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Introduction

from Part VI - Global Responses to COVID-19

Published online by Cambridge University Press:  27 October 2023

I. Glenn Cohen
Affiliation:
Harvard Law School, Massachusetts
Abbe R. Gluck
Affiliation:
Yale University, Connecticut
Katherine Kraschel
Affiliation:
Yale University, Connecticut
Carmel Shachar
Affiliation:
Harvard Law School, Massachusetts

Summary

In many domains of life, COVID-19 has reshaped our understandings of the home as a space of work, education and care. This chapter explores the home as a site of abortion care, after the “home” was approved in countries worldwide as a place where doctors could virtually prescribe, and people could take abortion pills. The chapter explores different visions of abortion-at-home in the COVID-19 regulatory reforms, and different experiences and understandings of that care. Part I tracks the constructions of the home within a crisis management discourse, as favored in state justifications for the reforms. Motivated by a historic state of emergency, a temporary response to ensure access to care and to limit exposure to the virus, these reforms are characterized as pragmatic and conservative by enabling clinicians to safely administer an abortion with the same control brought into the home. Part II proposes an alternative legacy of the reforms by focusing on the agency of people in transforming their homes into places of care. While introduced of necessity, the home becomes a site of experimentation and improvisation informed by a home aesthetic unbounded by the regulated structures of medical care. Intersecting with the everyday tasks, products and people of home life, abortion care is opened to all forms of radical diversity, especially during a time when people are forming new relationships to their home and investing new meaning in it. The chapter concludes by imagining the future of abortion law born of public health need but habituated in the home.

Type
Chapter
Information
COVID-19 and the Law
Disruption, Impact and Legacy
, pp. 331 - 334
Publisher: Cambridge University Press
Print publication year: 2023
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0 https://creativecommons.org/cclicenses/

Several themes unite the wide-ranging chapters in Part VI as the authors explore what lessons can be learned from the disparate ways in which governments around the globe responded to the COVID-19 pandemic. First, there is a complicated relationship between democratic institutions and a nation’s ability to respond to serious disease outbreaks. Reasonable people might hypothesize that democracy is a handicap during public health emergencies. Authoritarian governments can get even draconian things done quickly, quashing public resistance. Further, the more the law dilutes power in order to impose checks and balances and prevent abuse, the more it hobbles a swift response. But, on the other hand, democratic institutions make it harder for government to deny or downplay public health threats without detection, and federalism and other forms of power decentralization make it possible for some units of government to mount a vigorous pandemic response, even if others refuse.

In Chapter 22, “COVID-19 and National Public Health Regimes: Whither the Post-Washington Consensus in Public Health?,” Tess Wise, Gali Katznelson, Carmel Shachar, and Andrea Louise Campbell empirically investigate how effectively countries with different political, legal, social, cultural, economic, and organizational structures stemmed the early spread of COVID-19. The authors report the surprising finding that the countries whose systems appeared best prepared for a public health emergency enjoyed no clear advantage. Neither development nor democracy significantly predicted governmental effectiveness in fighting disease spread.

In Chapter 23, “A Functionalist Approach to Analyzing Legal Responses to COVID-19 Across Countries: Comparative Insights from Two Global Symposia,” Joelle Grogan and Alicia Ely Yamin also consider the connections between democratic institutions and governmental performance during health emergencies – specifically, a nation’s performance in protecting human rights. Drawing on findings from two multi-country symposia, they conclude that formal legal regimes (for example, whether a country uses emergency-powers laws or ordinary legal powers) may be less important to whether a country avoids abuses of power during a pandemic than the social and political environment in which these regimes function. Grogan and Yamin voice greater suspicion about undemocratic regimes than Wise and her coauthors, perhaps because their conception of an effective government response includes consideration of human rights concerns.

In Chapter 24, “A Tale of Two Crises: COVID-19, Climate Change, and Crisis Response,” Daniel Farber worries about democratic nations’ ability to solve global crises when their governments are fractured and polarized. He considers the connections between the two seminal global crises of our age: COVID-19 and climate change. Farber’s analysis finds that although the pandemic induced short-term reductions in carbon emissions, its longer-term impacts on how societies obtain and use energy are more uncertain. He notes opportunities to pursue a “green recovery,” using economic stimulus funds to invest in clean energy, but also the prospect of long-term damage to public transportation infrastructure. Farber trenchantly observes that while both crises have generated fervent hopes for technological rescues, making technology effective in combating the crises requires complex social investments.

In Chapter 25, “Vaccine Tourism, Federalism, Nationalism,” Glenn Cohen highlights the complexities that federalism layers on already thorny problems such as vaccine allocation. Democratic institutions, he underscores, can be both friend and foe during health emergencies. Cohen asks who, among several different groups of community outsiders, may have a morally legitimate claim to a community’s vaccine doses, and why. Fixing on communitarian principles as a lodestar, he offers a helpful definition of who belongs to a community for the purpose of vaccines.

A second theme connecting the chapters pertains to measurement. Answering questions about the optimal form of governance during pandemics begs the question: Optimal for what? Which outcomes are most relevant to assess? For instance, should we focus on COVID-19 cases and deaths, as Wise and colleagues do, or a more holistic assessment of how countries balance disease response with individual rights protections and equity considerations, per Cohen and Grogan and Yamin? Further, how can we rigorously conduct cross-national comparisons when countries differ in so many ways?

The ambitious empirical analysis undertaken by Wise and her coauthors illustrates the challenges. Countries have different levels of baseline vulnerability to infectious disease spread due to features unrelated to their legal, political, and social structures – for example, different levels of rurality and population mobility, and entry into the pandemic at different times, when different levels of knowledge had accumulated about how SARS-CoV-2 spreads. Figuring out how to rigorously isolate effects and control for confounding factors will occupy analysts of COVID-19 governance for some time.

For now, we can reach only tentative conclusions about how much political, legal, and public health systems matter to effective pandemic response. It is valuable to make the point, as Wise and her coauthors do, that prepositioning is not destiny when it comes to fighting novel pathogens. But some caution is warranted before concluding that redressing historical underinvestment in public health and health care systems will not help next time. On the contrary, Grogan and Yamin argue, it is reasonable to continue to operate on the assumption that having a well-functioning health care system and a public health system that assures equitable access to preventive and therapeutic measures will help avoid loss of life. Similarly, Cohen’s chapter gives rise to the inference that investing in advance planning for pandemic countermeasure allocation will yield dividends.

A final thread uniting the chapters is the notion of community. For many reasons and in many respects, COVID-19 led to the rapid drawing of lines around communities throughout the world. From the allocation of vaccine doses to the imposition of community mitigation orders, national, state, and local communities asserted themselves in defining their own individual pandemic responses. While this patchwork created interesting natural experiments to study, as the chapter by Wise and her coauthors shows, it likely undermined an effective global response to the virus. Whereas other global crises – most notably, World War II – cultivated social solidarity and a widening of the concepts of community and belonging, COVID-19 drove social fragmentation. Not only did this complicate disease response (for example, by prompting vaccine tourism and perpetuating inequities in COVID-19 outcomes among population subgroups), it may also have enervated the prospects for global cooperation to solve other problems, such as climate change. Our joint future may depend on redefining community. To the searching questions that Grogan and Yamin ask at their chapter’s end – “who should exercise power, of what sort, and over whom?” – might be added, “who should exercise care, of what sort, and for whom?”

Collectively, these chapters shed much light on the critical question of what constitutes good governance during a pandemic and how it can be secured for populations around the world.

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