Help, Officer... I'm Being Murdered by an Unmasked Gunman

We have rather taken for granted the constitutional guarantees of certainty, rule of law, and due process in recent years. We ignored the water drip torture of prosecutorial misconduct (the Trayvon Martin, Lewis Libby, Ted Stevens cases) and government overreaching (ObamaCare, the Kelo case),  but  in the past few weeks more of us -- from surfers and skateboarders to doctors, dentists, hospitals, and small shopkeepers -- have been forced to realize what life without these protections is like. And we don’t like it, any more than we like how the government lied, ignored the law quite clearly for purely partisan political purposes, and set up General Mike Flynn for an expensive criminal proceeding. Reminding us that we have important rights that we should demand be respected is a good thing.

Of course, these restrictions set by the governors, and sometimes mayors or county chairmen, do violate our constitutional rights to free speech, assembly, due process, religion, and against takings. In the past, courts have permitted some limits in exigent circumstances, but for limited periods of time and when the government could prove after a hearing which afforded due process (testing the evidence) that no other, less restrictive means were available to deal with an emergency. Things like hurricanes (short term) or smallpox (for which there was already in place a viable vaccine). That is not the case with COVID-19. There is no vaccine and likely won’t be one any time soon enough to avoid further crashing the economy. There is no agreed-upon end point: Will the restrictions vanish only when there is no longer a single case, when everyone has been tested, when the Democrats retake the White House?  Moreover, as I will show, the restrictions have often gone far beyond what is justifiable under the Bill of Rights. 

We now have demonstrated means to limit mortality from the virus. This means that the fear of millions of deaths seems no longer likely. When this began, we were uncertain if the disease was treatable or how.  Now we do know. Mortality figures are far lower than predicted and will further diminish as known treatments are more widely employed.

Absent a vaccine on the near horizon, we have two methods of treating it that have proven quite efficacious: Remdesivir,

A big win for patients and the first building block in what will be an improving toolbox for reducing death and disease from COVID-19. FDA's authorization allows for five-day use in patients who aren't intubated, which will extend Gilead's supply of the drug. 

-- Scott Gottlieb, MD (@ScottGottliebMD) May 1, 2020

And the cheaper more readily available chloroquine and hydrozychloroquine (with or without zinc) with azithromycin.

As to this second method, the FDA must revise its guidelines to make it prophylactically available earlier and speed up recovery.

In a letter to Gov. Doug Ducey of Arizona, the Association of American Physicians and Surgeons (AAPS) presents a frequently updated table of studies that report results of treating COVID-19  with the anti-malaria drugs chloroquine (CQ) and hydroxychloroquine (HCQ, Plaquenil®).

To date, the total number of reported patients treated with HCQ, with or without zinc and the widely used antibiotic azithromycin, is 2,333, writes AAPS, in observational data from China, France, South Korea, Algeria, and the U.S. Of these, 2,137 or 91.6 percent improved clinically. There were 63 deaths, all but 11 in a single retrospective report from the Veterans Administration where the patients were severely ill.

The antiviral properties of these drugs have been studied since 2003. Particularly when combined with zinc, they hinder viral entry into cells and inhibit replication. They may also prevent overreaction by the immune system, which causes the cytokine storm responsible for much of the damage in severe cases, explains AAPS. HCQ is often very helpful in treating autoimmune diseases such as lupus and rheumatoid arthritis.

Additional benefits shown in some studies, AAPS states, is to decrease the number of days when a patient is contagious, reduce the need for ventilators, and shorten the time to clinical recovery.

Peer-reviewed studies published from January through April 20, 2020, provide clear and convincing evidence that HCQ may be beneficial in COVID-19 , especially when used early, states AAPS. Unfortunately, although it is perfectly legal to prescribe drugs for new indications not on the label, the Food and Drug Administration (FDA) has recommended that CQ and HCQ should be used for COVID-19  only in hospitalized patients in the setting of a clinical study if available. Most states are making it difficult for physicians to prescribe or pharmacists to dispense these medications.

As the letter to Gov. Ducey notes, “Many nations, including Turkey and India, are protecting medical workers and contacts of infected persons prophylactically. 

We were led to believe that even asymptomatic persons could transmit the virus. We now learn that isn't true and was based on a false account.  People without fevers, coughs, sneezes cannot transmit COVID-19.

When this began, we had some models of the rate of transmissibility, but little idea of the number of persons who would suffer life-threatening symptoms and require hospitalization. For that reason, non-emergency surgeries were cancelled for the anticipated flood of COVID-19 patients. Those patients never materialized. In NYC, the military hospital ship went virtually empty, tent hospitals set up elsewhere have folded for lack of patients. Here and there, COVID-19 has swamped some hospitals, but almost everywhere else the restriction has meant the postponement of cancer treatments and other operations necessary to prolong and improve life of thousands more people who do not have the virus. In the aftermath, hospitals (including the Mayo Clinic) have laid off personnel, are suffering substantial financial setbacks, and many needed smaller hospitals, which saw few if any COVID-19 patients, are close to shuttering their doors. (Some jurisdictions and institutions are padding the rolls of the virus patients, ascribing the virus to deaths by other causes to increase the federal payments for treatment, thus making exact figures problematic,) This to the detriment of all those who live in those areas who will now find even emergency facilities further out of reach.  People who live in Beverly Hills, California, however, just got a big break. Local authorities are now allowing plastic surgeries in their hospitals to resume. (Tell the Indiana farmers whose hospital is about to close for good, that treacly, meaningless nonsense beloved of corporate p.r. spinners everywhere,  “We’re all in this together.”)

