Ebola & The Legalities Of Quarantine

Recently, Secretary of Defense Chuck Hagel ordered a 21-day quarantine for all military personnel returning from the Ebola mission in West Africa. This decision by Hagel further drove divisions within the White House — which had been downplaying the need for mandatory quarantines.

The circumstances under which the feds can legally place someone under quarantine seems to depend on who you ask. States can impose their own quarantine rules but it is unclear as to how far the federal government can go in quarantining people.

One reason for the confusion is that the federal law governing quarantine hasn’t been used since the 1918 flu epidemic. So, there are a lot of unknowns in regard to how the Ebola situation will be handled:

“The U.S. Supreme Court has developed an entire body of doctrine governing when mentally ill patients can be confined against their will, for example, but that law assumes there is evidence the patients are a danger to themselves or somebody else. It doesn’t help much with Ebola regulations, which necessarily must apply to people who are merely suspected of carrying the disease.

‘The truth is, nobody knows much of anything about this because the modern case law postdates quarantines,’ said Michael Dorf, an expert on constitutional law and civil liberties at Cornell Law School.

Some have questioned whether the federal government can interfere with state efforts to quarantine potential Ebola carriers. New York, New Jersey and Illinois have imposed 21-day quarantines on people who have had direct contact with Ebola patients in West Africa, leading the Obama administration to complain that the rules may discourage U.S. aid workers from helping fight the epidemic in Africa.”

Though the word “quarantine” isn’t actually in the Constitution, Article I does refer to the power of states to enact and enforce “inspection laws.” Additionally, in 1824, the ruling in the landmark case Gibbons v. Ogden, struck down a New York law that regulated steamboats. Chief Justice John Marshall described laws “most advantageously exercised by the States themselves are inclusive of, “inspection laws, quarantine laws, health laws of every description.”

Daniel Fisher, writing for Forbes, reports:

“‘There’s no question the federal government can implement all kinds of quarantines at the border,’ Dorf said. ‘That authority probably extends to controlling the movement of people within the country because of its obvious impact on interstate commerce,’ he said. Indeed, federal law authorizes the Surgeon General to adopt quarantines to prevent the spread of communicable disease into the country or across state lines.

What the federal government may not do is command the states to implement a quarantine, Dorf said. The 1997 decision Printz v. New York prohibited the feds from commandeering local police departments to enforce a federal system of background checks on handgun purchasers. Justice John Paul Stevens protested, in a dissent, that the decision would leave the federal government powerless to confront an emergency like ‘an epidemic’ requiring a broad response before federal personnel can swing into action. But he was overruled, so Dorf said the federal government may not have the power to order the states to enact quarantines.”

So then, what are the constitutional restraints on quarantines?

“If a police officer walks up to your door tomorrow and says ‘we’re taking you in,’ because of the visa stamp on your passport indicating a recent trip to Sierra Leone, what can you do?

Not much, Dorf said. There’s always habeas corpus, ‘the Great Writ,’ which gives courts the power to inquire into the legality of someone’s detention. But the standards for slapping somebody in quarantine are necessarily broad and haven’t been tested for decades because there haven’t been any epidemics to force the question.

‘You don’t have an absolute right’ to avoid quarantine, he said, ‘although you probably have a right to challenge any particular quarantine.’”

And, while the American Civil Liberties Union (ACLU) contemplated filing a lawsuit to challenge the quarantine of nurse Kaci Hickox, while she was being held in New Jersey, it became a moot point when Hickox was cleared to leave.

However, Josh Blackman, a University of Houston law professor, discusses the irony of the ACLU’s thinking:

“It looks like litigation has been averted over New Jersey’s efforts to quarantine a nurse who was potentially exposed to Ebola. But yesterday, the ACLU was posturing to file a civil rights lawsuit on her behalf. Had a suit been filed, one of the leading precedents the ACLU would have had to challenge was Jacobson v. Massachusetts, a 1905 decision that upheld the state’s power to forcefully inoculate people. (Whenever I teach this case, I stress that we were not dealing with Jenny McCarthy anti-vaxxers, but a different time when vaccines were often lethal). Eugene Kontorovich does a good job explaining why Jacobson is a strong precedent standing in the way of any due process challenge.

While the ACLU would no doubt try to distinguish away Jacobson, and explain why it does not control here, the organization’s own briefs make that a difficult pill to swallow (shot in the arm?).”

As my good friend Adam White points out in this post, it was not too long ago that the ACLU was favorably citing Jacobson to support the government’s power to impose on individual liberty. In their Amicus Brief to the Court in the Obamacare case, the ACLU, joined by the NAACP Legal Defense Fund, found that the individual mandate ‘imposes minimal burdens on liberty.’ In support of this argument, the brief favorably cites Jacobson in a footnote, without any criticism:

9 Notably, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court repudiated the assertion that a compulsory smallpox vaccination was “hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Id. at 26. Observing ‘the fundamental principle that persons and property are subjected to all kinds of re- straints and burdens in order to secure the general comfort, health, and prosperity of the state,’ id. (internal quotation marks omitted), the Court upheld the law on the grounds that it promoted public health and safety, id. at 31.

It is really, really difficult to imagine why the ACLU would favorably cite this case.”

