De Civitate

Coronavirus and the Flu: A Q&A

by James J Heaney Posted on 15 March 2020

Is coronavirus worse than the flu?

Image of SARS-CoV-2, the virus causing covid-19. — *The cutie causing all the trouble.*

Much worse.

That’s ridiculous.

And that’s not a question.

Well, why should I trust you — or the media hysterics you’re parroting?

Don’t trust me, and certainly don’t trust the media. Trust the evidence.

You’re right about the media, by the way: just a few weeks ago, the media was actively pooh-poohing experts it now considers authorities, condemned President’s Trump’s excellent, prescient China travel ban (which bought us weeks of needed time) as a racist stunt, and kept telling us that we should worry about the flu more than we should worry about coronavirus. Michael Brendan Dougherty got pilloried as a sexist on Twitter for pointing out what is now a commonplace: our society lacks the flexibility to close schools because so many families have both parents in the workforce.

The media position swung, immediately and completely, minutes after reporters started to realize that the Centers for Disease Control had bungled the rollout of covid tests. (This has indeed proved to be an extremely damaging error.) The media recognized it now had an anti-Trump hook for this story, and that was the moment the media decided that coronavirus was actually worse than the flu after all.

So, yeah, forget the media.

And me, too. I’m just some guy, and, full disclosure, I’m not exactly the President’s biggest fan, either.

But trust the evidence.

There’s a ton of data about this pandemic now. I didn’t trust the numbers coming out of China, but the WHO sent in a team of skeptics, and they came away mostly convinced that China was on the level about their case and fatality counts. Besides, China’s basic data on infectiousness and fatality has been replicated in half a dozen countries by now. And I don’t believe Italy or Taiwan is cooking their books — certainly not in the same way, and certainly not in a way calculated to influence U.S. politics. Italy did not destroy its own economy to hurt President Trump.

Also trust first-person accounts — ones that reach past the media narrative (whatever it happens to be today) and just report what people in the heart of the epidemic are seeing. Back when American media was insisting that covid was no big deal, I was watching first-person videos from Wuhan residents that had been ported to YouTube and subtitled. The picture they painted was dire indeed. Today, it’s easier to find people in the heart of the Seattle and NYC and Italy outbreaks who can give you the straight dope from their streets and their hospitals.

And trust the experts. Not the media “experts” who get trotted out to reinforce whatever the narrative is right now, but the experts who have been on this since day one and who have consistently been on the ball about what covid could mean for us. I suggest Eric Feigl-Ding, Trevor Bedford, Scott Gottlieb, and Tom Frieden as a starter pack. These guys have been way ahead of the news cycle… and, thanks to them, so have I.

Okay, whatever. People who’ve survived coronavirus say it’s a lot like the flu. So what’s the big deal?

Well, first up, the flu is a very big deal. Every single year, billions of dollars are spent developing vaccines and deploying them to as many people on Earth as possible. Even though those vaccines are only moderately effective, the entire global medical establishment spends three months, every single year, doing nothing but shouting, “PLEASE GET YOUR FLU SHOTS” at the top of their lungs.

They do this because thousands of hospital beds are filled, every single winter, by flu patients. And plenty of them die. Influenza and pneumonia are the 8th leading cause of death in the United States — the only infectious disease currently in the Top 10.

COVID-19, the Wuhan coronavirus, is much worse.

Okay, smart guy. Swine flu killed 12,000 Americans. Coronavirus has killed 60. So how is it so much “worse”? What am I missing?

What you’re missing is the fatality rate (as opposed to the fatality count).

Not very many people have died of covid (yet), because not very many people have been infected by covid (yet). Why not? Because almost every government in the world is fighting really really hard to protect people from being infected.

We could stop all those measures and just allow covid to spread like swine flu. Let’s see how that would work out.

The CDC estimates that swine flu infected one out of every five Americans over the course of one year. And it killed 0.02% of the people it infected, for a total of 12,000 dead.

Under ideal circumstances, the covid virus appears to kill about 0.6% of the people it infects. That’s how many people it is killing in South Korea, which has done extensive and widespread testing to make sure that they are not underestimating the number of mild cases. South Korea has also imposed strict controls to prevent covid from overwhelming its top-notch health care system, and has more hospital beds per capita than just about anyone (including the U.S.).

There are 327 million Americans. Let’s say covid infects one in five Americans, just like swine flu. And then let’s say it kills 0.6% of the infected, just like in South Korea.

That’s 392,400 deaths. 32 times as bad as swine flu.

Under ideal circumstances.

Why do you keep saying “under ideal circumstances”?

Because our conditions are not likely to be ideal.

First, coronavirus appears to be somewhat more infectious than swine flu. Swine flu reached one in five Americans. It’s possible covid, left unchecked, would do the same… but that’s on the lower end of plausible estimates. The Spanish Flu of 1918 infected nearly one in three Americans. The Hong Kong Flu of 1968 infected nearly four in ten Americans.

