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Abstract The oxygenated sesquiterpenoid (‐)‐integrifolian‐1,5‐dione, which originates from a plant that finds widespread use in South American traditional medicine, is distinguished by a rigid bicyclic framework consisting of a cyclopropane that is cis‐annulated to a cyclodecane ring. The first total synthesis of this demanding target is described, which relies on a highly selective cyclopropanation reaction of an α‐stannylated‐α‐diazoester catalyzed by a heteroleptic dirhodium paddlewheel complex, followed by an unprecedented Stille‐type cross coupling of the resulting stannylated cyclopropane with methyl iodide as the electrophilic partner to form the all‐carbon quaternary stereocenter at one of the bridgehead positions. Equally decisive was the bicyclization strategy based on lactonization/ring expansion that ultimately allowed the strained ten‐membered carbocycle to be forged.

Abstract Background Colon conduit is an alternative approach to reconstructing the alimentary tract after esophagectomy. Hyperspectral imaging (HSI) has been demonstrated to be effective for evaluating the perfusion of gastric conduits, but not colon conduits. This is the first study to describe this new tool addressing image-guided surgery and supporting esophageal surgeons to select the optimal colon segment for the conduit and anastomotic site intraoperatively. Patients and methods Of 10 patients, eight who underwent reconstruction with a long-segment colon conduit after esophagectomy between 01/05/2018 and 01/04/2022 were included in this study. HSI was recorded at the root and tip of the colon conduit after clamping the middle colic vessels, allowing us to evaluate the perfusion and appropriate part of the colon segment. Results Anastomotic leak (AL) was detected in only one (12.5%) of all the enrolled patients (n = 8). None of the patients developed conduit necrosis. Only one patient required re-anastomosis on postoperative day 4. No patient needed conduit removal, esophageal diversion, or stent placement. There was a change in the anastomosis site to proximal in two patients intraoperatively. There was no need to change the side of colon conduit intraoperatively in any patient. Conclusion HSI is a promising and novel intraoperative imaging tool to objectively assess the perfusion of the colon conduit. It helps the surgeon to define the best perfused anastomosis site and the side of colon conduit in this type of operation.

Photo by Jonathan Ford on Unsplash ABSTRACT Since 2008, an average of twenty million people per year have been displaced by weather events. Climate migration creates a special setting for a duty to rescue. A duty to rescue is a moral rather than legal duty and imposes on a bystander to take an active role in preventing serious harm to someone else. This paper analyzes the idea of expanding a duty to rescue to climate migration. We address who should have the duty and to whom the duty should extend. The paper discusses ways to define and apply the duty to rescue as well as its limitations, arguing that it may take the form of an ethical duty to prepare. INTRODUCTION Climate migration creates a special setting for a duty to rescue. A duty to rescue is a moral rather than legal duty and imposes on a bystander to take an active role in preventing serious harm to someone else. Examples of circumstances range from person-to-person intimate rescue to saving those in poverty, even in distant parts of the world.[1] Since 2008, an average of twenty million people per year have been displaced by weather events.[2] Circumstances like being thrust from homes under the threat of fire, mudslide, and flooding vary greatly from long-term changes like land becoming too arid for crops or temperatures increasing annually gradually pushing up the number of heat-related deaths, with the area slowly becoming uninhabitable. Imminence in fleeing affects resettling and need for rescue with important implications for how the duty to rescue might apply. This paper reevaluates the ethical framing of the duty to rescue and, while it is arguably a stretch, applies it to climate migration. Climate migration has become common and is expected to increase due to rises in sea level, increases in weather events that make areas uninhabitable, and changes to land that preclude farming or other necessary land uses. We argue that a duty to rescue may help highlight who has moral obligations to whom. Because the problem is so large in scope, we suggest a change in the ethical limits to humans' duty to rescue other humans who are in distress. We imagine an expansion or extension of the duty to rescue to meet some of the basic needs created by climate migration. Yet how it should expand, and how much depend on ethical framing and practical limitations. l. Expanding the Geographical Boundaries Two commonly recognized emergencies, Hurricane Katrina in the case of weather events and the current COVID-19 pandemic, provide a historical and current backdrop to evaluate ethical obligations as more disasters displace people. A significant reassessment of the ethical scope of an obligation to rescue in the case of weather events will be limited by the ability to render aid to those in distress in the case of a planet-wide weather catastrophe. The problems may overwhelm the ability to rescue or the reasonableness of attempting rescue. The extent of the moral obligation borne by humans to other humans in the case of a weather event has been largely defined by its locality and limited geographic influence. Whether we are imagining the scope of ethical obligation in the case of hurricane, flood, tornado, drought, or wildfire events, the perceived ethical obligation is significantly defined by the limited impact of these weather events on people outside the zone of the weather event's direct impact, yet close to that zone. A hurricane affecting New Orleans will not have immediate impact on the residents of California or even those on the northeast coast of the United States until a later time. Wildfires in the Pacific Northwest do not impair the ability of those in the rest of the country to come forward with assistance. But as climate migration crosses international borders, and climate events occur simultaneously in many regions, a more expansive duty to rescue may provide the ethical impulse to help those who live afar or migrate long distances. In this respect, the need for help in the event of widespread climate migration due to global warming is more like a pandemic than a weather event. Its broad impact area diminishes the capability of nearly the entire balance of the human population to help due to those populations' awareness that they will, in short order, have the same need for the same resources, from the same cause. Those living near current flood zones may find their historically safe havens are also a flood zone. Those previously best positioned to rescue may find themselves also needing to relocate. Thus, we may observe the need for new rescuers. ll. The Rule of Rescue The Rule of Rescue as defined by Al Jonsen describes the moral impetus or knee jerk reaction to save identifiable people facing death.[3] A duty to rescue has since been expanded beyond imminent death and beyond the near and identifiable. But there are limitations. For example, by most accounts, the ethical duty tends not to require extreme bodily risk or financial depletion. In comparing Good Samaritans to humanitarians, Scott M. James argues the duty to rescue arises from unique dependence, but the ethical obligation to help strangers through humanitarian aid is of a different nature.[4] The wrongness of failing to help is arguably more egregious when one is in a unique position to help. Like in the tragedy of the commons, where there is no unique positioning, when the global community is called upon to help, each individual in it may feel less obliged to do so. Climate migration falls in between—it requires helping strangers, yet it may move forward without anyone seeing themselves as uniquely positioned to help until those strangers become part of communities, at which time, there may be more moral justification to help a community member in need. Generally, arguments about Good Samaritans hinge on extraordinary acts, praiseworthy because they are acts of compassion, not obligation. Now all US states have Good Samaritan laws[5] which protect helpers from liability for help gone wrong or for a failure to succeed once engaged in an act of rescue. Extraordinary help as a moral good is thus somewhat encouraged through legal protection, but not imposed. Conversely, jobs like firefighting, search and rescue, and emergency medical care tend to oblige employees to take on risks that would be extraordinary if undertaken by the average bystander, yet they are rendered ordinary rescue as part of the job. Three states, Minnesota, Rhode Island, and Vermont have a broad duty to rescue, adding legal considerations to an otherwise moral conundrum. The laws do not require bystanders to take on risk for the sake of rescuing strangers.[6] The moral duty will require looking beyond law, but it is unclear how the moral duty to rescue should be distributed in the case of climate migration. A bare minimum would prevent taking advantage of newcomers, paying sub-minimum wage, and discriminating against them. Yet such a minimum is hardly rescue. lll. An Ethical Rather than Legal Duty The difficulty in defining the duty to rescue as a legal obligation is that it is difficult to determine the extent of risk a rescuer ought to be required to take. The nature of this ethical duty is also arguably tied to the experiences of both the rescuer and the rescued. There are subjective aspects like what someone perceives as a danger that make it difficult to write enforceable laws requiring rescue. It is one thing to expect a rescuer to step into several inches of relatively warm water to lift a person lying face down in a pond and enable them to breathe. It is something altogether different to expect that rescuer to dive into frigid water and attempt to extricate someone trapped in a submerged automobile. As the legal philosopher H.L.A. Hart observed, it is always easier to define application of the core intention of any rule, whether law or ethical norm. It is more difficult to create legal certainty about how the law applies to what he described as “penumbra circumstances”. In the case of a hurricane, it is easier to define what surplus resources are available in areas geographically remote from the impact of the storm and demand, as a moral obligation, that those nearby but outside the area provide assistance. It is more difficult to obligate people, organizations, or governments to supply a quantity of medication or some number of ventilators to an adjacent community when they expect to imminently need them for their own community. In the early stages of climate migration, the ethics of extreme weather event assistance, a common application of the duty to rescue, will be useful and appropriate. The rising sea levels first experienced by island nations in the South Pacific[7] will not render those living in other coastal communities, those with greater available “high ground”, unable to supply resources to those in need. But when sea level rise and climate change affect more communities simultaneously, albeit in varying degree, the task of defining what response is ethically obligatory becomes increasingly complicated. Pinpointing the obligations of those communities which are resource rich to those communities which are resource deprived, and of those partly affected to those more severely affected may become necessary. The limitations of the traditional duty to rescue could expand to meet the needs. lV. Contribution to the Problem Many argue that the duty to rescue may depend on any appropriate claim of those needing rescue. One issue is whether preferential claims among those who can identify the source of the harm should call for a greater duty or whether everyone in need should be approached as like candidates for rescue, shaping the duty as equal across those on the receiving end. As climate change does have human-made causes, there are strong arguments to impose a greater ethical duty on any entity that caused the climate-related problems leading to the mass exodus. While the global north is often implicated in pollution that causes migration, industries like energy, transportation, and agriculture are tied to climate change and associated with significant greenhouse gas emissions.[8] Practices like directing agriculture to less sustainable single crop growth generally made land less farmable. Yet it is difficult to place blame and identify specific causal relationships as most migration is due to many factors. A movement toward greater accountability can be reframed as a greater duty to rescue, a duty to engage in the extraordinary. The fossil fuel industry, for example, should have a larger obligation than the average person. Similarly, some may argue anyone unjustly enriching themselves while contributing to climate change or people who over-consume have an elevated duty to rescue.[9] Climate change lawsuits demonstrate an eagerness to hold governments and corporations accountable, despite difficulty proving causation. V. The Most Vulnerable One ethical dimension of climate migration that remains unexplored is how a duty to rescue applies to vulnerable populations who stand to be left behind or unable to migrate without assistance. Researchers from the Global North working across the Global South are increasingly observing the phenomenon of ethics dumping, where the research ethics of some countries are imposed on research subjects in other countries.[10] In that vein, rescuers should be careful not to impose unwelcome cultural standards or exploit people who are in the process of migrating. There is a gap in discussions reflecting voices that have been left out. The duty to rescue is incomplete without an attempt to understand the ethical experiences of those being rescued. The actual people affected by climate migration who are the least likely to have the means to migrate, or to do so without extreme hardship, should have a voice informing the global community including those in a position to carry out rescue. People who have the means and are young and healthy may easily make decisions to avoid the catastrophic consequences that climate migration brings. However, what about those who are left behind? For example, especially recognizing cultural differences, the homeless community, disabled community, refugees, the elderly community, and women[11] and children may suffer differently and call for more attention. In some parts of the world, human rights are severely constrained. An ethical duty to rescue, with many considerations and variables, may be more justified in the case of those most in need. As climate migration continues and increases significantly, it may be reasonable to ask the local and global community to focus on those least well positioned to migrate successfully. In this context, the use of phenomenology to understand the lived experiences of those migrating, sometimes termed “ethical experiences”, may help flesh out how a duty to rescue takes shape. The discussion of duty and obligation requires an articulation of the ethical experiences (how the local community in need of rescue views the proposed rescue). Then, the obligation to interpret the duty as ‘one shall not’ or ‘one must’ can be focused on the migrants’ needs rather than the rescuers’ feelings of obligation.[12] A revised theory of the duty to rescue taking into account the asymmetrical experiences of communities involved could ensure that the needs of people whose living situations, gender, ethnicity, age, or race impact their ability to even begin the migration process are considered. In this discussion, the rescuing is directed toward communities /collectives of persons migrating, whether at once or across a period of time. Often, the climate migrant may not be in a state to articulate the nature of this event when it happens, given its subjective proximity. Yet, when communities are given the space and opportunity to articulate their shared values, the ethical action of rescue derives its meaningfulness from the community rather than the rescuers. In other words, allowing climate migrants to explain their feelings can add complexity to what some see as a binary receiver-giver (of rescue) dynamic. This is necessary because the concept of vulnerable populations is fraught with problematic assumptions. There have been various definitions and criteria to determine what would constitute vulnerable populations.[13] For example, the United Nations Framework Convention on Climate Change[14] identifies and assesses vulnerable populations. These criteria may be helpful. However, they do not provide the full picture. Rather than identifying categorical criteria of vulnerable populations, engaging with people who are experiencing climate migration and listening to their current experiences and concerns helps determine need. Knowing what people need may prevent the kneejerk reaction to label people who are quite resilient yet have appropriate needs “vulnerable”. Proceeding with caution is important because the duty to rescue has hierarchical underpinnings of "us" and "them." Often when people swoop in to save, there are good and bad consequences of the intervention. We should proceed with caution because often the helper misses the actual needs of those in need. The only way to combat this would be to make sure that people are empowered to inform those agencies that are able to help. In addition to more practical approaches, large scale oral histories could allow those who have migrated already to share their experiences. It would be important to capture the lived experiences of people who are already experiencing the consequences of climate migration or of other migration like that due to political or economic extreme events. These experiences could shape our analysis of whether people in fact wish for rescue. If so, further conversations can determine best actions as well as give important insight into what resources might be necessary to empower people now and in the future. Vl. A Duty to Rescue as a Duty to Prepare If we view Good Samaritans as going above and beyond, then a duty to rescue, something ethically compelled, must bring rescue out of the framework of charity and place it in the context of humanity and obligations. Such a view would also support expanding the geographical reach of the otherwise more proximate duty. The duty may be stronger and take shape in a more workable way if it applies to preparing places expecting to see an influx of people due to climate migration and to helping those most in need. The duty may arise out of expectations of what type of community the place welcoming those migrating due to climate should be—does it want to offer good housing, schooling, and medical care as well as economic opportunity to new people? And if so, at what cost, or with which risks? If the newcomers are viewed as community members rather than strangers, a model of acceptance may lead to better preparation. Some considerations like whether the actions will reasonably help the persons in need of rescue[15] will shape the application of a duty to rescue in the context of climate migration. Similarly, ensuring that people have the chance to articulate their values may help communities support the newcomers. New relationships should not be defined as migrant and rescuer. Voluntariness in participation and not forcing any action deemed rescue would help ensure the human rights of those migrating. In the United States, President Biden issued an executive order addressing impending climate migration steeped in a duty to prepare by making plans for resettlement and to address the impact of climate migration.[16] Vll. At What Risk? As we investigate the ethical obligations to meet even basic needs, we must also ask what level of risk is ethically compelled. There is an extraordinary need to integrate newcomers successfully, but it is difficult to stretch an ethical duty to rescue to require all the prerequisites for successful climate migration. Even defining success would create deep ethical arguments. As observed in almost all migrations, extraordinary charitable acts may be the key to success, while an ethical duty to rescue must try to require the important government and community-based basics and ensuring respect for human rights. That is, the migrating people should be rescued from circumstances that contradict basic human rights. Rather than comparing communities to bystanders, mere places where people will arrive and need to hash out how to find housing, jobs, education, and opportunity, a duty of preparation may be the key to rescue those disenfranchised by migration. There are cultural, personal, physical, psycho-social, and geopolitical issues surrounding how to best help those needing to permanently relocate. Ethics arguments will certainly range from “do nothing”, which may fail people, to “do everything”, which could waste taxpayer money in futile over-preparation while failing to actually help. Communities must avoid planning exclusively for one scenario only to have it not take place. Striking the balance, a duty to rescue as it could apply to climate migration should set goals of societal integration, and providing the basics like education, housing, food, health care, and job opportunity, the precursors to flourishing. Recommending the extraordinary, morally preferred but perhaps not compulsory, when charitable actors are participating, or when wrongdoers are compensating, may be more workable than seeing the duty to rescue as compelling people or local governments to take on significant financial and personal risk for newcomers. While humanitarian ethics supports helping everyone, it is likely that people who resettle in advance of a need to flee will find themselves with more choices and opportunities. Help is warranted for those with more dire needs. Preparing for them may do just that. Vlll. Rescue Prior to Migration and Rescue in the Process of Resettlement The duty to enable the migration in the first-place hints to the inadequacy of a duty to prepare. The traditional duty to rescue perhaps steps in if rescue looks like those geographically just out of harm's way rescuing those in danger. That resembles the traditional moral requirement, or duty to rescue according to the Rule of Rescue. Humanitarian aid typically provided by many institutions makes sense and is in place, although financial support for additional humanitarian aid is always needed. Despite having moved to purportedly more capable communities, migrant communities may be able to develop more egalitarian orders of living. Rather than continually being identified as having been rescued, it is important to make sure people keep or make social ties during and after migration. Immigrants often face social isolation.[17] Small shifts in gestural language also have the potential to welcome people and show they are valued. For instance, some migrants may not like questions like “Where are you from?” and “What brings you here?” as they emphasize differences over fitting in. CONCLUSION The ethical duty to rescue should be expanded to better match those in need of relocation with a welcome environment and the resources needed to achieve success and fully integrate socially and culturally. Expanding a dialogue that includes the voices of people who have recently migrated whether due to violence, poverty, or climate, could properly frame the extent of the duty. If we are to apply the duty of rescue to climate migration, rescuers should avoid labeling people vulnerable, dependent, or needy, although there is reason to focus on those whose needs are the most dire. A soft duty to rescue people during the course of climate migration can come in the form of preparation. People will need help finding housing, education, access to food, and employment. Ultimately, to help them help themselves may be the best goal. While the obligations should be borne differently by people, whether due to a special responsibility, or a special relationship that creates a clearer duty, the global community must prepare for its role in rescuing those displaced by climate events. By helping those displaced at the start of the climate migration process according to a more commonly held notion of the duty to rescue, and by preparing to incorporate newcomers successfully according to an expanded duty to rescue, effectively a duty to prepare, countries that take on climate refugees may find themselves rewarded by the cultural diversity and workplace talents that people bring. A duty to those at a distance is a reasonable expansion of the duty to rescue. But what one ought to do in the global community varies somewhat from the traditional Rule of Rescue. - [1] Singer, P. (1972). Famine, Affluence, and Morality. Philosophy and Public Affairs, 1(3): 229-43. [2] Irfan, U. (2022, March 16). Why We Still Don’t Yet Know How Bad Climate Migration Will Get. Vox. https://www.vox.com/2022/3/16/22960468/ipcc-climate-change-migration-migrant-refugee, citing the International Panel on Climate Change (IPCC) (2022). Sixth Assessment Report, Climate Change 2022, Impacts, Adaptation, and Vulnerability. https://www.ipcc.ch/report/ar6/wg2/ [3] McKie, J., Richardson, J. (2003) The Rule of Rescue. Social Science & Medicine, 56(12): 2407-2419. https://doi.org/10.1016/S0277-9536(02)00244-7. [4] James, S.M. (2007). Good Samaritans, Good Humanitarians. Journal of Applied Philosophy, 24(3):238-254. [5] Overview of Good Samaritan laws. https://worldpopulationreview.com/state-rankings/good-samaritan-law-states [6] Fifield, J. (2017, Sept. 19). Why It’s Hard to Punish ‘Bad Samaritans’. Stateline Blog, Pew Charitable Trusts, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/09/19/why-its-hard-to-punish-bad-samaritans [7] Cassella, C. (2019). There’s a Climate Threat Facing Pacific Islands That’s More Dire Than Losing Land, Science Alert, https://www.sciencealert.com/pacific-islanders-are-in-a-climate-crisis-as-rising-sea-levels-threaten-water; Hassan, H. R., and Cliff, V. (2019). For Small Island Nations, Climate Change is not a Threat. It’s Already Here, World Economic Forum, https://www.weforum.org/agenda/2019/09/island-nations-maldives-climate-change/ [8] For example, Lyons, K. (2019). Australia Coal use is Existential threat to Pacific Islanders, The Guardian. https://www.theguardian.com/world/2019/aug/12/australia-coal-use-is-existential-threat-to-pacific-islands-says-fiji-pm [9] Cripps, E. (2013). Climate Change and the Moral Agent: Individual Duties in an Interdependent World. Oxford: Oxford University Press. [10] Schroeder, D., Chatfield, K., Singh, M., Chennells, R., and Herissone-Kelly, P.. Ethics Dumping and the Need for a Global Code of Conduct. In Cham. (Ed.)(2019). Equitable Research Partnerships. SpringerBriefs in Research and Innovation Governance. Springer. 2019. https://doi.org/10.1007/978-3-030-15745-6_1 [11] Giudice L.C., Llamas-Clark E.F., DeNicola N., Pandipati, S., Zlatnik, M.G., Decena, D.C.D., Woodruff, T.J., Conry, J.A. (2021). Climate Change, Women’s Health, and the Role of Obstetricians and Gynecologists in Leadership, International J Gynecol Obstet, 155(3), 345-356. 10.1002/ijgo.13958 [12] See Ferrarello, S. and Zapien, N. (2020). Ethical Experience: A Phenomenology, Bloomsbury. (for understanding phenomenological determinants of ethical action). [13] McLeman, R.A., Hunter, L.M., (2010). Migration in the context of vulnerability and adaptation to climate change: insights from analogues. Wiley Interdiscip Rev Clim Change, 1(3): 450-461. [14] Least Developed Countries Expert Group. (2018). Considerations Regarding Vulnerable Groups, Communities and Ecosystems in the Context of the National Adaptation Plans: United Nations Framework Convention on Climate Change. [15] Jecker, N.S. 2013. "The Problem with Rescue Medicine." J Med Philos, 38(1):64-81. [16] White House Report. (February 9, 2021), Executive Order (E.O.) 14013, “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration.” (calls on the National Security Advisor to prepare a report on climate change and its impact on migration. “This report marks the first time the U.S. Government is officially reporting on the link between climate change and migration.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/ [17] Torres, J.M., Casey, J.A. (2017) The centrality of social ties to climate migration and mental health. BMC Public Health, 17: 600. https://doi.org/10.1186/s12889-017-4508-0

Dear readers, advisors, authors, editors, and peer reviewers, As we welcome the new year, we look forward to the opportunity to publish new arguments and pose challenging questions about ethical dilemmas in the realm of medicine, science, and technology. Reflecting on the peer review process at this juncture seems especially important considering the bioethics climate and the challenges in doing justice to ethical dilemmas. Unlike scientific peer review, replicability, reliability, and evaluation of methods are largely irrelevant to much of the bioethics literature, except for empirical research. Much like papers published in law, the humanities, and social sciences, peer reviewing contextual arguments in bioethics requires us to evaluate argument validity and ensure that arguments are based on facts or appropriate hypotheticals. The risk that voices are quieted merely because the editorial staff or peer reviewers would choose the other side of an argument is high and requires mitigation steeped in serious processes built into the peer review system. It is especially important to hear diverse views that represent many points along a continuum during polarized times. The papers that offer conceptual arguments that we tend to publish at Voices in Bioethics call for an examination of logic and argument foremost, with a special emphasis on which conclusions are drawn from the premises supplied. At Voices in Bioethics, the peer review process aims to be inclusive, so we balance our instincts to criticize with our goal to accept as many papers that meet our guidelines as possible. We welcome new arguments, especially ones that highlight overlooked viewpoints, considerations, or stakeholders. We acknowledge how many great ideas result from people who speak English as a second or third language, or who do not use English at all. All of those affected by or who observe an ethical dilemma are welcome to submit their ethics arguments surrounding health care, technology, the environment, and the broader sciences. We are happy to read papers by those outside of bioethics and those with any level of education. We use the peer review questions about mechanics only to inform editors of what the process might entail. We do not accept or reject based on mechanics or style alone. The nature of many bioethics journals is to publish papers that may reflect the bioethics status quo or apply common bioethical frameworks to new problems. In addition to that, we try to showcase new ways of thinking and additional considerations. After all, publishing is not about publishing papers that mimic older well-cited articles or that apply only those frameworks learned in the classroom. It is about giving voice and contributing to an open access ecosystem where new and old ideas coexist, their worth measured not in hits or likes, but in their contribution to ethical analysis. Wishing a happy new year to our advisors, editors, peer reviewers, authors, and readers.

