The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier this week, California announced new lockdown measures to prevent the spread of COVID-19. In certain zones, all indoor worship services are prohibited. This restriction very likely runs afoul of Brooklyn Diocese. California likely recognizes this violation, but will magically relax the rules on the eve of Supreme Court review.
The Governor's edicts will also prohibit all outdoor dining. Why? The state has not offered any actual evidence that COVID-19 has spread through outdoor dining. Indeed, struggling restaurants have invested a lot of resources to ensure that tables are spaced apart, and food is served in a sanitary and safe fashion. A reporter asked the Governor about outdoor dining. He replied:
"That's a fair question, I appreciate it and you're right. I do want Dr. Ghaly to speak more to that, because it's fundamental in terms of the work we've been doing with local health officers, with our advisory committees, with some of our national partners and advisors as well, not just the conversations we're having internally, but the bottom line, John, is we want to mitigate mixing, period, full stop. We want to diminish the amount of mixing and we really need to send that message broadly and we need to create less opportunities for that kind of contact and extended time of contact that occurs in many of these establishments and that is why we are moving forward."
Newsom cited zero data to support his order. If breakouts have been traced to restaurants, the state would likely have that evidence. But none was supplied. Newsom simply wants to "mitigate mixing" and send a message. Dr. Mark Ghaly, California's secretary of Health and Human Services, elaborated further:
"What we know is where you're not able to mask entirely or consistently, where they are indoors rather than outdoors, where physical distance is difficult to maintain, that each of those activities that we've been talking about for months as relatively lower risk when you can do all of the things we've discussed, but today, they're all a little more risky than they were a month ago. And that's just because we have more COVID in our communities, and it's able to transmit not necessarily more easily, but because we have more of it in our communities."
Again, the government has zero evidence that outdoor dining has contributed to the spread of COVID-19. All the Director can come up with is this behavior is "a little more risky" now that the community infection rate is higher.
Of course, every action has an equal and opposite reaction. If people cannot eat safely at outdoor restaurants, there is a greater chance people will eat unsafely in indoor homes. No matter how hard government tries, the state cannot eliminate the demand for communal gathering. They will simply force people to satisfy those demands in underground, illegal fashions. For example, when governments raised the drinking age from 18 to 21, the states did not eliminate the demand for drinking by college students. Instead, college students would stop drinking at bars–where there is at least some supervision–and start drinking illegally in frat houses and other unsupervised places. The Governor's edict here will have the likely consequence of forcing people to eat together, inside.
In truth, if the government was serious about stopping the spread of COVID, they would encourage outdoor eating, and actually prohibit people from gathering in homes. That latter, option, however, seems too Orwellian. Many governments flirted with this idea before Thanksgiving, but I doubt enforcement was ever realistic. Now, instead of taking measures that will be most effective, but unpopular, the states will send messages.
Imagine if these questions were posed during an oral argument, instead of during a press conference. With the rational basis test, the government could simply say, "We do not need any evidence. We think this regulation may work, and that speculation is sufficient." These arguments, however, crumble on the slightest scrutiny.
Update: An infectious-disease expert articulated my understanding of the "abstinence" approach to COVID-reduction:
The percentage of Angelenos staying home except for essential activities has remained unchanged since mid-June — around 55% — despite pleas from health officials in recent weeks for people to cut down on their activities, according to a survey conducted by USC.
A similar story has played out nationwide, as millions of Americans zigzagged across the country to visit family over the Thanksgiving holiday, flouting the advice of health officials.
"It's not because the public is irresponsible; it's because they are losing trust in public health officials who put out arbitrary restrictions," said Dr. Monica Gandhi, an infectious-disease specialist at UC San Francisco. "We are failing in our public health messaging."
Health officials are up against a fatigued public, as well as a number of people who don't believe in the danger of the virus, Gandhi said. But she is also part of a growing number of experts who think there's a better way to engage those who do want to take the pandemic seriously — by taking a lesson from the public health strategy known as harm reduction.
Typically used to describe sex-education programs and needle exchanges for drug users, harm reduction aims to mitigate the risks of dangerous behaviors instead of trying to get people to cease altogether.
When it comes to the COVID-19 pandemic, a harm-reduction approach would encourage masking and social distancing instead of demanding that people have no contact at all with friends or family they don't live with. In other words, even during a pandemic, abstinence-only isn't effective.
L.A., however, has adopted more of a "just say no" attitude. Last week the county became one of the only places in the nation to halt all outdoor gatherings among people who aren't in the same household, prohibiting two friends from meeting up in a park or going on a hike with masks on. Gov. Gavin Newsom followed suit and included the ban in his regional stay-at-home order.