Epidemiologists believe that covid, left to its own devices, could plausibly infect as few as 20% Americans… or as many as 60% of us.

We simply don’t know yet how infectious covid really is, but “swine flu” would be on the optimistic end. If it infects 60% of Americans instead… well, that’s 327 million Americans times 60% infection rate times 0.6% fatality rate = 1.2 million dead Americans.

This number is roughly in line with worst-case scenarios from the CDC and other public health experts.

But that’s not the thing that really scares me. It could get so much worse than that.

Wait, how can it get worse than a WORST-CASE SCENARIO?!

Neither of the worst-case models I just mentioned appears to account for the possibility that America’s hospital system will be overwhelmed. They assume that there are going to be hospital beds and ventilators for all the covid patients who need them.

Unfortunately, that’s almost certainly not the case. Without strict containment measures, covid sweeps through the population so quickly, and requires such dramatic and sustained medical intervention to keep people alive, that the hospitals literally run out of beds, ventilators, and basic equipment like face masks (which means they start running out of doctors and nurses a few days later).

We saw this in Wuhan, then Iran, then in Italy. Patients literally die of covid in the waiting rooms or on the floors, waiting for access to a ventilator, or even basic treatment. Doctors are forced to decide who lives and who dies. There are no doctors or beds left to treat people who come in for non-covid reasons, like car accidents or cancer. A lot of people die who could have been saved, simply because there aren’t resources to help them.

Under these less-than-ideal circumstances, covid’s fatality rate jumps from <1% to something like 4.5%.

If covid infects 20% of Americans, but kills 4.5% of them, you end up with 3 million dead.

That’s about 250 times worse than swine flu — and far worse than America’s leading causes of death, heart disease and cancer, combined.

But that is where the U.S. is headed, even though the models don’t appear to account for it. (Yet.)

Aren’t they working on a vaccine?

Yep. And I’m confident we’ll have it… in about a year. Some effective antiviral therapies could emerge before then. Pray that they do.

But right now? For all our vast technological expertise, we’ve got nothing.

Not a single person on Earth ever caught covid before October 2019, so there is absolutely zero natural immunity in the population. No vaccine means zero artificial immunity, either. This thing is poised to rip through us, and there is nothing we can do except lock the doors and wait for the Angel of Death to pass over us.

What can we do, then?

I just told you: lock the doors and wait for the Angel of Death to pass over you. Did you think I was kidding?

The CDC’s euphemism for this is “social distancing.”

This helps! Nations that have implemented harsh containment measures have seen immediate reductions in the rate at which the covid pestilence grows. Some countries that got hit early and implemented tough measures right away are seeing few or no new cases.

But it’s all pointless if you morons go out and “partay hartay” anyway. You stupid, f–

Excuse me?

Sorry. I lost my temper.

But, really, once there are cases in your community, you really should not be gathering in public or with large groups. Malls, zoos, sports, are all verboten. As much as possible, you should be at home–and you shouldn’t be hosting more than the smallest gatherings of friends and family (nor attending them). Work from home if at all possible. Get delivery or take-out instead of visiting restaurants, if you must order out at all. Give serious consideration to pulling your kids out of school — by the time covid is detected in your school, it’s too late to protect your children (and therefore you) from exposure.

Don’t mess with this. Even if you don’t kill yourself, you could easily kill someone you love.

That’s a tiny bit true of flu, too, yeah, and, yeah, you should get your flu shot. But the Wuhan coronavirus is not the flu. It’s going to kill an unthinkably large number of people worldwide. Make sure you and — more to the point — your elderly parents aren’t among them.

UPDATE:

Something isn’t adding up. China has 1.5 billion people, but only 3,000 dead of coronavirus. You’re projecting that the USA, a country of 300 million, could lose 500,000 to 1 million people (or more). I have my doubts.

Two days after China passed 100 diagnosed cases, they completely locked down Hubei province — an area with the population of California. People weren’t allowed to leave their houses more than once per week. Private cars were banned. Quarantine was forcibly — and brutally — enforced. Drones were (allegedly) launched with temperature sensors to monitor whether locked-in residents had developed fevers. Apartment building doors were soldered shut.

Within a week, China did the same thing in hundreds of other cities and provinces, placing over 300 million people (roughly the population of the entire United States) under significant movement restrictions.

It was by far the largest and most dramatic quarantine in human history.

…and it appears to have worked.

We can expect to see similar results if and when we start arresting people for being on the streets without a good reason. Until then, brace for impact.

Posted in Mere Opinion | Tagged also "self-quarantine" really means "exiled for the good of the realm", angel of death, coronavirus, covid | Comments Off

When Should We Cancel for Covid-19? A Family Email

by James J Heaney Posted on 13 March 2020

My parents, siblings, and kids normally get together every Sunday night for family dinner. Due to the covid (coronavirus) outbreak, which recently arrived in Minnesota, some of us have asked whether it’s time to suspend the meal and switch to a weekly Skype call instead. It’s a sensible question! It’s not at all obvious how to actually quantify and weigh the risk of family dinner. On Wednesday night (March 11th), I thought about it and wrote this in response. And then I thought that readers of this blog might find it useful, too, as you try to shape your own thinking about this.

