Month: January 2022

Last week I blogged about a similar controversy brewing in Maine, and yesterday I blogged about the split among courts on whether students could sue pseudonymously to challenge discipline for COVID protocol violations. Today, we have yet another decision, which comes down in favor of pseudonymity as to the vaccine mandate challenge: Magistrate Judge Kathleen Tafoya’s opinion in Does v. Bd. of Regents (D. Colo.).

“Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.” Ultimately, the “test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” …

Plaintiffs first argue that medical and other privacy issues are woven throughout Plaintiffs’ claims, and that their Amended Complaint asserts claims under the Americans with Disabilities Act … requiring the Court to take special notice of Plaintiffs’ medical privacy rights. Plaintiff[s] assert[] that the vaccination status of a person is recognized to be protected, confidential information by an array of federal statutes, including the ADA itself, as well as the Family Educational Rights and Privacy Act, and the Health Insurance Portability and Privacy Act….

This court specifically rejects an argument that statutorily-imposed confidentiality protection, in and of itself, satisfies the highly sensitive and personal part of the anonymity argument. Nonetheless, the court will consider the statutory privacy schemes as part of making its discretionary findings here.

In this case Plaintiffs seek, first and foremost, to enforce their non-medical constitutional rights. In particular they seek a religious, not medical, exemption to the University’s policy regarding mandatory vaccination against COVID-19 and its variants. The only medical condition common to the Plaintiffs that is pertinent to the case is their unvaccinated status. It is this status which has caused all Plaintiffs to incur damages related to their employment.

Absent the current political climate, whether a person has been vaccinated or not from various maladies that might befall a human being is not particularly sensitive or personal, even though such information is protected from disclosure under HIPPA as medically related…. [S]tanding alone, a medical condition that is described as unvaccinated against COVID-19 is not so highly sensitive and personal in nature as to overcome the presumption of openness in judicial proceedings….

[H]owever, neither the court nor the litigants undertake litigation in a vacuum; the political climate and public attitudes concerning those who refuse vaccination from COVID-19 actually do exist and must be considered by the court under the balancing required by [Tenth Circuit precedent]. Plaintiffs argue that if outside persons know they have chosen to be unvaccinated, they are personally subject to a substantial risk of retaliation, including physical harm. (See Am. Compl.: online commentator stating about those attending a vaccine-mandate protest: “The anti-vaxers are ignorant trash and don’t deserve to live. Gun them down while they’re all in one place and let God sort it out”; President Biden quoted as saying “We’ve been patient, but our patience is wearing thin, and the refusal has cost all of us ….”)

Plaintiffs assert that not only are they potential targets of physical harm from others because of their unvaccinated status, they will also face harm to their professional standing from employers and educational institutions where Plaintiffs may seek employment or admission in the future, particularly in the healthcare field. Plaintiffs claim “they run the risk of ostracization, threats of harm, immediate firing, and other retaliatory consequences, if their names become known.” These anticipated damages are not currently part of those claimed in this lawsuit against the named Defendants. Therefore, in addition to considering whether potential harm to Plaintiffs by exposure of their true identities is a real threat, the court must also determine if “the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity.” …

[T]here are no allegations that any of the plaintiffs have received any direct physical threats from anyone. Plaintiffs’ identities are currently known to the Defendants, who received each application for religious exemption from the COVID-19 vaccine mandate and were responsible for turning down the specified religious exemption requests. There is no indication that anyone associated with any defendant, knowing Plaintiffs’ identities, has threatened or harmed any plaintiff, other than as alleged in the Amended Complaint….

The harm that Plaintiffs fear if their identification is revealed comes from the public; that very same group that was invoked by President Biden in his lament that “all of us” are hurt by an individual choice to not receive a vaccination. The same public, of course, has a right to open access to judicial records and documents in civil cases.

The reality at this stage of the pandemic in the United States is that vaccines are readily available to all adults in this country, free of charge, who want to be vaccinated. There is no question that there exists in our nation a certain enmity from some persons in society against those persons who choose not to become vaccinated. Plaintiffs’ Motion has presented evidence that supports their contention that choosing not to become vaccinated can stigmatize an individual as uncaring for the well-being of others, especially in light of the many mutations that have been identified thus far and the unknowns surrounding protection through vaccination if the virus is not definitively stopped from spreading. Arguments on both sides of the vaccine mandate controversy are often vitriolic and personal.

It is not this court’s place to attempt to resolve these conflicts, but simply to recognize them and balance the danger posed to individuals being labeled so-called “anti-vaxxers” against legal precedent holding that “[c]ourts are public institutions which exist for the public to serve the public interest [and] … that secret court proceedings are anathema to a free society.”

