In the United States, the individual, state, and national responses to the COVID-19 pandemic seem uniquely linked to current politics. But as John Fabian Witt reveals in American Contagions: Epidemics and the Law from Smallpox to COVID-19 (Yale University Press, 2020), from a legal perspective, efforts to manage the COVID-19 pandemic reflect the ways Americans have responded to infectious disease outbreaks since before the Revolutionary War. As Witt states, "American legal responses to epidemics have targeted the poor, people at the border, and nonwhites"-yet epidemics have also "offered a vantage from which to see deep into basic structures of inequality and injustice in the American legal order." He argues provocatively that epidemics have triggered both discrimination and calls for social justice, and he calls out the American response to COVID-19 as a moral failure.
In general, Witt explains, governments deal with epidemics by using either a "quarantinist" or a "sanitationist" approach. Quarantinist states respond to epidemics by tightly controlling their borders and the movements of infected people. For example, following the end of the Revolutionary War, many U.S. states limited travel to and from areas that had outbreaks of yellow fever or smallpox. The obvious rationale for such quarantines is to limit the spread of disease. Sanitationist states respond to epidemics by improving sanitation and living standards, especially for the poor and other vulnerable populations. In 1833, the city of Chicago passed laws regarding street cleaning, "banning animal carcass disposal in the river, and regulating the disposal of waste" in an attempt to prevent future outbreaks of cholera. The rationale here is to address underlying factors that foster disease spread.
The U.S. response to COVID-19 involves sanitationist components such as mask wearing and social distancing, but efforts to enforce these behaviors have often been opposed. Witt says this is owing to Americans' historically "stubborn resistance to authority [which has] rested on claims of individual liberty." In the current pandemic, public health has become highly politicized, leading to polarization. While most Democrats endorse mask wearing and lockdowns, Republicans have resisted such measures despite the likely consequence: more COVID-19 infections.
The partisan divide suggests that Democrats are primarily sanitationists and that Republicans are neither quarantinists nor sanitationists, instead advocating minimal government intervention in citizens' lives regardless of circumstances. But the legal reality is far more complicated. During the COVID-19 pandemic, quarantinism has been imposed on poorer and more powerless Americans-who also tend to be people of color-by privately owned health care companies and prisons. Witt calls this "quarantines for the marginalized."
As he explains, Americans who can't afford health insurance and don't qualify for public assistance are essentially quarantined by being denied access to health care. Even during the current crisis, companies haven't made health care more affordable. America also has the highest incarceration rate in the world, and the prison population is disproportionately Black and Latinx. Prisons are ideal settings for the quick spread of infectious disease. Yet very few prisons released any inmates as the pandemic worsened. The overall effect was to greatly increase prisoners' risk of contracting COVID-19, with Black and Latinx prisoners disproportionately represented among those infected. Similarly, higher infection rates have been seen among Black and Latinx Americans who are not incarcerated but work frontline jobs.
American Contagions offers nurses a completely novel take on disease management during the COVID-19 pandemic. As nurses, we tend to think of illnesses in concrete terms: signs, symptoms, treatments. Witt's book shows that the public health response to any disease cannot be separated from long-standing and powerful ideas about cleanliness, disease control, and who deserves help when ill. He argues that keeping citizens as healthy as possible is incumbent upon governments. Sadly, "American legal rules and institutions [have] utterly failed to enact this moral imperative in the coronavirus emergency."