In response to Oster’s piece, the journalistic tsunami was both torrential and ran along political lines and personal moral credos. It was as if Ms. Oster’s proposal unleashed one spectrum of the political divide to attack all COVID proclamations and policies – even those the administration(s) got right. Certainly, there were elements gotten wrong, or that should have been changed in response to the viral mutations or the changing public health response. But that does not re-open the door to attack vaccination, boosters, or even lockdowns when imposed for limited periods in circumscribed locations – when there is no other alternative. Raising the Great Barrington Declaration is not a defense to mainstream scientists, as outspoken as its signatories were, and as virulent as the (admittedly unexpert) Oster attackers maintain.
As I’ve written, these attacks aren’t surprising – all is now politics. But it is disturbing and dangerous. While justified criticism is presented against Anthony Fauci for, amongst other things, his unscientific pronouncements on herd immunity – conspicuous by its absence is an attack against RFK Jr for trashing COVID vaccines
The History and Politics of Public Health
In 2002, President Bush ordered a half million members of the military to be vaccinated against smallpox, fearing bioterrorism – no excuses were tolerated. He also encouraged healthcare workers to be vaccinated. They, having the choice, largely refused. The reason is that the Smallpox vaccine is fraught with serious risks, and its use was against a disease that, at the time, was virtually impossible to unleash, failing any credible risk-benefit analysis. [1]. While military members protested, where was the public hue and cry? Bush’s decision was clearly political. It took three years for the scientists to assess and critique it, but at least it happened:
“A review of the ill-fated U.S. smallpox vaccination campaign charges that the Bush Administration overruled scientific advice and moved ahead on a major vaccination effort without a clear explanation.”
That wasn’t all. Untested and unapproved anthrax vaccines were also foisted on the military, a decision sanctioned by the CDC and thoroughly criticized by the medical establishment:
“[A]ll military personnel, independent of their specific job or whether they will be deployed to a “high threat” area, are ultimately slated for vaccination. Thus, the decision to vaccinate all service members ignores risk-benefit assessment, the heart of preventive medicine practice. In acquiescing to the needs of the military, the CDC has established a double standard for the practice of military as opposed to civilian medicine, even in peacetime.”
In 2014, in response to rare cases of Middle East Respiratory Syndrome (MERS), President Obama issued Executive Order 13295, mandating an omnibus respiratory quarantine directive directing “the apprehension and detention of Americans who show signs of ‘severe acute respiratory syndromes.” – without limitation. The broad wording meant that any severe cough and fever could trigger quarantine. Again, nary an outcry (except maybe when the CDC said this executive order applied to COVID in March 2020).
Over the last quarter of a century or so, the government, including both Republican and Democratic Presidents and their CDC appointees, has actively involved itself with bio-threats. The one constant throughout this biologically-fraught time: Anthony Fauci, who has been director of the National Institute of Allergy and Infectious Diseases since 1984. Why is this significant? Because it goes to his state of knowledge, continuing responsibility, and possible legal liabilities. It strikes me as difficult for an economist, in one fell swoop, to try and dismantle those concerns with an amnesty program.
The Tort of Misrepresentation
The tort of misrepresentation involves making a false statement that induces another to act. Usually, it pertains to contract actions, but some scholars have proposed extending it to reliance on public figures who, for example, promote anti-vaxism.
There are three varieties: intentional misrepresentation- knowingly disseminating false information with the intent that others will rely on it, perhaps exemplified by the rhetoric of RFK Jr; fraudulent misrepresentation, where the intent to harm (mens rea) isn’t as obvious; and negligent misrepresentation, making a false statement where the actor knew or should have known the statement was false. Despite how loudly the anti-Osterites scream, errors in judgment and mere mistakes do NOT constitute negligence, as long as all factors and knowledge available at the time, or those that should have been available, were considered.
Here, we return to Dr. Fauci, who has been in the anti-pandemic business for almost 40 years. Even twenty years ago, Fauci recognized the need to prepare for a significant bioevent:
“We need a substantial and accelerated research and development agenda to accomplish short- and long-term goals aimed at protection of the United States and the world population against present and future attacks by these [bio]agents.”
– Anthony Fauci, 2002.
