Mon 2022-May-02

# No Masks + New Wave = ?

Somehow we’ve stumbled into striking down mask mandates. Who did that? AND is it ok, with the next wave situation of SARS-CoV2? Do you even have to guess?

## Striking Down the Mask Mandates

Let’s start with the question of exactly how we lost the travel mask mandate, in the sense of who made it happen. Murphy & Savage at the NYT have a good explainer, which is what we’ll mine for today. [1]

We know pretty much who the major suspects should be, at least behind the scenes as les eminences grises, funding and orchestrating the effort: Republicans, who oppose public health measures apparently because “government bad always everywhere”, and the travel industry who prioritize their profits above all else, including traveller safety.

Is that what happened?

Well, only kinda. The details are of course complicated, because nothing is ever allowed to be simple. It was a confluence of at least 3 things, possibly more if we dig into their funding sources:

• Leslie Manookian, a former Wall Street analyst and now conservative political activist who founded a non-profit specifically to fight against COVID-19 public health measures.
• Two Florida women who claim masks make them too anxious to travel, and thus were useful pawns in a lawsuit paid for by somebody else.
• Federal judge Kathryn Kimball Mizelle, appointed by Trump in spite of the fact that the American Bar Association rated her as not qualified due to lack of experience! [2] [3] She had, however, clerked for Justice Clarence Thomas, which burnished her conservative credentials enough to get Republican confirmation votes. (She has some peculiar beliefs, like paper money being unconstitutional and that the government can only make coins.)

Notably, Judge Mizelle’s decision hinged on a conservative shibboleth that all powers must be explicitly enumerated in law, i.e., Congress can’t delegate much of anything by saying “and other situations that the CDC deems important.” This requires Congress to foretell the future, and more or less cripples the government’s ability to function at all. It pretty much throws out the window the idea that the government can listen to expert opinion and do anything about it.

The lawsuit, apparently partially funded by Manookian’s organization, chose attorneys apparently by ideology rather than experience: one was a specialist in drone law, and the other represented an organization known for spreading disinformation about COVID-19 vaccines.

They specifically chose the plaintiffs by residency, for a chance to get into Judge Mizelle’s court.

So everything’s carefully crafted to line up the ideologues like dominoes, ready to be tipped.

The Justice Department is appealing… slowly.

Why so slow? It’s kind of cool: there was a dispute about the Munsingwear company providing clothing to the US government in the 1940s, which made it to the Supreme Court in 1950. The issue was no longer relevant, i.e., “moot”. So the Supreme Court not only reversed the lower court decisions, but erased them: it all became as if those cases had never happened (United States v. Munsingwear, Inc., 340 U.S. 36 (1950))! [4]

In this case, if Justice can get the appeals courts to rule after the mask mandate would have expired (which happens tomorrow), then the issue is moot. Not only can Mizelle’s decision on mask mandates be removed from the record, but also here bizarre decision neutering the government’s ability to write general law.

Well, that’s a hopeful sign, at least. If by “hopeful” you mean “a chancy way to fend off the vampires one more time”, which is what dealing with right-wing crazies is starting to feel like.

## The Next Wave

So, no masks, at least for a while. Until the appeal neuters the decision, anyway.

But could that still be ok?

I mean, we’re doing this for utterly stupid right-wing ideological reasons, but might the situation actually merit mask removals? In a word, no: federal judges are not qualified to have an opinion about this, while the CDC is qualified. The CDC still says masks on public transportation and airplanes are useful.

Also, consider the coming wave of viral mutations, as explained by Eric Topol of Scripps:

Ok, let’s run a few numbers:

• The Delta variant of SARS-CoV2 has $R_0 \sim 6 - 7$. [5] That means each infected person infects 6 or 7 other people, i.e., it’s really contagious! (Measles has $R_0 \sim 16 - 18$, which is the nastiest one I know.)
• So the latest Omicron variant (BA.2.12.1) should, according to Topol, have: \begin{align*} R_0 &\sim 1.25 \times 1.3 \times 1.5 \times (6 - 7) \\ &= 2.4375 \times (6 - 7) \\ &= 14.6 - 16.6 \end{align*}

Now, it might be a bit naïve to multiply offhand multipliers like this times an $R_0$ which can be modified by behavior (masking, social distancing, and vaccination). But very roughly speaking, the BA.2.12.1 Omicron variant of SARS-CoV2 looks to be among the very worst viruses known.

Emphatically not a time to loosen up public health measures, like masking.

By way of evidence, Topol points us to an explanatory article by Joel Achenbach in the WaPo. [6] He quotes Tulane virologist Robert F. Garry as saying:

“We know it’s probably not quite as infectious as measles yet, but it’s creeping up there, for sure.”

So the crude $R_0$ calculation above might be a crude estimate, but given that measles is around $R_0 \sim 16 - 18$ and we predicted BA.2.12.1 $R_0 \sim 14 - 16$, it’s not that far off.

The mutation in question appears to be S704L in the spike protein (at amino acid position 704 in the protein, substitute the serine (S) with a leucine (L)). In theory this makes the spike protein more flexible, apparently thus less likely to bind to an antibody but still able to grab onto the ACE2 receptor for infecting a cell.

## The Weekend Conclusion

The newer Omicron variants like BA.2.12.1 are going to rip through the population. The BA.4 and BA.5 variants recently discovered in Africa may be worst than that. Whether the population has enough vaccine immunity through boosting or prior infection to keep out of serious disease remains to be seen, and is basically a gamble.

It is not an auspicious time to be removing mask mandates to further right-wing political vendettas.

Though, really, there’s no good time for right-wing political vendettas.

Just today, Katelyn Jetelina at Your Local Epidemiologist posted on the general state of l’affair COVID. [7] There’s a lot to read there, especially about the rise of BA.4 and BA.5 in Africa. However, her summary of the US situation with BA.2.12.1 derived from CDC data is pretty consonant with our own.

Shown here is her graphic on the prevalence the various strains of virus detected in the US, presumably at large hospitals with sequencing capability. Note that (a) these are all Omicron subvariants, and (b) that BA.2.12.1 is taking over (red bars, lower right).

Conclusion: BA.2.12.1 is coming. Whether it will cause a wave of hospitalizations and deaths depends on prior immunity, which is kind of a gamble at this point.

If you want to be on the safer side of that gamble, get vaccinated and boosted. Now.

## Notes & References

1: H Murphy & C Savage, “Who Ended the Travel Mask Mandate? A Vaccine Critic, a Florida Judge and 2 Anxious Travelers”, New York Times, 2022-Apr-25.

2: DC Weiss, “Federal judicial nominee lacks enough experience, ABA says in letter explaining ‘not qualified’ rating”, ABA Journal, 2020-Sep-10.

3: RD Noel, “Letter to Senate Judiciary Committee, Re: Nomination of Kathryn Kimball Mizelle to the United States District Court for the Middle District of Florida”, American Bar Association Standing Committee on the Federal Judiciary, 2020-Sep-08.

4: P Millett, “Practice Pointer: Mootness and Munsingwear Vacatur”, SCOTUSBlog, 2008-Jun-10.

5: UC Health Staff, “The Delta variant”, University of Colorado Health Services, undated.

6: J Achenbach, “Virus mutations aren’t slowing down. New omicron subvariant proves it.”, Washington Post, 2022-May-01.

7: K Jetelina, “State of Affairs: May 2”, Your Local Epidemiologist blog, 2022-May-02.

Published Mon 2022-May-02

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