured motions.” They are part of a dialogue with other organs of government and with the people as well. She was critical of the reasoning in Roe v. Wade, because it had accomplished too much too soon. She was, as the New York Times’s Linda Greenhouse described at the time of her confirmation, a “judicial-restraint liberal.”

She would apply the court’s precedents but take pains to situate them in their social and historical context. A Ginsburg decision would tirelessly recount the history of gender-based classifications, the “stunningly anachronistic” generalizations about men and women, as she described them, that were embedded in the law.

When, shortly after she joined the court, she wrote the majority opinion requiring that women be admitted to the all-male Virginia Military Institute, her analysis was classic Ginsburg: a lengthy description of the school, its prestige, its role in preparing men and only men for high-status roles in government and industry. In cases challenging affirmative action programs, she would recite the data that showed the persistence of racial inequity in housing, education and employment, the lingering effects of “centuries of law-sanctioned inequality.” She prefigured today’s debate about systemic discrimination.

Ginsburg brought her own experiences to bear, insisting that legal rules be understood in “the realities of the workplace,” a reality she understood well. When a Supreme Court majority rejected Lilly Ledbetter’s pay discrimination claim because she had sued too late, Ginsburg dissented, teaching her colleagues about how pay discrimination, unlike discrimination in promotions or hiring, was hidden from view; Ledbetter sued as soon as she found out about it. Goodwin Liu, a justice on the California Supreme Court and a former Ginsburg clerk, has said that when Ginsburg was recounting Ledbetter’s story, she was also telling her own.

Her judicial influence has to be measured not simply in the decisions she authored, but also in the decisions of her colleagues and lower-court judges, I among them. It extends to areas far beyond gender and race discrimination, including cases about access to justice, disability discrimination, the right to counsel.

Ginsburg was a reluctant dissenter, concerned about the moral weight of a decision when the court did not speak in a single voice. But in recent years, her role changed with the court’s shifting membership. She dissented more and more — when the majority gutted the Voting Rights Act or enabled businesses to opt out of contraceptive coverage for employees based on a broad religion-based exemption. She dissented when the majority spoke paternalistically about women who felt compelled to end a pregnancy in the second trimester.

In 2013, years after that conference at which I first heard her speak, I gave the Ruth Bader Ginsburg address at the New York City Bar Association. The justice introduced me, with an unforgettable sense of humor and warmth. Afterward, she sent me a gift, not a fancy academic treatise, but a signed book of her late husband’s recipes, with a moving note. If I published my talk, she wanted to make certain that I included the story about Sadie, my mother. That story? Even though I had graduated Yale Law School, Sadie wanted me to take the Triborough Bridge toll taker’s test – just in case!

Getting a case down to its “gist” and to its “core,” retired federal judge Nancy Gertner said, involves picking the evidence that’s most favorable to your side. “That kind of selection is inevitably argument,” she said, as part of a webinar on openings presented Tuesday by NITA and CVN.

Learn more here (Subscription Required).