Photo 3701647 © Jeremy Swinborne | Dreamstime.com INTRODUCTION Among the many unclear issues as interpretations of Employment Division v. Smith arise in the context of vaccination mandates is a simple question: Does any exception to a law at all (whether for a group or an individual) render a law not “generally applicable and religion-neutral” in the eyes of the current Supreme Court? I. Background Prior to Employment Division v. Smith,[i] Sherbert v. Verner[ii] set forth the free exercise test which called for strict scrutiny requiring a compelling state interest and the use of the least restrictive means to achieve the state interest when a law poses a substantial burden to the exercise of religion. Sherbert had a broad holding that prior to Smith applied to laws whether neutral on their face or not, and whether the asserted discrimination was intentional or not. One issue with Sherbert was that judges were not especially adept at judging the sincerity of beliefs and the importance of religious rituals to individuals, making it difficult to determine whether a law imposed a “substantial burden” on the practice of a religion. Employment Division v. Smith holds that laws that are generally applicable and religion-neutral need not be justified by a compelling government interest even if they do have the effect of (unintentionally) burdening a religious practice.[iii] Smith, decided in 1990, altered and narrowed judicial discretion in evaluating neutral laws that may impede the free exercise of religion. Justice Scalia aligned free exercise with other First Amendment rights.[iv] He also alleviated the need for judges to determine the burden on and the sincerity of religious beliefs in instances of neutral laws. “Smith therefore diminished judicial power to grant religious citizens exemptions from their civic obligations...”[v] Yet a carveout was maintained for laws that have a “mechanism for individualized discretion”; strict scrutiny still applies to those. Lukumi[vi] (1993) reaffirmed yet distinguished Smith. In Lukumi, the law in question was adopted to ensure that a religious group would be rendered unable to sacrifice animals. The law had numerous exemptions (clearly people may kill animals for many non-essential reasons like hunting and fishing for sport, etc.) and the lawmakers seemed to have the intent of interfering with animal sacrifice. It was not considered generally applicable on various grounds and the Lukumi Court states, “As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government "may not refuse to extend that system to cases of 'religious hardship' without compelling reason." Ibid., quoting Bowen v. Roy, 476 U. S., at 708 (opinion of Burger, C. J.).”[vii] In Lukumi, arguably there were so many exceptions, the rule was clearly targeting religious sacrifices. The Court applied strict scrutiny and the law was deemed unconstitutional. II. The Current Supreme Court and Laws Outside of Smith The current and recent cases indicate that some justices on the Supreme Court assert that the caselaw supports religious exemptions to a broad array of laws. Two arguments support this result: either a limited interpretation of “generally applicable and neutral” or a slightly different tactic which argues that any laws with individual exceptions call for strict scrutiny. (One argument is that those which allow exceptions are not generally applicable and neutral, and thus fall outside of Smith and they require strict scrutiny;[viii] the other is that a law can be generally applicable and neutral, but if it has a system for exceptions, then it is subject to strict scrutiny.[ix]) In John Does 1-3 v. Mills, the Supreme Court denied an injunction on October 29, 2021. The case concerns Maine’s vaccine mandate and will be heard on the merits. Gorsuch dissented from the denial of injunctive relief. He applied Smith, Lukumi, and Fulton v. Philadelphia[x] saying that because there is a medical exemption, the law is not “generally applicable”[xi] and strict scrutiny will apply. Thomas and Alito joined Gorsuch. The Gorsuch dissent also implies that the Maine medical exemption may be somewhat bogus saying Maine finds the “mere trepidation over vaccination as sufficient” if it is expressed in medical rather than religious terms.[xii] Justice Barrett, joined by Kavanaugh, concurred in the denial of the injunction, but clarified that her reasoning was a wish to avoid giving a “merits preview” by enjoining the law, based on the applicants’ likelihood of success, noting the case is “the first to address the questions presented.”[xiii] III. Do Medical Exemptions Negate the Possibility of a Neutral and Generally Applicable Law? Are they a de facto “mechanism for individual exemption”? To me, it seems that under the current law, a medical exemption could make the absence of a religious exemption more problematic. The big issue now is whether Barrett and Kavanaugh and any (even all) other justices are likely to find the medical exemption is a “mechanism for individual exemptions” or whether it otherwise more simply makes a law not neutral or generally applicable. In previous recent COVID-19 cases, the argument of emergency authority was prominent. Caselaw regarding emergency use of governmental powers trumped some constitutional arguments and led to disparate COVID-19 caselaw.[xiv] For example, some courts applied Jacobson v. Massachusetts,[xv] giving deference to public health authorities while others applied strict scrutiny.[xvi] At the Supreme Court level, Justices Sotomayor, Kagan, and Breyer have been more willing to analyze COVID-19 regulations according to emergency powers.[xvii] a. In Favor of the Gorsuch Reasoning The Gorsuch dissent will require the state to offer proof of some rationale for why a medical exemption would be more acceptable, less dangerous, etc. than a religious one. Because there is a medical exemption, the causal nexus between the state’s goals and the restrictions will matter. For example, in Fraternal Order of Police v. Newark, a requirement that police be clean shaven was invalidated because there was a medical exception.[xviii] The problem with the rule was that the government interest in uniformity was not violated any more or less whether the person was noncompliant due to medical as opposed to religious reasons. Gorsuch correctly applied similar reasoning arguing that those not in compliance with the Maine vaccine mandate due to religious exemptions posed no more danger than those noncompliant due to medical conditions.[xix] An opposing side might argue that by the numbers, and without a need for a doctor’s signature, more people would apply for and receive religious exemptions, thus harming the ability to reach herd immunity more, or posing more risk of community spread. b. But, on the other hand There are many laws with medical exemptions. It would not seem right that they be subject to strict scrutiny for failing to offer religious outs as well. For example, places without motorized vehicles could allow motorized wheelchairs. Indeed, the ADA may even call for special treatment in many circumstances where religious special treatment would not be granted. Disability law often requires variances, changing zoning to allow ramps, or other accommodations.[xx] It does not appear that every disability accommodation equates to a need to allow a corresponding religious accommodation, nor that strict scrutiny would apply. Zoning cases are common where churches seek exceptions from historical landmark regulations and the results of those cases vary.[xxi] One of the biggest vulnerabilities of the Smith ruling is that arguably all laws have an individualized enforcement aspect. While it may not be an official exemption or a “mechanism for individual exemption”, individuals have the ability to use courts to challenge laws, there are laws that rely on wishy washy terms, like “good cause”, and there are groups whose failure to comply with laws may be traditionally ignored. In each of those scenarios, those seeking religious exemptions may have a stronger case, and eventually may chip away at Smith. c. Would a Different Built-In Exemption Preclude Application of Smith? Application of Smith may depend on whether the exemption is discretionary or built in. For example, if an exemption said anyone may apply for an exemption with good cause, religious ones should be fairly and equally considered. If an exemption reads anyone with an autoimmune disease is exempt, the class of people exempt would be delineated (unlike the Maine language) rather than discretionary as with the open-ended medical exemption language of the Maine statute. In the case of a class-like exemption, the argument that the law is neutral and generally applicable would be stronger. Smith was not really meant to declare that laws with any categories would be vulnerable to free exercise challenges. Similarly, objective criteria in providing exemptions differs. When criteria for exemptions are made clear, the religious argument could be weaker. However, the Gorsuch argument that in the end the religious objector poses no more danger to others than the medical (or other maybe conscientious, financial, or physical) objector may be the winning argument. IV. Side Note: Another Consideration for Neutral Laws In Roman Catholic Diocese of New York, Justice Kavanaugh created a peer group limitation in applying Smith. Kavanaugh found that a law that limited gatherings at religious services was not neutral. The law had various categories of entity.[xxii] An interesting twist is that other entities similar to churches in objective concrete ways (like theaters) were closed altogether, so arguably religion was favored over those, but disfavored compared to essential businesses (like food stores). The orange and red zones in the challenged Cuomo Executive Order did have specific rules for places of worship. Gorsuch referred to Lukumi in his concurrence and went directly to strict scrutiny without sincerely entertaining the concept that the Executive Order was a neutral and generally applicable law. That is in keeping with his dissent in Does 1-3 v. Mills. Yet, it remains possible to argue that laws with objective, defined categories may still be neutral and generally applicable. V. Time to Abandon Jacobson at this Juncture of COVID-19 Jacobson applies in public health emergencies and, while in recent Supreme Court cases, many justices rightly pointed to the emergency as a reason to compromise important rights, the emergency aspect of the pandemic is waning. In many areas, the positive rate is quite low, businesses are returning to normal, and the vaccination rate is high. As such, the abandonment of strict scrutiny in favor of Jacobson’s emergency deference to public health entities, something Gorsuch failed to entertain in South Bay Pentecostal Church v. Newsom[xxiii] anyway, is arguably no longer warranted. Deference to the state and to experts must be limited to emergencies. Justices Kagan, Breyer, and Sotomayor who rightly cautioned against “armchair epidemiology”[xxiv] during the height of the COVID-19 pandemic might return to stricter stances on protecting rights as the emergency dies down or becomes localized, and as increasing methods and treatments arise, like the COVID-19 pill by Merck. The calculus of whether we need strict COVID-19 regulations is dynamic. This is not a static emergency with powers to be left in place unconditionally. CONCLUSION The argument that vaccination is a civic and moral obligation that people should engage in regardless of religious beliefs is stronger in an emergency. Whether deemed to include a “mechanism for individual exemptions” or just declared not neutral or generally applicable, laws offering any exceptions are more vulnerable to free exercise claims. Under the current Supreme Court composition, anticipating that laws may face strict scrutiny is wise—Smith is unlikely to shield seemingly neutral laws in the face of free exercise cases. That is not necessarily a bad outcome in a country that purports to allow religious freedom and can do so safely. Strict scrutiny is merely a protection that would ensure the public that laws are meaningful, achieve compelling purposes, and do so without unnecessarily impeding fundamental rights. Yet one bad outcome of a rule that says if there are medical exemptions so must there be religious ones is that lawmakers will write laws that are more absolute, rigid, and unyielding to legitimate claims. [i] 494 U.S. 872 (1990). https://supreme.justia.com/cases/federal/us/494/872/#tab-opinion-1958253 [ii] 374 U.S. 398 (1963). https://supreme.justia.com/cases/federal/us/374/398/#tab-opinion-1944463 [iii] Smith, at 879 (religion does not excuse people from compliance with neutral laws.) [iv] Kaplan, Carol M., “The Devil is in the Details: Neutral, Generally Applicable Laws and Exemptions from Smith,” New York University Law Review, October 2000. https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-75-4-Kaplan.pdf [v] Kaplan, at 1053. [vi] Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993). https://supreme.justia.com/cases/federal/us/508/520/#tab-opinion-1959281 [vii] Lukumi, at 537. [viii] Keeler v. Mayor of Cumberland. 940 F. Supp. 879 (D. Md. 1996) https://law.justia.com/cases/federal/district-courts/FSupp/951/83/1381605/; Kaplan, at 1066. [ix] Kaplan, at 1062, citing Swanson v. Guthrie Indep. Sch. Dist., 135 F. Supp. 694 (10th Cir 1998). [x] Fulton v. Philadelphia, 593 U.S. __ (2021) [xi] Does 1-3 v. Mills, 595 U.S. ____(2021). Gorsuch, dissent, p. 2. https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf [xii] Does 1-3 v. Mills, Gorsuch dissent, p. 3. [xiii] Does 1-3 v. Mills, Barret, concurring. https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf [xiv] Zimmerman, A. “Weeding Out Disingenuous Emergency Orders: A Consistent Ethical Justification to Determine Whether to Apply Jacobson V. Massachusetts’ Deferential Approach or the Tiered Scrutiny That Would Apply Absent an Emergency”. 2021. Voices in Bioethics, vol. 7, May 2021, doi:10.7916/vib.v7i.8037. [xv] 197 US 11 (1905). [xvi] Zimmerman, A. 2021. doi:10.7916/vib.v7i.8037. [xvii] South Bay Pentecostal Church v. Newsom (2021), Kagan, dissenting, joined by Breyer and Sotomayor (Justices are “not scientists”.) [xviii] Kaplan, at 1079, citing Fraternal Order of Police v. City of Newark, 170 F. 3d 359 (3d Cir. 1999). [xix] Does 1-3 v. Mills, Gorsuch dissent, p. 4. [xx] https://www.ada.gov/comprob.htm [xxi] Keeler v. Mayor of Cumberland (provisions deemed individualized exemptions so religious deserve strict scrutiny and consideration); Rector of St. Bartholomew’s Church v. City of New York (2d Cir. 1990)(discretion does not negate Smith if it is not discriminatory so religious does not get strict scrutiny); see Kaplan at 1066. [xxii] Cuomo executive order established zones. https://esd.ny.gov/cluster-action-initiative-faq [xxiii] 592 US __ (2021). https://www.supremecourt.gov/opinions/20pdf/20a136_bq7c.pdf [xxiv] South Bay Pentecostal Church v. Newsom (2021) (dissent).

Photo by Nick Fewings on Unsplash INTRODUCTION Necessity can drive people’s behavior to extremes, and at times, can provide an excuse for otherwise criminal, illegal actions that, under normal circumstances, would be morally wrong. The law can be somewhat generous. In Regina v. Dudley and Stephens, a British court held that you cannot kill someone to eat him despite dire need.[1] Mercy or clemency was left to the crown. Necessity is not a defense to homicide except in cases of self-defense or a just war. Yet, other necessity cases show there is some room for leniency in crimes and that necessity may provide a partial or total defense in tortious wrongdoing. Maybe you can steal a piece of bread or damage property to save a life that is in imminent danger. While most agree, organ donation is not an area where the medical community should allow or encourage someone’s life to be taken for the sake of saving another, post-death organ donation is an arena where some suggest necessity, or at least high demand, should shape policy, and provide a moral defense for policies that normally would offend a sense of freedom, individuality, and autonomy. Some may categorize organ donation as an area where there is a moral duty to act, while others may find it superfluous, an extra kindness beyond that which is morally required. If it is morally compulsory, does moral compulsion justify creating a legal obligation? Analyzing organ donation through the lens of the traditional requirements of necessity sheds light on the issue of whether necessity could morally justify acting without explicit donor prior consent. Is organ retrieval ever a justifiable trespass to save a life? While an opt-out system entered freely, by vote or referendum, speaks to rules that people agree to for the sake of living in liberal society, it is also problematic given the American notions of personal choices and liberty.[2] This paper argues that necessity does not provide enough moral heft to switch to an opt-out or mandated donation system, and that organ donation is a moral good although not necessarily a moral requirement. Undertaking a system that does not require opting in poses a risk to individualism in pluralistic liberal society, something recognized under the current system of organ procurement. ANALYSIS Evidence suggests that countries with opt-out policies have a donor rate of 25 to 30 percent higher than that in countries requiring explicit consent, yet the reason for increased rates is multifactorial.[3] Generally, opt-out policies would further the public health community’s priority of procuring more organs to meet the needs of those waiting.[4] One problem with explicit consent requirements is that more people wish to donate than actually register, creating an unfulfilled potential in opt-in programs. To divide organ procurement into two broad categories, there are programs that operate with explicit consent (opt-in, the current US system) and programs which are essentially opt-out, presumed consent programs (any programs that do not require explicit consent). While the moral and ethical distinctions and the logistics may vary, the distinctive feature in the programs not requiring explicit consent is that government or society sees post-mortem organs as something available for use as a public good, or for the common good, making explicit consent unnecessary or even immoral.[5] Those attempting to justify opt-out programs within the bioethics concepts of autonomy and informed consent offer presumed, implicit, or normative consent as acceptable to override a need for explicit consent. Many countries justify their program based on presumed consent, the prevailing theory whereby consent is presumed unless a person explicitly expressed opposition to donation.[6] Presumed consent is based on the concept that most would agree, while it acknowledges that some may not agree, placing the burden on them to opt out.[7] Some argue that presumed consent is justified because removing an organ from someone who does not wish it to be donated is no worse than failing to remove one from someone who does wish to be a donor.[8] The argument is weak as arguably leaving a body alone should not be compared to the unwanted invasion post death. In many circumstances, organs are not appropriate for transfer due to health of the tissue, incompatibility with realistic recipients, or if the circumstances of the death do not allow for procuring the organs. There is no right to donate. Some argue that implicit consent (inaction is the consent) is a better rationale for opt-out programs.[9] Implicit differs from presumed consent in that with implicit consent there is evidence the person was aware and had the opportunity to voice objection. The failure to object is consent where with presumed consent, inaction is not actual consent, but merely a substitute for it. The philosophy of normative consent[10] holds that because consenting to donate organs is the morally right action, consent is unnecessary—normative consent theory would compel actions based on social norms presupposing that all (or most) agree that withholding the consent is morally wrong. That is, withholding consent would be considered void and society’s need for the organs would prevail in accordance with social norms. Normative consent, like presumed and implicit, is controversial. Normative consent goes the furthest in compelling a behavior deemed morally right and makes the broadest assumption about prevailing beliefs. None of presumed, implicit, or normative consent apply well to the US where choice and autonomy are embedded in the legal structure. Several states have addressed the possibility of presumed consent policies, but none have adopted opt-out policies.[11] A 2019 study found that in the US, 34 percent would opt out if an opt-out system were implemented.[12] In Colorado, 56 percent opposed adoption of an opt-out system.[13] Recommended policies vary: in some countries, people’s rights arguably do not include the right to control what happens to one’s body after death. One extreme would be assuming no people want to donate other than with explicit consent, like the US, or forbidding organ donation, as technically a theocracy might. The other extreme would include forcing everyone to donate without exceptions for philosophical or religious objections, a seemingly totalitarian option. Most opt-out programs fall in between, offering the ability to opt-out and various ways to register one’s choice.[14] The devastating shortage of organs provides the moral impetus to publicize and promote organ donation. It is a moral good but the degree to which it is a moral good varies and is personal. One study shows that in the US, people view organ donation as “extraordinary altruism” rather than ordinary.[15] Under some views, acting as a good Samaritan is a moral requirement where other actions are superfluous, and go beyond that morally required. Some jurisdictions have good Samaritan laws protecting those who undertake dangerous altruistic actions, and a few jurisdictions have laws creating a duty to rescue. Ethics literature distinguishes morally compelled acts from superfluous morally good acts that go above and beyond the ordinary.[16] The debate that compares rescuing a drowning child (a clear moral duty) to donating to humanitarian aid (a debated moral duty) is relevant in that the public categorizes organ donation both ways. [17] Because many see a duty to donate organs as extra rather than a moral duty, and generally donations are seen as going to an unknown person in need rather than a friend, relative, or neighbor (there is no other relationship supporting a moral duty), societal necessity could supply a potential justification for a change of policy. But as a society, adopting a policy would depend on how we see helping unknown people in need, and whether altruism, even when it is morally compelled, should be legally compelled. The immediate question is whether the elements of legal necessity could justify an opt-out policy, or any intrusion on the body of a silent or undesignated potential post-death donor. This analysis asks whether necessity could be used to eliminate the need for consent altogether. A. The Lens of Necessity In Regina v. Dudley, the starving people lost at sea killed and ate their fellow shipmate thereby saving their own lives. Acting out of necessity, the defendants committed murder and received no reprieve from the court. In the US, necessity is not a defense to murder.[18] Yet, necessity is applicable to many crimes and torts, absolving guilt or acting as a partial excuse counteracting the full force behind awarding damages. Necessity can act as a mitigating circumstance under the law. Analyzing the moral impetus for an opt-out policy or required organ donation through a lens of necessity poses several issues concerning the imminent danger to those waiting for organs, the alternatives, and the nature of the act of using a body part after death (is it property or something more special?) without the explicit consent of the donor or a legitimate proxy. The situation of necessity looks like this: Person A encounters danger X and does Act Y which deliberately imposes on Person B (harming person or property) to avoid danger X. The legal elements of necessity as a defense generally include a threat of imminent harm, an action that would prevent the harm and cause a lesser harm, and the absence of a less intrusive or a legal alternative to prevent the imminent harm.[19] The role of necessity varies by jurisdiction in the US. Courts have found prisoners may not use the necessity defense of escaping poor conditions,[20] yet generally escaping a prison fire would be a good use of the defense. In criminal necessity, prior to Roe v. Wade, doctors used saving the life of a woman as a necessity defense to performing an illegal abortion.[21] In tortious necessity, examples could include using someone else’s well water to put out your own fire; driving a bus into a building to avoid going off a cliff (damaging property to save lives); or burning someone’s land to stop a spreading wildfire (saving lots of land or furthering a public good by harming a small plot of privately owned land).[22] The wildfire example is similar to organ donation because it involves addressing a public shortage by way of a personal intrusion. In the organ procurement arena, Entity A (the government through policy, the hospital, or the doctor) does Y (extract or keep the organs viable without explicit permission) harming B (the dead donor’s family, the dead donor’s former autonomous self, society) to avoid danger X (a death from the inability to procure an organ in time). i. Without the policy (or the individual organ) would the harm to the potential organ recipient be imminent? The necessity itself is the dire need for the organ, but also could be the societal emergency need for many organs as the shortage is substantial.[23] Private health necessity would be more like the necessity defense as it exists in legal structures where the excuse is based on immediately meeting the need of the person waiting for the organ. Necessity is theoretically relevant to public health needs as well. A need for an organ is an imminent emergency. Yet, the link between public policy and one person’s organ is muddled. In a case of private necessity, many things could stand in the way of the organ going to a defined recipient. In the public health context, there is necessity, but the imminence runs to the entire public. Public policy is not about saving each life, rather it tends to concern large numbers, creating a system that works for all and ranks recipients. Some potential recipients can be kept alive other ways and decreasing demand for organs is an important strategy as well. In other imminent public policy contexts, solutions are not sparked by similar necessity. For example, many would argue gun control legislation or universal access to quality health care would save many lives, but the imminence we look to for emergency powers is not met. For COVID-19 policies, imminence did allow state governments to act out of necessity. ii. Difficulty defining the harm The harm to the unwilling or silent donor must be defined so that it can be compared to the harm (possible or definitive death) of the potential recipient. With an eye on proportionality, the breach of integrity against the dead donor’s wishes or the dead donor’s body is significant. Generally, to use the defense of necessity, the defendant would need to show the act is necessary to avoid a larger or more serious harm, e.g., destroying property may be necessary if it is the only way to save a life, and that no greater harm would come from the act. Necessity as a basis for a legal defense would require demonstrating that saving a life trumps the risk of violating the wishes of the donor. Analyzing the breach relies on how a body post death is valued. If its parts become property, and a nonconsensual taking of it is just a property violation (a crime or a tort), arguably it does not amount to an equal or greater harm than the harm of the potential recipient’s death. Most people would agree that saving a life trumps improper use of someone’s property, making the necessity defense appropriate as far as weighed harms. However, using a heart after death is quite different from using personal property, like the dead person’s watch. Some may argue that a body, after death, is really just abandoned property in the absence of an advance directive declaring bodily intactness as a personal value. If a dead body is something more special than ordinary property, preventing harm to it may be more important than using it to save a life. In liberal society, there is a long-presumed moral right to decide what becomes of one’s body after death. It is something many people include in a will, and those who do not would be subject to the wishes of family members, or, in the absence of them, the government may provide guidance and even cremation and burial. Bodies, alive or not, are considered sacrosanct even to secular people, governments, and organizations. Individuals vary greatly on whether they would allow any intrusion; many opt for cremation to avoid embalming or intrusion. I would argue that, for some people, dignity during life includes direction of one’s own body after death. The organs, which could be property of the family of the deceased, must also be evaluated in terms of bodily integrity. While many argue that a person cannot be harmed after death,[24] the harm is not danger to the body, it is danger to dignity. An opt-out system pursuant to which silence itself would equal willingness to donate poses risks to those who wish not to donate but have not successfully opted out. Additionally, after death, estates often address harms to reputation or actions that go against the deceased person’s wishes. The risk that someone who meant to opt out did not could be evaluated as fundamental, and as something to which an estate could rightly object. Or, is a body, after death, just abandoned property, in the absence of an advance directive declaring bodily intactness as a personal value? While many agree it becomes more of an object than a person, i.e., that personhood is special and the body is not, the risk is that for some, the post-death body is sacred but the paperwork to opt-out was not finished is too strong to ignore. The nonconsenting dead donor could be someone who explicitly stated an opposition to allowing organs to be harvested and donated or someone who spoke against organ donation broadly, someone who opposed opt-out systems and failed to opt-in by designating himself a donor on a driver’s license or in a public registry, or someone whose family is acting as proxy and opposing. In evaluating opt-out policies, or any policy to go ahead when consent is not attainable after death, the harm to society must be weighed. While death to someone awaiting donation is devastating, I argue that public policy must consider the combined affront to individual choice, flourishing, bodily integrity even after death, and the plurality of reasons to forgo donating organs, which, from the perspective of some individuals, could trump the ability to save someone’s life. Educating the public about the process of organ retrieval and the importance should vastly increase the number of donors without a need to presume consent. Organ donation should be free and fair, not a result of coercive government action. While it may be easier to see the value in continued life for the recipient and the harm in the failure to procure an organ in time to save the life, the risk of the esoteric harm in violating wishes not to donate or misinterpreting silence on the issue touch on a fundamental liberty interest. Opt-out policies vary in rigor, but they open the possibility of an intrusion that deeply affects how society values individuals and their control of their post-death bodies. Smaller intrusions for public health are permissible (rules on shipping, storage, and burial), but opt-out policies send the signal that government has a large role in what are for some deeply personal issues, something objectionable to many people in the US. iii. Alternatives and promoting health If there were alternative solutions that would solve the need for organs, there would not be a necessity argument. For now, the requirement of legal necessity that no other alternatives exist is met. However, the search for alternatives to organ transplantation may be pushed forward due to the ongoing shortage of organs. Organs created in labs through ectogenesis, medicines to make organs unnecessary (like Synthroid makes a thyroid unnecessary), and long-term health and lifestyle improvements may alter the demand for organs and move society toward a healthier future. While in many current cases, there is a lack of alternatives, the future should bring technological advances and good health decreasing the demand for organs. CONCLUSION While the doctrine of necessity cannot quite support opt-out systems where liberty interests are heavily valued, necessity does provide a moral impetus to become an organ donor. In a system with pluralistic views, liberty to make a wide variety of personal choices, and bodily integrity that extends to one’s ability to choose what becomes of one’s body post-death, explicit consent is the acceptable platform for organ donation. While, to many of us, it is arguably morally compulsory to donate organs, to some it is not. Organ donation may violate some people’s personal beliefs, philosophy, or religion. Necessity would be a solid argument to nudge individuals to behave in the preferred way – helping someone in need is a moral good, whether deemed morally compulsory or an act of extraordinary altruism. Necessity is not quite able to justify a pure opt-out policy—whether it could justify an isolated instance of imposing on the body of an unwilling or silent donor after death should be addressed case by case. Necessity in the post death arena may include leaving an injured or dead body behind on a hiking trail in the wilderness if it is impossible to survive while carrying it. If someone wants my organs, be sure to wait until I am dead. And, if it comes down to a Donner Party situation, I think I would taste best grilled. [1] Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884). [2] Data from Colorado where opt-out has been discussed indicate that many would opt out of donation. [3] Alejandra Zúñiga-Fajuri, “Increasing organ donation by presumed consent and allocation priority: Chile,” Bulletin of the World Health Organization 2015;93:199-202. doi: http://dx.doi.org/10.2471/BLT.14.139535 The World Health Organization supports opt-out policies. The Chile experience also attributes success to offering the donor’s family priority on waitlist for organs. But see Glazier A, Mone, T. “Success of Opt-In Organ Donation Policy in the United States.” JAMA. 2019;322(8):719–720. https://jamanetwork.com/journals/jama/article-abstract/2748178 doi:10.1001/jama.2019.9187 arguing opt-out systems do no not improve organ donation rates. See https://www.statista.com/statistics/624834/state-designated-organ-donors-among-us-adults-by-state/ for data on the number of registered donors by state. Rates vary from 32 percent (Texas) to 69 percent (Colorado). See “'Opt Out' Policies Increase Organ Donation” Stanford University, SPARQ, https://sparq.stanford.edu/solutions/opt-out-policies-increase-organ-donation citing Davidai, S., Gilovich, T., & Ross, L. (2012). The meaning of default options for potential organ donors. Proceedings of the National Academy of Sciences, 15201-15205, stating 90 percent register as donors in opt-out policy countries. [4] The reasoning presented also applies to policies that would keep organs vital without explicit consent or to the use of use of temporary organ preservation technologies. Verheijde, Joseph L et al. “Presumed consent for organ preservation in uncontrolled donation after cardiac death in the United States: a public policy with serious consequences.” Philosophy, ethics, and humanities in medicine: PEHM vol. 4 15. 22 Sep. 2009, doi:10.1186/1747-5341-4-15. Additionally, organ perfusion technology to save organs ex vivo as well as any effort to preserve organs in the body post-brain death invoke similar moral quandaries. [5] Ethics of Deceased Organ Donor Recovery Without requirement for explicit consent or authorization, HHS White Paper (December 2016) https://optn.transplant.hrsa.gov/resources/ethics/ethics-of-deceased-organ-donor-recovery/ Paper notes the current culture of individualism is reason to continue the explicit consent donor system we have. [6] Dalal, Aparna R. “Philosophy of organ donation: Review of ethical facets.” World journal of transplantation vol. 5,2 (2015): 44-51. doi:10.5500/wjt.v5.i2.44 [7] Ethics of Deceased Organ Donor Recovery Without requirement for explicit consent or authorization, HHS White Paper (December 2016) https://optn.transplant.hrsa.gov/resources/ethics/ethics-of-deceased-organ-donor-recovery/ [8] Gill, Michael B. “Presumed consent, autonomy, and organ donation.” The Journal of medicine and philosophy vol. 29,1 (2004): 37-59. doi:10.1076/jmep.29.1.37.30412 [9] Saunders Ben. “Opt-out organ donation without presumptions.” Journal of Medical Ethics 2012;38:69-72. [10] Saunders, Ben. “Normative consent and opt-out organ donation.” Journal of Medical Ethics vol. 36,2 (2010): 84-7. doi:10.1136/jme.2009.033423 [11] Dalal, Aparna R. “Philosophy of organ donation: Review of ethical facets.” World journal of transplantation vol. 5,2 (2015): 44-51. doi:10.5500/wjt.v5.i2.44 See also Glazier A, Mone T. Success of Opt-In Organ Donation Policy in the United States. JAMA. 2019;322(8):719–720. doi:10.1001/jama.2019.9187 (nine states have considered amending Uniform Anatomical Gift Act (UAGA) to an opt-out system. UAGA is based on gifting rather than consent.) [12] https://www.donatelifecolorado.org/blog/presumed-consent-or-opt-out-what-does-it-mean/ [13] https://www.donatelifecolorado.org/blog/presumed-consent-or-opt-out-what-does-it-mean/ [14] In New York, in 2010 a Motor Donor Bill that would provide the ability to opt-out on the driver’s license application failed to pass. Under that approach, applicants who do not decline would be automatically registered. NYS Assembly Bill 9865, February 4, 2010. In 2017, an executive order compelled state agencies to provide opportunities to register donors, modernized the donor registry, added organ donation registry to the insurance marketplaces, and allowed 16- and 17-year-olds to register at the time of applying for driver’s licenses. So far, all opportunities to register reflect explicit consent and are not opt-out. https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_171.pdf [15] “'Opt Out' Policies Increase Organ Donation,” Stanford University, SPARQ. https://sparq.stanford.edu/solutions/opt-out-policies-increase-organ-donation citing Davidai, S., Gilovich, T., & Ross, L. (2012). The meaning of default options for potential organ donors. Proceedings of the National Academy of Sciences, 15201-15205 [16] Dalal, Aparna R. “Philosophy of organ donation: Review of ethical facets.” World journal of transplantation vol. 5,2 (2015): 44-51. doi:10.5500/wjt.v5.i2.44 [17] James, Scott M. “Good Samaritans, Good Humanitarians.” Journal of Applied Philosophy, vol. 24, no. 3, 2007, pp. 238–254. JSTOR, www.jstor.org/stable/24355041. Accessed 23 Jan. 2021. [18] Theoretically, there is a limited exception that could allow the murder of one or two to save many, e.g., a civilian killing a mass shooter although that is more likely analyzed as an extension of self-defense. [19] Toledano, Enbar. "Necessity." The Encyclopedia of Criminology and Criminal Justice, Jay S. Albanese, Wiley, 1st edition, 2014. http://ezproxy.cul.columbia.edu/login?qurl=https%3A%2F%2Fsearch.credoreference.com%2Fcontent%2Fentry%2Fwileycacj%2Fnecessity%2F0%3FinstitutionId%3D1878. Accessed 22 Jan. 2021. [20] U.S. v. Bailey, 444 U.S. 394 (1980) (held prison escapees may not use the defense of necessity having escaped poor conditions and failed to surrender thereafter.) See 409-415 for when necessity may justify the prison escape and the requirement to surrender oneself when the danger is rectified. [21] Toledano, Enbar. "Necessity." The Encyclopedia of Criminology and Criminal Justice, Jay S. Albanese, Wiley, 1st edition, 2014. [22] Id. [23] 109,000 people in the US are currently waiting for transplants. https://www.organdonor.gov/statistics-stories/statistics.html [24] Glazier A, Mone T., Success of Opt-In Organ Donation Policy in the United States. JAMA. 2019;322(8):719–720. doi:10.1001/jama.2019.9187