Dorf thinks that the closest analogy to quarantine law is probably mental health laws that allow for involuntary hospitalization for individuals deemed to be a danger to themselves or others. In these cases, however, the Supreme Court has held that the authorities must be able to demonstrate that danger with compelling evidence. Dorf notes that the standard used for mental health hospitalizations may be too high a standard for a disease like Ebola. But, many disagree, of course, and how high that standard should be is what this debate has been about.

So, the laws dictating the course of action taken to institute quarantines are generally found at the state level but in some cases, including the current situation with Ebola, the federal government can override the states. Because it relates to state borders. At least that’s what public health attorney and Boston University School of Law professor, Wendy Mariner, thinks.

Of course not everyone agrees with that assessment and that would include Northwestern University professor of constitutional law, Eugene Kontorovich:

“…Eugene Kontorovich disagreed, saying that state officials have the right to keep possibly-infected individuals from moving around their territories.

‘The president is not doing that and not going to do that for political reasons,’ Kontorovich said. ‘Overriding quarantines puts it all on him if it doesn’t work out.’”

Seems like there’s a lot we don’t know or can’t agree upon. But, there are a few things we know for sure. The federal government and the Centers For Disease Control (CDC) do have specific responsibilities and powers in regard to the control of infectious diseases. As stated on the CDC’s website:

Isolation and Quarantine

Isolation and quarantine help protect the public by preventing exposure to people who have or may have a contagious disease.

• Isolation separates sick people with a contagious disease from people who are not sick.
• Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.

In addition to serving as medical functions, isolation and quarantine also are “police power” functions, derived from the right of the state to take action affecting individuals for the benefit of society.

Federal Law

The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.

Federal isolation and quarantine are authorized for these communicable diseases:

• Cholera
• Diphtheria
• Infectious tuberculosis
• Plague
• Smallpox
• Yellow fever
• Viral hemorrhagic fevers
• Severe acute respiratory syndromes
• Flu that can cause a pandemic

Federal isolation and quarantine are authorized by Executive Order of the President. The President can revise this list by Executive Order.

Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

The authority for carrying out these functions on a daily basis has been delegated to the Centers for Disease Control and Prevention (CDC).

The federal government also:

• Acts to prevent the entry of communicable diseases into the United States. Quarantine and isolation may be used at U.S. ports of entry.
• Is authorized to take measures to prevent the spread of communicable diseases between states.
May accept state and local assistance in enforcing federal quarantine.
• May assist state and local authorities in preventing the spread of communicable diseases.

And, the role of the CDC is as follows:

“Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases.

As part of its federal authority, CDC routinely monitors persons arriving at U.S. land border crossings and passengers and crew arriving at U.S. ports of entry for signs or symptoms of communicable diseases.

When alerted about an ill passenger or crew member by the pilot of a plane or captain of a ship, CDC may detain passengers and crew as necessary to investigate whether the cause of the illness on board is a communicable disease.”

Also, for purposes of enforcement, if a quarantinable disease is suspected or identified, the CDC is authorized to issue a federal isolation or quarantine order. And, public health authorities at the federal, state, local and tribal levels are sometimes permitted to enlist help from law enforcement in order to enforce a public health order. Both U.S. Customs and Border Protection and U.S. Coast Guard officers are also authorized to assist in enforcing federal quarantine orders.

Although rarely used, breaking a federal quarantine order is punishable by imprisonment and fines. The federal law does allow for the conditional release of individuals from quarantine if they comply with medical monitoring and surveillance. The last time large-scale isolation and quarantine were enforced was during the influenza pandemic in 1918 through 1919.

There are also international regulations and one of the main goals of the World Health Organization (WHO) is prevention of the spread of disease. International health law began by issuing quarantine regulations during the tenth century. But, by 1851 some came to question the effectiveness of quarantine and divisions regarding such continue to this day. However, at the beginning of the 20th century, two principles emerged which serve as the basis of international disease control law:

• States are obliged to immediately notify of the outbreak of communicable diseases
• Other states should refrain from imposing excessive measures against those who notify of such

In 1951, the WHO adopted International Health Regulations, one century after the first international sanitary conference was held. At the same time, this did not result in the actual observation and enforcement of the regulations–even though member states were obligated to. Naturally, its success was contingent upon the actions of these member states. But, given there are no incentives or sanctions, it is hardly surprising.

However, long before these efforts towards stemming the spread of disease were put in place, the use of quarantine in dealing with infected individuals was part of the law handed down to Moses by God. As is demonstrated in Leviticus 13, there were procedures, commanded by God, to be used to promote health and wellness amongst the Israelites.

For instance, in Leviticus 14 a process of ceremonial cleansing is described and in Numbers 19, a type of cleansing water is used for those who come into contact with a dead body. Touching a corpse made one ceremonially unclean, but what is interesting is that today we know that this cleansing mix was, in fact, a type of antibacterial cleaning agent.

So, this cleansing water which God instructed the Israelites to prepare was a public health measure. As the CDC points out: “Ebola virus can be transmitted in postmortem care settings by laceration and puncture with contaminated instruments used during postmortem care, through direct handling of human remains without appropriate personal protective equipment, and through splashes of blood or other body fluids (e.g. urine, saliva, feces) to unprotected mucosa (e.g., eyes, nose, or mouth) which occur during postmortem care. The ancient mixture used by the Israelites was designed to prevent the transmission of such disease from dead bodies.”

A fair portion of the law handed down to the Israelites was health related. Moses didn’t know anything about microbiology or medicine–but God did.