Hey, all,

I don’t think we’re to the point where the risk is high enough to cancel Sunday dinner. Work — a gathering of hundreds or thousands of fellow employees and/or students — yeah, it’s probably time to empty work if we can.

Let’s quantify this! Yes, let’s do my favorite thing: solve all problems with 9th-grade math!

TLDR: I think dinner should be on for this week. Next week probably, too. After that, pretty dicey.

Sunday dinner is at most nine people, usually just five, and the risk there is pretty low… especially if everybody at that dinner starts working from home. We can use this chart (especially the equation at the bottom!) to estimate risk.

In Minnesota, we right now have 5 diagnosed cases out of a population of (5.3 x 10^6). It’s safe to say that assume that are some undiagnosed cases circulating right now. Let’s say, somewhat pessimistically, that there are 10 such cases — covid carriers who are spreading the virus right now, but whom we haven’t found yet.* [SEE NOTE] Assume 6 people come to Sunday dinner (which is about average). If that dinner were held tonight, the risk that an infected person will attend the dinner is (1-(1-(10/5300000))^6) = 0.0011%.

This estimate is likely high, because the 9 of us do not represent anything like a diverse cross-section of Minnesotans, and several of us are socially isolating. And note that this is an estimate of exposure, not transmission, much less death. But we’ll go with it, because better safe than sorry.

Bear in mind that any given American has a 0.01% chance of dying in a car crash in any given year, and a 0.04% chance of dying of accidental causes in general. So the odds that family dinner this Sunday will kill one of us are not quite “odds of getting struck by lightning” low (0.0002%, in case you were wondering), but they are pretty darn low.

I think we should suspend dinner when the chance of exposure goes above 0.05% — a 5-in-10,000 chance, which is about when I think most people start worrying about risks. Do some algebra and continue with the same assumption about circulation, and that implies we should stop having dinner when Minnesota passes 221 diagnosed cases.

Assuming the number of diagnosed cases continues to grow in Minnesota at the rate of about 33% per day — which is a consistent global pattern at this stage in the infection — then we will still be able to have Sunday dinner this coming Sunday (the 15th, when there will be ~15.6 diagnosed cases in Minnesota), and again on Sunday the 22nd (~115.2 cases). [Editor’s Note: See our post yesterday on how Minnesota’s coronavirus infections will grow in the next few weeks.]

By Sunday the 29th, we can expect to have ~850 diagnosed cases, and that is when we can expect to suspend Sunday dinner.

Reporting to work is quite a bit more dangerous. Assume ~6000 people on campus (be it [father’s workplace] or [siblings’ workplace]). Tomorrow, on these assumptions, there will be a 1.1% chance that someone on campus is already infected, aka 20 times the danger threshold I am proposing for family dinner. By Monday, that becomes 4.4%.

By Monday the 30th (two weeks from now), the odds of someone on campus being infected would be about 72%. However, I expect all our campuses to be closed by then — except [family medical professional]’s, of course, which will be dealing with (on a per-capita basis) a Lombardy-scale crisis by then. Hopefully the Minnesotan health care system proves more up to the task than the wealthiest part of Italy’s.

We should obviously keep our eyes on the case count, since Minnesota could still take strident action to “flatten the curve,” and (happily) that would ruin all my dire predictions.

Love, Jamie

*NOTE: Out of everything in this letter, this is the part that makes me most nervous. How many cases are really circulating in Minnesota? I have no idea. “Double the diagnosed count” seemed like a comfortable number on Wednesday night, but tonight? I just don’t know.

It will be hard to speculate on the true case count until there’s a death; we have good estimates for the disease’s fatality rate (~1%) and doubling time (6 days), so we can work backwards from there. It appears to take roughly 16-24 days to die of COVID-19 after initial infection. Since the fatality rate is 1%, if 1 person dies, then you can reasonably guess that 99 other people had it at the same time, but recovered. Which means 100 people had it… 16 to 24 days ago. In the meantime, the virus, doubling every 6 days, has doubled in size 3-4 times. Which means there are actually now 800-1600 cases today… and 8-16 of them will be dying over the next several weeks.

In short, 1 death today = approximately 1200 cases today, probably, roughly, ish. More deaths can make that estimate more precise.

But Minnesota has no deaths yet, so we’re just guessing wildly. There could be 10 unidentified cases in circulation, like I speculated; there could be 100. With so little testing, it’s very hard to know!

(P.S. Thanks, Cate.)

UPDATE: Epidemiologist Trevor Bedford, who was the first to notice sustained community spread in Washington, suggests a “very rough” rate of 10 undetected infections for every 1 diagnosed case in the U.S. currently. That’s a good deal more pessimistic than I was in this email, and implies that there were, very roughly, 50 cases circulating in Minnesota on Wednesday, not 10. (And it’s up to 140 by now.)

