We're still trying to get a handle on what immunity means in terms of those who've been afflicted with Covid 19.
Once you've had it are you immune, or are you immune for a long time or a brief time?
And then around that came this concept of once we know you're immune, how about we have a way to proof it which kind of opens you to get back to business and back to life in the world.
Except there are a whole lot of legal Fairness and ethical challenges around that apparently simple concept.
Someone who might have a very good idea of how to deal with these is with us now Professor Henry Greeley is Professor of Law at Stanford and directs the Stanford Center for Law and Bio sciences.
Now professor tell me why is this not an easy idea?
The lay person will look at this and say okay, if I have an immunity test and it says I'm immune, give me a card that says that and I can go out and do things.
It's very attractive and we all want to get back to normal.
If there is a normal to get back to, you've already touched on the biggest question, which is we don't know what the immunity whether there isn't a immunity, how powerful it is how long it lasts.
Before we know that none of this makes sense, but let's assume that we will learn that there is some significant immunity.
We also currently have a problem we don't have particularly good tests.
For that immunity.
But let's assume also that we're gonna fix that.
We're moving in that direction.
I think we're gonna get there.
So in a world where we think there is some pretty decent immunity and we [UNKNOWN] for it fairly well, what do we have to worry about?
Well one big issue right now for the people who really wanna reopen the country Is that probably no more than 3 to 5% of the population is immune anyway, it's gonna be hard to run a restaurant or a major league baseball team with only 3 to 5% of the population as possible customers.
That number for better or for worse is going to get higher as time goes on.
But people shouldn't have any illusions that even if everything else works, there'll be a sudden flood of the vast majority of the population back into the economy.
So it may look like an attractive idea but not at scale in any time that we can predict, at least not right now.
At least not right now.
You know, the end of the year things may look different.
But But again, let's say that it is big enough that people are willing to try it.
And I think even now, there may be some niches, maybe nursing home attendants who have a lot of personal care responsibilities.
Maybe as it turns out, we know that meat packing was such a dangerous profession.
Such a dangerous job.
Maybe you only want to hire meat packers who've got some sort of immunity.
There may be some niches, but for a broad application of it, I think we have to worry about How long are we gonna put up with a world where some people can do good things and others can't?
solely because of the accident of who got sick?
Okay, so there's where we get down to a level of a fairness and equality is that what we're looking at here?
I think the fairness questions are very deep here.
There's some legal questions about them.
But there are also some just deeper ethical questions and ethical questions in the context like this turned into political questions.
To some extent the ethical question It's interesting, it's an ethical question, but as a practical matter, it's more important in terms of how long are people gonna put up with it.
How long are people gonna put up with their neighbors and friends being able to do everything while they can't win the differences just somebody was able to somebody's got the disease and recovered from it.
And somebody else didn't.
There is no sense of merit there.
It is blind luck.
And I don't think we're likely to be willing to put up with it for a long time.
That is an interesting concept that there is no merit involved.
It is not like well, I went out and I worked and I got a contractor's license.
That is a reward for my effort.
This is perversely the opposite almost.
Yeah, and perverse is a good word for it because it does set up a perverse incentive.
Some people might say, hey, I want to be able to go to the ballgame.
I want to get myself infected.
And I'm healthy.
I think That the possibility of self infection.
I I'm old enough that when I grew up parents still took their kids to chicken pox parties and measles parties,
Where somebody would be having a birthday and you'd make sure to invite somebody who had that childhood disease so that everybody would get it.
And you'd pick a convenient time for your kid to have measles.
Isn't that amazing?
In retrospect, it's pretty crazy.
But this is worse.
And in part because measles, and chickenpox aren't as benign as our parents thought they were.
But this isn't measles, chickenpox, even if you're young and healthy.
The numbers show you have a low risk of dying but should still at about a 15 to 20% risk of being hospitalized.
You don't want to be hospitalized for this sucker.
And no one has a clue what the long term consequences will be.
Other than that this seems to be a very odd virus.
Causing strange effects in the heart.
In the brain, there are all these micro clots, will people 20 years from now be having after effects and bad side effects from even a route, even an asymptomatic infection today?
