By David G. Bjornstrom

Working Our Way Back

May 5, 2020
Column: Catching Air
We all agree on the need to start reopening the economy, and our lives in general, as soon as possible to avoid a cascading array of catastrophes—major economic problems, business failures, unemployment, depression, domestic problems, suicides, possible food shortages, increased poverty and the like. 
We also need to remember that the U.S. Constitution remains in effect during times of turmoil, including its guarantees to protect our religious liberty, freedom of speech, freedom of assembly and right to earn a livelihood.
Yes, the Constitution allows some increased government restrictions during a crisis, but those must conform to prescribed parameters that include the following:
  • Be temporary
  • Be evenly applied, not treating one group more restrictively than another
  • Not substantially burden fundamental Constitutional rights without a compelling governmental interest
  • Use the least burdensome approach to achieve that interest.


How do we stack up so far?

Temporary action to reduce the spread of a global pandemic is a compelling reason to restrict our activities to some extent, but those restrictions still need to be executed and administered in the fairest, least burdensome and most temporary way possible.
Amid this pandemic, let’s also not forget the Fifth Amendment, which states that no one shall be deprived of life, liberty or property without due process of law.
Many of us are feeling that our state and local governments have gone too far and are violating our rights with draconian stay-at-home orders, business and park closures and mandated use of face masks.
Medical researchers are working to evaluate the true medical justifications for these orders, and Courts will have to determine the extent of government overreach, if any, but all of that takes time.
In the meantime, there seems to be a growing body of medical evidence to show that the death rate for otherwise healthy people infected with the coronavirus, especially the young, is much lower than previously feared… perhaps similar to the average death rate from the annual flu.

Recent Analysis by Dr. George Lemp worthy of serious consideration  

According to a recent analysis by Dr. George Lemp, infectious disease epidemiologist and former long-time Director of the California HIV/AIDS Research Program at the University of California, it appears that the true death rate (Covid-19 deaths over total infections) for people infected with the novel coronavirus who are up to 44 years of age in the U.S. may range from 0.0078% to 0.039%.
For 18 to 49 year olds in California, the rate was found to fall in the range of 0.011% to 0.056%.
According to the U.S. Centers For Disease Control (CDC), death rates for the annual flu in 18- to 49- year-old age range are not much different, namely .01 to .02%.
Dr. Lemp noted that “the death rates for people under 50 infected with the novel coronavirus are strikingly low” and he has suggested that “people in this age group who do not have any serious underlying health conditions could go back to work soon, provided they continue to practice some form of social distancing at work, possibly wear masks in group settings, and continue to practice good hand hygiene.”
Dr. Lemp cautions, however, that people in any age group who have serious underlying health conditions and/or who live with persons who have significant underlying health conditions should remain sheltered in place for the time being.

On what data did Dr. Lemp base his findings?

Dr. Lemp based his findings on reported COVID-19 cases and death certificate data compiled by the CDC, the National Center for Health Statistics, and the state of California through April 2, 2020.
He used this data to calculate case fatality ratios by age group, then combined these with results from recent antibody testing surveys which suggest that the fatality rates for reported cases may overstate the true infection-related death rates by 10 to 50 times. This is because reported COVID-19 case reports generally do not include the large number of people with the virus who were asymptomatic or had only mild disease.
This same data would suggest that death rates for reported COVID-19 cases among persons aged 45 to 64 years is 2.65%, but once the large number of asymptomatic and unreported mild cases are taken into account, the actual infection fatality rates derived from the virus may be only .05% to .265%. This is far below what most Americans have been led to believe as a justification for mass quarantine.
These death rates are likely even lower for otherwise-healthy people in these age groups, and possibly for otherwise-healthy older adults, once medical researchers are able to ferret out the death rates for individuals who do not have any of the preexisting health conditions noted as significant factors on the CDC website, including chronic lung disease, serious heart conditions, compromised immune systems, severe obesity, diabetes and chronic kidney and liver disease.
Researchers need time to evaluate the specific vulnerabilities mentioned above and the ways these vulnerabilities are impacted by COVID-19, but in the meantime it seems pretty clear already that the risks are relatively low for working age individuals without those preexisting conditions (referred to often as “co-morbidity factors.”  This low-risk group—at least those not likely to infect the especially vulnerable population—should be allowed now to get back to work.

Putting it all together

Considering the Constitutional and common sense requirement that emergency government actions be as temporary and nonrestrictive as possible, it is time to get otherwise-healthy people back to work and back to their lives.
This doesn’t mean we should dispense with all precautions, but it is time to stop quarantining our whole society when we are now getting a clearer picture of those who are less at risk.
This plan of action and response—given what medical research now shows us—would be consistent with past epidemics in which it was the sick and the most vulnerable who were quarantined, not all of society.

What about the most vulnerable?

Some have argued that even healthy young people should be quarantined so they won’t get sick and infect those who are more vulnerable.
The better answer, however, as with past epidemics, is to quarantine those who are actually sick so they won’t expose others, and encourage people who are especially worried or vulnerable—not everybody—to shelter-in-place so they won’t be exposed to people who could be sick.
Even if younger and healthier people spread some virus to each other, mostly asymptomatic or with only mild symptoms, that can contribute to the scientific, medical concept of “herd immunity” whereby enough people develop immunity to provide indirect protection to the rest.
This would be consistent with growing evidence from places like Sweden and Japan where compulsory mass quarantine was not and is not the only or necessarily the best path forward.

Consider the real cost

In our consideration of what to do now in this currently more-understood pandemic, let’s not forget that mass quarantine comes at a very big cost and may even prove counterproductive.
We’ve already mentioned the suspected loss of our Constitutionally-based basic freedoms, along with major economic problems, business failures, unemployment, depression, domestic problems, suicides, possible food shortages and increased poverty.
There is no easy comparison between these above-mentioned “costs” and the daily coronavirus death statistics but these are very significant problems that contribute to increased human misery and deaths.
There are also some more direct, medical risks of mass quarantine, although hard to quantify, including the fact that many individuals and even health care providers are avoiding critical routine health care and avoiding or delaying important medical appointments and procedures, which can be extremely damaging to public health (e.g. skipping annual physical exams, cardiology appointments, screenings for cancer, delaying chemotherapy, etc.) 
We need to stop the media-induced fear frenzy and start unwinding mandatory shelter-in-place orders, even if we’re not ready to open up everything at once.
We can start by lifting unnecessary restrictions on people who are at relatively low risk, beginning with healthy working age people who do not have the pre-existing health conditions known to be significant risk factors.
David G. Bjornstrom is a Santa Rosa, CA-based attorney at law with 36 years specializing in business, estate and tax law. He may be reached at

David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

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