Q&A: ‘Arguing’ Before the Supreme Court


Kevin Kavanagh, MD: “I would tell the Supreme Court that it’s very important that all high-risk venues are treated equally, but the remedy isn’t opening up one high-risk venue, the remedy should be closing down all high-risk venues.”

Recently, in Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, the US Supreme Court ruled that Gov. Cuomo was wrong when he tried to set limits on the number of people who can gather to worship. The diocese and its co-plaintive in the case, the Jewish Orthodox group, Agudath Israel of America, hailed the decision as a victory for religious freedom. Kevin Kavanagh, MD, a member of Infection Control Today®’s Editorial Advisory Board doesn’t necessarily disagree with the court’s decision, in which the justices faulted Cuomo for not placing similar limitations on secular businesses such as liquor stores and bicycle shops. But if Kavanagh had been a testifying expert, he would have told the justices that “it’s very important that all high-risk venues are treated equally, but the remedy isn’t opening up one high-risk venue, the remedy should be closing down all high-risk venues, according to public health strategies, which have to be implemented during this severe spike in the virus.” But the court’s decision is not the only topic Kavanagh touched on in a wide-ranging discussion with ICT®. The coming COVID vaccine, for instance. Kavanagh thinks that “we’re looking at a mutation at some point where we’re going to have to have another vaccine made and distributed to the population.” Mostly, Kavanagh wants the public to understand the dangers posed by coronavirus disease 2019 (COVID-19). Unfortunately, says Kavanagh, judging by the amount of travel over the Thanksgiving holiday, that message hasn’t seemed to sink in yet.

Infection Control Today®: Now you’re a doctor, you’re not a lawyer, and you want to see people stay healthy. That’s the bottom-line view, I think. But if you had a chance, how would you rectify these two sides? Is there a way to rectify these two sides?

Kevin Kavanagh, MD: Well, definitely. When I read the thought process behind the Supreme Court decision, I did not feel it was a church-versus-state decision, more than saying, “Hey, we need to do everything equally.” And that’s extremely important in infection control. You cannot have some high-risk facilities open and others closed. That’s not only not fair, but it also won’t control the pandemic. As you know, we’ve written extensively and talked extensively about control of MRSA [Methicillin-resistant staphylococcus aureus], and how the recommendations between hospitals and nursing homes do not coincide with each other. They make no sense, nursing homes being much more lenient. And because of that, I think the Supreme Court decision may actually shine a light on us having a uniform process of making recommendations that are pathogen, not venue, specific. They need to be specific for the pathogen. I do not believe that the Supreme Court decision is a checkmark against public health, and in a way it can be used to actually bolster public health and to move it forward.

ICT®: I think you’ve told me in past discussions that COVID should not be politicized. Rallies for President Trump weren’t a good idea. And neither were the protests for George Floyd a good idea. That social distancing was important in each case, correct?

