The Quarantine Debate: Containment of Disease or Restraint of Liberty?

Joseph J. Sherman and Kirby Stephens, KLJ Staff Editors

Introduction

Last Tuesday marked nurse Kaci Hickox’s twenty-first asymptomatic day since her last exposure to an Ebola patient. The day also officially ended her monitoring period as set up in a settlement with the State of Maine and the Maine Department of Health and Human Services.[1] The terms of her monitoring had included among other conditions: (1) direct active monitoring; (2) coordinating her travel plans with public health officials; (3) avoiding the use of public transportation; (4) avoiding congregate public places and workplaces; and (5) “maintain[ing] a 3-foot distance from others when engaging in non-congregate public activities.”[2] While Nurse Hickox, her family and loved ones, as well as the general public, are certainly breathing a sigh of relief, her story has sparked a national debate over the advisability and constitutionality of quarantining health care workers who came into contact with Ebola patients.

This blog presents the arguments both in opposition to and in defense of quarantine. These arguments are constructed as if a person challenging quarantine were basing their challenge on their liberty interest in refusing medical treatment. While this is not the only way to approach this question, it is one of the most central arguments surrounding the constitutionality of quarantines.

Arguably, quarantine is a type of medical treatment. An order of quarantine may come in tandem with an order for medical treatment.[3] But more than that, it seems reasonable to believe that quarantine would facilitate appropriate medical care for patients with delicate, highly contagious, or deadly conditions. To what extent, then, can individual patients refuse to be treated? To what extent can they refuse quarantine?

The right to refuse medical treatment has been described by the Supreme Court as a “liberty interest.”[4] Whereas a fundamental right would afford Hickox and others greater constitutional protection against a quarantine, a liberty interest is generally something less that can be overcome by state interests. In Cruzan v. Missouri Dep’t of Health, the Supreme Court assumed that there is a right for a competent patient to refuse medical treatment, even if it is life-sustaining.[5] While the Court has not explicitly articulated a standard of review for cases involving the right to refuse medical treatment,[6] the Court’s language suggests that it may favor rational basis review for such constitutional challenges.[7] Nevertheless, lower federal courts have used strict scrutiny when addressing this liberty interest.[8] Under strict scrutiny, a state must articulate a “compelling government interest” that justifies an intrusion into a citizen’s rights, and the intrusion must be “narrowly tailored” to achieving that interest.[9]

In Opposition to Quarantine

Joseph J. Sherman, KLJ Staff Editor

The first question is whether the government has a compelling interest in keeping aid workers under quarantine until it is clear that they do not have Ebola. The government frequently cites public health as a compelling interest for its actions.[10] In Jacobson v. Massachusetts, the state of Massachusetts used its state interest in public health to justify compulsory vaccination against smallpox.[11] When there is a threat of epidemic, as the court found that there was in Jacobson, the government has an increased interest in administering medical care.[12]

The narrower question, then, is whether the threat of an Ebola epidemic is serious enough to make the government’s interest in public health a compelling one. The Centers for Disease Control and Prevention say that “the risk of an outbreak in the U.S. is very low.”[13] According to the Centers for Disease Control and Prevention, there have been four cases of Ebola diagnosed in the United States, and there has been only one death.[14] Other than direct contact with fruit bats and monkeys, Ebola only spreads by direct contact with “blood or body fluids . . . of a person who is sick with Ebola” or “objects . . . that have been contaminated with the virus.”[15] In Jacobson, the Court recognized that the Smallpox epidemic was out of control.[16]  For the foregoing reasons, it is not clear that-any state has a compelling interest in public health related to the Ebola outbreak in West Africa. We can probably assume that the government has a legitimate interest in public health related to the Ebola virus, but it is unclear that that interest rises to the level of being compelling in any constitutional analysis.