Photo by Gayatri Malhotra on Unsplash INTRODUCTION The ACA[1] is at the mercy of a changing and politicized US Supreme Court. The replacement for Ruth Bader Ginsburg could be outcome determinative for California v. Texas[2] with oral arguments scheduled for November 10, 2020, a week after the presidential election. The justices applying judicial consistency, common sense, and ethical reasoning may save the ACA. Regardless of the Court, a legislative change could be outcome determinative depending on congressional majorities. In the moments since the death of Ruth Bader Ginsburg, the media has suggested the ACA is doomed.[3] If conservative justices would behave with judicial restraint, the chances of keeping the law intact would improve. The ACA provided access to care to many people who did not have healthcare coverage. The ethical basis for the ACA was coverage while its primary goals also included cost containment: a financially workable system to provide universal healthcare coverage. Through the ACA, many people who were not eligible for Medicaid became eligible through the Medicaid expansions.[4] Employer-based and private insurance were held to higher standards of coverage eliminating skeleton plans. Those with preexisting conditions and those wanting coverage for adult offspring benefit from provisions in the ACA as well. Other legislation like the Sunshine Act providing transparency in industry payments to doctors are also part of the ACA.[5] In addition to the expected ethical goals of ensuring that more people have access to care, the ACA included the mandate, a provision designed for universal coverage, insurance industry buy-in, and to negate the free riding that occurs when people use emergency rooms without the ability to pay.[6] The ACA’s broad ethical basis ranged from liberal ideas surrounding universal healthcare to conservative ideas like taking responsibility, paying one’s own way instead of free riding, and using market forces rather than implementing a single payer plan. With ethical goals of justice and access to care, the ACA succeeded in decreasing the rate of uninsured which remains under 9 percent.[7] I. Background In NFIB v. Sebelius, the Court held that the ACA individual mandate[8] was enforceable within congressional tax power.[9] The 2017 Tax Cuts and Jobs Act repealed the tax penalty for remaining uninsured.[10] While it is odd, and seemingly unbelievable, a Texas federal court later decided that the repeal of the financial penalty for failing to purchase insurance invalidates the mandate.[11] The Fifth Circuit effectively held that the threat that one must buy insurance or nothing will happen was less acceptable than the seemingly harsher threat that one must buy insurance or pay a penalty. The Fifth Circuit remanded the case to the District Court to decide on the issue of severability when the Supreme Court decided to review. II. The mandate absent the tax penalty NFIB, the 2012 case, came to an odd conclusion: the mandate is not coercive or required; it is a choice to buy insurance or pay the penalty. Rather than upholding the mandated aspect outright (the coercive aspect that insurance is required), the Court muddied the water by holding the mandate was not appropriate to regulate interstate commerce. While the fine operated as a tax and a penalty, the legislation itself was not dependent on the tax and it should not be vulnerable to a tax repeal. By honoring the tax argument and denying the argument that a mandate to purchase insurance simply is constitutional, the Court placed the mandate on shaky ground. Now, four of the five justices that upheld the mandate as a use of tax power remain on the Court.[12] A new justice appointed immediately could mean the law’s destruction; a new moderate or progressive justice appointed after the presidential election could save the law ensuring millions of Americans continued access to healthcare. In Texas v. US, the case brought after the tax repeal,[13] the Fifth Circuit majority opinion suggested that the mandate could snowball into more coercive requirements like mandating healthy food. The problem with that part of the opinion is that it exposes an anti-ACA bias and an underlying judicial motive. The Fifth Circuit ignored NFIB by presenting in dicta an objection to the ACA mandate that has nothing to do with the amount or value of the tax. There are signs of judicial activism behind the Fifth Circuit majority: the judges disliked the premise of the law which may have sparked the judges in the majority to agree that the tax repeal should invalidate it. The core issue the Supreme Court now agrees to resolve (if the parties have standing) is whether the repeal of the tax did sink the mandate. (The Texas District Court and the Fifth Circuit concluded that it did.) There is no precedent for a court rewriting a law because the fine or tax penalty fails to bring in government revenue. (If parking tickets in a community were set at $0 with a system that issues warnings instead, would that mean everyone can park anywhere—that the illegal spots become legal by lack of a price tag on the ticket?) In Hill v. Wallace an old case about a tax and interstate commerce, the Court held the law unconstitutional rather than evaluating its value without the tax.[14] In Hill, the tax was hefty and designed to control market behavior in the grain market; it was not a mere penalty but a larger market interference. Also, the Hill Court objected primarily to the magnitude of the tax, not the ability to regulate interstate commerce. The tax was the meat of the law, not a mere small section. The premise that government revenue is required for the validity of any law accompanied by a tax penalty is incorrect. If it were true, it would follow that the myriad of laws on the books that do not result in fines would also be void. For example, many federal property liens are on the books. If the government has not brought in tax revenue that way, the underlying law would be invalid under the Fifth Circuit logic and language. A local level analogy would be that if restaurants in a jurisdiction fail inspections but are not fined, the regulation requiring standards could become void. Laws should not depend on their remedies leading to tax revenue even if the remedy and law were instituted under the power of Congress to tax. Implementing a law that on its face serves a public good but is truly designed only to raise tax revenue through punishments is an unacceptable use of legislative power. For example, the motives behind parking and speeding ticket quotas are questionable. “Addicted to Fines” points out how many counties rely on fines to supplant revenue – fines are a huge problem contrary to the libertarian ideals that many of the conservative justices value.[15] Generally, fines are hardly relevant to whether the underlying laws can or cannot exist. III. Severability If the Supreme Court agrees with the Fifth Circuit and holds the mandate invalid absent the tax, it could also hold that without the mandate the whole law is invalid (the severability issue) hurting the ability of millions of Americans to access healthcare. Severability, the ability of a law’s unconstitutional portion to be struck while the rest remains, is the subject of a messy inconsistent three-pronged test that asks whether the law can work without the unconstitutional clause (independence), whether Congress would have passed the law absent the unconstitutional provision, and the newer prong that asks whether the remaining law would be consistent with congressional intent.[16] In Murphy v. NCAA, Justice Alito passed up severability in favor of invalidating an entire law arguing the issue be sent back to Congress to make a better law.[17] Justice Ginsburg believed in “salvage” over “demolition.”[18] The idea of severability would be consistent with conservative views that suggest opposition to judicial overreach, a preference for restraint, and analyzing laws as written without as much concern for legislative intent and context. Severability maintains the actual text, not just the congressional intent or any debatable aspect. Yet, conservative justices tend to oppose severability, possibly due to an opposition to legislation seen as impacting freedom. The liberal justices sometimes favor severability either because of respect for the power of other branches of government, but possibly because liberal ideology is behind the underlying law. Severability cannot be equated with judicial activism—striking down an entire law demonstrates activism more. In NFIB, the Court decided that the mandatory aspect of the Medicaid expansions were unconstitutional yet the rest of the law could persist. The majority did not speak to the severability in the context of the mandate because it saved the mandate. The majority opinion and the dissent were predictably divided along partisan lines regarding severability. Contrary to popular belief about conservative justices avoiding legislating from the bench, the dissent was described as “more like a policy brief than a judicial opinion, and the oral argument on severability often resembled a legislative committee hearing on insurance regulation.”[19] The history of severability in the Supreme Court has been confusing, partisan, and activist.[20] A presumption of severability is important to prevent judicial trouncing of congressional action. Alaska Airlines v. Brock affirmed a two-pronged test to determine severability but added congressional intent. The Court looked to whether the legislature would have enacted the law without the provision and whether the law can function without the stricken section. The Court added a glimpse into legislative intent by asking whether the same legislative intent is fulfilled by the law as it would operate without the stricken clause or provision. In Alaska Airlines the Court did not invalidate any more of a law than necessary and all nine justices agreed on the severability of the unconstitutional provisions. One article aptly suggests that the Court should not “bring down a giant by its toe.”[21] In US v. Booker, Breyer wrote for the majority striking down a mandatory minimum law (the mandatory use of Federal Sentencing Guidelines) while maintaining the bulk of the Sentencing Reform Act.[22] The three recent severability cases are suspicious: In NFIB and Booker, the Court severed the unconstitutional provision from the law but in Murphy, it seems Ginsburg was right to suggest that a political preference for legalized betting and for states’ rights governed the decision to strike down the entire federal law. Normally, there is an ideological split under which liberal justices look to congressional intent more than conservative ones. However, Justice Scalia, now replaced with Justice Gorsuch, was more lenient toward his conservative colleague’s use of congressional intent than the liberal justices’ use of it evidencing a lapse in judicial restraint.[23] His decisions indicated an arbitrary analysis of severability that leads to results based on the merits of the underlying legislation. Gorsuch did agree with the majority in the Murphy case indicating a willingness to strike down an entire law. Justice Thomas has had some severability oddities—in a case where he did agree with Ginsburg on severability, one of his contentions in a concurrence was that the court should never review an entire statute when a plaintiff brings a controversy over one part.[24] To adhere to Thomas’ Murphy dicta, Texas would need to establish standing to challenge any and all other provisions. Thomas’ Murphy language also turned on a preference for statutory interpretation over congressional intent; he was especially critical of the concept of looking into whether Congress would have passed the law without the unconstitutional section. Yet in NFIB, Thomas sided with the dissent finding the mandate and the Medicaid expansion mandate were both integral to the entire law.[25] I assert the severability issue has essentially solved itself. All three prongs point to a healthy ACA that is accomplishing many of the myriad of intended goals. The ACA has been chugging along without mandate enforcement since the tax repeal demonstrating that the law works without the mandate. The Medicaid expansions not only remain intact, but more states have accepted them. The web of federal and state infrastructure supporting the ACA remains intact. Through individual insurance markets and the employer-based markets, individuals have been hurt by executive orders watering down the ACA, but the markets are operational. While the mandate over time likely would have created a more robust market, the markets are surviving. The Medicaid expansions, the requirements concerning preexisting conditions, or children under 26 remaining on the parents’ insurance, do not rely on the mandate. The latter two requirements arguably should always have existed as a measure of insurance industry corporate responsibility without any need for the mandate as a bargaining chip for the government to entice the insurance industry. Both a congressional intent test and a hypothetical question asking whether congress would have adopted the law without the mandate should be rephrased. If conservative justices were to ignore congress’ mindset and to operate with judicial restraint, the mandate if found unacceptable would be severed and the remainder of the ACA salvaged. To apply the second and third prongs, if congress had known the ACA would work without it, I assert it would have passed the law without the mandate. It should be a hindsight test, not a search of what Congress knew at the time. Really, the big picture was that the ACA legislature wanted more people to have insurance and they do. Avoiding congressional intent with a stronger presumption in favor of severability (when the rest of the law is constitutional) would be more consistent with the roles of the three branches of government and would limit the Court’s participation in writing laws. Voters choose legislators making it a key to the Democratic process. The justices cannot willy-nilly invoke severability when they want to save a law and deny severability when they want to strike it down in its entirety. If the severability approach is to depend on legislative intent, justices will find many laws salvageable. If severability reflected conservative judicial restraint, clauses would be severed and bodies of law would continue as written, something that does not coexist with the conservative justices’ decision-making history. IV. Enforceability If both the mandate and the severability are decided in favor of Texas invalidating the entire law, one possible saving grace is that the Court agreed to further review enforceability. If the entire ACA is invalid, the Court could still decide that the law can be enforced where it does not injure the party seeking relief. That issue before the Court specifically means that the Court could find Texas and the other 17 states that are plaintiffs would not be hurt by the continuation of ACA provisions in California and the 16 states aligned with California. Even conservative justice Clarence Thomas has supported targeted relief for the party claiming damages, here Texas, et al.[26] CONCLUSION There is hope for many reasons. For now, there are eight justices and it would take one conservative to side with Roberts and the more liberal-leaning justices. Their record on judicial overreach should at least lead to a finding of severability. Beyond both the mandate and the severability, conservative leaning justices do not like expansive remedies that overreach the ask. Texas wants to strike down the law but if it is not damaged by the continuation of provisions in other states, it has no basis to receive grandiose remedies that affect so many outside the plaintiff states. Because simply adding a small penalty would suit the NFIB ruling and bring this farce to an end, a legislative change to the Tax Act[27] may matter more for access to healthcare than the appointment of a new Supreme Court justice. Congress should simply reinstate the tax penalty. [1] Patient Protection and Affordable Care Act, 42 USC § 18001 et seq. (2010) [2] California, et al., Petitioners v. Texas, et al., US Supreme Court Docket: “The motions of the Solicitor General for divided argument and of the U.S. House of Representatives for enlargement of time for oral argument and for divided argument are granted, and the time is allotted as follows: 30 minutes for California, et al., 10 minutes for the U.S. House of Representatives, 20 minutes for the Solicitor General, and 20 minutes for Texas, et al. The motion of Ohio and Montana for leave to participate in oral argument as amici curiae, for enlargement of time for oral argument, and for divided argument is denied. VIDED.” https://www.supremecourt.gov/docket/docketfiles/html/public/19-840.html [3] https://www.vox.com/21446256/ruth-bader-ginsburg-death-supreme-court-obamacare-case [4] 42 USC § 1396 et seq. [5] 42 USC § 6002. [6] EMTALA is the law allowing people to use emergency rooms. It is a government mandate to hospitals to provide care regardless of insurance status. Often, the hospitals do not recoup the cost from the patient – the cost ends up societally divided. The ACA mandate whether through subsidized healthcare, Medicaid expansions, or the mandate decreased the free rider problem. Emergency Medical Treatment and Labor Act, 42 US Code § 1395dd (1986) [7] Kaiser Family Foundation. https://www.kff.org/uninsured/state-indicator/rate-by-age/?dataView=1&currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D Rates have changed from 18 percent in 2010 (approx. 47 million people) to a low around 7.9 percent (27 million people), and now slightly up as executive orders have weakened the ACA. [8] 26 USC §5000A (the mandate); §5000A (b)(1) (the shared responsibility) and §§5000A(c), (g)(1) (the provision specifying collecting the penalty like a tax) [9] National Federation of Independent Business v. Sebelius 567 US 519 (2012) The Court held the mandate was an unconstitutional limitation on interstate commerce but could remain effective as a tax penalty. Rather than a coercive measure, it is a choice to purchase or pay the penalty. [10] Tax Cuts and Jobs Act S. 2254 — 115th Congress: Tax Cuts and Jobs Act.” www.GovTrack.us. 2017. September 20, 2020 https://www.govtrack.us/congress/bills/115/s2254 [11] Texas v. United States, 340 F. Supp. 3rd 579 (N.D. Texas 2018); Texas v. United States, (5th Cir Dec 18 2019) https://www.ca5.uscourts.gov/opinions/pub/19/19-10011-CV0.pdf [12] In NFIB v Sebelius, Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan were in the majority. Justices Scalia and Kennedy, now replaced by Kavanagh and Gorsuch, as well as Alito and Thomas dissented. [13] Tax Cuts and Jobs Act S. 2254 — 115th Congress: Tax Cuts and Jobs Act.” www.GovTrack.us. 2017. September 20, 2020 https://www.govtrack.us/congress/bills/115/s2254 [14] Hill v. Wallace, 259 U.S. 44 (1922) [15] Mike Maciag, “Addicted to Fines,” Governing: The Future of States and Localities, September 2019. https://www.governing.com/topics/finance/gov-addicted-to-fines.html [16] Alaska Airlines, Inc. v. Brock 480 U.S. 678 (1987) added the legislative intent. [17] Murphy v. NCAA, 138 S. Ct. 1461 (2018) [18] Eric Fish, Severability as Conditionality, Emory Law Journal Vol 64, Issue 5. Fish argues in favor of a presumption of severability. https://law.emory.edu/elj/content/volume-64/issue-5/articles/severability-as-conditionality.html#:~:text=The%20Supreme%20Court's%20first%20severability,175%E2%80%9376%20(1803). [19] Fish [20] John C. Nagle, “Severability,” 72 N.C. L. Rev. 203 (1993-1994). Nagle argues that a law should be assumed severable absent a severability clause and he criticizes the question of whether Congress would have passed the law without the unconstitutional clause in favor of a more traditional legislative intent question which is increasingly part of the severability question. Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/153 [21] Fish. [22] US v Booker [23] Brudney, James J., and Corey Ditslear. "Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect." Berkeley Journal of Employment and Labor Law 29, no. 1 (2008): 117-73. Accessed September 22, 2020. http://www.jstor.org/stable/24052420. [24] Murphy v. NCAA, 138 S. Ct. 1461 (2018) In a concurrence, Justice Thomas argues in favor of a new severability test that would avoid a debate over legislative intent. [25] National Federation of Independent Business v. Sebelius, Oyez, https://www.oyez.org/cases/2011/11-393 (last visited Sep 21, 2020). [26] Susannah Luthi, “Ginsburg’s Death Leaves Obamacare in Greater Danger Than Ever,” Politico, September 19, 2020. https://www.politico.com/news/2020/09/19/what-happens-to-obamacare-ginsburg-418406 [27] Tax Cuts and Jobs Act S. 2254 — 115th Congress: Tax Cuts and Jobs Act.” www.GovTrack.us. 2017. September 20, 2020 https://www.govtrack.us/congress/bills/115/s2254