Posted in Mere Opinion | Tagged coronavirus, covid, minnesota | Comments Off

Expected Spread of Covid (Coronavirus) in Minnesota

by James J Heaney Posted on 13 March 2020

People keep asking me how bad this thing could get.

I don’t think it’s helpful to look at the national level, because there is no single national outbreak. There are a series of local outbreaks, each of which is currently in a different stage. Washington State, right now, is under serious strain right now, desperately trying to mitigate what has already become an out-of-control epidemic. Minnesota has several cases, but (supposedly) it is not yet spreading person-to-person here, so Minnesota is still trying to work on containment, delaying the start of a real outbreak. Alabama has no cases at all, so it’s simply in monitoring-and-preparation mode, hoping to recognize covid (and contain it, for a while) when it does finally show its face in Dixie. Unfortunately, Alabama cannot lend its hospital beds and nursing staff to Washington State; those resources are fixed in place.

So when I want to know how risky it is for me to go to church on Sunday, it’s not that helpful for me to look at the number of cases nationwide. Most of them are thousands of miles away from me. I want to know how many cases there are around here — and, more importantly, how many there will be a few days from now.

Something interesting: so far in the epidemic, diagnosed case counts have grown by approximately 33% daily, unless there is dramatic government intervention. Even more interesting, this has been fairly consistent at both the local and national levels.

For example: in the morning on March 2nd, the U.S. had 102 diagnosed coronavirus cases. Suppose you wanted to predict how many cases the U.S. would have in the morning today, March 12th. Assuming a 33% average daily growth rate, you would have pulled out your calculator and typed:

102 * ((1.33) ^ 10) = 1,766 cases expected by March 12th.

How many diagnosed cases did the U.S. actually have this morning? 1,697, off by 4%. Not bad, for an estimate made 10 days ago about a virus whose case count doubled four times.

Similarly, in the morning on March 4th, Seattle had 39 diagnosed cases. Assuming a daily 33% average growth rate, how many would Seattle have eight days later, on March 12th?

39 * ((1.33) ^ 8) = 381

How many did they actually have? 366, again off by 4%.

I played around with this looking at recent historical data for Italy, and Colorado as well, and it did pretty well. 33% growth per day has been a pretty decent average. Sometimes the estimate went a bit high, sometimes a bit low, but it was always fairly close to the truth.

I’m not really sure why this works so well. These are only diagnosed cases, and our testing regime is very bad right now, so we are certainly lagging the actual progress of the disease. At times, diagnosed cases may only be a fraction of real cases. (We saw that in Wuhan, although they eventually caught up.) So I wouldn’t expect to see the diagnosed case count grow so smoothly. But, hey, it does, and I’ll take it.

What I want to know is how bad it’s going to get in Minnesota.

This is only an estimate, and not a very smart one. It doesn’t account for any specific factors on the ground, community spread vs. imported infections, etc. And it only predicts diagnosed cases; there are likely many more undiagnosed cases, and we won’t really know how many until we start having people die of it. Yet I’m going to stick with this formula, since it has proven fairly good at predicting the future, and I don’t have anything more sophisticated at hand.

As of dawn on Friday, March 13th (oof, Friday the 13th, I just noticed that), we will have 9 diagnosed cases in Minnesota. (That’s not an estimate, that’s a news report.)

By dawn the following day, March 14th, assuming a 33% growth rate on average, we can estimate that Minnesota will have approximately 12 diagnosed cases.

By Sunday, March 15th, we can estimate 16 diagnosed cases.

By Wednesday, March 18th: 37 diagnosed cases.

By Sunday, March 22nd: 117 cases.

By Wednesday, March 25th: 276 cases.

By Sunday, March 29th: 863 cases.

By Wednesday, April 1st: 2,030 diagnosed cases.

By Sunday, April 5th (Happy First Contact Day):, 6,351 cases.

By Wednesday, April 8th: 14,941 cases.

By Sunday, April 12th: 46,751 cases… approximately 1,589 of whom will die.

By Monday, April 20th, we arrive at 450,000 diagnosed cases.

The day after that, the total number of cases exceeds 10% of the state’s population. At that point, the virus will naturally begin to slow down, because enough of the population will have developed immunity (or died) to start to grant herd immunity. Covid won’t actually stop, of course, but it will no longer grow on a 33% daily curve. A statistically significant chunk of Minnesota’s over-60 population will already be dead or dying, but the deaths won’t stop for some time after.

That’s where we are headed right now, on our current trajectory. 9 (known) cases today turns into tens of thousands in a matter of weeks. That’s exactly what happened in Italy.