Even if we can assume the government had a compelling interest, the second question is whether  quarantine is narrowly tailored to that interest. In other words, is quarantine necessary? Generally, government action is not narrowly tailored to its compelling interest if it is unnecessary or there are other ways of achieving that interest.[17] In Hickox’s case, it would be difficult to argue that her quarantine was narrowly tailored. Ebola has a long incubation period of up to twenty-one days, during which the carrier is not contagious.[18] Only after symptoms develop does an individual become dangerous to others around them.[19]

One important purpose of a quarantine, if construed as medical treatment, is to monitor the quarantined individual for changes in their condition. However, Hickox and other medical professionals have the ability to monitor their own medical condition, and thus they are not similarly situated with the rest of the population. In other words, a quarantine is not necessary in carrying out the government’s interest. When medical professionals travel to West Africa, they do so for the sole purpose of abating the pandemic that has gripped the region. Upon return, it is unreasonable to believe that those same professionals would immediately throw caution to the wind and risk the safety of Americans by venturing out when their condition was unsafe. Put simply, they know the symptoms of Ebola, and they know what to do if such symptoms manifest.

In Hickox’s case, Maine law authorizes a court to “make such orders as it deems necessary to protect other individuals from the dangers of infection” pending a hearing on a petition for a public health order.[20] Interestingly, this language mirrors the language of the Supreme Court, which requires narrow tailoring of any laws that curtail the right to refuse medical treatment.[21] The State of Maine failed to “prove by clear and convincing evidence that limiting [Hickox’s] movements to the degree requested [was] ‘necessary to protect other individuals from the dangers of infection.’”[22] Given the findings of both the district court in Maine, the Centers for Disease Control and Prevention, and the World Health Organization, it is far from clear that quarantine of aid workers is constitutional.

However, there are those who disagree.[23]

In Defense of Quarantine

Kirby Stephens, KLJ Staff Editor

Assuming that quarantined workers would have a liberty interest recognized by the United States Constitution and the United States Supreme Court to refuse medical treatment, the state interests outweigh any individual interests. Both Federal and local governments have compelling state interests in protecting public health and preventing the spread of Ebola. This compelling interest is demonstrated by the high mortality rate among Ebola patients as well as the demonstrable lack of vaccine, despite several trials currently ongoing.[24] Public health and safety concerns have been previously recognized by the United States Supreme Court. In Jacobsoen v. Massachusetts, the Supreme Court affirmed a forcible vaccination law implemented by the Cambridge Massachusetts Board of Health to stop the spread of smallpox.[25] The Court explained: “According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and public safety.”[26] The same concerns are at issue here. It is unclear that this state interest can be disputed.

The more pressing issue is whether a state’s proposed quarantine laws are narrowly tailored to the state’s interest in protecting public health. Symptoms of Ebola can appear anywhere from two to twenty-one days after exposure with symptoms appearing on average within eight to ten days after exposure.[27] Further, the early symptoms of Ebola, like fever, are “nonspecific” to Ebola and the virus is detectable in the blood only after a person is symptomatic.[28] The CDC reports that “it may take up to three days after symptoms start for the virus to reach detectable levels.”[29] Given these concerns, it is narrowly tailored to require a person who has been exposed to Ebola to be fully -quarantined during the course of the full twenty-one day period to control the spread of Ebola. This quarantine is also beneficial for the potentially infected individual as during quarantine, the individual would be subject to constant monitoring and medical treatment. Simply because Nurse Hickox, or another quarantined medical worker like her, would be able to monitor their own symptoms does not change the analysis. A person who can monitor their own health still poses the same health risks as any other potentially infected person. Given the risks posed by Ebola, the best solution is quarantine, even though it may have required an imposition on the liberty interests of the effected individual.

In a recent article in The Guardian, Nurse Hickox accused “ambitious” politicians of playing on public fears to garner support for their quarantine policies and in her words, “escalat[e] anxieties and giv[e] the public permission to discriminate, stigmatize and even hate aid workers like me.”[30] Nurse Hickox is correct that public policy should not be motivated by fear, but fear is not the same thing as caution. Given the known facts about Ebola, fear is not the major motivation behind quarantine policy, caution is. While it is true that healthcare and other aid workers should be applauded for their heroism in times of crisis, it is undeniable that their heroism poses risks that must be remedied upon their return to their homes. Based on the above grounds, Federal and state governments would have the power to constitutionally impose quarantine restrictions on returning aid workers.

Conclusion

Ebola is emerging as a serious international crisis. According to a recent World Health Organization publication, there have been 5459 reported deaths from Ebola out of a total 15,351 reported cases in eight effected countries since the beginning of the outbreak.[31]  These numbers do not include the recent death of Dr. Martin Salia at a hospital in Nebraska.[32] These numbers indicate that the risk of a potential outbreak is far from over and that the United States could soon be faced with another situation like Nurse Hickox’s quarantine. In her case, the Maine courts imposed something in between the absolute positions argued above. However, this is a debate that is far from over.