Photo by Morning Brew on Unsplash INTRODUCTION Employer-based insurance models work when the laws compelling employers to offer insurance are enforced. Corporate failure to provide insurance to full time employees undermines the system and results in corporate welfare: the government pays to subsidize healthcare plans for workers who should receive employer-based insurance. This paper focuses on the role of employer-based healthcare in the current healthcare system in the United States and the controversy surrounding a California law enforcing a definition of employee crucial to the US healthcare system. Employers must treat certain workers in the gig economy as employees for fairness and to avoid corporate welfare. Employer-based insurance is in keeping with the approach of the Affordable Care Act (ACA); if employers are not held accountable, the current US healthcare system is at risk. There is longstanding debate over the role of government and how much people should pay to support the healthcare of others through taxes. American views fall along a long continuum from libertarian beliefs that a healthcare mandate is beyond the amount of freedom necessary for human flourishing to the concept of healthcare as a human right that the government should provide to everyone. The current system, which relies on the role of employers as payers, represents middle ground. Employer based healthcare plans, the ACA individual marketplace for subsidized and unsubsidized purchases, and the myriad of government run systems like Tricare, Medicaid, Medicare, and the Children’s Health Insurance Fund each are crucial to the system as a whole. ANALYSIS A. California Law AB5 and Ballot Proposition 22 Gig economy refers to jobs that are short-term, freelance, and generally involve a direct to customer service. Independent contractors and freelancers often operate in the gig economy indefinitely indicating a shift away from steady long-term employment. Assembly Bill 5 (AB5) in California was passed to help workers in the gig economy.[1] Corporations have been treating workers central to the businesses’ primary purpose as independent contractors absolving the corporations from providing benefits that would be legally mandated if the workers were categorized as employees. The bill requires certain corporations operating in the gig economy to provide healthcare insurance, paid sick leave, disability insurance, and unemployment insurance. In Olson v. California, US District Court, Central District of California, Western Division, corporations (mostly driving apps) sought an injunction to stop the law from taking effect.[2] They did not succeed and the law went into effect January 1, 2020. May 5, 2020, in California v. Uber, the California Attorney General sued app-based driving companies Uber, Lyft, Postmates, DoorDash, Instacart and others (the defendants) for failure to comply.[3] AB5 codified a three-pronged test: a worker is an employee unless the employer can demonstrate the worker is free of the company’s control, the work performed is not central to the business, and the worker has an independent business in the same industry as the work performed. The test, known as the ABC test,[4] puts app-based drivers, essential to car service and delivery businesses, in the category of employees. On August 10, a judge ordered the defendants to treat drivers as employees and provide the mandated benefits.[5] Then, a California appellate court granted an emergency stay to the defendants.[6] Prior to the stay, the defendants had created a ballot proposal (Proposition 22) to override AB5 through an exemption for app-based drivers that includes a minor compromise.[7] The ballot measure deprives workers of employee rights but offers a meager stipend for healthcare insurance and offers to cover on the job injuries.[8] The stay will allow the companies to continue their noncompliance through October and likely through the November 3 election when the ballot proposal will be decided. B. Corporate political power and social media The emergency order allows time for voters to weigh in on the rights of app-based drivers. Uber, Lyft and a few others have spent $111 million dollars on the Yes on Proposition 22 Campaign.[9] The emergency stay caters to the desires of corporations who should be subject to labor and employment laws designed to ensure workers’ rights. Corporations have an outsized influence on policy exacerbated by lax campaign finance laws and Citizens United. [10] The Prop 22 campaign is declaring that Prop 22 will protect app-based drivers. That could imply to workers that Prop 22 would improve conditions for them. I assert it conveys a well-known threat: Uber and Lyft will stick around if workers vote for Prop 22 to neuter AB5. A court’s involvement should not result in an opportunistic appeal to voters using misinformation, undue influence, and unmatchable advertising dollars. Workers’ rights advocates are unlikely to have $111 million dollars to use in a savvy social media and television campaign appeal to the voters. The ballot proposal suggests a winner-take-all mentality. Elected officials paid to legislate represent the voters. The California Uber lawsuit is part of a trend that empowers the corporation over the elected officials. A proposition brought to the voters[11] might bring a result that works against the least empowered many of whom do not vote. California’s ballot proposition is corporate power run amok. The California ballot proposal process fails to distinguish between ballot access for organizations representing the marginalized and corporations.[12] All special interests must go through the same process despite the prohibitive costs of running an expensive campaign to support a measure. The defendants even paid people to get the necessary petition signatures. The costly Yes on Proposition 22 Campaign evidences the economic incentive to misclassify drivers as independent contractors rather than employees to evade social and legal responsibilities.[13] C. Corporate welfare, the free rider, and fairness By putting more people in the individual market, companies are shifting the cost of healthcare to the government in the form of subsidies. ACA subsidies for people who work for one company full time are corporate welfare. ACA subsidies should benefit people without other sources of healthcare insurance. The court held that app-based drivers are employees by the three-prong definition. While their incomes vary according to location, hours driving, time spent without a customer, and surge pricing shifts, many are eligible for ACA subsidies.[14] Corporations should spend the money on health insurance so that taxpayers do not have to. Subsidies for health insurance are based on the federal poverty rate. If income is equal to or below the 138 percent of poverty threshold, individuals become eligible for Medi-Cal based on the ACA Medicaid expansions. Income-based subsidies are available for those earning from 138 percent of federal poverty up to 400 percent of the federal poverty rate.[15] Usually, the free rider argument is that the insured or hospital systems should not support the people who choose not to insure themselves which was the case under EMTALA.[16] Here, the free rider argument is that the government should not pay to insure people who work full time for large corporations that should pay for their insurance. For the defendants, Medicaid and subsidies for the drivers are corporate welfare. The gig economy is a new model that distorted the definition of an independent contractor. AB5 would be a valuable reset that forces new industries that meet large demand and provide innovative services to behave the way traditional corporations are expected to: simply provide insurance. Under AB5, the app-based corporations would still profit immensely from the primary benefit of their business model: avoiding paying for the cars.[17] Like AirBnB does not own houses or properties, Uber, Lyft, DoorDash, Instacart, and Postmates do not own the most basic equipment necessary for their services. Drivers bear the burden of purchase, upkeep, and storage of vehicles among many other business costs. The corporations already benefit from the gig economy by not purchasing the expensive assets. The misuse of the term entrepreneur is a driving factor in the gig economy. Drivers are not truly entrepreneurs; they are workers performing a form of relatively unskilled labor. The US glorifies entrepreneurship for qualities like drive, innovative ideas, and grit, none of which are necessary to join Uber. Many Uber drivers happen to have grit and the determination to seek loans, purchase cars and insurance, and sign on with Uber but those traits are not signs of entrepreneurial spirit as much as they are signs of doing tasks necessary to join the app-based sector. In the app-based sector, the entrepreneurs developed the software and created the corporations. The entrepreneurship claims are an excuse to justify a practice that exacerbates income inequality.[18] The independent contractor designation evades fairness in how the money is earned and shared; the employee designation makes up for a missing corporate ethic. The argument that the independent contractor arrangement favors the drivers is also invalid. The gig economy offers perks like control over hours worked, but the more drivers are trying to earn a living, the more hours they drive and the job becomes full time. While driving an Uber or Lyft may be a second or third job for workers, an economy in which one job is not enough if problematic. When the workers do work the number of hours that comprises full time work for one company, they must be entitled to benefits. Working the hours without receiving the benefits hardly can be described as freedom or control over one’s schedule. Drivers doing the essential work in the app-based driving businesses take on risks that are sometimes not worth the low earnings. There are many financial and legal problems in the app-based driving industry. Drivers take on debt to purchase cars, insurance, and safety equipment like cameras. The gig economy creates desperation and provides drivers with temptation to break laws. All in a Day’s (Dirty) Work tells the personal stories of Task Rabbit, Uber, and Airbnb workers stumbling into illegal activity condoned and ignored by their corporate executives. From driving drug dealers, mailing drugs illegally, to violating housing laws, the gig economy laborers take on personal risks for which their corporations claim to bear no responsibility.[19] D. Implications for a lasting healthcare structure The defendants’ failure to provide insurance to the app-based drivers undermines the US system, possibly pushing the country toward a single payer plan unnecessarily. The individual markets were not meant for people who work full time for large corporations. Since the ACA mandate was undermined, the drivers might choose not to insure themselves. The drivers would then become or remain free riders in the sense relevant before the ACA: they would use emergency rooms for care and then the insured would bear the costs that are not shifted to public programs or charities.[20] As a result, the country risks a return to the systemic pressure that led to the ACA. In a politically charged atmosphere where cries of socialism abound, a single payer plan may not be politically feasible. I also argue it is not the best route based on the principles behind providing access to healthcare for all and the economics.[21] Some argue the opposite: that the drivers would add people to the individual market creating a healthier larger healthcare insurance customer base, increasing demand, and untethering insurance from employment.[22] While these are worthy goals, the hourly income of the drivers is evidence that many would require subsidies and essentially cause a market inefficiency rather than drive a robust free market.[23] E. The job creator responsibility The app-based group is leveraging their power as job creators by threatening to leave California. Many argue that had Uber and Lyft simply shut down in California as they threatened to do, more responsible and innovative companies would immediately fill the gap. If the court had not issued the stay, and instead called Uber and Lyft’s bluff, and the corporations gave up the lucrative California market, other competitors would possibly drive prices down.[24] If corporations are to argue that their status as job creators calls for special exemptions, then they should be held to labor and employment laws and pay a living wage. F. Will consumers just have to pay more? Some argue that if AB5 is enforced, the cost of the insurance would be passed on to the consumer. While that would seem unfortunate, it is possible that prices have been artificially low due to the failure of the companies to provide benefits. Passing some of the cost on remains preferable to leaving drivers uninsured or financially burdened by the costs of their insurance. A wealth transfer from customers to workers could be a beneficial outcome.[25] Heavier competition in the industry could drive down the prices to balance out attempts to pass along the entire cost to consumers. A lack of competition has plagued the industry of app-based driving services both for transportation and deliveries, especially since Uber acquired Postmates. CONCLUSION Drivers are the mainstay of the app-based driver industry. Fairness calls for treating workers central to the business as employees. Allowing the defendants to treat workers like independent contractors is corporate welfare: taxpayers will continue to pay for subsidies on the ACA exchanges while Uber’s CEO enjoys a package with cash and stock worth over $42.4 million dollars.[26] With $14 billion in revenue in 2019 and a market cap of almost $60 billion, should Uber really be subsidized by the taxpayers? Healthcare insurance for app-based drivers falls within the already established rights of employees. An industry-influenced expensive social media campaign that is not concerned with workers’ rights should not be permitted to undermine the moral code enforced by labor and employment law. [1] Section 2750.3 of California Labor Code. AB5 codified and clarified Dynamex Operations West Inc. v. Superior Court of Los Angeles, (2018) 4 Cal. 5th 903 (Cal. Sup. Ct. April 30, 2018). [2] 2:19-cv-10956. Also, in 2015, several Uber drivers sued Uber demanding treatment as employees and not independent contractors. The California Labor Commission sided with the drivers and awarded damages. Berwick v. Uber Technologies, Superior Court of California (2015) Link to state Labor Commission award:https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1988&context=historical [3] California v. Uber, Lyft, and Does 1-50, complaint: https://oag.ca.gov/system/files/attachments/press-docs/2020-05-05%20-%20Filed%20Complaint.pdf, referred to as the People v. Uber. [4] In 2004, the Massachusetts legislature adopted the ABC test. See St. 2004, c. 193, § 26, effective July 19, 2004. [5] Link to the August 10 ruling. Order CGC-20-584402 filed in the Superior Court of the State of California, County of San Francisco: https://assets.documentcloud.org/documents/7032764/Judge-Ethan-Schulman-Order-on-Lyft-and-Uber.pdf See also "California Judge Orders Uber And Lyft To Consider All Drivers Employees." All Things Considered, August 10, 2020. Gale General OneFile (accessed August 31, 2020). https://link-gale-com.ezproxy.cul.columbia.edu/apps/doc/A632756257/ITOF?u=columbiau&sid=ITOF&xid=3511136b. https://www.npr.org/2020/08/10/901099643/california-judge-orders-uber-and-lyft-to-consider-all-drivers-employees#:~:text=The%20judge%20said%20Uber%20and,insurance%2C%20workers'%20compensation%20and%20paid [6] People of the State of California v. Uber Technologies, Inc. et al., Division 4, Case Number A160706, 1st Apellate District. https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2325037&doc_no=A160706&request_token=NiIwLSEmXkw3W1BNSCMtVEtIMFw6UVxfJSJeWzpSUCAgCg%3D%3D See also Charlie Osborne, “Emergency Order Keep Uber & Lyft Running in California,” ZDNET, August 21, 2020. https://www.zdnet.com/article/emergency-order-keeps-uber-lyft-running-in-california/ [7] Tina Bellon, Norma Geleana, “California Court Ruling Gives Voters Last Word,” Reuters, August 20, 2020. https://www.reuters.com/article/us-uber-california/california-court-ruling-gives-voters-last-word-over-uber-lyft-worker-rights-idUSKBN25G21S [8] https://yeson22.com/get-the-facts/ [9] Dara Kerr, “A totally different ballgame: Inside Uber and Lyft's fight over gig worker status,” CNET, August 28, 2020. https://www.cnet.com/features/uber-lyfts-fight-over-gig-worker-status-as-campaign-against-labor-activists-mounts/ Investigations revealed an aggressive social media campaign fueling the controversy. The defendants hired 19 firms to support the Prop 22 initiative. [10] Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) [11] Description of how special interests get initiatives on the ballot in California: https://calmatters.org/explainers/california-november-2020-ballot-propositions-final-list/ [12] https://calmatters.org/explainers/california-november-2020-ballot-propositions-final-list/ [13] Malos, Stan, Vogelgesang Lester Gretchen, and Meghna Virick. "Uber Drivers and Employment Status in the Gig Economy: Should Corporate Social Responsibility Tip the Scales?" Employee Responsibilities and Rights Journal 30, no. 4 (12, 2018): 239-251. doi:http://dx.doi.org.ezproxy.cul.columbia.edu/10.1007/s10672-018-9325-9. http://ezproxy.cul.columbia.edu/login?url=https://www-proquest-com.ezproxy.cul.columbia.edu/docview/2128364636?accountid=10226. [14] Jason Millman, “Why Uber Loves Obamacare,” Washington Post, November 17, 2014. https://www.washingtonpost.com/news/wonk/wp/2014/11/17/why-uber-loves-obamacare/ ACA subsidies are available for individuals making $16,105 to $46,680 and families of four making $32,900 to $95,400. [15] Based on 2018 levels, according to California, the Federal Poverty Rate is $12,140 for individuals, $16,460 for a family of two, $20,780 for a family of three, $25,100 for a family of four, $29,420 for a family of five, $33,740 for a family of six, $38,060 for a family of seven, $42,380 for a family of eight. The following Covered California income restrictions apply to adults: • 0 to 138 Percent of FPL: Qualification for Medi-Cal (a Medicaid program) • > 138 to 400 Percent of FPL: Qualification for a subsidy on a Covered California plan The breakdown of the subsidies between 138 and 400 percent of FPL is as follows: • > 138 to 150 Percent: You also qualify for the Silver Enhanced 94 Plan • > 150 to 200 Percent: You also are eligible for the Silver Enhanced 87 Plan • > 200 to 250 Percent: You also qualify for the Silver Enhanced 73 Plan https://www.healthforcalifornia.com/blog/how_do_you_report_your_income_to_covered_california_when_it_fluctuates; https://www.healthforcalifornia.com/covered-california/income-limits [16] Menzel, Paul, “The Cultural Right to a Basic Minimum of Accessible Health Care,” Kennedy Institute of Ethics Journal. 2011; 21(1):79-119. [17] https://www.thestreet.com/personal-finance/education/how-much-do-uber-lyft-drivers-make-14804869 [18] Ahsan, Mujtaba. "Entrepreneurship and Ethics in the Sharing Economy: A Critical Perspective: JBE." Journal of Business Ethics 161, no. 1 (01, 2020): 19-33. doi:http://dx.doi.org.ezproxy.cul.columbia.edu/10.1007/s10551-018-3975-2. http://ezproxy.cul.columbia.edu/login?url=https://www-proquest-com.ezproxy.cul.columbia.edu/docview/2073877713?accountid=10226. [19] Alexandrea J. Ravenelle, Hustle and Gig, (Berkeley: University of California Press, 2019), Ch. 6 All in a Day’s (Dirty) Work. [20] Menzel. [21]Anne Zimmerman, Reframing the healthcare debate: targeted problems and solutions (2020) Master’s Thesis, archived by Columbia University. https://doi.org/10.7916/d8-yg1m-w324 [22] David Dranove and Craig Garthwaite, “Uber and the Twisted Logic of the Affordable Care Act’s Employer Mandate,” The Healthcare Blog, June 25, 2015. https://thehealthcareblog.com/blog/2015/06/25/uber-and-the-twisted-logic-of-the-affordable-care-acts-employer-mandate/ [23]Millman. See also Christina Farr, “Who's Responsible for Your Uber Driver's Health Coverage?” NPR, October 11, 2015. https://www.npr.org/sections/health-shots/2015/10/11/447157698/who-s-responsible-for-your-uber-driver-s-health-coverage [24] Paris Marx, “Uber, Lyft want to defy California's gig economy law. The state should call their bluff.” NBCNews.com Think, August 17, 2020. https://www.nbcnews.com/think/opinion/uber-lyft-want-defy-california-s-gig-economy-law-state-ncna1236686 [25] This outcome could also be environmentally beneficial and encourage more use of public transportation. [26] Sissi Cao, “Big Uber Shareholders Rebel on CEO’s Huge Pay Package Amid Coronavirus Layoffs,” Observer, May 13, 2020. https://observer.com/2020/05/uber-ceo-pay-shareholder-backlash-coronavirus/ Also see: https://www.businessinsider.com/uber-ceo-dara-khosrowshahi-salary-total-compensation-45-million-in-2018-2019-4#:~:text=Uber%20paid%20its%20top%20five%20executives%20%24143%20million,officer%2C%20who%20received%20%2447.3%20million%20in%20total%20compensation.

We are pleased to announce that Voices in Bioethics has moved to the Columbia University Libraries. With renewed focus on academic strength, we aim to contribute to the array of bioethics literature by continuing to publish op-eds and research essays. Voices in Bioethics brings together diverse views through an academically rigorous online format. Our articles seek to identify issues as well as present workable long-term solutions. When Voices in Bioethics started its COVID-19 page in March, predictions seemed surreal—it was hard to anticipate the toll the virus would take on the US population. There was an attitude of denial: it cannot happen here. With over twenty-five articles published, we have seen unexpected issues, varying points of view, and practical recommendations. Spates of public health advice contradicted themselves leaving the public wary of recommendations, especially inconvenient ones. Many argue a renewed trust in medicine, science, and public health will result from COVID-19 yet there is evidence of distrust after public health officials were wrong to suggest certain measures like mask wearing would be ineffective and others, like wearing gloves would be highly preventive. When the supply of medical equipment was slow to meet demand, doctors and nurses were overwhelmed, and the number of deaths was rising, public health experts were both revered and blamed. Politics added to the turmoil as a divided country saw mask wearers versus the unmasked as teams of Democrats and Republicans. Some Republicans tended to push for the right to work, freedom, and prioritizing the economy and jobs. Democrats tended to lean into trusting public health wanting to follow orders some of which proved useless, others of which, like stay-at-home orders and closing businesses, saved lives, flattened the curve, and slowed viral transmission. The polarization grew while many shared goals were overlooked. Racial violence continued and protests erupted shining a light on long-term injustice, police brutality, and white privilege. The pandemic contributed to the divide as its effects on people were vastly different by race and ethnicity. Racial disparity in COVID-19 death rates is a different kind of brutality left unaddressed. The protests led to some shift in the political divide and is said to have pulled in some new supporters who have noticed four hundred years in that Black Lives Matter after all. In an uplifting moment, the Supreme Court confirmed LGBT people do have constitutional protections against discrimination in the workplace, yet three justices disagreed in a scathing dissent. The health and safety of those employees is dependent on fairness and equality and the Court’s opinion gives hope that the majority will interpret the Constitution appropriately. COVID-19 also shows global inequity – many of our authors search for ethical global solutions like pandemic surveillance, use of artificial intelligence and technology, preparation that allows early testing of novel viruses, and new ways to detect viral outbreaks and limit transmissions. I want to personally thank our student editorial staff and interns for their assistance migrating our documents to the new website while along with alumni editors, they continued to edit documents and attend editing workshops to improve output quality and provide a consistent author experience. As Voices in Bioethics moves to its next stage, beginning its partnership with the Columbia Libraries, we hope our submissions will continue to address the difficult arguments, analyzing ethical dilemmas and hard choices. Our role in changing times, political division, and technological change in medicine and science is to examine controversies, narrow them, and provide both practical and philosophical commentary. Our efforts to understand both sides of polarized discourse while presenting strong and convincing ethical views is challenging. Ethics is not just presenting both sides: it is determining what the ethical choice is and how to make that choice through personal behavior and public policy.

