In summary

With a surge in COVID-19 cases, states should acknowledge that travel increases risk, and that closures and reopenings should be regionally coordinated.

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By Katherine Florey, Special to CalMatters

Katherine Florey is Martin Luther King Jr. Professor of Law at the University of California, Davis, School of Law. Her recent research focuses on public health law and extraterritorial effects of regulation,

Many Americans took advantage of May’s long Memorial Day weekend by venturing out of town for the first time in weeks, to gather with family or visit resorts. A few weeks later, COVID-19 cases began a vertiginous rise.

With attractions from Disney World to California wineries reopening, the summer vacation season seems to have fueled another surge.

From the start, travel within the United States has powered COVID-19’s ever-increasing reach – in contrast to many European countries, which contained the disease in part by restricting travel while planning carefully for its safe resumption. Vacation spots from Sun Valley, Idaho, to Myrtle Beach, S.C., have become COVID-19 hotbeds. Tourism has caused cases to soar in the South Lake Tahoe region, where – as is often the case with rustic travel destinations – hospital and ICU capacities are worrisomely limited.

As well as fueling the virus’s spread, travel makes containment more difficult. When exposure is local, contact tracers can follow up. After two hairstylists tested positive for COVID-19 in Missouri, the county health department was able to quarantine all 140 exposed clients for two weeks. Such careful tracing isn’t possible when visitors hail from far-flung locations. While more traffic in Las Vegas’s newly reopened casinos comes from California than Nevada, Nevada doesn’t track infections in out-of-state visitors.

Despite the issue’s importance, our current state and county patchwork of reopenings too often ignores existing patterns of travel. Worse, it creates new ones. People in still-closed communities who might otherwise have patronized local businesses have driven long distances to get a haircut or meet friends in a dine-in restaurant.

It doesn’t have to be this way. States have substantial constitutional latitude to restrict travel and other activities when necessary to control contagious disease, as the Supreme Court famously held in Jacobson v. Massachusetts. Although some authorities had cast doubt on Jacobson’s continuing viability, U.S. Supreme Court Chief Justice Roberts relied on it in rejecting a challenge to California’s pandemic-driven limits on religious services.

Historically, states have used quarantines to contain viruses geographically – and, amid COVID-19’s resurgence, many are rushing to impose them. But quarantines have limitations. They can degenerate into tit-for-tat animosity. As New York and Florida have traded places as COVID-19 hotspots, their governors have seemed all too eager to quarantine each other’s residents, sparking legal challenges

Maybe most damningly, quarantines often do not work. Enforcement is difficult; changing conditions can soon render them irrelevant. Some courts have signaled that, Jacobson ruling notwithstanding, their tolerance for long-lasting quarantines may not be unlimited. Usually, less blunderbuss measures are preferable.

First, reopening plans should acknowledge that activities that encourage travel increase risk. A destination restaurant is more likely to bring COVID-19 to a low-prevalence community than a diner filled with locals. Establishments that cater to out-of-towners should be priorities for enforcement of mask, distancing and capacity rules – both to make them safer and to discourage visitors looking for mask-free havens. Businesses should gather contact information from tourists where they can, and communities should plan for tracking infections that spread across county and state lines. 

Second, reopening plans and renewed closures alike should be regionally coordinated based on both existing travel patterns and new ones they may generate – a consideration too often lacking in plans like California’s, which evaluates counties mostly in isolation. A county with little COVID-19 nonetheless must exercise caution if community transmission is still rampant in neighboring areas. Conversely, reopening lower-risk businesses might make sense if keeping them closed will just drive residents to seek out services elsewhere.

Many countries successfully battling the virus have adopted comprehensive measures to limit travel. Some of these, such as the designation of “green zones” in some European countries, require more trust, compliance and centralized planning than is likely possible in the United States. Nonetheless, the United States should borrow the habit of thinking about COVID-19 in terms of its true geography, not political boundaries. After all, that’s how the virus operates too.

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