Wisconsin Supreme Court Chief Justice Patience Roggensack hears arguments in May over the state Safer at Home order, which the court subsequently threw out. Court rulings have limited the state’s response to the COVID-19 pandemic, even as the federal government is recommending stronger state action. (Photo from Wisconsin Eye video of oral arguments in Wisconsin Legislature v. Andrea Palm)
Wisconsin begins a new week with a new record of coronavirus infections. But even as federal authorities have urged the state to maintain or increase restrictions on indoor gatherings, a court ruling Friday blocked a measure to achieve that goal.
As of Sunday afternoon, 267,410 Wisconsin residents have tested positive for the virus responsible for COVID-19 since it first surfaced early this year. The death toll stands at 2,312, the Department of Health Services (DHS) reported.
From Monday, Nov. 2, through Sunday, Wisconsin has logged 38,547 new confirmed cases and 265 additional deaths. For four of those seven days, the numbers of new cases broke records — including Saturday, when DHS reported 7,065 newly confirmed cases.
There is also a record-setting number of patients hospitalized for COVID-19: 1,806 as of Saturday, according to the Wisconsin Hospital Association (WHA). The figure includes 385 people who are in intensive care.
The trajectory of the virus has been relentless in recent weeks — as both the federal and state officials have emphasized.
“All 72 of our counties in Wisconsin are at a very high COVID activity level,” said Andrea Palm, DHS secretary-designee, at a media briefing on Wednesday, Nov. 4.
“Many of our counties have case burdens above 1,000 and even 2,000 cases per 100,000” — three to six times higher than the threshold for a county to have “very high” COVID-19 activity, which is 350 confirmed cases per 100,000 residents.
A White House weekly report echoes that assessment.
“Wisconsin is seeing an unrelenting rise in cases and test positivity over the last two months with an ongoing health emergency that will continue to lead to increasing hospitalizations and deaths; a more comprehensive mitigation strategy is needed,” states the Nov. 1 report for Wisconsin from the White House Coronavirus Task Force.
A copy of the report was obtained through the Center for Public Integrity. The White House has not been releasing its reports to the public.
“Wisconsin is in the red zone for cases, indicating 101 or more new cases per 100,000 population, with the 3rd highest rate in the country,” the report states.
COVID-19 is at “crisis levels” in the state, said Palm. “In every region of Wisconsin we have hospitals reporting staffing strain, as well as hospitals reporting that they are at peak census for accepting patients for their hospital beds, and for their ICU beds.”
“It’s not happening someplace else or to somebody else,” Gov. Tony Evers told reporters Wednesday. “It’s here, and Wisconsinites in every corner of our state know firsthand the tragedy that this virus, and this pandemic, hold.”
In Madison, where Public Health of Madison & Dane County (PHMDC) has instituted strong countywide public health orders, officials last week announced plans to intensify enforcement. The county has both a mask mandate and an order limiting gatherings to 10 people indoors and 25 people outdoors.
The agency reported Wednesday that it had identified more than a dozen residences around the University of Wisconsin-Madison campus that were violating the county orders over the Halloween weekend — including one that held a gathering of 91 people in a single apartment.
The health department is working with Madison police, the university and the city attorney’s office to take action, and citations could result in fines of up to $1,000 per violation, as well as university disciplinary action, PHMDC reported.
“COVID-19 continues to be an issue in our community, and hosting parties is contributing to the spread of the virus,” said Marci Paulsen, an assistant city attorney, in a PHMDC statement. “We will be moving forward with prosecution actions for as many gatherings as we can in order to drive home how important it is to follow public health orders.”
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The White House report commends the state’s efforts but also recommends “additional government action and community engagement,” although it stops short of specific policy recommendations.
The virus is spreading in part because of “social and family gatherings where observance of social distancing and mask wearing is not followed due to people assuming that ‘healthy’ family members and friends are not infected with COVID since they do not have symptoms,” according to the report.
“Mitigation measures to limit transmission in personal gatherings need further strengthening” beyond what actions individual counties take, the report says. State, local and community leaders need to communicate “a clear and shared message asking Wisconsinites to wear masks, physically distance, and avoid gatherings in both public and private spaces, especially indoors.”
DHS has begun using rapid antigen tests in nursing homes and other long-term care facilities for surveillance testing — repeated tests of specific groups of people or communities regardless of symptoms. The report recommends continuing and expanding that work. It also suggests testing wastewater to identify geographic areas where there may be high rates of COVID-19 transmission and possible need for more surveillance testing.
The report also recommends limits on gatherings, but doesn’t explicitly say how. “Maintaining or increasing restrictions on indoor gathering sizes will help limit the superspreader events that appear to be critical to rapid epidemic spread,” it states.
Health orders blocked, threatened
Wisconsin, however, has no statewide public health measures to combat the virus except for an order that people wear masks when among other people away from home.
That order is currently being challenged in court, with one case in Polk County and another that was brought straight to the Wisconsin Supreme Court. Arguments in the Supreme Court case are scheduled for Nov. 16. On Friday the Court granted a petition from the plaintiffs in the Polk County case to join the Supreme Court case as a friend of the court.
Both of those lawsuits challenge not only the mask order but also whether Evers can declare a state of emergency more than once during the same pandemic.
Meanwhile, the state’s other attempt to stop the spread was sidelined on Friday: Appellate justices declared that a state-imposed one-month restriction on indoor public gatherings to 25% of the capacity of the space was “invalid and unenforceable.”
The capacity-limit order, which took effect Oct. 8, expired Friday, but it had already been on hold for more than two weeks because of an injunction issued Oct. 23 by the state Court of Appeals for the 3rd District.
The order followed a surge of COVID-19 cases that began in September. Among its chief goals had been to reduce crowds in bars and restaurants, where public health experts universally agree that the virus is easily spread. The court injunction blocking the order was issued after a lawsuit brought by taverns and their lobbyists.
On Friday, the appellate court extended its injunction and sent the lawsuit back to Sawyer County Circuit Court.
“Today’s decision comes as we reported more than 6,000 new COVID-19 cases—the most ever in a single day,” Evers stated Friday. “This is another blow to our state’s response to this pandemic and our efforts to keep Wisconsinites safe.”
In blocking the capacity-limit order, the appellate court ruled that, like the Safer at Home order that the state Supreme Court ended on May 13, state law required the administration to go through emergency rulemaking to institute broad health emergency orders. Earlier last week the high court — with three dissenters — rejected the administration’s petition to take the case directly, bypassing lower courts.
Evers vowed Friday to “continue challenging” the appellate ruling blocking the capacity-limit order.
“But the bottom line is that we can’t wait for the courts to figure this out,” the governor stated. “We need Wisconsinites to stay home and mask up, and it has to start today. It’s the only way we will get this virus under control and ensure our economy can recover.”
Coming to Evers’ defense on Friday, Stephanie Bloomingdale, president of the Wisconsin AFL-CIO, criticized the court as well as Republican leaders in the Legislature for blocking the state’s health orders and making Wisconsin “one of the leading hotspots for coronavirus cases,” leading to strain on hospitals and healthcare workers.
“At every step of the way, Assembly Speaker Robin Vos and the Republican leadership have chosen to play political games with our pandemic response, throwing up roadblock after roadblock, mostly in the form of legislative inaction and legal challenges, to hinder our response,” stated Bloomingdale. “Obstructing Governor Evers’ common-sense measures to limit the spread of COVID-19 for partisan political gain means more Wisconsinites will die, get sick and it will take us longer and longer to get this virus under control.”
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