We don't know.
[CROSSTALK] So one of the concerns here sounds like you don't want to as a society incent someone To go out and get six look and go to the beach, not just for the immediate absurdity of that, but for the long term health impacts that are unknown.
And, you know, part of me thinks grownups should be able to make their own decisions that affect themselves.
That's mitigated a little bit because there's so little information about what the long term effects will be.
And also, to be frank, I suspect the people who are Likely to be thinking about infecting themselves are people who are like what I was 40 years ago, young men who are if they're like me, not necessarily always the best decision makers in terms of risk taking, but there's a another side to it as well.
It's not just that you're getting yourself infected and risking.
Your own current and future health.
If you get infected,you can then infect other people who didn't make that decision.
Who didn't decide,yeah,I want i want to get infected so that I can go out to a restaurant.
And some of those will be at high risk groups so I think we wanted to discourage self infection.
But immunity certificates, put an incentive in exactly the opposite way.
They go the other way.
Let's talk about other protections in our society under the law about housing, employment, so many others we have Those obviously were crafted before anyone ever thought about something about an immunity certificate from a disease.
I assumed those things would start to smash and tangle with each other if we did have an immunity certificate class.
The legal issues here get complicated and there's no one obvious answer.Things like the Equal rights, Equal Housing rights, things like the Fair Housing Act or the Civil Rights Act.
They focus not on immunity status but on race, sex, national origin, things like that.
Thing that comes closest is the Americans with Disabilities Act.
That's our health centered one that says you can't discriminate against people based on a health condition.
Whether that would even apply here is tricky because you have to have a disability.
The disability in this case would be be normal having a normal immune system that just hasn't been exposed to this virus yet.
So there are some ways that lawyers could clever lawyers will be able to argue that yeah, this should fall cat cab as a disability, but it's not.
It wasn't the sort of thing that was thought about at the time.
And it doesn't fit neatly into that big statute, the ADA, which is the big federal statute, governing employment, public accommodations, a lot of other things.
Further complicating matters.
Every state has its own version of it.
Almost every state has its own version with its own slightly different wording.
Plus there are different versions of disability discrimination acts involving specific areas like education or like transportation, airline travel, they all have their own different acts, some of which may apply, some of which won't.
And then behind all of it, you've got the possibility, I think a relatively weak possibility.
But in law as in biology, almost nothing is completely certain.
There may be some us there may be some federal constitutional issues as well.
So as you bring up the distinction between government policy and law and regulation Versus what may not be under that umbrella.
Let's say I'm an employer and I'm looking at getting people back to work.
What we're taping here in early May, let's say I hope to get people back in the office starting to trickle in in June.
I just want a policy like drug testing where I want people to come in only when they meet certain criteria.
Do you think that there's a private Industry aspect of this that could be pursued outside of what the law says.
And it's not just employers at schools, for example, yeah.
He should have private university.
We're trying to decide whether we're going to be physically open.
In the fall, some of this might be tempting for us.
So there are a lot of actors out there.
You got really two different possible scenarios to think about.
One would be where a government says, yes, you can use this.
So California or the Congress passes a law saying employers you're allowed to do this And that would probably immunize them from legal challenge.
Maybe not for the virus but a list of legal challenges about that.
But the other scenario is the legislature says nothing, you just go out and do it.
Can you legally do it?
And that then ties back mainly to the question I talked about with the Americans with Disabilities Act.
And the other disability discrimination.
I think those are the only things that are on the books that have a plausible application to this.
How clear that is remains is uncertain is just about everything else about this damn virus.
Let me ask you about where might I go let's say this were to be sorted out and we do have an immunity Certificate of some kind through some layer of government.
Where might this be administered?
I go to the DMV to get my driver's license.
I know where to go to get a building permit for my house.
Where do you think this might sit?
Have you given that any thought what agency would run this program?
I think that's a really interesting and important question and it may not even involve an agency I mean, Hank really immunity testers LLP might be willing for 100 bucks to give you a nice fancy certificate maybe with a little laminated card.
[UNKNOWN] your photo on it saying, I have examined your test results that you are immune.