Kavanagh: Absolutely. The virus does not care. And I think you need to realize that when the Supreme Court says, “Well, we need to do things equally.” That doesn’t mean we should go and open up schools. How we can get together on this is that if one side feels a venue is unsafe, and another side says, “Well, but we can’t close down that venue during this horrible pandemic surge because this other venue is just as unsafe and it is open.” The remediation should be to close down the other unsafe venue. And I think that this has to be the take-home message. It should be noted that the Supreme Court is meeting virtually. Washington is starting to close down. Even Senator Mitch McConnell has this week stated that the Republican luncheons are no longer going to be meeting in person. These types of precautions are being taken by many people in many different venues, both on the right and the left. And what we don’t want to do is start fighting each other and having the public being pawns. When we feel that there is an inequity in restrictions, we need to go to the default position of safety especially during a severe surge which we’re currently experiencing. And that means closing down the other venue in question, not opening up all unsafe venues. I should also add that sporting events are also problematic. And we are seeing that in Kentucky where we have college sports being open. And we’ve discussed at length regarding this on this program and also in some of the writings that we’ve done. If you wear a mask that is just a layer of protection, these are cotton masks. They don’t include goggles, hazmat suits, proper donning and doffing. All it is, is a mask. And even if you put only a few people in a stadium, if they’re yelling and screaming, they’re going to aerosolize the virus and defeat the mask. So, the mask has to be viewed as a layer of protection. And that’s why just saying, “Well, as long as everybody wears a mask, these venues are OK.” That is not good public health thinking. It will cut down on viral transmission. Help to slow down the pandemic. But as far as providing you with enough personal safety, you still have to practice other public health strategies. And one of the primary ones when the virus is surging is to avoid going into or participating in high-risk activities. For example, if you wear a mask, and let’s say that provides you with a six times greater protection. But instead of just going to the grocery store, once a week, you decide to go to retail establishments 20 times a week, because you now think you have this protection. Well, you’ve actually now just placed yourself in a higher risk category than you were without wearing a mask and only maybe visiting once a week. And of course, I’m not advocating not wearing a mask. I’m just giving you this as an example. So, masks are a false sense of security if you think they’re going to protect you 100%. They’re not N95 masks. They’re not full hazmat gear. You’re not doing proper donning and doffing. So, when the pandemic is surging, the idea of congregating in schools, in churches, in retail establishments are all very problematic. People should be avoiding indoor activities with people who are not in their family unit and be purchasing online or with pickup. It is extremely important. Because if we outstrip our healthcare resources, which unfortunately is currently being done in several different regions of the United States, if we do this, you will see death rates soar not only from COVID-19, but from other illnesses where people cannot get the proper care that they need because there’s not a hospital bed, an ICU, or a timely OR suite that’s available. This is very problematic. And we’re seeing these reports right now coming out of El Paso, Utah, South Dakota, and North Dakota, along with Wisconsin. And the pandemic is still skyrocketing. And we expect another surge because of the Thanksgiving activities. So, right now it is a time for siding on caution, not for opening up and going back to the way that we were.

ICT®: You’ve been pretty on point about this pandemic from the beginning. I remember you said before anybody else said that this thing is serious. I’m sure you have friends and relatives who are just so impatient with this at this point. They want to get back to the old normal. Will there ever be an old normal again? When can we start acting like we did before? And will the arrival of a vaccine, which seems to be a reality more and more each day, could that possibly backfire in giving us a false sense of security?

Kavanagh: Well, let’s see if I can remember all of the parts [of your question]. First of all, I don’t think we’re ever going to go back to the way that it was. Online shopping and pickup I think are here to stay. People like that. Working at home, that’s here to stay. People like that and production in many different industries is actually up. Because instead of spending long times traveling, people are actually working. And costs are down. So, we’re going to see a transformation. We’re never going to see us going back to the way things were. It will get more normal, but not the same normal. Currently, I feel this virus is going to become endemic. It’s already in animals. It’s in dogs, cats. And we’ve seen it enter the mink population in Denmark, necessitating the culling of 17 million mink. And that virus, you’ve seen mutate to a form that they were worried was resistant to the vaccines. I do think vaccines are going to come about. I’m worried that they are going to cause a significant immune response, not one that’s dangerous, but one which may discourage people from getting the vaccine. We see this with the shingles vaccine. People take the first dose. They don’t want to take the second dose, because they had a

Kevin Kavanagh, MD

fever and were sick. That may be very problematic. This virus may repeatedly enter into our population because it is now residing in an animal host. And I also think that we’re looking at a mutation at some point where we’re going to have to have another vaccine made and distributed to the population. Now, the good news on that front is that with the new technology of mRNA, it looks like these vaccines may be able to be printed in a matter of weeks. So that you’ll have very rapid response. And as we get geared up with manufacturing and distribution, we won’t see the delay like we’re currently seeing. But I do think we’re going to be living differently. And we’re going to have to actually have a different type of outlook on infectious disease. I feel that masks in many venues are going to be here to stay. And that may be actually a good thing. If you’re sick, or you’re coming down with a cold, you will be able to wear a mask and go out in public where before maybe you weren’t able to do that because you were socially looked down upon. Granted, I’m not advocating that if you have a cold that you go out and do that. But you know, sometimes when you’re living alone, and you have the sniffles, you have to go out. And this will add I think, an extra layer of protection to our society. But I tell you, I don’t think we’re going to go back to the way things were. There are a lot of problems that this virus has created. There are a lot of solutions. But those solutions mean that we’re going to be doing things differently. We’ll be looking at the good old days back before 2020. And they won’t be the same as what we’ll be living in the future.

