Infectious Disease & American History: “The Past Is Never Dead.”

COVID-19 continues to rage in many parts of the world, but where I live, the number of cases is in decline and vaccination rates are relatively high. As a result, for now, many people in my community are returning to pre-pandemic activities and routines.

My children returned to school in-person in February, wearing masks, and soon, my youngest will graduate from her elementary school. In the poll to select the design for the graduation T-shirt, the students were given two options: (1) our cheerful mascot inside a computer screen, reflecting the virtual education that about half of the student body continues to receive; and (2) our cheerful mascot standing beside a computer screen as if this school year were like any other.

Almost 90 percent of the students–including the students who are still virtual–chose the “free” mascot. When I asked a group of the students if our mascot should wear a mask, the response was a resounding, “No!” These students continue to wear their masks without much complaint, but they are ready to return to normal, and they want their class T-shirt to reflect it.

But what will our new normal be like?

It is hard to believe that we can experience a pandemic for over a year, changing almost every aspect of our lives and killing millions of people throughout the world, and not have it leave a long-lasting impact.

As Professor John Fabian Witt writes in American Contagions: Epidemics and the Law from Smallpox to COVID-19: “Infectious diseases… helped produce many of the defining features of the modern world: street cleaning, the shape of the city neighborhoods, the clean water piped to our kitchens, and the pediatrician visits that mark the lives of our young children.”

Infectious diseases have even left their mark on the development of our laws, and Witt’s book is a “citizen’s guide to the ways in which American law has shaped and responded to the experience of contagion.”

It is a short and digestible read that is ideal for anyone (particularly non-lawyers) looking for a historical perspective on American society’s response to COVID-19. Over the last year, we have seen the struggle between individual rights and community health, from businesses challenging state and local closure orders to individuals refusing to wear masks to protect others from illness. 

What we learn from Witt’s book is that this struggle is not new. During the flu pandemic of 1918 and 1919, for example, many people objected to San Francisco’s mask mandate. As Witt explains, “Protesters responded by forming an ‘Anti-Mask League,’ insisting on their constitutional right to move about as they pleased.”

Resistance to public health measures is a common feature of our history, but according to Witt, “rarely have courts interfered with the basic power [of governments] to keep people safe in a moment of contagion.”

That is, if our government actually bothers to keep people safe. There were so many examples in this book of governmental responses to infectious disease that ignored, scapegoated, or intentionally harmed Black people, Native Americans, people of Asian descent, and vulnerable communities.

One example of what Witt calls “the malign indifference and contempt [for African American communities] shown by the law of public health” comes from my hometown of Philadelphia during the 1793 yellow fever epidemic that killed one out of ten residents. Witt writes:

Faced with the question of how to allocate the labor of caring for the ill and burying the dead, the town fathers, who six years earlier had presided over the drafting of the U.S. Constitution, hit upon an idea… They recklessly asserted that the city’s small Black population was immune from disease and called on the Black community to do the ghastly work. Hundreds of African Americans died before the outbreak passed. Those who survived were scapegoated for taking payments for their services and even accused of theft from the homes of the sick.

Racism is a feature of American society, and it remains rampant today. It is a sad and unsurprising fact that COVID-19 has disproportionately killed Black people in the United States. 

Black people are also disproportionately incarcerated in the United States, and the needs of incarcerated people are often ignored. 

Witt describes how, as a result of Supreme Court precedent, incarcerated people are packed into prisons under conditions in which infectious diseases like COVID-19 thrive. 

“Once upon a time,” he writes, “the American legal system knew how to manage prisoners in an epidemic. Colonial and nineteenth-century state law routinely dictated that vulnerable prisoners be moved to safety in times of pestilence. Twenty-first-century American prison systems, by contrast, seemed to have forgotten about the risks of epidemics. They had grown complacent after a century of calm.”

As a result, in many parts of the country, incarcerated people were left to suffer. Witt mentions that Pennsylvania, where I live, is among the states in which “prison officials did little or nothing,” writing that “Pennsylvania had released a mere 150 people of its 96,000-person prison population by early May [2020].” He adds that “inmates in at least one Pennsylvania prison went on a hunger strike to protest guards not wearing required masks.” 

According to Spotlight PA, “In prisons, the Pennsylvania Department of Corrections houses up to four people in cells the size of a bathroom — spaces that are ripe for spreading COVID-19. Between March 2020 to January 2021, nearly one in five prisoners had contracted COVID-19.” Incarcerated people in Pennsylvania are now able to receive vaccines.

With vaccination rates in Pennsylvania going up and COVID cases going down, I hope we will soon be able to put this pandemic behind us. 

But, of course, to quote William Faulkner, whom Witt references at the beginning of the book, “The past is never dead. It’s not even past.” History has informed our society’s response to COVID, and our response to COVID will inform our future responses to public health crises and the factors that exacerbate them, like injustice. Have we learned any long-lasting lessons from this experience?