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 Abstract

Excerpted From: Jason Jackson and Aziza Ahmed, The Public/Private Distinction in Public Health: The Case of COVID-19, 90 Fordham Law Review 2541 (May, 2022) (90 Footnotes) (Full Document)

In August 2021, Dr. Francis Collins, then Director of the National Institute for Health (NIH), appeared on CNN to discuss the public health response to COVID-19. During the conversation, he said the following:

If you are parents who have small children under 12 at home they are susceptible for getting infected. And if the parents are out and about and might themselves be carrying the virus and you don't want to pass that along .... So, many parents with that recommendation consider wearing masks for families at home to reduce this risk as long as the kids are unvaccinated, especially if you're in a community that has very high transmission at the present time.

His comments caused a furor. Senator Rand Paul appeared on Fox News criticizing the director for his comments. Rand Paul, speaking on Fox News, called the recommendation “utterly without scientific evidence.”

The strong reaction led to a quick response from Collins. He tweeted on August 3, 2021: “Let me clarify the masking message that I garbled on @NewDay this morning. Vaccinated parents who live in communities with high COVID-19 transmission rates should mask when out in public indoor settings to minimize risks to their unvaccinated kids. No need to mask at home.” He thus apologized for his supposed error.

While Collins's initial remarks were based on the possibility of adults getting infected while in public and then potentially transmitting the virus to their children at home, his correction presented the household as a COVID-19 risk-free zone. Yet, from the start of the pandemic, public health data have increasingly shown that essential workers, employed in contexts from nursing homes to meatpacking plants, faced high risk of exposure. If infected, these workers, who are disproportionately racial minorities, would unwittingly take COVID-19 home to their families and children. Thus, the home is a potential site of COVID-19 exposure and transmission. So why has there been resistance to developing public health interventions that would protect children and other adults in the domain of the home?

In this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households. We argue that the manifestation of the public/private distinction in the COVID-19 response is deeply raced and classed as it ignores the high risks borne by essential workers, who are disproportionately lower-income workers of color, and their families. The reality is that many essential workers could not follow the primary advice offered over the course of the pandemic to stay at home and thus bore disproportionate risk of contracting COVID-19 in the workplace and exposing family members at home.

The rest of this Essay is organized as follows. Part I describes how the primary public health response of stay-at-home orders was organized around a sharp differentiation between risk of transmission in the public sphere versus risk of transmission in the private domain of the home. Part II elaborates the logic and history of the public/private distinction and the role it has played in structuring the governance of modern society. Part III shows how the public/private distinction has shaped the approach to understanding the household in neoclassical political economy and traces the way those ideas have had an imprint on public health law and policy. In Part IV, we move beyond the public/private distinction by turning our attention to commonsense public health policy measures that would contribute to decreased risk of COVID-19 transmission in the home, such as Dr. Collins's masking advice. Highlighting the simplicity of these responses not only offers pragmatic tips, but also serves to highlight how entrenched the public/private distinction has been in the response. Without this divide, these responses could have--and should have--been prioritized. This Essay then concludes with a brief discussion of the theoretical and policy implications of the preceding analysis.

[. . .]

This Essay has argued that the public/private distinction has led to the home being considered an exceptional space in the context of COVID-19. We have sought to highlight the way the public/private distinction has shaped public health policies that deepen some of the core structural inequalities that have characterized the COVID-19 pandemic. We have followed Frances Olsen in suggesting that the most valuable outcome of analyzing the COVID-19 response through the lens of the public/private divide is “to achieve ... a rethinking of how the categories 'public’ and 'private’ are structured, [and] a deeper analysis of how the status quo is maintained [as a means of identifying] new approaches to theorizing social change.” Indeed, while we have argued that the public/private divide operates as a deep “structure of consciousness,” we also wish to emphasize that the categorization of public and private--and the separate spheres of family and market that it currently engenders--is nevertheless unstable, as we showed with the threefold historicization of the public/private distinction. Professor Hila Shamir suggests that an alternative approach would be to “depart from the dichotomous architecture of the public/private distinction, and instead reveal the dynamic and unstable nature of each of the spheres and the division of labor between them.” Such an approach to the public/private distinction as a governance frame could open new possibilities that could guide policymakers toward the design and implementation of more equitable policy and legislative responses to the ongoing pandemic.

Assistant Professor of Political Economy and Urban Planning, Massachusetts Institute of Technology.

Professor of Law, University of California, Irvine School of Law.

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