Why were we first told not to mask, then told that any mask will do ya, and only later did we learn that only masks made of certain materials were effective? Where were Fauci and his team for the last twenty years? It could be said that neither Fauci nor the CDC knew at the outset what the proper masking policy should be. But, it also can be said that they should have known – and that’s one of the components of negligence.
How come we didn’t have enough stockpiled N-95 masks or ventilators? Again, it can be argued that government should have known - and that might also be an example of negligence.
How come we didn’t know that excessive visitation restrictions in nursing homes were counterproductive and likely resulted in more deaths than lives saved? [2] Another possible example.
Many false statements and policy directives were not made with an intent to injure. On the other hand, shouldn’t people be accountable for not knowing the answers when they were in a position to know?
Retrospective analyses are essential to preventing future harm, and identifying the perpetrators is a deterrent to others engaging in similar malfeasance. Who is Emily Oster to remove this tort from the books? Amnesty might be asked by someone who feels guilt over their actions or wants forgiveness. Amnesty may be sought by someone wanting to avoid a congressional inquiry. Is this the societal inquiry Oster seeks to disavow?
Qui Bono?
Decisions on the state level can also be criticized, scientifically and legally. These actions run on the minimizing side, interestingly escaping criticism from the anti-Osterites.
On July 30, 2021, Governor Ronald de Santis promulgated Executive Order 21-175, effectively banning school districts from mandating masking and punishing school districts that refused to comply with his anti-masking directive by withdrawing state funding. That order was associated with dramatically excessive COVID caseload and deaths sustained by Floridians, especially children.
“Florida is now leading the nation in per capita hospitalizations for COVID-19, as hospitals around the state report having to put emergency room visitors in beds in hallways and others document a noticeable drop in the age of patients.”
Children can also be prime transmitters of the disease, causing adults to sicken and die even if they are asymptomatic. [3]
“According to a recent report in JAMA Pediatrics, children and adults have similar risks of becoming infected with SARS-CoV-2, but a much larger proportion of infected children do not show symptoms of COVID-19. When one household member is infected, there is a 52% chance they will transmit it to at least one other person with whom they live…..”
DeSantis’ failure to allow local school boards the decision to mandate masks was faulty policy[4] based almost entirely on a non-peer-reviewed study entitled “The Brown Study,” which did not find "a correlation between mask mandates and COVID-19 rates" in schools in Florida, New York, and Massachusetts.…” Nevertheless the complete conclusions of the study and its limitations were ignored by the Governor. Nor did the study consider the emergence of the “more contagious Delta, variant,” admitted to by its lead author.
Even so, the study and its lead author were extensively criticized, among other reasons, for selectively excluding school districts.
So, who was the lead author of the “Brown Study’? Emily Oster.
Perhaps Dr. Oster really wants a do-over for herself?
As one of her critics wrote about her work:
“Our failed pandemic response, which has resulted in a million deaths so far, has been predicated on the total replacement of shared moral or ethical values with individualistic assumptions about risks, benefits, and value. The realities of an infectious disease outbreak have proven deeply inconvenient for the privileged, the interests of capital, and the right-wing ideologues who work to justify those hierarchies. The rest of us must look to collective action and solidarity as the essential preconditions for meeting social needs, confronting planetary crises, and working towards a world that does not sacrifice the social good on the altar of self-interest.”
[1] Barbara Pfeffer Billauer, Weapons of Mass Hysteria (WMH), Faulty Bio-threat Predictions and its Impact on National (In) Security (or How Mathematical Modelling is Inapt to Establish Preparations for National Security Planning of Infectious Diseases: A Case History of Smallpox). 27 Health Matrix 347 (2017).
[2] Barbara Pfeffer Billauer Mental Health and the Aged in the Era of CoVid19, 2 Ariz. St. L.J. Online 108 (2021),
[3] Barbara Pfeffer Billauer Discrimination Today: The Dangers of Pariah-tizing The Elderly During the CoVid Pandemic, The Elder Law Journal of the U. of Illinois College of Law (forthcoming) ssrn.com
[4] “Whereas, despite recent Centers for Disease Control and Prevention (CDC) ‘guidance,’ forcing students to wear masks lacks a well-grounded scientific justification; indeed, a Brown University study analyzed COVID-19 data for schools in Florida and found no correlation with mask mandates.”
[5]Legally, the failure to consider a new, more infectious variant might emerge might be regarded as negligent.