What began as a short-term admonition to wash our hands frequently and use social distancing to flatten the curve so that hospitals would not be overwhelmed by the many anticipated patients predicted by the epidemiological models became, in the hands of too many politicians, a right to rule, picking those who could live (“essential” businesses) and those who would die (“non-essential” businesses), a made-to-order graft opportunity. Which religions could meet (Moslems in Syracuse, NY)  and which could not (Christian or Jewish congregations in NYC), in effect choosing essential religions from non-essential ones.

Attorney General William Barr has warned that although governments had the right to impose “reasonable and temporary restrictions’ during times of emergency, they must justify those restrictions as truly necessary and ensure there are not other ways to address the interests that are less burdensome.”

Some governors and mayors expanded and extended the restrictions, and the arbitrary nature of these became apparent. In Maryland, the owner of a drive-through car wash was cited for violating the lockdown rules. In California, Governor Gavin Newsom opened some beaches to the public but not those in Orange County, apparently on the basis of a fake news account and without contacting local officials. In Michigan, Governor Gretchen Whitmer’s stay-at-home order seems remarkably like imprisonment. She has banned motorized boating, purchases of infant car seats and gardening supplies, and a drive-in movie theater was cited for violating her directives. Does she imagine the virus travels from closed car to closed car? If so, she may soon shut down Michigan’s roads (and car factories).

We were willing to adopt minimal restrictions -- even some more stringent ones -- when the length of the disruption was short term and the data about the virus so uncertain. The data are far less uncertain now. It should come as no surprise that rebellions are growing in response to this unjustifiable and often totally arbitrary exercise of state executive power. In Michigan, hundreds of protestors (some armed, as the law of the state allows) protested inside the state capitol in Lansing.

While promulgating and enforcing (often arbitrarily) lockdown rules, many of the same political figures, actually have made infectious rates soar. Governor Andrew Cuomo certainly has. He just got around this week to beginning a program to disinfect the subways, a known vector for the spread of the virus, and he inexplicably had ordered nursing homes, where we all know the most vulnerable are housed, to accept COVID-19 patients, even as he refused the nursing homes permission to transfer infected residents of nursing homes to the hospital ship the president and military went to such great lengths to promptly navigate there. He has reduced subway hours but not removed the homeless encamped on them, forcing already beset passengers to move into even more crowded subway cars to avoid the stench.

[D]ramatic declines in new cases, hospitalizations and deaths in hot spot New York City and downward curves statewide have somehow persuaded New York Gov. Andrew Cuomo to cancel the rest of the school year. 

Perhaps Mr. Cuomo is still unsure how to spin his remarkable achievement of both crushing the economy with a strict lockdown and encouraging the spread of infection with misguided policies for nursing homes and transit systems.

We can say with dismal certainty that shutdowns have destroyed millions of jobs nationwide. But despite the gargantuan costs, it remains unclear whether mandated shutdowns have any long term benefits at all compared to voluntary measures to keep clean hands and surfaces, avoid touching faces, and maintain social distancing.

Not to be outdone by Governor Cuomo, NYC Mayor Bill de Blasio ordered the city’s police force to prioritize 311 calls over 911 ones.  That means if you are reporting a neighbor for standing too close to someone, the cops will come to the site before they come to an ongoing attempted homicide. My advice to New Yorkers under attack is to call 311 and say, “Someone not wearing a mask is trying to kill me.” Otherwise, you’ll just have to wait your turn.

This kind of crazy is leading to more than protests. Overreaching and lunatic directives are inviting injunctive relief litigation. This Tuesday, the Wisconsin Supreme Court will hear the GOP lawsuit against the state Department of Health Services secretary-designee Andrea Palm’s lockdown rules. In Michigan, the governor’s lockdown extension was rejected by the state legislature, which voted to authorize a suit challenging her authority to extend it. More lawsuits challenging these rules have been and will be filed and I predict these challenges will prevail.  Perhaps the most significant of them is now before the Supreme Court, where Justice Samuel Alito has demanded that Pennsylvania’s governor Tom Wolf respond tomorrow to a suit by businesses seeking the court suspend the governor’s business closure order. The petitioners argue “the order and waiver process violated their constitutional guarantees against having property taken without compensation and their rights to judicial review, equal protection under the law and free speech. The state Supreme Court denied their request April 13.”

Businesses, banks, and property owners everywhere are in the same boat as those in Pennsylvania, where without a hearing to prove reasonableness, they are being deprived of their constitutional rights and for an undeterminable time at that. This case should get great attention.

In the meantime, businesses are trying hard to adapt and stay alive, if only precariously. (I predict if this doesn’t end soon, we will see a flourishing black market develop as it does in every totalitarian state where top-down economies are doomed to failure). 

If the state governments do not roll back these unnecessary closure orders and restrictions, I wonder how they anticipate they will collect state income and property taxes? Have they even considered while concocting these draconian measures to get adoring coverage from a press trying to keep the COVID-19 hype alive that there’s little government revenue to be made in wastelands? Wastelands that will be populated by millions of people on the dole for which their barren treasuries will be inadequate.

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