INTRODUCTION In Portland, Oregon, federal troops detained protesters placing several into unmarked cars.[1] The authority to use federal trained military, in this case Homeland Security agents,[2] to enforce laws against citizens likely violates the Posse Comitatus Act[3] meant to prevent the use of the military in law enforcement. Under the Insurrection Act,[4] the federal authority to use the military is extended in certain cases but none applies unequivocally to the Oregon fact pattern. The Oregon protests are racial protests. Protesters want change that embodies the Black Lives Matter movement, equality, and justice. Police brutality was the impetus for the protests in the wake of the death of George Floyd. The presence of both the police and federal troops escalates the need to protest by those who feel law enforcement is the agitator creating a circular continuous pattern of protest. The use of federal troops in this case has a racial element. The motive to disperse the protests could be the disempowerment of those protesting racial injustice cloaked in an innocuous motive like assisting local police in ensuring the safety of civilians and protecting property. The implications for equality, respect, and justice in the US are dire: if federal troops can suppress racial protests in moments of nonviolent protesting, the racist undertones normalize the disparity in other areas like healthcare and access to education and high paying jobs where black people do not experience a level playing field. In COVID-19, the president requested that the states skip the CDC and report their data directly to HHS; the EPA is compromising air standards during a pandemic that affects lung capacity; the budget cuts at the NOAA limit the ability to research climate change. The seemingly evenhanded actions have racially disparate affects—HHS will release the data as it sees fit, not according to CDC guidelines; air quality affects those in poorer neighborhoods; climate change and adverse weather events hurt those who are more vulnerable, live in lower quality dwellings, are less insured, or are homeless. In Portland, the use of the military is part of the pattern. The pattern affects the disenfranchised. Even if the actions on their face are neutral, their impact on race can be unconstitutional.[5] ANALYSIS • Application of the Posse Comitatus Act and the Insurrection Act The Posse Comitatus Act prevents the military from using its force in executing domestic laws.[6] In Oregon, the federal “help” is anti-constitutional: the purpose of the use of military is to disband legal protests, something the state and city do not want to use federal troops to achieve. The federal forces suppress people from exercising their rights to assembly and free speech. The mayor of Portland and the governor of Oregon explicitly stated that they do not want the federal troops present.[7] Federal military stepping in to perform local police responsibilities against the will of the mayor is feeding racial tensions. The principals behind the Posse Comitatus Act are both anti-militarism and the prevention of abuse of power. The military is not an instrument of civilian law enforcement because there is a moral foundation met by ensuring personal freedom and state autonomy. The act is a moral check on presidential use of the powerful military. The Insurrection Act provides exceptions to be used in dire circumstances: when states or localities request help (for example, in riots in LA after police brutality against Rodney King);[8] absent a request, the case of “necessity” due to an “unlawful” assemblage or rebellion, or when the actions interfere with federal or state law and the government has issued a proclamation to disperse which has been ignored.[9] Past examples include Civil Rights era uses to enforce desegregation that was ordered by federal courts: Eisenhower in Little Rock, Arkansas 1957; and Kennedy in Mississippi in 1962.[10] In the case of desegregation, the Insurrection Act was invoked because those exercising legal rights were met with people unlawfully standing in the way. The act allowed those presidents to protect the marginalized. The role of the military under the Insurrection Act is to support local law enforcement – the federal government should not direct the actions. In Oregon, the protesters who have been arrested were exercising protected First Amendment rights. The use of the Insurrection Act, while arguably to promote public safety and the protection of federal property, could have the effect of quieting protesters based on their message rather than behavior. The Los Angeles riots in 1992 included numerous deaths, the burning down of buildings, and significant violence. The danger was clear and the destruction was significant. The relationship between people and police has changed. Some argue to allow federal troops to intervene would interfere with the relationship between the community and the police, using a heavy hand of government to quiet the marginalized.[11] While cities in the US have experienced looting, whether “looting justifies[y] shooting”[12] is settled law. Federal troops must obey “standing rules for the use of force.”[13] Had police followed appropriate local use of force guidelines, the very thing being protested would not have occurred. Nonetheless, the argument that troops can help, especially when cloaked as law and order style assistance considering looting in some cities, parallels the norms of many who value law and order. Those envisioning fairness as a system of punishment for crime rather than fairness as a level playing field for all may support the president’s decision to invoke the Insurrection Act. While it is a stretch to apply the act to the Oregon fact pattern because the help was not requested by the state, the ethics behind the decision reflect public safety despite indifference toward quieting the peaceful demonstrations. The police force in Portland is not necessarily against the federal presence and appears to be joining forces with them in some circumstances.[14] The federal government argues that the troops are there to diffuse the situation. Weeks ago, the local police used tear gas, stun grenades, and acoustic weapons. Now, federal troops use similar instruments. The mayor and the citizen organization that oversees the Portland police moved to control police behavior and to ban tear gas.[15] The bigger issue is the racism, not the protests. The federal government insists they are there to protect Portland from “violent anarchists.”[16] The government asserts that rather than peaceful protesters, they are detaining those who target federal buildings. The portrayal of protesters as anarchists is unsettling – it could lead people to believe those wanting justice and equality are anti-American when really the values they are protecting by protesting are long held core American principles. Wyden and Merkley, the two Oregon senators, introduced an amendment to the National Defense Authorization Act called the Preventing Authoritarian Policing Tactics on America’s Streets Act.[17] The bill would require visible identification on federal troops, disclosure of how many troops would be sent and why, and would limit their authority to participate in crowd control not requested by the state or locality but would still allow the federal government to protect federal property. The amendment addresses prevention of authoritarian tactics and ensures people’s constitutional rights are not violated by federal orders. • Relationship to Racism A racial motive to invoke the Insurrection Act and use it against protesters is a flagrant abuse of power. Using military force in this manner furthers racial tension—why these protests? Why now? Since 2014, racial protests over the New York City death of Eric Garner, the Ferguson, Missouri death of Michael Brown, the Baltimore, Maryland death of Freddy Gray, and the Minnesota deaths of Philando Castile and George Floyd all took place in the city of the police brutality as well as in other cities around the country.[18] The protests following the killing of George Floyd by a police officer represent a steady progression of increasing awareness of police brutality against black people. If the federal government steps in now to quash the voice of the people, it would cement a federal government relationship pitted against those fighting for racial justice. With all actions, there is an opportunity cost—a different action was foregone to allow the funding for the action taken. In COVID-19, black Americans die at a disproportionate rate. To help states manage COVID-19, the federal government could use its power to manufacture PPE, develop a vaccine or better treatments, and support states’ efforts to supply the best care to the most people. Tax revenue is being diverted to suppress people’s rights with a backdrop of racial unrest. When viewed in the context of federal government power, of deaths of black people from COVID-19, and from a historical perspective of ascriptive Americanism, a theory that the liberal calculus that fed American development and moral backdrop operated alongside racist policies,[19] the use of federal troops is a continuation of racist traditions. The thing in need of repair is the relationship between black Americans and the police. The federal government should be taking stronger action against police brutality rather than stepping in where local leaders sense federal troops escalate the tension. The small issue of potential looting should not cloud the large issue of racism. CONCLUSION Legal means to prevent the abuse of power should complement ethical concerns driving how the US addresses racism. If a Posse Comitatus Act exception is made when the state does not want federal help, the protests fall within First Amendment rights rather than unlawful rebellions or assemblages, and there is not an urgent or immediate danger accompanied by notice and a proclamation to disperse, racism begins to emerge as not only a result of but as a precursor to the federal deployment. In a country with ethics and laws that require equality and justice, the federal action underpins more than a military overreach. Like federal decisions in healthcare, mass incarceration, public education, and the environment, placing federal troops in Portland is a continuation of seemingly neutral decisions that disproportionately affect people based on their race. Photo by Umit Aslan on Unsplash [1] NPR, All Things Considered, July 17, 2020. https://www.npr.org/2020/07/17/892277592/federal-officers-use-unmarked-vehicles-to-grab-protesters-in-portland [2] They are Customs and Border Patrol agents and US Marshals Special Operations Group. [3] Posse Comitatus Act, 18 U.S.C. Section 1385, in 1878. [4] 10 U.S.C. §§ 251–255; prior to 2016, 10 U.S.C. §§ 331–335; amended 2006, 2007. [5] Yick Wo v. Hopkins, 118 U.S. 356 (1886) [6] Congressional Research Service, “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law,” Updated November 6, 2018. https://fas.org/sgp/crs/natsec/R42659.pdf [7] Interview of Gov. Kate Brown https://www.koin.com/news/oregon/gov-kate-brown-on-covid-potential-rollbacks-protesters-1-on-1-07172020/; Associated Press, “Mayor of Portland to Trump: Get your troops out of the city,” July 17, 2020. https://www.tampabay.com/news/nation-world/2020/07/17/oregon-officials-decry-portland-arrests-by-federal-agents-dressed-in-camouflage/ [8] Congressional Research Service, “Defense Primer: Legal Authorities for the Use of Military Forces,” Updated January 3, 2020. https://fas.org/sgp/crs/natsec/IF10539.pdf [9] Congressional Research Service, “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law,” Updated November 6, 2018. https://fas.org/sgp/crs/natsec/R42659.pdf [10] The National Guard is a state-run successor to the militia and is usually used first in help with natural disasters or to assist police in managing protests and keeping civilians safe. The National Guard is not subject to Posse Comitatus – it is permitted to help with civilian law enforcement. National Guard is commonly used in riots although the federal military has been called in when the riots are outside the scope of the National Guard’s training or effectiveness. Mark F. Cancian, Senior Adviser, International Security Program, Center for Strategic and International Studies, “Use of Military Forces in the COVID-19 Emergency,” March 17, 2020. https://www.csis.org/analysis/use-military-forces-covid-19-emergency [11] Alicia Victoria Lozano, “The Insurrection Act was last used in the 1992 Los Angeles riots. Invoking it again could undo years of police reform, some warn.” NBC News, June 4, 2020. https://www.nbcnews.com/news/us-news/insurrection-act-was-last-used-1992-los-angeles-riots-invoking-n1224356 [12] Mark Nevitt, “The President and the Domestic Deployment of the Military: Answers to Five Key Questions,” Just Security, June 2, 2020. https://www.justsecurity.org/70482/the-president-the-military-and-minneapolis-what-you-need-to-know/ [13] Nevitt. [14] https://www.oregonlive.com/news/2020/07/evidence-shows-portland-police-working-with-federal-officers-at-protests-contradicting-city-officials.html [15] Oregon Governor Kate Brown banned tear gas unless there is a declared riot and the use of teargas is announced first. Police did not respect the ban. https://www.wweek.com/news/2020/07/01/hours-after-gov-kate-brown-signs-tear-gas-ban-into-law-portland-police-deploy-more-gas-onto-protesters/#:~:text=On%20June%2030%2C%20Oregon%20Gov,is%20imminent%20before%20deploying%20it. [16] Morgan Phillips, “DHS pushes back against claim federal agents detaining Portland protesters aren't identifying themselves,” Fox News, July 17, 2020. https://www.foxnews.com/politics/dhs-pushes-back-against-claim-federal-agents-detaining-portland-protesters-arent-identifying-themselves Quoting Chad Wolf, Acting Secretary, Department of Homeland Security. [17] https://www.merkley.senate.gov/imo/media/doc/NDAA%20Crowd%20Control%2020.7.20.pdf [18]Linda Poon and Marie Patino, “CityLab University: A Timeline of U.S. Police Protests,” Bloomberg News, Bloomberg CityLab, June 9, 2020. https://www.bloomberg.com/news/articles/2020-06-09/a-history-of-protests-against-police-brutality [19] Rogers M. Smith, “Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America,” The American Political Science Review, Vol. 87, No. 3 (Sep., 1993), pp. 549-566

COVID-19 politics have centered around a priority narrative: in the short-term all must sacrifice to save some lives. Based on the set priority, public health experts and the media portrayed those questioning social distancing, business closures, and stay-at-home orders as indifferent or even hostile toward the lives of the elderly or vulnerable. Yet the public health policies came with a well-documented economic cost. Economists readily discuss the economic consequences in macroeconomic terms like lost GDP, unemployment figures, and business closures. Personal economic stories of unemployment and financial losses are emerging. Job loss is associated with physical conditions including hypertension and other physical vestiges of emotional stress. The priority narrative should have accounted for a mitigating factor: health problems due to secondary health effects of public health policies. Saving lives from COVID-19 is crucial -- limiting incidental physical and economic damage would prevent a pyrrhic victory and present a unifying message. The priority narrative, prevalent in March and April, assigned everyone the same priority: saving lives in the short term. For the wealthy and upper middle class, the goal was easy altruism. Savings accounts were plentiful. In some cases, vacation homes replaced city apartments and the shift to earning high incomes from home was smooth. A focus on mental health and on being one’s best quarantine self (daily yoga and meditation, being patient parents, and eating health foods) was trending on social media. For others, the secondary health effects that stem from economic problems may last longer than the economic problems themselves. A lack of income and savings increases reliance on low-priced, low-quality foods. A lack of access to medical care for the uninsured and underinsured leaves some avoiding necessary care for ongoing medical conditions. The poor and struggling middle class held mixed views of the priority narrative. Their health and livelihood were at stake, so they evaluated stay-at-home orders in personal economic terms. They weighed health risks and economic risks, although little choice existed for essential workers unable to work from home. The rural population tended to protest stay-at-home orders for ideological reasons like civil liberties and the urban poor and middle class living in close quarters were more supportive. Many essential workers needing to use public transportation recognized that encountering fewer people would be safer. Rural work in crowded meat-packing plants also proved unsafe. Those protesting stay-at-home orders touted civil liberties and economic freedom, a priority that conflicted with the public health priority narrative. In some states, the economic priority narrative was mainstream, especially in states that embraced ideological objections to restrictions imposed to prevent transmission. Florida, where the economic priority narrative shaped public policy, is seeing a rapid increase in cases of COVID-19 and related deaths. Those prioritizing their own ability to earn money are accepting the risk of COVID-19. (VICE News did a great story about Destin, Florida.) Many government officials struggled to follow public health advice while under local pressure from business owners and workers. While public health experts rightly do not weigh money against human life, initial measures should have weighed secondary health problems caused by economic strife against COVID-19 risk. It was predicted some would suffer emotionally; a higher suicide incidence is suspected. In areas where food pantries had lines around the block, public health officials should have begun crunching numbers on health detriments caused by a long-term lack of fresh foods, an inability to pay bills, and possible housing insecurity. Time was the balancing factor. Learning more about COVID-19 transmission and risk helped the economic narrative and acted as a check on the priority narrative. Masks and social distancing became viable options to a complete shutdown. While the shutdown was necessary and should have taken place sooner and lasted longer in certain areas, the dialogue that focused on one priority should change for future pandemic preparation. A public health narrative that suggests everyone take an equal hit for the sake of the vulnerable and that measures health problems and deaths not just from COVID-19 but from depression, lack of resources, and diseases of stress and poverty would be more convincing and unifying. The comorbidities I addressed at the very beginning of the pandemic are leading causes of death in the US. If public health experts want a unifying role, they should create a system that ensures there will not be an increase in chronic health conditions while guaranteeing that economic burdens will be shared. If public policy improved conditions based on the social determinants of health, it would create a level playing field. The following policies have the potential to minimize hardship: • Subsidizing employers so that employees remain employed. Many US employers fired people to allow them to collect unemployment. • Ensuring gig economy workers have insurance. Instacart and Shipt are doing very well in part because people turned to them to earn money—their shoppers, like Uber drivers, should receive insurance benefits from their employers. In our healthcare system, absent a health insurance mandate, definitions of employee must be broad and enforced. • Encouraging actual health—this includes prohibiting lobbyists from influencing government health recommendations (food pyramids) and eliminating subsidies for the least healthy foods like corn for corn syrup; creating a food cost structure that reflects cost of production and subsidizes only the most healthy foods; and, publicizing the ability of food and lifestyle choices to improve health very quickly. Socioeconomic status, education, physical environment, and social supports all influence health. Poverty, poor living conditions, air pollution, and a lack of lead-free clean water cost lives. The health effects of financial hardship are exacerbated by the government’s failure to address the social determinants of health. The priority narrative of saving lives of those currently vulnerable to COVID-19 may have more acceptance if we recognize that saving the lives of the constantly vulnerable matters too.