There appear to be three ways to prevent this exponential growth in case counts from happening:

Stop testing. Can’t have diagnosed cases if you don’t try to diagnose! This won’t reduce the case load or the fatality rate, and actually will make things much worse and kill lots of people needlessly… but it will make your numbers look good, so there’s that.
Wait until the virus burns itself out (basically, until so many people have been infected that it can’t infect enough new patients to remain an epidemic) and hope that it burns out much faster than other flu-like diseases. Maybe you’ll get lucky, and Minnesota’s wet, warming climate means that the infection rate will start to fall long before late April! There seems to be no reason to believe this will happen, but it COULD!
Impose and support major restrictions on the movement and gathering of human beings in Minnesota. Ban parades, ban sports, close schools (perhaps leaving them partially open, on a skeleton-crew basis, solely for the children of health care workers who have nowhere else to put them), cancel concerts, require businesses to support telecommuting and/or provide paid time off. Shut. Down. Everything.

Iran has tried option (1), and it’s working out pretty well for them. Although a number of senior officials have died and they’re currently digging mass graves, their official numbers aren’t growing quite as fast as you’d expect them to grow if they were doing honest testing and reporting. And that’s the goal of option (1), so it’s working as intended.

Italy tried option (2), but chickened out completely after their medical system collapsed under the strain of patients flooding every bed and corridor in their hospitals, with doctors forced to use scarce resources to treat the young while leaving the elderly to die. They are now trying option (3), locking down the entire country, like a bunch of boring mcboringstans… but it’s probably too late for option (3) to stop the mass casualties for at least a couple more weeks.

Who knows? Maybe we could try option (2) ourselves, and we’ll have better luck than Italy. We have absolutely no reason to believe we’ll do any better, but it’s a chaotic world! Who knows?

There are four countries on Earth that have successfully beaten back the exponential growth of covid. They are all still seeing cases on a daily basis, but they are not having huge numbers of cases coming in all at once and crushing their medical systems. Those countries are: South Korea, Japan, China (after the initial calamity in Hubei province), and Singapore. At the moment, it looks like they are all going to get through this relatively okay.

By a truly bizarre coincidence, all four of these countries adopted the same strategy to fight covid. That’s right! They all chose option (3)! They shut down their cities, ordered widespread testing, closed the schools, and cancelled everything. And, after each country did this, cases started to fall almost immediately!

Thomas Pueyo goes into a lot of depth about how this worked in his article from earlier this week, “Why You Must Act Now.” I wouldn’t trust every number in his post — some of his speculation about the “true” number of cases in any given community is a little wild, and the “model” he offers at the end is a bit high-strung as a result, but his basic point is sound: the sooner these countries imposed social distancing, the more lives were saved, and the difference was drastic.

They might be on to something!

So consider this post a prediction. If Minnesota takes no real action to combat covid, expect over a hundred thousand cases in a little over a month.

If Minnesota does take real action, then you can look at this post instead as a kind of alternate universe. Every time you miss out on something you were looking forward to doing, you can look at this post, compare my predicted case count with whatever the actual case count is that day, and thank God and your fellow Minnesotans for moving Heaven and Earth to spare us from that.

Happily, there are signs that Minnesota will indeed take appropriate measures. Several local colleges are going online-only, the Archdiocese has dispensed everyone from the requirement to attend Sunday Mass, and locals seem to be stocking up for impending social isolation appropriately.

Don’t panic. This isn’t the end of the world. It’s not like that movie Contagion, where most of the infected died. Covid likely kills a little less than 1% of its victims, most of them elderly. Many more than that are left with permanent scars of one form or another. But we will get through this, just as humans have got through every other epidemic in history. And our forefathers didn’t have Hulu. Or indoor plumbing.

Don’t pretend. This isn’t a run-of-the-mill flu pandemic. Stop imagining it is. It’s likely the most serious health threat the human race has faced since the Spanish flu almost exactly a century ago. The fact that bodies aren’t stacked like cordwood outside hospitals doesn’t mean covid is a hoax; it simply means that covid hasn’t taken root in your community yet. Again, look at those mass graves in Iran. (I’ll be writing more about this tomorrow / later today.)

Do prepare. If you’re in Minnesota, it’s time to start working from home if you can. I hope you did the sensible thing and stocked up on essentials over the past few weeks; if not, there’s still time. (However, please DO NOT buy masks — health care workers need them much much much much much more than you do.) Stop going out for non-essential activities. Don’t gather with large numbers of people. Take care of yourself and those around you, especially the elderly. Do your part, and we’re that much closer to “bending the curve” and preventing the awful predictions in this post from coming true.

Posted in Mere Opinion | Tagged coronavirus, covid, exponential growth, minnesota | 2 Comments

A Bye-Ku for Elizabeth Warren

by James J Heaney Posted on 6 March 2020

A Bye-Ku for Elizabeth Warren

A 2020 guest series by Anne Maloney, inspired by James Taranto.

Madam President?
“Not this time,” say Dems to Liz.
Back to her Home Tribe.

Posted in Mere Opinion | Tagged Bye-Ku, elizabeth warren | Comments Off

A Bye-Ku for Michael Bloomberg

by James J Heaney Posted on 6 March 2020

A Bye-Ku for Michael Bloomberg

A 2020 guest series by Anne Maloney, inspired by James Taranto.

