When Will COVID Restrictions End?

    Not that a government can ever decide when a pandemic will end, but when will we be free from government mandated COVID restrictions?

    Public health law is a function of individual states. The federal government can be involved in a limited capacity when there is an "imminent threat to national security" [1]; however, most of the authority to enforce public health law rests with the states. The federal government has delegated the Centers for Disease Control and Prevention (CDC) to create guidelines for how communities should navigate the pandemic. The goal of the CDC's community mitigation strategies is "to slow its spread and to protect all individuals, especially those at increased risk for severe illness, while minimizing the negative impacts of these strategies. These strategies are used to minimize morbidity and mortality of COVID-19 in societal sectors such as schools, workplaces, and healthcare organizations" [2].

    However, the CDC does not specify measures for when mitigation efforts are no longer needed. According to the CDC website, "Communities need to decide the level of risk that is acceptable and make informed choices about implementing mitigation plans accordingly" [2]. In fact, as Table 1 below shows, even with no to minimal community transmission levels, "low mitigation" is recommended. Factors to consider for determining mitigation strategies include epidemiology, community characteristics, healthcare capacity, and public health capacity. 

Table 1 is from the CDC webpage "Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission" [2].

    In Illinois, The Resurgence Mitigation Plan was announced on June 15, 2020. This plan takes a regional and data-driven approach in determining mitigation strategies and has more specific guidelines than what the CDC provides. By February 3, 2021, each of the 11 regions of Illinois had successfully moved to Phase 4, which is characterized by a continued decline in the rate of infection in new COVID-19 cases. So my thinking was... once we moved to the supposedly "post-pandemic" Phase 5, we should be done with all of these restrictions, right?

    The Resurgence Mitigation Plan states that, in order to "move to the new normal that Phase 5 will bring," [4] the following must occur: "vaccine, effective and widely available treatment, OR the elimination of new cases over a sustained period of time through herd immunity or other factors" [3].

    Specifically, the "Bridge to Phase 5" requires the following to occur in order to move to Phase 5:

• 70% of residents 65 years of age and older have been vaccinated
• 50% of residents 16 years of age and older have been vaccinated
• Non-increasing trend in hospital admissions for COVID like illness or COVID-19 patients in the hospital for a 28-day period
• ICU bed availability remains greater than or equal to 20% for a 28-day period

    Interestingly, the webpage states, "IDPH will continue to monitor mortality, but it will not be a metric used to determine moving through the phases. The state will also consider new knowledge of variants, vaccine effectiveness and the potential necessity of a booster shot as we move forward" [4].

    On June 10, 2021, Governor Pritzker stated "you did it, Illinois!" and announced that Illinois would be moving into Phase 5, characterized by the wide availability of testing, tracing, and treatment throughout the state OR no new cases over a sustained period AND the reopening of all sectors of the economy. One might have thought this would mean the end of COVID restrictions. However, it seems that Phase 5 is not so much "post-pandemic," as it is the "new normal."

    Regarding Phase 5 guidance, Illinois Department of Public Health (IDPH) states:

While the state of Illinois has made substantial progress in vaccinating its residents, a number of individuals remain ineligible or have not yet chosen to be vaccinated. Consistent use of prevention strategies will help reduce the spread of COVID-19 and protect people who are not fully vaccinated, including customers, employees, and their families [5].

    Phase 5 prevention strategies recommended by IDPH include vaccinating everyone ages 12 years and older, continued social distancing, continued use of masks for unvaccinated persons and for ALL persons -- whether vaccinated or unvaccinated-- on public transportation, in congregate facilities, in schools, in healthcare settings, AND in public indoor settings in areas of substantial or high transmission.

    There are no clear metrics for determining the true end of COVID restrictions. It seems these plans have been left open-ended.

    Vaccines are available for those ages 12 years of age and older who want to take them. As of July 30, 2021, 56.4% of Illinois residents ages 12 years and older and 75.3% of Illinois residents ages 65 years of age and older have been fully vaccinated [6]. It seems the vaccination campaign has been rather successful. Yes, cases are increasing -- apparently due to the Delta variant; however, they remain low (less than 50 cases per 100,000 people). Test positivity remains low (less than 8% rolling 7 day average). ICU bed availability in Sangamon County is 27% as of this week [7]. In my opinion, the most important measure-- although I cannot understand why it is not a metric used in determining levels of mitigation strategies-- the number of deaths is decreasing or stable. There were 268 new positive COVID-19 cases this past week in Sangamon County. 11 people were hospitalized with COVID-19 infection. One female in her 90s has died. Although not a truly representative statistic (since it takes 1-2 weeks for illness to progress... but I imagine the actual number of COVID-19 cases is probably higher anyway since many people with mild illness never get tested... and with children being on summer break, I would also guess there is less incentive for testing...), this is a fatality rate of 0.37% [7]. This rate is comparable to seasonal influenza.

    I am not, by any means, negating the fact that COVID-19 infection exists and does result in severe illness and death in some people. However, it is time to put an end to COVID restrictions. We have successfully mass vaccinated a significant percentage of the population. Treatments are available. Hospitals are not overwhelmed (no more than they have been for years— unfortunately, staffing shortages and poor working conditions for nursing staff is nothing new). Death rates remain low. Coronaviruses are not new and they have always accounted for 10-20% of respiratory infections, but their clinical significance in the past has been marginal with the exceptions of SARS-CoV, MERS-CoV, and SARS-CoV-2 (COVID-19). Coronaviruses continuously undergo genetic mutations, so there will always be coronavirus infections. Furthermore, the vaccine does not guarantee immunity, it simply prevents severe illness. Because of the mutating nature of viruses, there is hardly any truly effective medication against any viral disease. Therefore, there will always be "breakthrough infections." The good news is that the scope of immunity broadens with each new infection, and now that most of us have been infected with COVID-19 and/or vaccinated against it, our bodies are better equipped to fight these new variants. Even if there are increasing cases of COVID-19, this does not mean we will see increases in severe illnesses and deaths of a pandemic-level proportion. If we continue measuring new cases without accounting for death rates, we will never see the end of this pandemic. 

I don't make this stuff up:

1. Sutton, supra note 66, at 97 (noting that Federalist 44 and 41 "indicate that the ascendancy of the federal government may be favored where the exigency demands such a response, and the existence of the Union is thus dependent upon such action ... [w]hile we are certain that a bioterrorism threat exists, the exigency required by the Constitution to invoke federal powers means there must be an imminent threat to national security.").

2. https://www.cdc.gov/coronavirus/2019-ncov/community/community-mitigation.html

3. https://coronavirus.illinois.gov/restore-illinois/phase-4.html

4. https://coronavirus.illinois.gov/restore-illinois/bridge-to-phase-5.html

5. http://www.dph.illinois.gov/covid19/phase-5

6. https://dph.illinois.gov/covid19/vaccinedata?county=Illinois

7. https://secureservercdn.net/198.71.189.253/5kc.85c.myftpupload.com/wp-content/uploads/2021/07/Gail-7-28.pdf