A. Introduction COVID-19 represents a crisis at the intersection of personal conviction and public policy. The pandemic challenges the essence of what it means to be a member of a society that highly values civil liberties, and is governed by traditions and social norms, as well as rules and regulations. When government acts decisively using the least restrictive methods to manage the crisis, it is essential that people act ethically and follow recommendations to avoid inviting government to abuse emergency powers. The people and policy makers both must strive for the common good. The power to enact stay-at-home orders,[1] which 42 states have issued, while technically justified by the mere fact that an emergency has arisen, must be backed up with reason and an appeal to morality. In accountable societies, an explicit ethical justification (usually necessity) for each emergency provision is necessary. Understanding the justification for uniform action as resting on a myriad of reasons reflecting diverse points of view should provide a basis for creating a better framework for the next national emergency. B. Public and private morality: Does COVID-19 response belong exclusively to either? The sphere of private morality should compel behavior for the good of others. Yet people have vastly different views on what is good for others. To many, it is as reasonable to feel obligated to remain working in order to earn money and support a household as to stay at home to reduce the spread of disease at the risk of being unable to support a household. People both unreasonable (even in denial about the scope of the pandemic) as well as reasonable may have a valid reason not to stay at home. Liberal democracy supports variance in the view of what is reasonable. Emergencies cannot allow everyone who holds a reasonable opinion on how to proceed to proceed as they wish. Management of COVID-19 policy is properly in the public sphere where government must impose on the reasonable in society to be reasonable the same way and on the unreasonable to follow suit against their will. Private morality can overlap with government policy: many people who understand the gravity of COVID-19 will follow the orders as they would if the orders were mere recommendations, and the recommendations as if they were orders. A private morality failure can occur when people do not want to sacrifice for the good of others. To achieve either the utilitarian goal of maximizing happiness or to take a humanistic approach maximizing social good while minimizing suffering, the people must follow the orders as long as the orders are reasonable.[2] Arguably, capitalist society relies on incentives, even greed, and people are not easily moved to make personal and financial sacrifices. If stay-at-home recommendations remained a private morality issue, COVID-19 would thrive due to differing points of view. Norms and social pressure were not enough to achieve social distancing where the government has not insisted on it. For example, in Florida, beaches, bars, and restaurants remained crowded until this week while in New York, orders that became stricter progressively did change behavior using the law. Those with preexisting conditions should stay at home for their own protection aligning their actions with best practices regardless of the motive, creating an opportunity for overlapping consensus. The safety of healthcare workers is another moral impetus for individual’s precautionary actions. A shortage of personal protective equipment is well established. Staying at home benefits healthcare workers just like using good judgment in recreational activities saves rescue workers. Fewer severe cases of COVID-19 would be safer for healthcare workers. Some people who do not want to stay home for other reasons might be compelled to out of respect for healthcare workers. Private morality is intertwined with public morality. In California, the general population may have been more supportive of the measures than people in other states would be. Some governors did not fear that most of their constituents would not understand the need for action. While skeptics exist even in New York and California, and many do find the stay-at-home order too restrictive, the overall acceptance is shored up by a prevailing view that the order is aligned with the correct solution. Private morality eases the need for punishment in enforcement. In Reshaping the Common Good in Times of Health Emergencies, George Smith argues an educated electorate will understand the need for intrusive public health measures in emergencies.[3] Arguably, even an undereducated electorate is certainly capable of understanding the necessity of staying home and limiting social contact. The scope of government action can be condensed by a broader willingness of the people to participate in the actions set forth in stay-at-home orders and recommendations. Public morality also varies: Governors have overseen COVID-19 statewide actions differently. Some states took decisive action early while others have kept businesses open and made no statements about social distancing, staying home, or even encouraging recommended behaviors set forth by WHO and the CDC. California moved quickly to establish a stay-at-home order while some states’ governors have still failed to act. (National Conference of State Legislatures and the National Association of Counties have maps showing state and county orders.[4]) Florida’s new stay-at-home order does not prohibit religious groups from worship services, a known risk. Some states have been steadfast in their inaction for various reasons: their skepticism of action is fueled by misinformation about the severity of the pandemic; and, their governors and local officials fear the political cost of temporarily shutting down non-essential businesses, forcing non-essential workers to stay home, and limiting personal freedom. Their approaches are outside the scope of scientific reasoning and must be overridden. There is debate about the best course of action but the do-nothing approach is not within reason. Governors of the eight states without an order, Arkansas, Iowa, Nebraska, North Dakota, South Carolina, South Dakota, Utah, and Wyoming reflect the prevailing views of their states’ residents. Governor Noem of South Dakota argues people are responsible for their safety, absolving government of the public health responsibility. Most of the other governors assert that changing personal behavior through recommendations is more important than executing an order.[5] If the people in those states were more willing to change their own behavior, more invested in making moral decisions within the scope of scientific reason for the common good, the governors would be proven right: urging behavior would be enough. However, the prevailing mindset in those states might be that because the government is not making a strict order, COVID-19 does not pose a major public health threat. The lack of orders also reflects a phenomenon: the public and the state governments do not really believe the science. If they did, reducing deaths through public policy would probably trump notions of freedom. The public policy makers are reflecting social norms that do not define the common good in an emergency appropriately and that ignore that government is the entity that should act for safety and the general welfare. A libertarian or small government tradition should not be an excuse for the unrealistic expectation that all people will converge to protect public health. Idaho has a more severe local problem: a lapse in both public and private morality based specifically on the constitution and legal arguments regardless of the science. The governor, Brad Little, issued a stay-at-home order on March 25.[6] Northern Idaho has representatives in its state legislature condoning and encouraging boycotting the order and drumming up enthusiasm for the idea that the constitution guarantees an unconditional right to assemble.[7] Ammon Bundy, known for taking over a federal wildlife reserve in Oregon on similar anti-government grounds, spearheaded a movement to ignore the stay-at-home order encouraging people to attend meetings and even a 1,000 person church service on Easter. He aims to create a civilian militia to “physically stand in defense.”[8] While other states also have civil liberties extremists operating in a sphere well to the right of libertarians, the documented reasons to ignore a stay-at-home order or not issue them at all tend to have some link to advisors giving unscientific recommendations and people failing to believe the developing science supporting the high risk. The Bundy formula violates the US body of constitutional law that fully supports the exercise of emergency powers as well as the many noted exceptions to first amendment rights. The northern Idaho community’s view is indifferent to the high risk of deaths from COVID-19 and values civil liberties decisively. In a polarized political climate, it is easy to argue that the differences between states’ reactions are political. In 2016, Trump won the eight states that are now without stay-at-home orders with a wide margin. However, just weeks ago, many New Yorkers were uncertain of what would be necessary to slow the spread of COVID-19. The virus had reached a nursing home in Washington state. New York may have taken action sooner if the physical distance and the targeted age group of the first cluster of the virus were different. It did not hit close to home. Although schools and government officials did take action, many felt they overreacted at first. Now, information from WHO, other countries including Italy and South Korea, and states that have addressed COVID-19 can educate others about which policies are most likely to succeed. There are states and counties where the actions that are reasonable may vary but at this point it looks like even rural states are experiencing cases of COVID-19 which would spread through schools, social interactions, and businesses if not contained. Emergencies that do not recognize state borders call for consensus in the action of government. Weather events, wildfires, mass shootings, and even terrorism are manageable because resources can be moved from state to state. The Army Corps of Engineers and FEMA can be instrumental in overseeing logistics of resource movement. Presidential power is at its greatest in times of an emergency[9] yet the current president, after failing to act in a timely manner, has deferred to states to manage the virus. The balance of power is three-pronged: individuals, states, and the federal government vie for power yet the federal government is not promoting compelling public health orders. Without federal action, governors should agree on the best course of action for COVID-19. Without consensus, the states that fail to take action will undermine the measures taken in other states. The states failing to act may face worse economic conditions in the long run as COVID-19 spreads. Keeping businesses thriving longer now will come with a human cost soon. If states will not act, the president should act and his actions must be within “reason.”[10] In Germany, Angela Merkel’s actions were decisive despite a fear of powerful governments stemming from her own communist East German upbringing. Yet her “appeal to reason” and her attributing “absolute necessity” as a justification were well received.[11] There are many government rationales for taking swift action that can be invoked to spark action by governors failing to act so far. David Fidler sees multiple rationales for government power in the public health sphere: health, international relations, national security, macroeconomics, and international trade, among others. He introduced two paradigms. The first, the “power paradigm” asserts governments have multiple completely different motives for power. The CIA, the World Trade Organization, and humanitarian organizations might all promote public health for international relations for different reasons. The second, “the paradise paradigm” sees public health policy as humanitarian, viewing “power in terms of health” rather than “health in terms of power,” and is more likely to recognize health as a human right. Fidler finds it difficult to reach consensus. An “axis of illness” that recognizes combined causes for the spread of dangerous pathogens calls for some cohesive policies regardless of the many motives behind them. His axis calls attention to factors ranging from microbial resilience to social determinants of health.[12] Overlapping consensus among governors should help: if a governor does not care about the people’s health, the governor might care about any one of the economic catastrophe, the effect of the virus on trade, savings accounts, the strain on the healthcare system, and jobs. The government has the ability to regulate businesses and places as well as people’s actions. Heavier regulation of businesses can alleviate the need to heavily regulate individuals. Closing places of employment, beaches, and public parks, and regulating how restaurants may serve people (takeout and delivery only), and changing the maximum number of people allowable in grocery stores (something fire codes already govern for many spaces) would encourage social distancing and staying home: having nowhere to go helps. The eight states resisting the best policy (stay-at-home orders) need to expand their limited policies and invoke regulatory powers more. C. Clear Goals and Absolute Necessity: What is the common good and how do we achieve it? The goals of the stay-at-home orders should be reducing deaths. Doctors and officials say to stay home to prevent the spread of COVID-19 and invoke the term “flatten the curve” referring to an effort to decrease the number of new diagnoses which would help hospitals handle patients slowing the number of cases with immediate needs. People may be less accepting of sacrifices for the public good when the public good is for the collective benefit rather than for the benefit of known individuals. Public schools benefit individuals and thus society as a whole while many environmental laws exist for the collective good but often do not benefit distinct predictable individuals.[13] Similarly, social security has buy-in from the public because known predictable individuals benefit from it while healthcare reform has been fraught with controversy over how much some should subsidize the healthcare of others. COVID-19 stay-at-home orders fall in murky space between collective benefit (an interest in saving lives) and an unpredictable individual benefit. While high risk categories have been identified, it is impossible to predict who will contract the virus and what outcome they will have. Utilitarianism in determining the goal in an emergency might not be the best framework to decide how the burden is shared. If maximizing happiness maximizes utility, and there is an assumption that the maximum happiness is happiness for the most people, then other important values could be inadvertently set aside. Strict utilitarianism could lead to every single person staying home regardless of personal risks, fairness, or justice. Wiggle room is needed even in an emergency. A goal of minimizing harm could focus differently on those at the most risk.[14] The same action (staying home) would extend to the general public by appealing to people’s moral and ethical reasons for also wanting to protect the vulnerable and reduce suffering. John Locke expressed concern for executive overreach in emergencies partly because it could set a precedent that is abused later making it difficult for “people…[to] recover their original right.”[15] If the goal is not only maximizing happiness, and reducing suffering, but also doing so as fairly and with as little intrusion into rights as possible, the goal might better represent the intersection of private and public morality. Buy-in is key to attaining success without relying on unlimited emergency powers, especially police power. Stay-at-home orders have huge benefits to unknown individuals and a distinct collective benefit in society’s goal of preventing death. To justify the inconvenience, the loss of income, the sacrifice of freedom, an effort to convey the benefits should be more extensive. The public in some states clearly understands the risks and wants to do the recommended actions. Where there is not buy-in, justification must be delineated more clearly. Instead of dismissing each person weighing a right to work, to travel, and to socialize, a larger more important public health goal must be clear. Other people should not have to die for any one person’s right to work, to travel, or, especially, to socialize in person. Necessity is the appropriate excuse: there is no known solution that would impinge on freedom less so staying at home is an acceptable requirement. The life and death aspect should be exploited in a responsible way: governments must justify stay-at-home orders as necessary to reduce death. D. Efficacy and the Least restrictive means In China, a single party decides everything and has no nationally expressed legal obligation to consider individual rights when it makes policies. In the US, elected officials are expected to act within the bounds of the constitution and in accordance with public morality but presidential power does extend to the temporary suspension of normally recognized rights for the sake of public health.[16] The public should understand the rationales for strong action to decrease the human cost of the COVID-19. There is also a human cost to closing schools and businesses. The appropriate policy must see public morality as able to address many types of human cost weighing the benefits and harms. Exceptions (even some unforeseen) to stay-at-home orders will be necessary. For example, domestic abuse victims must be permitted to join other households if they can. Stay-at-home orders do include exceptions for leaving the household to purchase food or medicines, for medical care, and to go outside for walks and exercise in public spaces as long as social distancing rules are followed. The exceptions recognize that orders that outstep the bounds of liberal society must be narrow and reasonable. People should only be asked to sacrifice what might be their entire savings as well as their freedom to move about if stay-at-home orders actually prevent transmission of COVID-19. To argue stay-at-home orders are a necessity for the common good, leaders should demonstrate a “substantial relationship to the public health, the public morals, or the public safety.”[17] [18]Most stay-at-home orders allow people to be outdoors. Evidence of the efficacy of the US style restrictions is developing. Earlier action is best: South Korea[19] followed a social distancing regimen without closing down schools and businesses to the extent of Italy which fared worse. Italy and France have already fined people and some countries also threaten prison time for those violating quarantines. France has added police who are tasked with issuing fines if people leave their apartments without proper paperwork attesting to an allowable reason. The shift in power must be controlled. COVID-19 must not be an excuse for increasing centralized power that could be abused. The least restrictive means should not need to include imprisonment for violating quarantines. Many local mayors have made efforts not to detain people for minor offenses in order to decrease prison populations and prevent transmissions of COVID-19 in prisons. Populations in Europe so far seem amenable to sacrificing rights for the COVID-19 emergency orders: they want to save lives so they are willing to be subject (or to have others be subject to) to fines and imprisonment. In the US, we should take measures to protect democracy. Opposition to fines and imprisonment should remain strong. Instead, stay-at-home orders should be free of punitive measures that fall into criminal rather than civil actions. “Public health police powers are an expression of the civil, not criminal, authority of the state.”[20] For those in public and not social distancing very low fines should prevail or possibly future community service, not New York City’s proposed $1,000 fines. Incentives to follow the orders should be strong enough to ensure new crimes are not written in criminal codes where they can be rehashed in lesser emergencies. Neighborhood watch programs should manage the stay-at-home orders ensuring that private morality is a driving force partnered with government orders that reflect the best public health recommendations. E. Power Grabs with weak or no relationship to COVID-19 prevention In New York, hospitals tried to forbid pregnant women from being accompanied by a partner or spouse while giving birth but New York’s governor overrode the measure. Texas is forbidding abortions during the COVID-19 pandemic unless they are to save the life or health of the mother. Most abortions in Texas are medical rather than surgical and the performance of medical abortions are not as complex and would not free up hospital beds or healthcare workers. A narrower restriction could be reasonable but even Ohio’s restriction on surgical abortions is unnecessarily restrictive. “The American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology recently issued a statement saying that abortion should not fall into the category of procedures that can be delayed during the coronavirus outbreak, calling it “an essential component of comprehensive health care.””[21] Ending the two visit requirement imposed for abortions would help decrease transmissions if the Texas governor’s motive were to decrease transmission of the virus. The Justice department asked congress for the power to detain people without a trial in a move contrary to many localities trying to halt arrests in an effort to decrease the prison population.[22] [23] The Trump administration has also tried to violate habeas corpus rights by pausing judicial proceedings, yet the same result (closing courts that do arraignments) could be easily accomplished by choosing not to make an arrest. The ends do not justify the means when other options are available. Trump also looked to closing borders, restricting flights, and rejecting asylum seekers some of which may be substantially correlated to controlling the pandemic and should be priorities if there is a proven relationship to public health. F. Conclusion Democracy in a federalist society should not allow the least reasonable laws to prevail when the fallout will cross state lines. Divisions in society and different preconceptions of what is moral can be resolved by appealing to the framework of the democratic system: use the least restrictive means to reach an articulated goal in an efficacious way and then restore any right that was temporarily suspended. The systemic reinstitution and lasting continuity of those rights must be a pillar of democratic systems. If the common good as projected in public policy could never trump rights, and the public does not engage in the private morality for the common good, then, as George Smith argues, the healthcare crisis could turn the constitution into “a suicide pact.”[24] Reason must be the basis of governmental public health decisions so that the skeptics cannot stand in the way of the solution and the government cannot outstep its powers. When a novel contagious pathogen appears in the world, absent presidential action, governors must agree on reasonable science-based action. Some technique to garner consensus or override governors that fail to act should be developed. Elections were the chance to decide who would make difficult decisions. A new paradigm could be in place in time for the next pandemic. It should not matter who the president is or which political party is in power in each state: the new paradigm must follow reason and public morality. Private morality must support a government that is acting within the bounds of reason, informed by renowned scientific organizations. The odd problem in the US remains a president not using his powerful post to take steps necessary to stop the virus but stealthily seeking to change other policies under the guise of necessity. Private and public morality call for the same goal: eradicating COVID-19 with rights intact. April 4, 2020 Photo credit: Ohm Kittipong, Sioux Falls [1] In this paper, stay-at-home orders, safer-at-home orders, and shelter-in-place orders are encompassed by the term stay-at-home orders. The varying specifics among the orders are discussed when relevant. [2] Smith, George P., II. "Re-shaping the Common Good in Times of Public Health Emergencies: Validating Medical Triage," 18 Annals of Health Law 1 (2009). [3] Joshua L. Friedman, Emergency Powers of the Executive: The President’s Authority When All Hell Breaks Loose, 25 Journal of Law and Health, Vol 25:265 (2012) at 296 quoting George P. Smith. https://www.law.csuohio.edu/sites/default/files/academics/jlh/friedman_final_version_of_article-2.pdf [4] National Conference of State Legislators https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx National Association of Counties map of counties https://ce.naco.org/?dset=COVID-19&ind=Emergency%20Declaration%20Types [5] https://www.cnn.com/2020/04/04/politics/republican-governors-stay-at-home-orders-coronavirus/index.html [6] https://coronavirus.idaho.gov/statewide-stay-home-order/ [7] Some state representatives, including Heather Scott, a Republican from northern Idaho, argue people should ignore the order. A local sheriff, Darryl Wheeler, spreads the idea that the state can only legally restrict the movement of the sick. Tim Remington a pastor with a seat in the state legislature also claims the order violates constitutional rights. Baker, Mike. “A ‘Liberty’ Rebellion in Idaho Threatens to Undermine Coronavirus Orders.” New York Times. April 7, 2020. [8] Baker. [9] Friedman, 267 quoting Alexander Hamilton, “The Federalist.” “There can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy.” [10] Friedman, 178 and 279. Friedman favors strong presidential powers but his analysis presupposes a president willing to take bold action. [11] Rising, David and Moulson, Geir. (of Associated Press). “Germany’s Merkel shines in virus crisis even as power wanes.” PBS Newshour Online. Mar 29, 2020. https://www.pbs.org/newshour/world/germanys-merkel-shines-in-virus-crisis-even-as-power-wanes?fbclid=IwAR0PoAMjUL6e_D7cTaHH97ZGedbDqzhF3Xqg_lz3Y0cBfAXbQHq_LwELBsk; Bennhold, Katrin. “A German Exception? Why the Country’s Coronavirus Death Rate Is Low.” New York Times. April 4, 2020. https://www.nytimes.com/2020/04/04/world/europe/germany-coronavirus-death-rate.html?smtyp=cur&smid=fb-nytimes&fbclid=IwAR2_U204R7GXueIAggtZ6A6etRo47rmux6Qs4BGDwnyrkfnlZcf8sdb_G-Q [12] Fidler, David P., “Caught between paradise and power: public health, pathogenic threats, and the axis of illness.” McGeorge Law Rev, 2004; 35(1):45-104. [13] Environmental laws can help individuals by removing pollution from their area or by imposing workplace protections but regulations to do with largescale items like carbon cap and trade or protection of endangered species are for the collective good. They tend to face more scrutiny without well defined beneficiaries although all benefit. [14] Smith, George P., 14. Smith favors a balanced approach recognizing society values actions based on fairness and justice not just maximum utility. Smith also professes a balance of public health benefit and civil liberties arguing in times of emergency the equilibrium shifts temporarily. Smith, 34. [15] Friedman, 269-70 quoting John Locke. [16] Friedman. [17] Friedman citing Jacobson v. Massachusetts, 197 US 11, 25 (1905). [18] Jonathan Smith, lecturer in Epidemiology of Microbial Diseases and Global Health Yale University School of public Health, argues to get the public health benefit of social distancing all members of the household must keep a distance from all nonmembers of the household. The smallest transgressions spread the virus. “If your son sneaks to see his girlfriend, and you later sneak to have coffee with a neighbor, your neighbor is now connected to the infected office worker that your son’s girlfriend’s mother shook hands with.” Social distancing done early enough could break chains of viral transmission. Looking at each family as an individual unit and separating each unit from all others, as recommended by epidemiologists, should be achievable without mandatory government action. Ladra, “Epidemiologist explains why social distancing is #1 weapon vs COVID19.” Political Cortadito blog.March 24, 2020. http://www.politicalcortadito.com/2020/03/24/epidemiologist-explains-why-social-distancing-is-1-weapon-vs-covid19/ [19] South Korea ramped up testing early and tracked cases more accurately allowing it to be less restrictive in its response. As a result of testing both the symptomatic and the asymptomatic, South Korea was able to quarantine large groups immediately. While quarantines are severely restrictive, South Korea never needed to have the entire population stay at home except for essential workers. The United States did not have enough tests to implement strategic quarantines. To slow the spreading virus, cities and states in the US had to issue orders to the general population. The less restrictive means used in North Korea required tests, fever testing, and spreading knowledge of how the asymptomatic may also be identified and quarantined. South Korea suggested young people who lose their sense of taste and smell should be tested for the virus and isolated. To address COVID-19, the least restrictive way still must cover more people because of the lack of available tests. https://www.wired.com/story/a-south-korean-covid-19-czar-has-some-advice-for-trump/ [20] Galva, Jorge, Christopher Atchison, and Samual Levy, “Public Health Strategy and the Police Powers of the State.” Public Health Reports (2005 Supplement) Vol. 120, p 25. [21] Bazelon, Emily. “The Coronavirus Becomes an Excuse to Restrict Abortions: Texas and Ohio say the procedures are nonessential and must yield to the pandemic.” New York Times. March 26, 2020. [22] Politico https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023 [23] https://www.theatlantic.com/ideas/archive/2020/03/when-disease-comes-leaders-grab-more-power/608560/ citing this https://www.latimes.com/world-nation/story/2020-03-18/israel-coronavirus-netanyahu [24] Smith, George P., citing Terminiello v. Chicago, 337 US 37 (1949) (Jackson, J., dissenting). Smith also refers to Posner, Richard A., Not a Suicide Pact: The Constitution in a Time of National Emergency, Oxford University Press (2006).