No NDA here:
Dem Primary not for sale.
Mike is stopped, not frisked.

Editor’s Note: I was late to post this one, but I think it’s my favorite.

Posted in Mere Opinion | Tagged Bye-Ku, michael bloomberg | Comments Off

Political Disruption Due to Novel Coronavirus

by James J Heaney Posted on 5 March 2020

Assume that these “consensus” projections for covid (aka “novel coronavirus”) are correct:

Roughly half of Americans will catch covid this year.

This report’s fatality rates by age (Table 1) end up being more or less accurate — particularly the high fatality rates for people age 70+.

These are both large assumptions. Covid might not be this bad. Or it might be worse. The first assumption arguably conflicts with the second. There’s still so much we don’t know or aren’t sure of.

If these assumptions are true, though, and all else is held equal (another huge assumption), a little back-of-the-envelope math shows:

There is a 1-in-5 chance that one of the five main candidates currently running for President of the United States will die of covid by the end of the year.

There is just about a 1-in-4 chance that one of the current justices on the U.S. Supreme Court will die of covid by the end of the year.

A little over a 1-in-3 chance that at least one of these things happens.

About a 1-in-20 chance that both will happen.

70-to-90 year olds dominate our key political institutions, and are also (according to that particular paper) roughly 50 times more vulnerable to coronavirus than 20-50 year olds. This has consequences.

(I don’t even want to think about running this math for all of Congress, which is chock full of old people. Mitch McConnell is 78. Nancy Pelosi is 79.)

This math is very naive, and ignores things like co-morbidity and celebrity-level health care… but (assuming the assumptions about covid are true) it’s in the ballpark. It stands to reason that folks should start pricing in at least some possibility of significant political disruption caused by the novel coronavirus.

Posted in Mere Opinion | Tagged coronavirus, covid, Donald Trump could die of coronavirus, Ruth Bader Ginsburg could die of coronavirus, SARS-CoV-2, this things is real folks | Comments Off

A Viewer’s Guide to Outcomes in June Medical Services v. Gee

by James J Heaney Posted on 4 March 2020

Tomorrow, the Supreme Court will hear the first significant abortion case since Justices Kavanaugh and Gorsuch joined the Court. You can read a lot of great analysis about it at SCOTUSBlog, including a symposium article by my friend and brilliant lawyer Teresa Collett.

This blog will simply attempt to describe the range of plausible outcomes in June Medical Services v. Russo (known until quite recently as June Medical Services v. Gee). After tomorrow’s oral arguments, we will have a much clearer idea of where the Court is heading. The pro-choice mainstream media will scream in horror at the top of its lungs under all plausible outcomes. The headline “The End of Roe is Nigh” will appear regardless of whether the end of Roe is, in fact, nigh. I want to post a few insights about the case now to help you set expectations and put the media’s forthcoming tantrum in perspective.

June v. Gee revolves around a series of medical regulations the state of Louisiana has imposed on abortion clinics. (Interestingly, the regulations were imposed in large part by Louisiana’s strong contingent of pro-life Democrats, God bless ’em.) These regulations are in many ways similar to regulations imposed by Texas several years ago. The Supreme Court struck down the Texas regulations in the 2016 case Whole Women’s Health v. Hellerstedt.

Hellerstedt was a 5-3 decision, with Justice Scalia absent (due to being dead). Leftist justices voted to strike down the regulations; right-wing justices voted to uphold them. Justice Kennedy cast the deciding vote and sided with the left-wingers.

But Scalia and Kennedy have both been replaced with conservative justices. Meanwhile, the 5th Circuit Court of Appeals has ruled that the Louisiana regulations are actually not that close to the Texas regulations and shouldn’t be affected by Hellerstedt.

What will the new Supreme Court do? Will they accept Hellerstedt as settled precedent? If they do, will they hold the new regulations should also be struck down, or are they different enough to be upheld? Will they finally act to minimize (or eliminate) the demented precedents of Roe v. Wade and Planned Parenthood v. Casey? Will they try and wriggle out of the whole question on a technicality, and both sides live to fight another day? Have pro-lifers finally succeeded in restoring the Supreme Court to correct constitutional rulings on abortion… or were all those votes for pro-life presidents and senators over the past twenty-five years ultimately in vain?

There are a few plausible possibilities:

REGULATIONS STRUCK DOWN (DEFEAT): In this outcome, the pro-lifers lose. This would be pretty bad. First, it would foreclose a huge area of legislation that pro-lifers have used to protect human life (unborn and born). Second, it would be a strong indication that the Court will be unwilling to consider more aggressively pro-life laws, like the heartbeat laws passed in several states, and even fairly routine medical regulations will be subject to years-long judicial review by partisan judges before coming into effect. Third, for the Louisiana regulations to be struck down, the Court would have to reaffirm Hellerstedt, a narrowly decided precedent from just a few years ago — a far weaker precedent than Roe itself. That would mean that, fundamentally, nothing has changed on the Supreme Court with Justice Kennedy’s departure. Abortion would still be an unlimited constitutional right trampling over state laws and regulations of all kinds, and there’d be not a damn thing we can do about it short of revolution. The past twenty-five years of pro-life campaigning to rescue the judiciary would have all been for nought.

