Regulating in a Pandemic: COVID-19 Legal Issues with Michelle Mello

As the number of COVID-19 cases across the U.S. continues to rise, with shelter in place orders in place throughout most of the country, America’s preparedness for a pandemic has been thrown into question. What went wrong with testing and protective gear, and why are we still behind? Can tech help the country safely open up again? And who is in charge—the president or the governors? Health law expert Michelle Mello joins the show today to discuss these developing issues.

This episode originally aired on SiriusXM on April 25, 2020.

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Ask the Experts: Q&A on COVID-19 with Professor Michelle Mello and Professor David Studdert
Regulating in a Pandemic

Stanford Law and Medicine professor Michelle Mello joins Pam Karlan and Joe Bankman in discussing the ongoing legal, political, and social ramifications of the COVID-19 pandemic. In this edition of Stanford Legal, the hosts delve into ongoing public health policy, such as shelter-in-place orders, potential solutions to the crisis, and potential variance in policy for different groups of people.

Mello speaks of a theoretical “gating” plan, in which the long-term plan is to incrementally reopen society steps. Movement between the steps requires a set of conditions and criteria. “In the first phase, only a select group of individuals and businesses would be back in circulation, notably anybody who’s in a high risk or vulnerable category which are older people and people with certain comorbid conditions would be staying home,” Mello mentions.

However, there is no clear picture of what the conditions and criteria might be to move between the steps due to the diversity in density and severity of cases around the nation. Mello mentions that the transmission of COVID-19 in asymptomatic carriers and the length of time through which the disease can hang in the air has posed challenges to crafting public health policy that coincides with a quick reopening.

The trio further discusses ways of tracking the virus, including using apps on mobile phones to identify where people have been. “And, of course, once we talk about using [the tracking apps] for law enforcement purposes, we’re arguably in a different category both ethically legally than we are when we’re talking about using it to track and trace for purposes of epidemiology,” cautions Mello, warning of the potential legal ramifications of this methodology, particularly in a context in which the programs would be used to ensure compliance with quarantine or isolation protocol.

Mello ends with a strong statement on the need to comply with public health officials in order to overcome the epidemic. “To me, the biggest misapprehension… is that there is scientific uncertainty about how to contain this disease,” she says.

—Max Smith

Michelle Mello on Stanford Legal Podcast