A. Introduction Before the COVID-19 pandemic, the protection of consumer privacy had reached a milestone with the enactment of the California Consumer Privacy Act (CCPA).[i] Stores that screen customers for elevated temperatures challenge the basic ethical underpinnings of the new law: that personal private medical data is to be controlled by oneself. The pinnacle of privacy and control over personal data, the CCPA as it applies to data being collected new ways could impede COVID-19 public health goals.[ii] Yet there is precedent to release personal medical information in other public consumer arenas. “Government has a unique role in public health”[iii] which now calls for extraordinary means to control the spread of COVID-19. In the absence of clear governmental guidance, companies must navigate public health and implement fair policies to promote safety, acting in what is traditionally government’s realm. Customers, as opposed to employees, would arguably be subject to data collection but not storage.[iv] Customers will be subject to actions that violate traditional notions of the doctor patient relationship, data privacy, and freedom. The actions can be justified as noncoercive, a public health necessity, and as less restrictive than keeping businesses closed. The justification does not necessarily imply that companies should be managing the public health task themselves. Temperature screening, important now as some stores selling essential goods are implementing it, will become more crucial as more indoor public spaces, malls, retail stores, and service industries reopen. B. Is temperature screening worth the sacrifice? “In a liberal, pluralistic democracy, the justification of coercive policies, as well as other policies, must rest on moral reasons that the public in whose name the policies are carried out could reasonably be expected to accept.”[v] Temperature screening is not coercive: staying home is an option for customers (not employees). Another option is to arrive at the store, deny the screening, and be denied entrance to the normally open-to-the-public space, also negating the coercive aspect. The customer, having made the decision, would be free to leave. In certain industries, businesses have rules that more severely restrict people’s freedom and include the collection of personal medical information. In most cases, there is a legal requirement for the action. Airport scans, recently adapted to reveal less and preserve more privacy, are TSA-driven and not imposed on customers by airlines themselves. Airlines do have a lot of power to ensure that flights are safe, on balance, giving them power over personal data. Amusement parks are governed by rules and regulations by state, local, and the federal government that include height and weight requirements; they ensure safety by following laws as well as internal and industry guidelines. Even bungee jumping and zip-lining are regulated to promote safety in ways that may require demonstrating an absence of certain medical conditions. Customers must divulge personal information and medical histories. The permitting process in many industries requires proof of safety measures and agreement to hold inspections. From the customer perspective, the laws and regulations matter less than the action. Customers benefit from safe airlines and amusement parks and willingly give medical information in exchange for participation in air travel or amusement park entertainment. Temperature screening is within accepted standards of requirements to participate, justified by the public health it would promote and its non-coercive nature. While many stores have nondiscrimination policies, the potentially contagious customer does not have any fundamental right to access that would override the public health concern. It is reasonable to accept and even embrace temperature screening knowing others inside the space will also have been screened. Temperatures often indicate the most contagious time in a viral stage and even non-COVID-19 temperatures can indicate contagious conditions. Temperature is usually protectable data: it is to be kept private if it is a product of a hospital or doctor’s appointment. COVID-19 disproportionately affects certain populations including, most notably, the elderly. Reopening stores and businesses is an opportunity for those without special vulnerabilities wanting to go back to public space. Immunocompromised individuals may choose to protect themselves by staying home, wearing additional personal protective gear, or avoiding crowds. My own immunocompromised post-chemotherapy daughter is incredibly cautious, going to great lengths to protect herself regardless of government directives. She benefits from those directives because other members of our household are less likely to bring the virus home if public spaces are closed or engaging in temperature screening and enforcing social distancing and mask recommendations. Stay-at-home orders combined with other nonpharmaceutical interventions like closing schools and wearing masks in crowded spaces should work for flattening the curve.[vi] The strain on the economy and on personal liberty makes them unsustainable in the long term. A solution like temperature screening makes public spaces safer but may work best in conjunction with particularly vulnerable people continuing to avoid crowded public spaces. There is an urgency to addressing the ethical basis for retail stores performing temperature screening as some stores have already begun. In Connecticut, LaBonne’s grocery stores began checking temperatures without recording data.[vii] Atlanta’s City Farmer’s Market chain is also screening its customers. Walmart has chosen to stay out of what it considers a public policy issue, refraining from testing customers’ temperatures.[viii] Greenburgh, New York, a municipality, is requiring grocery stores and pharmacies to check temperatures.[ix] Temperature screening is a valid and effective way of controlling the spread of COVID-19, and will become especially important when more businesses reopen.[x] It is reasonable to conclude that no one should be permitted entry into enclosed spaces with a fever. The efficacy of temperature checks has been debated with many public health experts in favor.[xi] Other countries that have successfully contained the virus have used temperature checks.[xii] This paper assumes enough efficacy to warrant some temperature screening policy -- some benefit or containment would derive from screening those entering public indoor spaces and barring those with a temperature of 100.4 or higher from entrance. Temperature screening of customers has two rationales: under OSHA, such precautions protect employees by limiting exposure to customers who may carry the virus; and, the precautions serve the public health goal of transmission prevention. If reporting requirements or tracking ensued, the public health benefits would grow at the expense of control over one’s own data. Websites usually offer data restriction choices by using a pop-up. An in-person temperature screening is a new data point that companies (especially small retail companies) are not prepared to deal with. If any data is collected, customers should be notified about how the temperature would be used, who can access it, and how the customer would remain deidentified. Failing to track the febrile customer who might transmit the virus seems more ethically problematic than the privacy violation. Without government directives, stores would have trouble justifying saving or sharing the data for the sake of public health. Public health initiatives required by law, permitted by law, and ones not addressed by law have different ethical implications. Efficacy alone would not allow stores to impede freedom and privacy more severely. Stores cannot detain those who display a symptom or refuse to wear a mask. Temperature screening must be within reason to be considered permissible. Stores like Walmart are using the absence of a governmental directive as an excuse to avoid an efficacious and sensible policy. Walmart is permitted to remain open as essential, a huge economic benefit. Customers may see Walmart’s stance as more ethical: valuing customer privacy and freedom. Stores like LaBonne’s are managing risk themselves to protect employees and the public. In Greenburgh, store employees can simply argue they are following a local government directive. Temperature screening should be accepted within a rights-driven, liberty-oriented society because it is a reasonable safety measure that creates the possibility of cautiously reopening many stores and public spaces. Some freedom is gained by a small loss of privacy and a different freedom. C. Privacy in public temperature screening Privacy in the doctor patient relationship enhances value by promoting trust. Confidentiality promotes open communication with doctors and healthcare professionals. In COVID-19 customer temperature screening, the person taking the temperature is likely not trained in confidentiality and not HIPAA educated. Customers, traditionally not seen as patients, are operating outside of the traditional scope for the sake of the common good, allowing a non-invasive screening. Stores that screen customers should have a non-invasive thermometer that hovers and does not touch the customer. Evaluated by the principles of efficacy, necessity, and the least restrictive means, temperature screening may allow more freedom to move about and more businesses to open. Strict stay-at-home orders prevent the necessity for widespread screening, yet reopening stores creates a situation ripe for more pervasive temperature screening. Companies, stores, the local government, or police have little to no experience with personal medical data collection in the sphere of retail goods and services. In some cases, people might ask for a private space for the temperature screening. Stores should provide such a space but realistically they probably will not, making the screening a public event. LaBonne’s is not storing the data but arguably an elevated temperature would be witnessed by others outside the store who may know the identity of the febrile customer as many shop among their friends and neighbors. Yelling the temperature over to a different employee would be a serious breach of privacy; the employee taking customer temperatures should be trained to be discreet. D. An ethical lapse: the failure to record data that could improve public health and the economy The results (a high or normal temperature) bring up the ethical conundrum: if the customers are asked to leave, the data and the customer are still in limbo. As COVID-19 testing becomes more readily available, the customers could be referred to a COVID-19 testing site. Failure to track them could allow them to try their luck at another store, spreading the virus if in fact they do have it. For privacy, it would be best not to store any temperature data creating no metadata for the event. For public health, tracking those with an elevated temperature is worthwhile and has been helpful in other countries. The right thing for a business to do probably lies in between: for an elevated temperature, recommend an online doctor’s appointment or send the customer home to consider seeking medical advice. A government directive to report elevated temperatures for legitimate public health purposes like tracking is reasonable and would be an appropriate directive for stores to follow. Absent government use of the data, companies and stores should not be operating vigilante public health schemes that track and ban certain customers for extended periods, behavior that risks producing scarlet-letter-style stigma. WHO goals to find, isolate, test, and treat every case would be furthered by tracking and testing those with elevated temperatures.[xiii] South Korea has in place a mechanism through apps and electronic bracelets to track those who test positive.[xiv] While their policies conflict with privacy and freedom, more businesses could reopen and more people could go more places while following social distancing and mask-wearing recommendations. The US population might be amenable to a model like South Korea’s when it is key to exercising freedom to move about in public, allowing workers to return to work, and consumers to enjoy stores and businesses. WHO seems not to envision its goals being handled by companies rather than public health authorities. The return to retail businesses and in-person services should be commensurate with a distinct protocol that fairly applies to all customers. The tradeoff for forgoing privacy is allowing stores to open, people to work, and consumers to consume. D. Ethical baseline: notice and informed consent Notice of policies affecting customers is an ethical obligation. Companies should make a statement on a website and install signs announcing that temperature screening will begin on a certain date (official notice) and what the screening will entail. Businesses that require temperature taking could provide exceptions based on proof of antibodies or a current negative COVID-19 test, especially if the “immunity cards” considered by Anthony Fauci become widely circulated.[xv] Otherwise, there is no obvious expeditious way to request, accept, or deny an exception if the interaction is taking place outside on the curb instead of online.[xvi] Kinsa, the thermometer company now well known for gathering temperature data, sells the data to pharmacies who use it for commercial purposes, specifically, to boost sales of products people with an elevated temperature might want.[xvii] Through a built-in feature, Kinsa avoids any type of consent of the unwitting customer. While no personal data accompanies the temperature data, Kinsa is profiting from the data in unexpected ways and stores’ notice to customers should include that type of data collection as well. E. Conclusion Government entities should weigh in on stores and businesses imposing temperature screening as a condition of entry. The stores are ensuring employee safety and contributing to public health by conducting temperature screening. Absent government directive, companies should agree not to store or use customer medical information, despite the data’s valuable role in public health. A government order requiring reporting for the sake of tracking and isolating those with COVID-19 would be a proper use of government authority ensuring ethical data protocols. The data is essentially wasted in the absence of any reporting requirements. Hopefully, companies and customers will participate freely in screening to make shopping safer. As stay-at-home orders expire, government should oversee the uniform application of tracking and testing those with elevated temperatures. For now, the government vacuum in retail temperature screening is handing power to retailers and grocers who do not know quite what to do with it. April 22, 2020 photo credit: Photo by Thomas Le on Unsplash [i] AB375, Title 1.81.5, The California Consumer Privacy Act of 2018. California Civil Code, Part 4, Division 3. [ii] Gavin Newson plans to enforce the CCPA beginning in July. “…in an email to Forbes, an “advisor” to the California Attorney General seemingly made it clear that the office intends to stick with the enforcement deadline of July 1, further issuing a stern warning to California businesses: “We’re all mindful of the new reality created by COVID-19 and the heightened value of protecting consumers’ privacy online that comes with it. We encourage businesses to be particularly mindful of data security in this time of emergency.”” Robert B. Milligan, John Tomaszewski, & Darren Dummit, “The Impact Of COVID-19 On The California Consumer Privacy Act,” Trading Secrets blog, April 6, 2020. https://www.tradesecretslaw.com/2020/04/articles/privacy-2/the-impact-of-covid-19-on-the-california-consumer-privacy-act/ [iii] Childress, James F., Faden, Ruth R., et al., “Public Health Ethics: Mapping the Terrain,” Journal of Law, Medicine, and Ethics, 30 (2002):170-178. [iv] Employees and customers call for different treatment: employees rightly subject to some tracking and stored data. There is some government input with respect to employee temperature screening. The American with Disabilities Act (ADA) governs and the Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA), some states, and the CDC have given broad guidance urging temperature screening in certain cases but not giving procedural advice. Wilmer Hale (law firm website), “COVID-19: Screening Employee Temperatures: What Employers Need to Know,” April 3, 2020. https://www.wilmerhale.com/en/insights/client-alerts/20200403-screening-employee-temperatures-what-employers-need-to-know; and see Justine Phillips, Paul Cowie, and Kelly Hensley, “Employee Privacy Forecast: Temperature Checks,” Labor and Employment Law Blog, March 25, 2020. https://www.laboremploymentlawblog.com/2020/03/articles/coronavirus/employee-privacy-forecast-temperature-checks/ [v] Childress, p. 171. [vi] Markel, Howard, “What history revealed about cities that socially distanced during a pandemic,” PBS NewsHour online, April 20, 2020. https://www.pbs.org/newshour/health/what-history-can-teach-us-about-flattening-the-curve?fbclid=IwAR1CQzbfhiLm-1hmB586kt6RsCBPcI5Q8KwKaOmln_pyN9KKKpOSAsOJvGs [vii] “LaBonne’s Markets to Take Customers’ Temperatures,” NBCConnecticut.com , April 8, 2020. https://www.nbcconnecticut.com/news/coronavirus/labonnes-markets-to-take-customers-temperatures/2251765/ [viii] Nathaniel Meyersohn, “Why stores could start taking customers' temperatures,” CNN Business, April 9, 2020. “Dr. Luciana Borio, former director for medical and biodefense preparedness at the National Security Council under President Donald Trump and former acting chief scientist at the FDA. "Even a modest benefit can be of value when our public health options are so limited in the absence of diagnostic tests, capacity for large scale contact tracing or a vaccine." Matthew Freeman, associate professor of environmental health and epidemiology at Emory University's Rollins School of Public Health, said it "makes sense for businesses to take the temperatures of shoppers to protect employees and patrons, but what would be the response if someone did indeed have a fever? A plan of action is critical."” https://www.cnn.com/2020/04/09/business/walmart-amazon-home-depot-whole-foods-temperatures/index.html See also https://sacramento.cbslocal.com/2020/04/09/coronavirus-grocery-stores-taking-temperature-reading/ [ix] Propper, David, “Supermarkets and pharmacies in Greenburgh could start taking temperatures of workers, customers,” Rockland/Westchester Journal News, April 9, 2020. https://www.lohud.com/story/news/coronavirus/2020/04/09/greenburgh-supervisor-wants-customers-and-workers-get-temperature-taken-before-entering-store/2974662001/ “Next week, when I extend the order I intend (unless otherwise directed by the state) to also require the non invasive taking of temperature of employees and customers. I don’t believe that people with temperature should be allowed into the stores --we all worry about the risk of being infected or infecting others. Many people in Westchester are dying from the COVID-19 -partially because people are careless or inconsiderate of others. Although NYS law authorizes me to issue the order - the Town Board unanimously approved a resolution endorsing the contents.” Greenburgh Supervisor, Paul Feiner. https://greenburghny.com/CivicAlerts.aspx?AID=433 See also Kimmel, Robert, “Strict New Rules for Groceries and Pharmacies in Unincorporated Greenburgh to Combat COVID-19,” The Hudson Independent. https://thehudsonindependent.com/strict-new-rules-for-groceries-and-pharmacies-in-unincorporated-greenburgh-to-combat-covid-19/ [x] Meyersohn. [xi] Meyersohn. [xii] “Covid-19: Drones take Italians’ temperature and issue fines,” The Star, April 11, 2020. https://www.thestar.com.my/tech/tech-news/2020/04/11/covid-19-drones-take-italians-temperature-and-issue-fines Italy is using drones to enforce strict policies that ensure those with elevated temperatures are not out in public. [xiii] Boseley, Sarah, “WHO urges countries to 'track and trace' every Covid-19 case,” The Guardian, March 13, 2020. https://www.theguardian.com/world/2020/mar/13/who-urges-countries-to-track-and-trace-every-covid-19-case ““You can’t fight a virus if you don’t know where it is,” the WHO’s director general, Dr. Tedros Adhanom Ghebreyesus, said at a briefing on Friday. “Find, isolate, test and treat every case to break the chains of Covid transmission. Every case we find and treat limits the expansion of the disease.”” [xiv] Josh Smith, Hyonhee Shin, and Sangmi Cha, “Ahead of the curve: South Korea's evolving strategy to prevent a coronavirus resurgence,” Reuters, April 15, 2020. https://www.reuters.com/article/us-health-coronavirus-southkorea-respons/ahead-of-the-curve-south-koreas-evolving-strategy-to-prevent-a-coronavirus-resurgence-idUSKCN21X0MO [xv] Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases (NIAID, part of the NIH), is considering an antibody test immunity card to be carried as proof one has developed antibodies. Forgey, Quint, “Fauci: Coronavirus immunity cards for Americans are ‘being discussed,’” Politico, April 10, 2020. https://www.politico.com/news/2020/04/10/fauci-coronavirus-immunity-cards-for-americans-are-being-discussed-178784 [xvi] Milligan. [xvii] “Taking people’s temperatures can help fight the coronavirus,” The Economist, March 26, 2020. https://www.economist.com/science-and-technology/2020/03/26/taking-peoples-temperatures-can-help-fight-the-coronavirus Users of Kinsa apps which offer medical advice based on temperature data are likely aware the company stores and sells the data. Thermometer users probably do not realize their temperatures are recorded or that the company can narrow down their location to the zip code.

Science Magazine interview with George Gao, director-general of the Chinese Center for Disease Control and Prevention (CDC):[1] “Q: What mistakes are other countries making? A: The big mistake in the U.S. and Europe, in my opinion, is that people aren’t wearing masks. This virus is transmitted by droplets and close contact. Droplets play a very important role—you’ve got to wear a mask, because when you speak, there are always droplets coming out of your mouth. Many people have asymptomatic or presymptomatic infections. If they are wearing face masks, it can prevent droplets that carry the virus from escaping and infecting others.” China and Hong Kong have specific universal mask recommendations for the general population, mostly concerning those in crowded places or at increased risk. Early in the pandemic in the US, there was a bright line claim that seemed suspicious to me: masks that are not N95 offer no protection. Another follow up claim: masks are only to prevent the spread by the wearer and do not protect the wearer. Neither claim is exactly proven and the veracity with which they were spoken may have undermined protection. The absence of incontrovertible scientific studies supporting widespread mask use is not the same as evidence that masks are ineffective. There is not evidence that masks worn by the general public are ineffective. However, many US scientists have made that very claim. Healthcare professionals who publicly said masks are ineffective or not recommended include: Jerome Adams, US Surgeon General; the US CDC; David Heymann, epidemiologist with WHO at the time of SARS (because of fear of improper use); Emily Landon, University of Chicago Medical School (because of improper use and because N95 are the only masks prove effective)[2]; Hyo-Jick Choi, Chemical Engineer, University of Alberta (because masks are for large droplets only); Eric Toner, Johns Hopkins (“no harm in it but it is not likely to be very effective”) [3]; Alax Azar, HHS secretary, (masks should be just for healthcare workers); Amesh Adalja, Johns Hopkins (masks may give false sense of security); Nancy Messonier, CDC.[4] This list could continue as others echoed theses sentiments. From the beginning, I felt people on the subway or in crowded neighborhoods were smart to wear a mask. If I said that out loud, medical people would say “no evidence of that.” Their logic bothered me for two reasons: it was a failure to play it safe (could we not recommend those over 65 or immune compromised wear one just in case it helps?), and the claimed ineffectiveness seemed not to have been proven. Furthermore, the harms of wearing an ill-fitting mask or removing it incorrectly have been overstated without proof. It would be simple to demonstrate proper mask removal in a similar manner to the new CDC commercials on television instructing basic protective techniques. While no one wants to advocate civilians buying the limited supply of specialized respiratory masks like the N95 mask, the stance that no other masks serve any protective benefits is incorrect and unhelpful. Some suggest a need to prevent a false sense of security that would encourage people, whether healthcare workers or not, to behave otherwise recklessly. Were we all going to ignore social distancing because the mask made us feel so secure? Aside from healthcare workers, it is doubtful the people in masks would be the people taking risks. Those not following recommended procedures for social distancing or hand washing are probably not wearing masks. While most would continue their safety habits, even if some slacked off momentarily, for example, in the check-out line at a store, the mask might be helpful. While so many doctors and public health advocates in the US took the anti-mask for prevention stance, in other countries mask-wearing is recommended and some scientists are even recommending scarves in public to cover the nose and mouth. There is some evidence that wearing a mask can be outcome-determinative. In 2008, one review of controlled studies of SARS demonstrated that masks were protective[5] alone and were more protective when part of a regimen of hand-washing, and wearing gloves and gowns, a finding more relevant to healthcare situations than public ones. A 2013 study found surgical masks somewhat protective and possibly worthwhile when better ones are not available for healthcare workers to prevent spread of influenza.[6] While data did generate numbers to estimate prevention in lives saved or disease prevented, studies of mask use by the public require largescale epidemiology and may need to be retrospective. Finally, today a journal article agrees with me.[7] In the Lancet, the authors argue that recommendations on masks should be rational and that recommending universal mask wearing is within logic if there is availability. After recommending masks for the vulnerable, those with preexisting conditions, and older adults, the article concludes, “Universal use of face masks could be considered if supplies permit.” March 30, 2020 Photo by Mika Baumeister on Unsplash [1] Cohen, Jon. “Not wearing masks to protect against coronavirus is a ‘big mistake,’ top Chinese scientist says,” Science Magazine. Mar. 27, 2020. See also https://www.nytimes.com/2020/03/27/health/us-coronavirus-face-masks.html [2] https://www.cnbc.com/2020/03/02/coronavirus-do-face-masks-work-and-how-to-stop-it-from-spreading.html [3] https://www.businessinsider.com/coronavirus-face-mask-safe-prevention-2020-2 [4] https://www.marketwatch.com/story/the-cdc-says-americans-dont-have-to-wear-facemasks-because-of-coronavirus-2020-01-30 [5] Jefferson, Tom et al. “Physical interventions to interrupt or reduce the spread of respiratory viruses: systematic review.” BMJ (Clinical research ed.) vol. 336,7635 (2008): 77-80. doi:10.1136/bmj.39393.510347.BE [6] Makison, C., et al, “Effectiveness of surgical masks against influenza bioaerosols,” Journal of Hospital Infection Vol. 84, No. 1, May 2013. https://www.sciencedirect.com/science/article/abs/pii/S0195670113000698 [7] Feng, Shuo, et al. “Rational use of face masks in the COVID-19 pandemic” The Lancet. Published: March 20, 2020DOI:https://doi.org/10.1016/S2213-2600(20)30134-X