I don’t think it’s especially likely the regulations will be struck down like this, but pro-lifers have been burned before: nobody expected Planned Parenthood v. Casey to loudly reaffirm abortion rights, either, but that’s exactly what happened. Justice Kavanaugh’s judicial philosophy remains unclear to me, and everyone should be nervous about Justice Robert’s deep desire to preserve so-called “respect for the Court” among a left-wing press that holds him in complete contempt regardless. I’m nervous about this outcome.

This is the only outcome where the media won’t completely freak out, although they will still write Very Very Angry pieces about how horrible it is the the Court, in upholding Hellerstedt, failed to actually affirm the so-called constitutional right to an abortion.

REGULATIONS UPHELD BUT HELLERSTEDT PRESERVED (MINOR VICTORY): The Court could do what the Fifth Circuit did: obey the Hellerstedt precedent (keeping it on the books) but in a really narrow way (making it much less of an obstacle to pro-life regulations). This would give states considerable flexibility to regulate abortion clinics while allowing the Court to say that they respect precedent. Personally, I think this is the one of the most likely outcomes, because it’s one of Justice Roberts’ very favorite moves, especially if he can bring over a vote from the other side to support him.

And, you know what? It’s an okay outcome. Not great, because it signals they are still too concerned about political considerations to actually uphold the Constitution. Also not great, because the Hellerstedt precedent involves a laborious and highly subjective legal test, which will be applied by ideological judges on both sides every single time a clinic regulation is passed… but, still, upholding the Louisiana regulations should give states a free hand to regulate abortion clinics (many of which cannot survive adequate medical regulation), and suggests at least the possibility that the judiciary will allow cautious, well-considered moves toward other abortion restrictions.

The media will completely freak out if this happens, but it will be mostly hype. A small victory for pro-lifers that enables us to sometimes enact broadly popular measures like the Louisiana regulations will continue things on their current trend (clinic closures are up, abortions are down), but won’t fundamentally alter the trajectory of the American abortion debate. The media is just used to the Left controlling the Court, as it did for the entire period between 1938 and 2018, and is taking the transition very badly.

DISMISSED FOR LACK OF STANDING (BACKDOOR VICTORY): Pro-lifers have advanced the very interesting argument that the plaintiffs in this case (abortion clinics who are suing on behalf of the women they serve) do not have legal standing to sue over this regulation, because the interests of the clinics and the interests of the women they’re supposedly representing are too divergent. (And women who oppose the regulations could just file lawsuits themselves.) If the Supreme Court agrees, the case would be dismissed without ruling on the underlying question of whether Hellerstedt was correct. The Louisiana laws would be upheld by default… although some individual Louisiana woman (or women) could file a future lawsuit, sending the case through the entire court system all over again. (This case was originally filed in August 2014, so… see you in six years!)

It would not be a bad outcome for pro-lifers, though, because abortion clinics have used the “we are suing on behalf of women” excuse to challenge every abortion law we’ve passed in every state for thirty years, bringing their massive reserves of cash and organization to bear on our ragtag movement. Forcing them to at least recruit actual clients who are actually able to claim some kind of legally cognizable injury from abortion regulations could make suing against every pro-life law a bit less legally feasible. And it is sort of weird that abortion clinics seem to be an exception to regular court rules about standing. Still… while many pro-lifers are cheering for this outcome, it doesn’t seem worth it to me, when, really, Hellerstedt needs to go.

I think there’s a very good chance of this outcome. It’s probably the most likely outcome. Roberts will be looking for an out on this case (as discussed above). He may be able to win somebody on the other side over to this opinion, maybe Kagan, therefore showing a bipartisan consensus, which he loves. And pro-lifers are actively campaigning for this in recent legal briefs, so it won’t be interpreted as a betrayal the way either of the lesser outcomes would be.

The media will moderately freak out if this happens, but it will be mostly hype, and they’ll be mostly too confused about the implications to really let loose about it.

(UPDATE: A lawyer friend of mine, whom I greatly respect, and who is routinely involved in national abortion litigation (including before the Supreme Court), thinks I am underselling the effect of this outcome. If clinics don’t have standing, certain kinds of regulations, including these regulations, could become very difficult or even impossible to sue against, because few/no individual mothers would have standing. The Obama Administration used this “nobody has standing” trick a few times to violate the Constitution, as in the suspension of the employer mandate, so it would be nice to see this used to prevent constitutional shenanigans in the judiciary for once. She spoke of other benefits to the pro-life legal movement as well. I’m still getting a handle on what exactly this outcome would mean, but I trust this friend implicitly. A backdoor win on standing might be terrific.)

