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Virus the foe, not restrictions

Recently we’ve had the odd experience of looking at state rankings and not finding New Mexico in its usual place. When states are sorted by severity of their COVID-19 outbreaks, there at the bottom are our usual compatriots Mississippi and Louisiana, but where’s New Mexico?

On the iconic online map published by COVID Exit Strategies, originally tricolor but with its palette now expanded to include dark red for utter disaster, New Mexico has consistently provided a pleasing contrast to the states on either side of us.

In recent days New Mexico’s seven-day average of new cases has actually been lower than that reported for Nueces County, Texas (population 340,000). Over in Arizona, it must be bitter to be a health care worker, knowing your governor put politics before public health and then screwed up the politics, too.

Before the pandemic, how would the news media have covered an outbreak of a mysterious disease that affected only children, producing symptoms that mimic Kawasaki syndrome? If this unknown virus sickened several hundred children across the country, requiring intensive care for many and tragically ending the lives of a few, would it be front-page news or relegated to a couple of paragraphs on an inside page? Whatever the answer, I’m confident it wouldn’t occur to anyone to say, “Kids don’t get it.”

Similarly, if the nation had been hit by a strange new blood-clotting ailment that afflicted only healthy people in their 20s and 30s, striking down thousands and damaging their internal organs, causing strokes, requiring amputations, killing hundreds and sentencing countless others to long-term chronic conditions, I’m pretty sure no one would call the disease “mild.”

That people describe COVID-19 in children and young adults in such terms is due entirely to an implied comparison with the fatality rate among the elderly and ailing. It’s understandable that reporters focus on death rates, but doing so alters our perspective on the virus itself.

In a similar way, it’s understandable that political reporters focus on the executive orders of governors and mayors, but I wonder how much influence they really hold over the behavior of the populations subject to them. States and cities imposed lockdown orders of varying severity at varying times. But how different was the behavior of people living on opposite sides of those political borders?

In June, economists Austan Goolsbee and Chad Syverson published a working paper asking how much of the “collapse of economic activity in 2020 … resulted from government restrictions on activity versus people voluntarily choosing to stay home to avoid infection.” They concluded that only 7% of the drop in consumer traffic was attributable to legal restrictions. Even if the correct figure is double or triple that, the point remains the same. “Individual choices were far more important and seem tied to fears of infection.”

Individual choices are influenced by government directives, to be sure, but even more by economic forces and personality factors, such as tolerance for risk. COVID-19 changes every calculation of risk. That constant internal recalibration, as we repeatedly ask ourselves whether a formerly routine activity is worth it, is the sensation many of us experience as anxiety.

It’s a discouraging lesson for New Mexico retailers and restaurateurs, but I also think it reflects a broader truth about the role of law in society. Most individuals and business owners pay their bills, repay their loans, fulfill their contracts and honor their commitments not because the law coerces them into doing so but because that’s how they want to live.

And so it is with lockdown rules. I think Gov. Lujan Grisham’s implementation of the Public Health Emergency Response Act probably deserves more than 7% of the credit for sparing us from the worst of the pandemic, so far. Chance has been our friend, too. As biologist Carl Bergstrom puts it, “Disease outbreaks are fundamentally stochastic processes,” which just means that being prepared is good but being lucky is even better.

But mostly, I think, we’ve been spared the worst because the governor’s lockdown order reflects the kind of self-protective behavior the great majority of people would choose to engage in anyway, much as our commercial law gains in power the more closely it reflects the way honest business people already manage their affairs.

While for the moment New Mexico looks good compared to other Sun Belt states, the comparison to other developed countries remains dismaying. On July 13, Germany recorded 104 fewer new infections than New Mexico despite a population 41 times larger. Its restaurants are reaping the benefit. OpenTable reports that restaurant reservations in Germany are up over last year.

The enemy of our restaurants isn’t the governor’s order but the necessity for it.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. Write him at legal.column.tips@gmail.com.

 

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