I. Introduction In Sorrell v. IMS Health, the Supreme Court struck down a Vermont regulation requiring pharmacies to obtain prescriber consent to release prescriber-identifying information[1] to data miners for marketing research purposes.[i] Since Sorrell, legislators in the US have shied away from traditional commercial regulations limiting corporate speech, many of which would support bioethical principles.[ii] The right to free speech has become more expansive covering pharmaceutical free speech in ways uncharacteristic of the long-accepted fundamental right.[iii] As a result, pharmaceutical companies increasingly influence patients and skew the judgment of doctors in prescribing decisions, now through the use of data without the authorization of the doctor or patient. The expansive view of commercial free speech has grown beyond the voicing of personal or political opinions, the suppression of which challenges liberal society. Patients’ autonomy should extend to control over personal data. An ethical system would protect private data, preserve doctor-patient confidentiality, and promote justice by leveling the playing field so that generic drugs and changes to lifestyle and diet are not drowned out by the already advantaged pharmaceutical industry’s aggressive marketing. II. Background A Vermont statute imposed a consent requirement so that pharmacies selling prescriber-identifying information including the practitioner and the drug prescribed to data miners who then sell mined data to pharmaceutical companies would need explicit consent from the prescriber.[iv] The purpose of purchasing the data is detailing, a form of personalized sales and marketing directed at the practitioners most likely to prescribe certain drugs. The Sorrel decision is based on the notion of corporate free speech, a concept that encompasses two conditions: first, that corporations are speakers entitled to First Amendment protection; and, second, that advertising and marketing constitute “speech.” Corporations argue free speech should be broadly construed to include accessing data or information necessary to the action of later speech. The prescriber-identifying information in Sorrell creates a way to create an audience for the speech that the respondents argue is constitutionally protected overextending commonly recognized free speech. The Supreme Court case was brought by manufacturers of brand name pharmaceuticals and data miners (respondents) who argued that free speech protects the ability to purchase, use, and resell the data, that the data collected served their commercial interest in targeting specific audiences for pharmaceuticals, and that requiring doctors’ consent violated the respondents’ right to free speech. The Court held that the Vermont statute was unconstitutional because it violated free speech rights by imposing both content-based and speaker-based obstacles on the respondents.[v] Since the Sorrell case, legislators have been hesitant to regulate corporate speech while technological advancements in data have increased the use of personal data in marketing. As noted in the New York Times, among developed countries, the U.S. is noteworthy for its absence of a comprehensive consumer data protection body of law and enforcement agency.[vi] Corporations are coopting control over data absent government checks on their power. Technological advances in data mining and reidentification (the ability to rematch personal information with medical prescription data) serve to make deidentification less meaningful giving more reason to protect seemingly anonymous data. III. Analysis: the conflict between pharmaceutical marketing research and regulatory power protecting medical data a. The pharmaceutical corporations and data miners’ arguments Pharmaceutical companies argue that they are helping doctors by presenting details of drugs to help doctors treat patients. There is no evidence that without personalized prescriber data, drug reps would no longer target likely prescribers. They did so before data mining and will do so as long as it is legal.[vii]However, legality does not imply ethical marketing practices. To argue detailing is a driving force in their effort to disseminate helpful information as if the financial benefits are merely ancillary to an altruistic act is insincere.[viii] The pharmaceutical industry can express speech in a myriad of ways. Contrary to the Court’s interpretation, this is not a case of a state trying to keep people “in the dark” about the availability of prescription drugs.[ix] Regulations effecting corporate speech used to be encouraged for the public good. For example, laws regulating the advertising of cigarettes and alcohol were well accepted by the public. The erosion of both privacy and the individual voice’s power correspond with the uptick in recognizing previously undeclared corporate constitutional rights.[x] The pharmaceutical companies’ marketing efforts take place at the expense of data privacy and confidentiality within the doctor patient relationship. Doctors’ offices are awash in drug reps while televisions and social media are erupting with pharmaceutical direct-to-consumer ads. Pharmaceutical manufacturers are already allowed to infiltrate offices, hospitals, continuing medical education conferences, and sometimes medical schools. They are permitted to advertise directly to consumers, planting brand names and rosy pictures of health in the minds of all desperately seeking cures. The respondents did not show anything more than potential financial harm. Without the data, they could continue their other extremely lucrative sales and marketing techniques. The data grab undermines beneficence. Patients are neither compensated directly for their own data nor are they afforded access to an array of pharmaceuticals at reasonable prices. With the patient’s voice absent from the Court’s opinion, patients and practitioners lose autonomy and control over personal and confidential data. b. The state’s regulatory goals protect traditional bioethics principles Vermont’s regulatory interest behind the law included both data privacy and healthcare cost containment. The privacy argument was dismissed prematurely and should be presented differently.[xi] The respondents point out that the government requires that the data be collected by the pharmacies. It is also available for other uses including communication with insurers, and state and academic research. Respondents claim these uses render the data public. The opinion is flawed in that researchers and others privy to the data in noncommercial spheres have their own professional and legal standards and nondisclosure requirements. The Sorrell Court seemed to see the patient and physicians’ right to privacy as inadvertently waived. Vermont argued that the statute would be better for the public by decreasing healthcare costs and increasing health.[xii] In healthcare, these policy goals would be welcome by almost every politician or candidate for President in either political party. Containing healthcare costs and improving health are so large a government priority that federal laws themselves confirm a legitimate government purpose.[xiii] Affordable healthcare is a well-established justice-based healthcare issue. For the Court to find that this state law’s purpose is not substantial enough holds implications for broad healthcare policy and demonstrates favoritism to the pharmaceutical industry at the expense of the people. The government’s goal of affordable healthcare will often conflict with pharmaceutical lobbying and marketing practices. The Court held that Vermont favored a specific viewpoint by placing a hurdle in the promotion of the brand name pharmaceuticals. Brand name drugs are marketed using detailing based on prescriber-identifying data. It is possible that pharmaceutical companies’ lack of access to the data for detailing could make more room for generic drug sales. The lack of access to the data also might reel in overprescribing in general by limiting access of drug reps to specifically vulnerable patients and to doctors who may prescribe drugs for profit rather than medical necessity. The Vermont law leveled a playing field rather than actively promoting generics or limiting the overuse of prescription drugs. State governments wanting to expand healthcare for more people have an immediate need to reduce costs. The Court indicated that academic institutions would have the same ability to approach doctors’ offices and decrease brand name drug sales.[xiv] Academic medical centers do not engage in expensive counter-detailing. Instead, they work with manufacturers of brand name drugs for research and development and they already have a built-in bias favoring brand names. The Court’s majority opinion leaned toward accusing Vermont of a conspiracy to promote an anti-pharmaceutical viewpoint, a point that is not convincing without explicit evidence.[xv] While it should be legal to promote the ethical view that access to generics or other medical solutions is a proper use of the data, no evidence was presented that any program resembling the marketing prowess of big pharma was impending. The marketing of generics arguably has a beneficial public purpose compared to the marketing of expensive brand name drugs. The law’s educational use provision included ways to increase awareness of brand-name drugs about to expire and alternative generics, but not to the exclusion of brand-name drugs, just in the context of less costly alternatives.[xvi] The ethical principle of healthcare justice requires disseminating all relevant information about the availability of affordable care. Unlike the laws traditionally subject to free speech scrutiny, the Vermont statute did not suppress religious, hate, or political speech, yet the Court held it quieted an unwelcome viewpoint, the essence of important free speech cases.[xvii] The use of pharmaceutical marketing data does not rise to the heightened analysis ascribed by the Court.[xviii] As the dissenting opinion notes, the ethical concerns underlying free speech do not apply to freedom in this highly regulated industry’s marketing tools. The dissenting justices also noted that all regulations reflect some point of view and that the Court is undermining democratically elected regulators by imposing on their legislative responsibilities. IV. Counterarguments discounting data privacy The most common counterargument specific to pharmaceutical research is that deidentified material found in metadata is not special to the patient. However, this argument ignores modern data storage, access, research techniques, and bioethics principles. Reidentification is simpler than is commonly understood.[xix]While medical researchers are unlikely to reidentify, pharmaceutical companies arguably would benefit from some reidentification especially because they market to consumers directly. Linking data points through voting registration or hospital stays can lead to other personal information.[xx] Even liens, court dates, and social media accounts all become fair game for marketers in the medical data reidentification process. There is a snowball effect because data miners benefit from selling data to multiple industries and the government. Data mining does not reflect the true cost of the data. Pharmacies, data miners, and ultimately pharmaceutical companies are subsidized by decisions like Sorrell that fail to require patient and prescriber consent. While each person’s data is arguably worth pennies in the system, the total is worth a great deal.[xxi] Autonomy can include the power to sell one’s medical data. V. Controlled use of medical data Many people prefer directing how their data is used. When a school or hospital system asks permission to use photographs or data, parents can certainly sign “yes” for one use and “no” for another, e.g., “yes” on print but “no” on website. Similarly, hospitals ask for signatures before releasing medical data for certain purposes, including research. There is an understanding and usually a legal obligation to ensure the data would not be otherwise used. The dissenting opinion aptly points out that “a car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new customers.”[xxii] The Court impinged on individuals’ privacy rights by expanding free speech so much that any limits on how data can be used will be evaluated as discriminatory by use. In JOLT Digest, Katie Booth fears that commercial privacy laws and do-not-track legislation will fail the Sorrell standard which treats use as binary: either the data is available for every use or private and unavailable regardless of use. However, she suggests market forces might lead to corporate responsibility despite a lack of regulations.[xxiii] She recognizes that consumers do want to share data “categorically” and an inability of legislatures to provide ways to do that may force complete dependence on “private market data privacy policies.” Booth is right that, for now, urging corporate ethics reform might be a workable option in certain cases. Bonnie Kaplan of Yale School of Medicine also readily speaks against the Sorrell decision citing its ethical and legal ramifications. Kaplan’s moderate position understands the logistical need for access to data by insurers, a point the Vermont statute acknowledges. Kaplan does not believe deidentification is foolproof and expects that patients would opt out of sharing data for marketing. To her, transparency about the data’s uses would help patients discern when to allow data sharing for research that might benefit their own healthcare quality. Kaplan would prefer “flexibility in thinking” and a system more ethical than that propelled by Sorrell. Kaplan’s ethical criteria and analysis present the reader with ideas about the complexity but they do not adhere to binding Supreme Court precedent under Sorrell. Her ethical analysis calls for limiting or overruling Sorrell, an unlikely scenario for now. There is a distinct partisan divide in amicus briefs filed in Sorrell.[xxiv] Pharmaceutical trade groups and companies favored the respondents’ point of view while a preponderance of academic literature and thirty-five other states supported Vermont’s position.[xxv] Similar to the backdrop of Citizens United when the Supreme Court altered important traditional checks on corporate power, partisanship is glaring in the Sorrell decision.[xxvi] Working toward a middle ground means a willingness to reasonably limit pharmaceutical corporate free speech for the sake of patient privacy. VI. Reconciling Sorrell, privacy, and bioethics Beverly Cohen argues that, despite Sorrell, HIPAA[xxvii] currently precludes the sale of the data to the data mining companies.[xxviii], [xxix] In a nod to HIPAA, the Sorrell Court noted that a broader law limiting even more speech would have better demonstrated Vermont’s desire to protect privacy.[xxx] But a broader law arguably would offend free speech more. The Court limited Cohen’s expansive view of HIPAA through Sorrell. HIPAA has a narrower exception for routine use of data to ease healthcare delivery and payment. Yet HIPAA and data mining coexist now reflecting a failure to apply HIPAA Cohen’s way. Cohen’s ethical defense of privacy is significantly more in keeping with bioethics principles than the Court’s view of privacy. In a landmark Supreme Court case delineating a right to privacy, Griswold v. Connecticut,[xxxi] the Court was careful not to trample on regulatory power unless it interfered with a fundamental right. The regulation in Griswold, a case about the doctor patient relationship and the right to contraception, not only overstepped a private relationship but also interfered with deeply personal beliefs about becoming pregnant. Griswold established that rights not explicitly enumerated are worthy of protection and that privacy is of “comparable magnitude to the fundamental rights that are constitutionally protected.”[xxxii] The Sorrell Court was unwilling to focus on any belief deeper than a financial belief in the ability to market a product using the data in question. Griswold should apply to the data because, like in the Griswold case, the data is a consequence of a confidential relationship. The Court created uncertainty of whether medical data remains personal pursuant to the Griswold chain of cases, undermining autonomy in private decisions. Reconciling Griswold and Sorrell is difficult. While Sorrell undermines regulatory authority aiding patient data privacy, there is room for solutions to use the law to promote the ethical considerations. First, statutes like Vermont’s can be drafted according to the suggestion made in dicta in Sorrell allowing only minor exceptions: insurance and billing purposes. All other uses should require consent by the patient. Second, a class action brought directly by patients recognizing traditional privacy rights outside the HIPAA regulatory framework must be brought to challenge or limit Sorrell. Not only do patients not know their prescription data is being used this way, doctors tend to be unaware of the intricacies of data mining as well.[xxxiii] Laws protecting patients rather than prescribers would have more strength in court because the direct privacy interest in protecting one’s own data certainly trumps the prescribers’ privacy interest which, to the Court, stems from not wanting to be bothered by marketers and drug reps. The data means more to the patient than to the doctor; in a breach, the patient would bear the burden of the stigma of a condition made public. The nature of the data itself is private and personal. In rural areas, even without any type of reidentification, the patient’s identity can easily be ascertained. Pharmacies distribute personal prescriptions to treat stigmatized conditions including HIV, schizophrenia, depression, and to terminate pregnancy. Some of the data could be subject to subpoena. Data in the hands of more organizations is more vulnerable to leaks or unforeseen uses. The doctor patient relationship hinges on patients’ open discussion with doctors. If data can be sold, mined, and even reidentified, patients might avoid use of certain prescriptions to their medical detriment. If a legal approach cannot overcome Sorrell, then Booth might be correct that corporate policy will eventually succumb to societal pressures and step in to protect the doctor patient relationship. Privacy should protect confidentiality between doctor and patient and self-direction in personal matters. A high level of scrutiny must be applied to data mining that challenges privacy. When constitutionally protected privacy meets the boundary of the now constitutionally elevated commercial right to free speech, the analysis concerns two competing constitutional rights: privacy and free speech. The California Consumer Data Privacy Act (CCPA) which went into effect January 1, 2020 will test the waters of data privacy. So far, Hannah Anderson and Salesforce are being sued for privacy breaches. If those corporations challenge the law’s provisions, Booth’s assertion that corporations want to treat data ethically could be proven wrong. However, if the CCPA leads to significant litigation by people who suffer from data breaches, corporations will likely find it less costly to comply regardless of their will. Practicality and efficiency may prevail regardless of whether the corporation would prefer to protect privacy. Corporate ethics could become irrelevant under the weight of a strict law. The right to privacy and right to commercial free speech are not objects with equal force. When corporations argue the CCPA violates commercial free speech, courts will be forced to define the point at which the right to privacy and the right to commercial free speech meet on a continuum, reconciling the two fundamental constitutional rights and defining modern privacy law. VII. Conclusion There is a fundamental ethical challenge left by Sorrell. Pharmaceutical companies are using the data for profit-making. That is marketing: it is not the government’s duty or place to ensure unfettered access to private data. The failure of government protection allows data miners to expand to new uses of data with little oversight. The patient’s explicit consent to the use of data for marketing purposes should be required out of respect for personal autonomy and privacy concerns. Privacy is the backbone of successful doctor patient relationships. Citizens United and Sorrell opened a floodgate for corporations to declare free speech rights that undermine advertising and marketing regulations. Broad implications from Sorrell are seeping into everything from alcohol, tobacco, and vaping products and possibly headed toward the marketing and advertising of guns. On this trajectory, factory discharge of carbon and toxins into the air could be labeled “speech,” a viewpoint on climate change in a politically charged atmosphere. Autonomy, justice, and beneficence are served by data protection. Free speech in the realm of political, religious, and societal opinions cannot be impeded without the strictest scrutiny. Marketing drugs can. [1] Prescriber-identifying information links prescribers (e.g., doctors, nurse practitioners, physician’s assistants) to prescriptions which can be used with metadata, deidentified patient data, and public records to build a detailed analysis used for sales and marketing. [i] Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) IMS et al. are referred to as “respondents” while the State of Vermont is the “petitioner.” [ii] Within a year of Sorrell, federal courts began to strike down ordinary advertising regulations, some designed to protect children’s health. In Massachusetts, a court struck down an ordinance limiting tobacco advertising near schools, and the Sixth Circuit Court of Appeals struck down part of a law governing colorful cigarette packaging. “One year later: the consequences of Sorrell v. IMS, Inc.” Alliance for Justice, Justice Watch blog. July 2, 2012. https://www.afj.org/blog/one-year-later-the-consequences-of-sorrell-v-ims-health-inc [iii] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) opened the floodgate to Sorrell, giving unprecedented corporate power and severely limiting the scope of regulation of corporations. [iv] Vt. Stat. Ann., Tit. 18, §4631. [v] Sorrell. The Court examined the free speech right compared to the regulatory priorities of the state of Vermont. Deciding to apply heightened rather than intermediate scrutiny, the Court broke from precedent on commercial free speech and held the statute unconstitutional. The departure from the norm is part of a pattern increasingly elevating the right to commercial free speech after Citizens United. The dissent, in keeping with past cases regarding commercial free speech, applied the Central Hudson three-pronged test and found the regulation acceptable. Central Hudson looks to whether the regulation is based on a substantial government interest, that it truly advances the interest, and that it does so in as narrow a way as possible. Central Hudson Gas and Elec. Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980). [vi] Singer, Natasha, “The government protects our food and our cars. Why not our data?” New York Times, Nov. 2, 2019. Beckerman, Michael, “Americans will pay a price for state privacy laws,” New York Times, Oct. 14, 2019. [vii] Whitney, Jake, “Big (Brother) Pharma,” New Republic, August 29, 2006. https://newrepublic.com/article/84056/health-care-eli-lilly-pfizer-ama [viii] Financial benefits are the result of the aggressive marketing practices. [ix] By omission, the Court implies without marketing based on the prescriber-identifying information, a viewpoint would be suppressed. [x] For an example of corporate free speech, Citizens United v. FEC, 558 U.S. 310 (2010) allowed corporations to support political candidates. [xi] In “Selling Health Data: De-identification, Privacy, and Speech,” Bonnie Kaplan notes the Court’s failure to evaluate the Sorrell case as a constitutional privacy case. She concedes that “the State deciding which speech is permitted and which data users are favored over others is detrimental to both personal freedom and the marketplace of ideas.” Kaplan, Bonnie, “Selling Health Data: De-identification, Privacy, and Speech,” ISPS Bioethics Working Paper, Yale Interdisciplinary Center for Bioethics, Oct. 7, 2014. I assert that, in Sorrell, the state deciding is detrimental to neither: personal freedom is irrelevant except for the personal freedom to protect one’s own data; the marketplace of ideas is not furthered by using data to promote detailing, a one-sided marketing tool promoting brand names. [xii] Sorrell, 17. [xiii]Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010) [xiv] “For example, it appears that Vermont could supply academic organizations with prescriber-identifying information to use in countering the messages of brand-name pharmaceutical manufacturers and in promoting the prescription of generic drugs…” “the law on its face burdens disfavored speech by disfavored speakers.” Sorrell, p. 8. In “Two More from the Supreme Court”, the Drug and Device Law Blog mischaracterizes the Court’s statement saying “…the statute provided for state-financed ‘counter-detailing’-pushing cheaper, often generic, competing drugs.” Bexis, “Two More from the Supreme Court,” the Drug and Device Law Blog (June 23, 2011). https://www.druganddevicelawblog.com/2011/06/two-more-from-supreme-cour.html The Court acknowledged Vermont has no state-run counter-detailing effort but does collect the data. Sorrell, p. 4. The statute’s “evidence based prescription drug education program” should not be mischaracterized as counter-detailing despite its inclusion of cost-effective options. [xv] Sorrell, p. 4 and 8. [xvi] Sorrell, p. 4. [xvii] Sorrell, p. 8. [xviii] Sorrell, dissent, p. 3-4, arguing the Central Hudson test would be sufficient for the commercial free speech claim at hand and that the majority’s elevated scrutiny of the speech was not appropriate. [xix]Rothstein, Mark A. “Is deidentification sufficient to protect health privacy in research?.” American Journal of Bioethics, Vol. 10,9 (2010): 3-11. doi:10.1080/15265161.2010.494215 [xx] US Department of Health and Human Services. https://aspe.hhs.gov/report/minimizing-disclosure-risk-hhs-open-data-initiatives/re-identification-individuals-data-released-public [xxi] Ornstein, Charles, “Big data + big pharma = big money,” ProPublica, Jan. 10, 2014. Tanner, Adam, “This little known firm is getting rich off your medical data,” Fortune, Feb. 9, 2016. Both articles cite IMS revenues of which approximately 2 billion come from selling the data gotten from pharmacies. IMS develops patient dossiers (over 500 million of them now) without transparency as to its methods. IMS purchases data from pharmacies, electronic medical records companies, and insurers among others. [xxii] Sorrell, dissent, p. 7, citing Trans Union LLC v. FTC, 536 U.S. 915 (2002). [xxiii] Booth, Katie, “The all-or-nothing approach to data privacy: Sorrell v. IMS Health, Citizens United, and the future of online data privacy legislation,” JOLT Digest Harvard Law School, Aug. 7 2011. [xxiv]For a list of all 27 amicus briefs filed see https://www.scotusblog.com/case-files/cases/sorrell-v-ims-health-inc/ For example, in support of the Vermont law, the AARP, New England Journal of Medicine, the Electronic Privacy Information Center, the Vermont Medical Society, Berkeley Media Studies, Public Health Law and Policy filed amicus curiae briefs. In support of IMS, the Cato Institute, the Biotechnology Council, the Association of National Advertisers, and McGraw Hill and Hearst (both rely on similar data for marketing) filed amicus curiae briefs. [xxv] One outlier in the think tank reports on Sorrell, see the libertarian Goldwater Institute’s “Restoring fee speech in medicine,” June 6, 2017 https://goldwaterinstitute.org/article/restoring-free-speech-in-medicine/ [xxvi] Sorrell, p. 9 finding intent “to impose a content-based burden” and discussion on p. 10-11 where the majority opinion refers to the message the speech conveys with an underlying theme that the type of corporate speech is worthy of heightened scrutiny. The justices post Citizens United are significantly more open to arguments that frame commercial speech in the language of personal speech. [xxvii] The Health Insurance Portability and Accountability Act of 1996. Pub. L. 104-191. Stat. 1936. Web. 11 Aug. 2014. [xxviii] Cohen, Beverly, “Regulating data mining post Sorrell: Using HIPAA to restrict marketing uses of patients’ private information,” Wake Forest Law Review, 2013. http://wakeforestlawreview.com/2013/04/regulating-data-mining-post-sorrell-using-hipaa-to-restrict-marketing-uses-of-patients-private-medical-information/ [xxix] Cohen, on how evaluating the statute in Sorrell under HIPAA would create a different result. [xxx] Sorrell, p. 17. “And the measure permits insurers, researchers, journalists, and the State itself, and others to use the information.” [xxxi]Griswold v. Connecticut, 381 U.S. 479 (1965). (Marital privacy). [xxxii]Hartman, Gary, Landmark Supreme Court Cases, Facts on File (2004) p. 293, referring to Griswold. [xxxiii] Kaplan, p. 16.

Cardiovascular disease, diabetes, obesity, chronic respiratory disease, hypertension, and cancer all correlate to higher mortality rates from COVID-19. The UK has also added pregnancy, neurologic diseases, and kidney and liver conditions and asserts that those with organ transplants, blood cancers, and kidney disease requiring dialysis are at even higher risk.[1] Initiatives to improve health outcomes during future pandemics must include a long-term plan to reduce preventable diseases that are likely to contribute to death and severity of future novel respiratory viruses. Policies that promote or fail to reduce widespread health challenges in the US should be changed in response to the current pandemic. While better preparation, access to test kits, quarantining, contact tracing, vaccines, and new anti-viral medicines are all understandable immediate priorities, a healthier population would fare better. It is the government’s ethical duty to support health initiatives that address the social determinants of health. Such initiatives include paid sick leave, ending subsidies for unhealthy foods, and implementation of federal workplace requirements that ensure workers have breaks, stress relief tools, and wages sufficient to purchase healthy foods, safe housing, and health insurance. Government policy can alleviate stress by expanding healthcare coverage for those living paycheck to paycheck and by taking measures to alleviate poverty. Early mortality data from China presented by the World Health Organization from February 2020 indicate the devastation of preexisting conditions. Below are data for preexisting conditions followed by death rate for confirmed cases and death rate for all cases: • Cardiovascular disease / 13.2% / 10.5% • Diabetes / 9.2% / 7.3% • Chronic respiratory disease / 8.0% / 6.3% • Hypertension / 8.4% / 6.0% • Cancer / 7.6% / 5.6% • no pre-existing conditions 0.9% *Death Rate = (number of deaths / number of cases) = probability of dying if infected by the virus (%). The percentages do not have to add up to 100%, as they do NOT represent share of deaths by condition.[2] Currently, all countries collecting COVID-19 data are reporting higher death rates for those with preexisting conditions. One hospital in New Jersey expressed surprise that younger patients are coming in with severe cases. “Dr. Adam Jarrett, the center's chief medical officer, told NBC News on Monday, adding he was surprised patients' ages skewed younger than he'd expected. All but one had underlying health conditions, such as heart or lung disease, diabetes and obesity.” Jarrett specifically noted the impact of obesity on lung capacity.[3] Data from Italy implies that obesity is a major risk factor.[4] According to the American Heart Association, approximately 168.1 million people (71.1 percent of the US population) are obese or overweight.[5] The CDC estimates 42 percent of people are obese. 9.2 percent of adults are severely obese.[6] The CDC estimates one in every four people with diabetes does not know they have it. 100 million people have either diabetes or prediabetes, while 9.8 percent of the population have confirmed cases of diabetes.[7] In a study evaluating an array of respiratory viruses including influenza and coronavirus, researchers concluded the obese and morbidly obese have more hospital stays and more severe illness.[8] The UK is warning that those with body mass index >40 are most at risk.[9] Obesity causes both cardiovascular disease and high blood pressure, increasing the odds of one person having several preexisting conditions when a novel virus appears. Solving the obesity crisis would also reduce the incidence of heart disease, hypertension, some cancers, and some liver and kidney problems. High blood pressure is prevalent in the US population. 116.4 million people have it[10] and the stress of the pandemic itself may cause more cases. In addition to high blood pressure, some blood pressure medications such as angiotensin-converting enzyme (ACE) inhibitors may contribute to the severity of Italy’s coronavirus cases.[11] In China, almost a quarter of the population has hypertension and an additional forty percent show signs of early stage hypertension.[12] Whether the underlying condition or the medications are the source of the more severe cases, decreasing the incidence of high blood pressure could decrease the impact of future novel viruses. The World Health Organization in its Social Determinants of Health recommend policies, habits, and conditions that promote good health. WHO advocates proven ways to prevent or reduce obesity, stress related diseases, and cardiovascular problems.[13] In the short term, the experts might be right to identify the comorbidity without attempting to remedy it. For now, scarce resources are devoted to urgent cases of the coronavirus. People at risk should use extra caution, practice social distancing and isolation, and follow suggested guidelines for hand hygiene. In the long term, the US must investigate the habits that create the comorbidity. The next big pandemic may have the same characteristics. SARS and MERS were both respiratory coronaviruses with characteristics similar to COVID-19. People with obesity, high blood pressure, and heart disease would likely do worse than those without preexisting conditions regardless of the specifics of a future pandemic. If COVID-19 continues to spread and remains devoid of reliable treatments, there is no evidence that it is too late to cure a preexisting condition even within a few months. The influenza of 1918 had a virulent second wave.[14] If COVID-19 mutates or persists longer than expected, improving people’s basic health wherever possible should be a priority. Weight loss and gradual exercise improvements can stave off diabetes, decrease blood pressure, and prevent strokes and heart disease. Those on the verge of diabetes or cardiovascular issues may improve their outcome by changing habits now with the support of public policy. With comorbidity prevention in mind as well as socially-conscious strategies to address the next novel virus, public policy will lessen the severity and mortality of future novel viruses. March 26, 2020 [1] Sharma, Sonia. “From pregnant to obese - List of those most at risk from coronavirus.” Chronicle Live UK. March 17, 2020. https://www.chroniclelive.co.uk/news/north-east-news/coronavirus-most-at-risk-pregnant-17936541 [2] https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ based on both: The Report of the WHO-China Joint Mission published on Feb. 28 by WHO, which is based on 55,924 laboratory confirmed cases. The report notes that “The Joint Mission acknowledges the known challenges and biases of reporting crude CFR early in an epidemic" (see also a paper by the Chinese CCDC released on Feb. 17, which is based on 72,314 confirmed, suspected, and asymptomatic cases of COVID-19 in China as of Feb. 11, and was published in the Chinese Journal of Epidemiology.) [3] Edwards, Erika. “Not just older people: Younger adults are also getting the coronavirus Simply looking at the age ranges of the infected, however, doesn't provide any insights into the severity of the illness.” NBC News. March 17, 2020. https://www.nbcnews.com/health/health-news/not-just-older-people-younger-adults-are-also-getting-coronavirus-n1160416 [4] O’Regan, Eilish. “From risks due to obesity to how children are affected: coronavirus lessons from front-line medics.” Independent.ie. March 18, 2020. https://www.independent.ie/world-news/coronavirus/from-risks-due-to-obesity-to-how-children-are-affected-coronavirus-lessons-from-front-line-medics-39054089.html [5]American Heart Association. https://www.ahajournals.org/doi/10.1161/CIR.0000000000000757 [6] Hales CM, Carroll MD, Fryar CD, Ogden CL. Prevalence of obesity and severe obesity among adults: United States, 2017–2018. NCHS Data Brief, no 360. Hyattsville, MD: National Center for Health Statistics. 2020 https://www.cdc.gov/nchs/products/databriefs/db360.htm [7] https://www.cdc.gov/media/releases/2017/p0718-diabetes-report.html [8] Moser JS, Galindo-Fraga A, Ortiz-Hernández AA, et al. Underweight, overweight, and obesity as independent risk factors for hospitalization in adults and children from influenza and other respiratory viruses. Influenza Other Respir Viruses. 2019;13(1):3–9. doi:10.1111/irv.12618 finding “In adults with coronavirus, metapneumovirus, parainfluenza, and rhinovirus, participants that were underweight (OR: 4.07) and morbidly obese (OR: 2.78) were more likely to be hospitalized as compared to normal‐weight adults.” [9] https://www.mirror.co.uk/news/uk-news/coronavirus-severely-obese-warned-among-21704686 [10]American Heart Association. https://www.ahajournals.org/doi/10.1161/CIR.0000000000000757 [11] Fang, Lei, George Karakiulakis, and Michael Roth, “Are patients with hypertension and diabetes mellitus at increased risk for COVID-19 infection?” The Lancet March 11, 2020 DOI:https://doi.org/10.1016/S2213-2600(20)30116-8 https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30116-8/fulltext [12] Minter, Adam, “To Treat Pandemics, Start by Treating Hypertension: Controlling common ailments is the first step for low- and middle-income countries looking ahead to what comes after the coronavirus crisis.” Bloomberg News. March 19, 2020. https://www.bloomberg.com/opinion/articles/2020-03-19/high-blood-pressure-is-risk-for-countries-after-coronavirus-ends [13] Wilkinson, Richard and Michael Marmot, World Health Organization, Social Determinants of Health, The Solid Facts. (2003). Updated and explained by Marmot in “The Social Determinants of Health Inequities” World Health Organization, The Lancet Vol 365 March 19, 2005, and Marmot M, Allen J. Social determinants of health equity. Am J Public Health. 2014;104 Suppl 4: S517–S519. doi:10.2105/AJPH.2014.302200 [14] Institute of Medicine (US) Forum on Microbial Threats; Knobler SL, Mack A, Mahmoud A, et al., editors. The Threat of Pandemic Influenza: Are We Ready? Workshop Summary. Washington (DC): National Academies Press (US); 2005. 1, The Story of Influenza. Available from: https://www.ncbi.nlm.nih.gov/books/NBK22148/

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Abstract Cyclooxygenase-2 catalyses the biosynthesis of prostaglandins from arachidonic acid but also the biosynthesis of prostaglandin glycerol esters (PG-Gs) from 2-arachidonoylglycerol. Previous studies identified PG-Gs as signalling molecules involved in inflammation. Thus, the glyceryl ester of prostaglandin E2, PGE2-G, mobilizes Ca2+ and activates protein kinase C and ERK, suggesting the involvement of a G protein-coupled receptor (GPCR). To identify the endogenous receptor for PGE2-G, we performed a subtractive screening approach where mRNA from PGE2-G response-positive and -negative cell lines was subjected to transcriptome-wide RNA sequencing analysis. We found several GPCRs that are only expressed in the PGE2-G responder cell lines. Using a set of functional readouts in heterologous and endogenous expression systems, we identified the UDP receptor P2Y6 as the specific target of PGE2-G. We show that PGE2-G and UDP are both agonists at P2Y6, but they activate the receptor with extremely different EC50 values of ~1 pM and ~50 nM, respectively. The identification of the PGE2-G/P2Y6 pair uncovers the signalling mode of PG-Gs as previously under-appreciated products of cyclooxygenase-2.

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