HELLERSTEDT OVERTURNED (MAJOR VICTORY): As I’ve mentioned, the Court ruled 5-4 in Hellerstedt (technically 5-3 because Scalia died) to strike down clinic regulations. The 5th vote was Kennedy. Roberts strongly opposed the decision at the time, and he joined a scathing dissent.

Kennedy is gone now. If Kavanaugh is the man we think he is based on his lower-court opinions, and Roberts isn’t a coward who abandons his own published opinions, they really should overturn Hellerstedt. Under any reasonable analysis of stare decisis, Hellerstedt just doesn’t have many of the elements that make it a strong precedent, so even fear of overturning precedent shouldn’t hold Roberts and Kavanaugh back.

Practically speaking, overturning Hellerstedt would not just deliver a victory to women and children in Louisiana; it would also make it much easier for other states to pass these medical regulations on abortion clinics, without fear of a court striking them down. It would signal to pro-life activists that the Court is willing to reconsider and overturn various non-Roe abortion precedents. That would encourage states across the country to pass new legislation finding new ways to push the envelope, eventually undermining Roe and Casey to the point where it becomes “unworkable” and they’re overturned, maybe ten or fifteen years from now. So this wouldn’t be the perfect outcome, but it would be very good.

It had better be! It’s why our side put President Trump in office, and God knows the cost of doing that has been terribly high. Based on Kavanaugh’s testimony about precedent in his hearings (before the rape allegation consumed everyone’s attention), I think this is how he would like to approach it. I don’t think Kavanaugh is opposed to overturning Roe, but he wants to build a lengthy judicial line of contrary precedents before finally acknowledging Roe‘s incompatibility with the Constitution. So I consider this the last of the three most likely outcomes, and the only one I would be really, really happy with.

If this happens, the media will completely freak out, with some justification. They’ll call it the imminent end of Roe, when really it’s more like pro-lifers have finally found the first chink in Roe‘s judicial armor plating since we won Gonzales v. Carhart 13 years ago. (The media had a nice solid freak out about that, too… but here we are, it’s 2020, and Roe is still on the books.) It will adjust the trajectory in the abortion wars in favor of life, but only modestly… at least for now.

CASEY OVERTURNED (DECISIVE VICTORY): The Court could go further than overturning Hellerstedt. Hellerstedt is built on Casey, the 1992 precedent that made “undue burden” the standard by which all abortion regulations are judged. It would not be shocking for the Court to revisit Casey, 27 years later, and modify its central holdings. The “undue burden” standard has repeatedly proven vague and unworkable for an entire generation now, with courts swinging back and forth on its meaning based on their partisan makeup, and that’s the kind of thing that ordinarily invites Supreme Court re-review (at least outside the bizarro world of abortion law).

Casey is the worst Supreme Court decision of all time (as Michael Stokes Paulsen has correctly argued elsewhere), so it’d be great to see it gone. Killing off Casey and imposing some new set of rules on abortion would be incredible, and, depending on what the new rules are, it might be effectively the same thing as killing off Roe without the Court actually admitting that’s what they’re doing. This is probably the best we can reasonably hope for from Roberts and Kavanaugh… but, again, depending on how they write the opinion, they could use this to kill Roe in all but name, so we wouldn’t really have anything to complain about.

ROE OVERTURNED (TOTAL VICTORY): Obviously, the Holy Grail. In this outcome, the Supreme Court just comes out and admits what we’ve all known, on all sides, since 1973: there is no constitutional right to abortion. Harry Blackmun made the whole thing up. Abortion would be thrown entirely back to the states, and all of a sudden the pro-life movement, having won a great victory, is thrown into battle on 50 different state fronts, in a huge variety of ways. (After all, those states with heartbeat bills and trigger bans on the books suddenly have no abortion — do they have enough crisis pregnancy centers to take care of the sudden surge in mothers with crisis pregnancies?)

For either of these last two outcomes, the media freakout would be justified. The media in this country is deeply committed to the constitutional right to a dead child, and overturning either Roe or (depending on how it’s done) Casey would effectively end that supposed right. (States could still protect it, and many would.)

This honestly could happen. It’s certainly not likely, I don’t even think it’s wise to get your hopes up… but it could. Indeed, I guarantee you that Justice Thomas will write an opinion calling for the end of Roe regardless of the outcome. I will bet you five dollars that that opinion is joined by both Alito and Gorsuch. That’s 3 votes to kill Roe in your pocket. But you need 5 for a majority.

Roberts is a sane man who knows that Roe is bad law, but he’s also intensely anti-confrontational and intensely worried about the Court’s prestige. And Kavanaugh is still something of an unknown quantity. So I am not holding my breath in hopes that June Medical Services v. Gee will herald the end of Roe. I’m hoping for — and expecting — a modest victory that helps us push the battle for unborn rights another step forward. But you shouldn’t be caught entirely flat-footed if, next June, Roe v. Wade suddenly falls on the ash heap of history where it belongs.