ICT®: As you know, the flu of 1918 killed about 60 million people around the world. Could this have had the potential to have killed that many people around the world if the world didn’t basically bring its economy to a cold stop as it did?

Kavanagh: Oh, I definitely think so. And you’ve seen estimates such as that…. Well out of New York City in the initial stages of the pandemic. But you need to remember, it’s not only bringing the world economy to a semi-halt. But also, we’ve had great advances in medical care: the giving of oxygen, the proning, mechanical ventilation, the ability to give life support, anti-coagulation and all of this has helped to improve survival. That wasn’t available in 1918. However, if we outstrip our medical care, in other words, if we have more cases and can be cared for, that’s when you'll see fatality soar, similar to 1918. We’re at a real turning point right now. We really do need to follow public health strategies, side on the side of caution, and really tightened down and batten down the hatches. These next couple of weeks, until this peak subsides and we get the vaccine the light is at the end of the tunnel, we just need to hang on.

ICT®: There was some lessening of travel over the recent Thanksgiving holiday. But do you think it was enough?

Kavanagh: Absolutely not. I think it’s very problematic with what I’ve seen. I’m very scared we’re going to have another surge. If you are traveling or you did travel, it is recommended that you get a test I've heard anywhere from three to five to seven days out, and that you should be quarantining yourself for at least seven days, possibly up to 14. I’m hearing different things from different authorities. I mean, there were so many people, it’s hard to quarantine half the United States. But nevertheless, the median incubation period for COVID-19 is five days. So, you certainly want to quarantine yourself longer than five days. Two weeks would be best, at least do seven to 10 days. I know it’s hard. It’s a lot task. But if we outstrip our resources and have another surge it’s going to be very problematic. And if we then repeat this during Christmas, it’s just going to be really something that I think will be a very heavy price to pay for people not following public health strategies.

ICT®: Editorial Advisory Board Member Saskia v. Popescu [PhD, MPH, MA, CIC] wrote an excellent article that was just posted on Infection Control Today®’s website, about the CDC considering making the quarantine guidance 7 to 10 days. Saskia is worried that it’s a range and leaves too much in the hands of an individual provider. Should it be 7 days? Or should it be 10 days? And let’s not forget 8 days and 9 days, which are also in that range.

Kavanagh: Well, there’s also 14 days and one of the problems is that people really don’t know what is needed to be done. The other is that there’s a real wrestling between what is going to be safest for the individual versus compliance and safest for society. Obviously safest for the individual is you quarantine for 14 days. But if you have nobody complying with that, then that does little good. And I think that’s why during this Thanksgiving time, they’ve lowered the time period saying, “Gee, if we can at least get the public, who is out there traveling, to quarantine for 7 to 10 days, as a society, we’ll see drops in the number of potential cases.” Is that as good as quarantining for 10 to 14 days? No, it’s not. Don’t think if you just quarantine for 7 days, it’ll provide you with as much protection or provide your loved ones with as much protection. It won’t. But maybe we’ll get people to do that. Because you need to realize, if people didn’t take the advice and went traveling, what are the chances that they’ll do voluntary quarantining? I mean, this is very problematic. The public is not following public health guidance. And if they were, we wouldn’t be in this position. We’d be similar to South Korea, where our total deaths adjusted for population would be in the thousands, rather than the hundreds of thousands. And so, we’re in a situation now where it is very hard to advise people on what to do. And of course, we far outstripped the availability of good PPE for the public. There are just too many potential infections, too many venues which are now very high risk. Community spread is rampant. And so, this is a time, as I said, for the next couple of weeks, I would shelter in place as much as possible, and order online or do pickup.

ICT®: And finally, to circle back to the Supreme Court decision that we started with, if you were a testifying expert, testifying before the Supreme Court, in a nutshell, what would you tell US Supreme Court?

Kavanagh: Well, I would tell the Supreme Court that it’s very important that all high-risk venues are treated equally, but the remedy isn’t opening up one high-risk venue, the remedy should be closing down all high-risk venues, according to public health strategies, which have to be implemented during this severe spike in the virus.

This interview has been edited for clarity and length.

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