At-home COVID-19 test available in 46 states, but not Maryland. Why?

Following FDA approval, LabCorp has now introduced an at-home test for the COVID-19 virus. It will initially be made available to health care workers and first responders in 46, but not all 50 states — the missing states being New York, New Jersey, Rhode Island, and Maryland. The reason, according to an Associated Press report, is that several states have laws on the books that restrict testing with at-home collection kits. I examine the frustrating situation in a new Cato post.

After I published the piece, I was contacted by Paul Celli, public health administrator for clinical and forensic laboratories at the Maryland Department of Health Office of Health Care Quality, who wrote to say the AP article is incorrect in listing Maryland as a state that bans at-home testing. Whatever may be the situation in the other three states, “Maryland is not banning this Pixel at‐​home collection device (it is not a test) for use at select Labcorp testing locations.” A Maryland legislative source points out that last year, state lawmakers approved and Gov. Hogan signed SB 495, a measure aimed at liberalizing access to medical testing by removing some of the restrictions in effect earlier. Mr. Celli writes that even before that change, rather than bar use of this particular test the state “probably would have exercised enforcement discretion in such cases where the company appears to be providing services pursuant to a physician or other authorized provider order for the test.”

Delegate Dan Cox is wrong on Gov. Hogan’s coronavirus orders

Delegate Dan Cox (R-Emmitsburg), one of the three delegates representing my own District 4, wrote a letter on Thursday to Gov. Larry Hogan demanding that Hogan stand down from some of the measures he has ordered “allegedly because of an ongoing health catastrophe with coronavirus.” (The “allegedly” gave me pause — is Del. Cox suggesting that the ongoing health catastrophe might not be real, or that Gov. Hogan is somehow using a real catastrophe as a pretext?)

In his letter, Del. Cox suggests that Title 14 of the Maryland Public Safety Code does not confer an emergency power of isolation or control over “healthy persons,” although the wording of § 14-3A-03 contains two passages that would appear to do exactly that. One of them (§ 14-3A-03 (d)(2)) is: “If necessary and reasonable to save lives or prevent exposure to a deadly agent, the Governor may order individuals to remain indoors or refrain from congregating.” A second provision (§ 14-3A-03 (b)(3)(iv)) empowers the governor to require individuals to go into isolation until a designated official determines that they do not “pose a substantial risk of transmitting the disease or condition to the public,” a wording that does not apply only to persons themselves sick.

The letter also suggests that the governor’s emergency powers do not extend to businesses not involved in health care, although a section of the Title on emergency health measures addressed to the public (§14-3A-03 (d)(1)) provides that he “may order the evacuation, closing, or decontamination of any facility.”

Del. Cox further asserts that Gov. Hogan has “unilaterally suspend[ed] the Bill of Rights,” a remarkable and disputable claim.

Del. Cox’s letter invokes the U.S. Constitution. I myself have written and spoken a fair bit about how the U.S. Constitution applies in outbreaks of contagious epidemic (the Framers were very familiar with such outbreaks and with the measures taken in response.) I strongly disagree with Del. Cox’s repeated suggestion that the measures are likely violations of the constitution.

Today, Del. Cox was on social media promoting the Annapolis demonstrations demanding relaxation of social distancing in the state, among whose targets is Gov. Larry Hogan.

I am a registered voter and constituent in District 4, and I can state that in doing all of this Del. Dan Cox does not represent my views.

Update: Steve Bohnel of the Frederick News-Post now covers the story in a front-page article and the paper also has published an editorial, both kind enough to quote me.

In miniature, April 4

Mostly links from before the pandemic crisis hit:

• Richard Vatz: To have passed the extravagantly expensive Kirwan education bill, with the handwriting already on the wall as to the state’s looming fiscal crisis, “is revelatory of the utter irresponsibility of Maryland’s lawmakers.” [Bryan Renbaum, Maryland Reporter]
• Montgomery County SWAT team shot Duncan Socrates Lemp in his home, and questions won’t go away [Jim Bovard/American Conservative, C.J. Ciaramella/Reason]
• “Maryland Charges Big Fines for Skipping Small Tolls” [Meg Tully, Maryland Reporter]
• Happy to get a request from Pennsylvania to reprint and distribute my chapter on redistricting and gerrymandering found on pp. 293-299 of the Cato Handbook for Policymakers (2017). Check it out;
• Senator Michael Hough (R-Frederick, Carroll) proposes limiting lawmakers to 20 introductions of general bills in a session [Danielle Gaines, Maryland Matters]
• Eastern Shore educators, fellow students unprepared as mental illness, violence mainstreamed into everyday classrooms [Mike Detmer, Dorchester Star, Bryan Renbaum, Maryland Reporter (Del. Kathy Szeliga, R-Baltimore and Harford, urges legislative action)]

Guest on Conduit Street podcast: “Liberty in Trying Times”

I joined hosts Michael Sanderson and Kevin Kinnally on the Maryland Association of Counties’ popular Conduit Street Podcast, which has a large circulation among civically-minded Marylanders and national reach as well. Our talk ranged widely over legal and governmental aspects of the COVID-19 pandemic emergency, including government’s emergency powers, and how they sometimes don’t go away when the emergency ends; the role of the courts, both during the emergency and after it ends, in enforcing and restoring constitutional norms; contrasts between the state and federal handling of the crisis; and the opportunity this provides (and has already provided) to re-examine the scope of regulation, which has been cut back in many areas so as to allow vigorous private sector response in areas like medical care, delivery logistics, and remote provision of services.

Their description:

On a special bonus episode of the Conduit Street Podcast, Walter Olson joins Kevin Kinnally and Michael Sanderson to examine the role of state and local emergency powers in the fight against the COVID-19 pandemic.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. a libertarian think tank in Washington, D.C. A resident of Frederick County, Olson recently served on the Frederick County Charter Review Commission. Olson has also served as the co-chair of [the Maryland Redistricting Reform Commission, created in] 2015.

MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.

You can listen to previous episodes of the Conduit Street Podcast on our website.

You can listen and download here (40:04).