Considering the merit of this litigation, the identity of each of the Plaintiffs is of little-to- no value to the underlying allegations of the complaint. There has been no argument that the plaintiffs are not sincere in their religious objections to receiving the currently available vaccines. In fact, the individual plaintiffs who requested a religious exemption from a requirement to receive a COVID-19 vaccine are knowingly placing their own health at risk in order to uphold their religious convictions….

Further, the court agrees with Plaintiffs that there is a uniquely weak public interest in knowing the litigants’ identities in this case. The public will know that a group of people working and/or studying at the University of Colorado Anschutz medical campus have asserted religious objections to receiving the currently available COVID-19 vaccines, generally but not universally, on the basis of the use stem cells derived from aborted fetuses during research.

These exemptions were denied by the University, which only allowed religious exemptions for those individuals who are members of organized religions whose teachings entirely forbid vaccinations. Plaintiffs allege that the disallowance of their requests for religious exemption, and the ultimate penalties that were visited upon them as a result of them being unvaccinated, violated individual constitutional guarantees of religious neutrality and the entanglement between government and religion, as enshrined in the First … Amendment[] ….

The issues before the Court on the merits, therefore, do not depend on the identities of the Plaintiffs, but rather on the actions of Defendants, who are public, governmental entities and actors. The public has a very significant interest in the constitutionality of the policies of its public institutions. But, it is the policy itself and its execution at the University’s Anschutz campus that is on trial, not the individual Plaintiffs who are asserting the constitutional violations.

Therefore, … the court finds that the Plaintiffs have a substantial privacy right in protecting against public knowledge of their identities that outweighs the presumption of openness in judicial proceedings under these limited circumstances and that they should be allowed to proceed via pseudonyms until further order of the court.

The post May University Faculty/Staff/Students Sue Pseudonymously Over Limits on Religious Exemptions from COVID Vaccine Mandate? appeared first on Reason.com.

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When the Centers for Disease Control and Prevention (CDC) revised its guidelines for Americans recovering from COVID-19 last week, reducing the recommended isolation period from 10 days to five, many critics complained that the agency said nothing about using rapid antigen tests to verify that infected people are no longer contagious. Yesterday the CDC addressed that concern, sort of, by adding this advice:

If an individual has access to a test and wants to test, the best approach is to use an antigen test towards the end of the 5-day isolation period. Collect the test sample only if you are fever-free for 24 hours without the use of fever-reducing medication and your other symptoms have improved (loss of taste and smell may persist for weeks or months after recovery and need not delay the end of isolation). If your test result is positive, you should continue to isolate until day 10. If your test result is negative, you can end isolation, but continue to wear a well-fitting mask around others at home and in public until day 10.

Notably, the CDC is still not actually recommending that people leaving isolation use antigen tests before returning to work or otherwise resuming normal activities. Its advice is limited to what people should do if they can obtain a test kit and are already inclined to use it. That stance is puzzling, since a negative test result provides additional assurance that you won’t infect others, while a positive result, as the CDC acknowledges, indicates that continued isolation is prudent.

Since the CDC suggests that people may not have “access to a test” even if they want to take one, one obvious explanation for its otherwise confusing advice is that, two years into the pandemic, home tests remain more expensive and harder to obtain in the United States than they are in other countries, thanks mainly to the Food and Drug Administration’s reckless foot-dragging. But CDC Director Rochelle Walensky also has cast doubt on the reliability of antigen tests.

“We opted not to have the rapid test for isolation because we actually don’t know how our rapid tests perform and how well they predict whether you’re transmissible during the end of disease,” Walensky told CNN last week. “The FDA has not authorized them for that use.” In an NBC interview, she even said the information provided by an antigen test “will not be useful.”

That position contradicts what the CDC is now saying. According to its latest advice, a positive antigen test does provide useful information, justifying continued isolation. A negative result likewise provides useful information for those who choose to take the test, since, according to the CDC, it means “you can end isolation.”

As New York Times columnist Zeynep Tufekci notes, Walensky’s dismissal of antigen tests also contradicts the views she expressed before she became head of the CDC. In September 2020, when Walensky was a Harvard Medical School professor and chief of Massachusetts General Hospital’s infectious disease division, she co-authored a Health Affairs article that compared the pros and cons of antigen tests, which detect molecules on the surface of the coronavirus and deliver fast results at home, and polymerase chain reaction (PCR) tests, which detect genetic material from the virus after amplifying it and require a medical visit and laboratory processing.