So you've got possible private certifiers Got public sort of hires, if it's public, is it going to be state or is it going to be federal?
I think that if you want to do this, it probably makes most sense in our current situation to have states come up with both rules for immunity certificates and probably provide them themselves.
But there's no obvious state agents who's gonna do it.
In other state agencies that have most contact with people probably are the DMV and the idea of the DMV reading.
I forgot to track.
Now even though I have to say California, the DMV is Improved attacked enormously.
Still not where I want this to be now.
So I think you need to have some sorta implementation apparatus that doesn't exist right now.
And in general, that's a problem with this kinda proposal.
Problem with a lot of proposals we don't think enough about.
We don't think about implementation.
Yeah, it's easy to get out there in concept and say this is what we want it to look like but the nuts and bolts of people walking into a door or going on to a particular website and doing it that's, that's complicated.
Yeah, especially when it's a situation where it's a ticket to something people want So again, thinking back 40 years of more, more than 40 years, when I was under 21 living a dorm with a lot of men who were under 21 and wanted to drink, there was a brisk business in fake IDs.
True I think one industry that would do very well and an immunity certificate world is an industry that fakes immunity certificates.
Also, I remember that some guys in my dorm made fake IDs.
They weren't very good fake IDs.
And a bartender told one of them you guys misspelled the word license.
[LAUGH] But he then sold them beer.
[LAUGH] Yeah right.
Because you've got incentives not only of the person who wants to be able to do it, but the person who wants to be able to make money to keep their jobs to keep their business open by providing it.
Sure Think of all the businesses now that are particularly hard hit if they don't have an official government.
Representation of your status.
an airline may say, Well, it's just a bunch of privates.
I guess we'll accept them.
If they all look vaguely credible, they air that the hotel industry, the cruise industry, if there's something saying you can't accept a private party certificate, I suspect they would Right and even if it's a public certificate, is the bartender, is the waiter, is the waitress can look all that closely at your certificate to see whether it's legit or not.
Yeah, that's it.
The fake ID is a very interesting parallel I hadn't thought about that, how easy that is to.
To fraudulently create and to find people that are eager to buy into it.
Let me ask you about the American nature of this as we wrap up?
Most of the discussion from this, as I understand it, came out of European countries.
Do you think this flies in America [UNKNOWN] Or as either our culture, our traditions, and/or our laws Just too different for this to really be a good fit for this society.
So it actually exists to some extent in the US in some circumstances.
There are countries you can't go to unless you have a yellow fever vaccination certificate.
There are jobs you can't have my wife's a retired physician.
She She could not keep her staff privileges at our hospital unless she got immunized from Hepatitis B and a variety of things.
You can't be a good public school teacher without them.
Certain vaccinations and different states have different rules about being a public school student with or without vaccinations.
Those are all a little different because vaccinations are something safe and effective that everybody almost everybody can get, as opposed to just having been sick or not.
So we've got some precedence but there are precedents and little corners of society.
There presidents where vaccination has been an option.
Overall, I think this is gonna be a hard sell in the US because it cuts against both basic senses of fairness and equality but also kind of that the libertarian substructure of American life.
Goddamnit I should be able to do whatever I want unless there's a really good reason to stop me.
That's a reality of America.
That is not so powerful in every culture.
Having said that, Any crisis sometimes latest to do things that we would otherwise do.
Look at the aftermath of nine 11.
And how much more security conscious we became quickly in ways that were little surprising in retrospect.-
Yeah we became a screened bollard encrusted nation almost overnight.
Now look what's happening now with, I've heard relatively little squawking and complained about the fact that Android phones and iPhones are soon going to be pushing out contact tracking software.
There have been complaints and red flags raised, but not like there would have been pre pandemic.
Right so we do strange things in crisis.
I think part of being responsible is to say, hey, wait, let's stop and think about it.
There's such an urge to don't just sit there do something.
And sometimes doing something can make things worse rather than make things better.
So we need to think about and we need to think about it at every level from ethical and legal issues.
Down to the nitty gritty of fake IDs.
Professor Henry Greeley is a professor of law at the Stanford School of Law and also is director of the school Center for Law and bio sciences.
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