[1] Temporary Order, Mayhew v. Hickox, No. CV-2014-36 (Me. Dist. Ct. Oct. 30, 2014); Jacob Gershman, Nurse Who Defied Ebola Quarantine Reaches Settlement with Maine, WSJ L. Blog (Nov. 3, 2014, 1:06 PM ET), http://online.wsj.com/articles/BL-LB-49694.

[2] Temporary Order, Hickox, No. CV-2014-36.

[3] See, e.g., Livingston v. State, 995 A.2d 812, 823 (Md. Ct. Spec. App. 2010).

[4] Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990); Jacobson v. Mass., 197 U.S. 11, 24-30 (1905).

[5] Cruzan, 497 U.S. at 278.

[6] See generally Cruzan, 497 U.S.

[7] Cruzan, 497 U.S. at 262, 281, 298 (referring repeatedly to the state’s “legitimate interest[s]” (emphasis added)).

[8] See, e.g., Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 359 (2d Cir. 2004) (recognizing the “right to reject life-sustaining medical treatment as a function of the fundamental right to bodily integrity under the Due Process Clause” (emphasis added)).

[9] See, e.g., Blouin, 356 F.3d at 359.

[10] See, e.g., Jacobson, 197 U.S. at 11.

[11] See generally id.

[12] Id. at 27 (stating that “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members”).

[13] Ctrs. for Disease Control & Prevention, Questions and Answers on Ebola, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/qa.html (last updated Nov. 20, 2014).

[14] Ctrs. for Disease Control & Prevention, Cases, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/case-counts.html (last updated Nov. 24, 2014).

[15] Ctrs. for Disease Control & Prevention, Transmission, http://www.cdc.gov/vhf/ebola/transmission/index.html (last updated Nov. 20, 2014).

[16] Jacobson, 197 U.S. at 28.

[17] See, e.g., Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 733 (2007).

[18] Ctrs. For Disease Control & Prevention, Signs and Symptoms, http://www.cdc.gov/vhf/ebola/symptoms/index.html (last updated Nov. 2, 2014); Ctrs. For Disease Control & Prevention, Diagnosis, http://www.cdc.gov/vhf/ebola/diagnosis/index.html (last updated Nov. 14, 2014).

[19] Diagnosissupra note 18.

[20] Me. Rev. Stat. Ann. tit. 22 § 811(3) (West 2014); Order Pending Hearing, Mayhew v. Hickox, No. CV-2014-36, 1 (Me. Dist. Ct. Oct. 31, 2014), available at http://courts.maine.gov/news_reference/high_profile/hickox/order_pending_hearing.pdf.

[21] See, e.g.Ragland, 481 U.S. at 231; Parents Involved, 551 U.S. at 733.

[22] Order Pending Hearing, Hickox, No. CV-2014-36 at 3.

[23] See infra In Defense of Quarantine.

[24] Ctrs. for Disease Control & Prevention, Ebola Virus Disease Information for Clinicians in U.S. Healthcare Settings, http://www.cdc.gov/vhf/ebola/hcp/clinician-information-us-healthcare-settings.html (last updated Nov. 24, 2014).

[25] Jacobson v. Mass., 197 U.S. 11, at 12-13 (1905).

[26] Id. at 25.

[27] Signs and Symptomssupra note 18.

[28] Diagnosissupra note 18.

[29] Id.

[30] Stop Calling Me ‘the Ebola Nurse, TheGuardian.com Opinion (Nov. 17, 2014, 7:30 EST), http://www.theguardian.com/commentisfree/2014/nov/17/stop-calling-me-ebola-nurse-kaci-hickox.

[31] World Health Organization, Ebola Response Roadmap: Situation Report Update, 1 (Nov. 21, 2014), available at http://apps.who.int/iris/bitstream/10665/144117/1/roadmapsitrep_21Nov2014_eng.pdf?ua=1 .

[32] Ashley Fantz, Doctor’s Death Marks Second U.S. Ebola Fatality, CNN Health (Nov. 17, 2014, 9:34 PM EST), http://www.cnn.com/2014/11/17/health/ebola-u-s-/.