“It turns out that the PCR-based nasal swab your caregiver uses in the hospital does a great job determining if you are infected,” Walensky and David Paltiel, a professor at the Yale School of Public Health, wrote, “but it does a rotten job of zooming in on whether you are infectious. By contrast, the rapid saliva-based antigen test with the 30 percent false negative rate does a poor job of diagnosing infection, but it is likely the better tool for judging infectiousness.”

Judging infectiousness, of course, is exactly the issue when someone recovering from COVID-19 is deciding when they can safely mingle with others. In this context, Tufekci suggests, “rapid tests are a good way to see who is infectious and who can return to public life,” and “their lack of sensitivity to minute amounts of virus is actually a good thing,” since it means that “false negatives” are likely to involve people with very low viral loads.

Tufekci sees a parallel between the CDC’s current attitude toward antigen tests and its early resistance to masking as a safeguard against virus transmission. While public health officials initially said there was not enough evidence to support general use of face masks, it became clear that their real concern was the shortage of high-quality masks, which they thought should be reserved for health care workers. In this case, the U.S. is facing a government-engineered shortage of rapid antigen tests. Instead of forthrightly noting that reality, the CDC is rationalizing its testing advice by arguing that the tests are not really all that useful, even as it implicitly acknowledges that they are.

Walensky’s handling of this issue is of a piece with the CDC’s prior misrepresentations of COVID-19 science, which often seem motivated by a desire to defend whatever position the agency is taking at the moment. While Walensky herself has proven to be an unreliable source of information about COVID-19 on several occasions, the problem predates her tenure.

The agency quickly went from dismissing the value of face masks to describing them as “the most important, powerful public health tool we have.” Walensky’s predecessor, Robert Redfield, went so far as to argue that masks were more effective than vaccines would be. Even after vaccines proved to be remarkably effective, especially at preventing severe disease and death, Walensky suggested something similar, exaggerating the evidence in favor of masks in a way that implicitly denigrated the value of vaccination. And to this day, the CDC’s advice about face coverings emphasizes the importance of a good fit without talking about the substantial differences in the effectiveness of different mask types.

None of this inspires confidence in an agency that Americans should be able to trust during a pandemic. The skepticism engendered by the CDC’s history of misleading statements and weakly justified reversals surely did not help when the agency decided to cut the recommended isolation period in half, even though that was a sensible step.

The CDC said the change was “motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and the 2-3 days after.” That gloss concedes that some transmission occurs after more than five days, but that point is not necessarily decisive, because other factors need to be considered in formulating advice for the general public.

Walensky and Anthony Fauci, President Joe Biden’s top COVID-19 adviser, noted that a 10-day isolation period has very disruptive effects on the economy, including the health care sector, which is especially relevant during the current omicron surge. “On balance,” Fauci said, “if you look at the safety of the public and the need to have society not disrupted, this was a good choice.”

Walesnky and Fauci also noted that 10 days of isolation was more than most people were able or willing to put up with. “It really had a lot to do with what we thought people would be able to tolerate,” Walensky said. “We really want to make sure that we have guidance, in this moment when we knew we were going to have a lot of disease, that could be adhered to.”

That consideration is also relevant. Erring on the side of caution does not make sense if it means your advice will be widely ignored. Guidelines that tolerate some risk of transmission can be more effective than guidelines that aim for zero risk if people are more likely to actually follow them. As Fauci observed, “you don’t want the perfect to be the enemy of the good.”

On this score, much of the criticism provoked by the CDC’s new guidelines was misplaced. “By incorporating societal responses and employer requirements into their arguments,” MSNBC columnist Hayes Brown complained, “Walensky and Fauci implied that the CDC’s decision wasn’t based purely in science.” But the CDC’s advice has never been “based purely in science.” Nor should it be.

Recommendations about how to deal with the threat posed by a contagious disease inevitably incorporate value judgments and cost-benefit analysis. There is nothing inherently wrong with that, as long as the CDC is honest about the science, candid about the factors it considers, and willing to recognize that people might reasonably reach different conclusions, depending on their risk tolerance, personal preferences, and evaluation of the evidence.

Unfortunately, the CDC frequently has fallen short on one or more of those criteria, and its testing advice is a good example of that failure. As Walensky once emphasized and the CDC even now implicitly concedes, antigen tests are a useful, if imperfect, tool for reducing transmission risk while allowing people to resume normal life. Recommending their use toward the end of isolation—instead of simply granting that some people might “want” to use them, apparently for idiosyncratic, unscientific reasons—seems commonsensical. It might even help restore the credibility that the CDC has lost by refusing to level with the public.

The post Rochelle Walensky Said an Antigen Test Is a Good Tool for 'Judging Infectiousness.' Now She Says 'Its Information Will Not Be Useful.' appeared first on Reason.com.

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Tomorrow is the one-year anniversary of the January 6, 2021 attack on the Capitol. The most dramatic event of that day, was the actual violent assault. It is important to prevent a repetition. But it is at least equally important to forestall future efforts to replicate the shenanigans that Donald Trump and some of his supporters tried to instigate that day, by getting Congress and the Vice President to try to overturn the election results.

That effort failed last year, when Vice President Mike Pence and a majority of both houses of Congress refused to go along with it. But effectively precluding future such attempts requires reform of the Electoral Count Act (ECA) of 1887, the well-intentioned but ambiguous law governing certification of presidential election results by Congress.

In recent days, experts across the political spectrum have highlighted the importance of this issue. An op ed in the Washington Post coauthored by prominent liberal election law experts Richard Pildes and Edward Foley, conservative constitutional law scholar and former federal judge Michael McConnell, and libertarian election law specialist Bradley Smith summarizes the issues involved well:

First, to avoid a repeat of Jan. 6, or worse, Congress must rewrite the Electoral Count Act, the outmoded 1887 law that governs the certification of the presidential vote. There is a pressing need for a clear set of rules to govern the certification of the presidential vote.

Second, this revision should be based on the premise that Congress is not a national recount board or a court for litigating the outcome of presidential elections. It is not the role of Congress to revisit a state’s popular vote tally….

To prevent another such event, which could be launched by either party in an effort to control the outcome of a hotly contested presidential election, a revision of the Electoral Count Act should be based on the following guidelines:

Whenever there is just one submission of electoral votes from a state — in other words, no competing slates of electors — Congress should disavow any power to question those electoral votes on the ground that there was something wrong with the popular vote upon which those electors were appointed. As long as the state itself has settled on who won that state through policies established in advance of the election, Congress has no role other than to accept those as being the state’s electoral votes…

In a situation in which Congress receives conflicting submissions of electoral votes from different institutions of state government — something that has not occurred since 1876 and that we hope remains rare — Congress should incentivize states to identify in advance which institution is entitled to speak for its voters. If states do this, then Congress only has to count the electoral votes sent from the designated part of the state’s government.

If a state has failed to make clear which part of its government is authoritative in determining the popular vote, Congress could set a default rule (awarding power to the governor or state supreme court, for example). Or it could create in advance a nonpartisan tribunal empowered to identify which part of state government has a better legal claim for being authoritative under the specific circumstances.

Foley, Pildes, McConnell, and Bradley rarely agree on much of anything. The fact they have done so here is, notable.

To their suggested reforms, I would add that it would also be useful to make clear that the Vice President does not have the power to set aside state electoral votes either. Then-VP Mike Pence rightly rejected the notion that he could do this on last year (the idea was advanced in the now-notorious John Eastman memo). But Congress should do all it can to eliminate any possible doubt on this question.

The authors of the Post op ed are far from the only ones advocating the cause of ECA reform. Walter Olson of the libertarian Cato Institute has been beating the same drum for some time, as has his colleague Andy Craig. Conservative political commentator Yuval Levin published a New York Times article about it on Monday. ECA reform also has the backing of the conservative Wall Street Journal editorial page.

Perhaps more importantly, today GOP Senate Leader Mitch McConnell (not to be confused with Prof. Michael McConnell, discussed above) and Republican whip Sen. John Thune both suggested they may be open to ECA reform, even though they oppose virtually all other election reforms supported by Democrats. Some of the latter, unfortunately, may be unwilling to support a separate ECA reform bill, unless it is coupled with GOP support for various liberal election-law measures, such as curbing state voter ID laws and other registration restrictions.

McConnell and Thune may well have partisan political motives for their stance. Democratic political leaders likely have impure motivations of their own. When it comes to election law, few if any politicians are innocent lambs whose only concern is the public good. Nonetheless, fixing the ECA is an important reform that should command broad bipartisan support, even if it means separating the issue from other matters, and even if it requires securing the support of politicians with dubious motives.

Addressing this problem won’t fix all that ails American democracy. It will not even forestall every possible way to monkey around with presidential election results. But it could close off  the most obvious path by which a sufficiently ruthless party, in control of both houses of Congress or the vice presidency, could try to overturn a presidential election and install the loser as the winner. Foreclosing that possibility is a worthy goal, even if it isn’t a panacea for all of our political problems.

The post The Case for Fixing the Electoral Count Act appeared first on Reason.com.

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