On Monday, the state of Maine reached a settlement with a nurse who's been fighting the quarantine restrictions being placed on medical workers who have had contact with ebola patients. With quarantine all over the news these days, could a legal challenge to the practice actually succeed? Probably not.
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The Power to Quarantine
Both the federal government and state governments have the power to quarantine people, and both of them rest their authority on the Constitution.
The federal government locates its ability to regulate public health in the commerce clause, which gives Congress the power to pass laws regarding interstate commerce. The commerce clause is the source of a lot of laws, since a lot of things you wouldn't expect can be tied to commerce one way or another.
In the case of quarantine, the CDC is empowered to make quarantine regulations under section 361 of the Public Health Service Act. Under that law, the CDC has the authority to detain, medically examine, and release persons entering the United States or traveling between the states, who are suspected of carrying communicable diseases.
The states can also pass public health laws which enable them to quarantine people suspected of carrying diseases. Their authority is located in their police powers, which give states the ability to pass laws to protect the health, safety, and welfare of persons within their borders. Since the Tenth Amendment gives powers not given to the federal government and not prohibited to the states by the Constitution to the states, their police powers are pretty all-encompassing.
Supreme Court Building by Jeff Kubina/flickr/cc by sa-2.0
Jacobson v. Massachusetts
Jacobson v. Massachusetts is considered one of the most important public health cases in American history. A 1905 Supreme Court case, Jacobson upheld a compulsory vaccination law. By the way, if you were wondering if the vaccination debate has changed at all during the last 110 years, the answer is no.
There are a number of factors that make Jacobson relevant. The first is the statement that individual freedom can be restrained for the common good:
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
Jacobson also stated that the state was free to pick among competing medical/scientific theories for their the basis of its laws. And even if a plaintiff created uncertainty about the safety of vaccinations, this would not be enough to invalidate the law.
However, Justice Harlan's opinion also places some restrictions on the exercise of police powers, giving some room to challenge public health laws:
[T]he police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.
In a 2005 article, Professor Lawrence O. Gostin pulled out four standards that determine if the law has gone too far. They are:
- Necessity: Harlan notes that the exercise of police powers be based on the necessity of the circumstances and may not be used in "an arbitrary, unreasonable manner" or go "beyond what was reasonably required for the safety of the public."
- Reasonableness: Harlan says courts can invalidate a state action when a law "purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."
- Proportionality: Balancing the amount of public good versus the degree on invasion into personal liberty
- Harm Avoidance: Harlan points out that a vaccination of a "fit man" like Jacobson was Constitutional, but if a person could show that they were in no condition to be vaccinated, the law could not be held to apply to them.
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Possible Challenges to Quarantine
Quarantine cases in American law are few and far between. And cases where the plaintiff actually prevailed are rarer still. If a quarantined person wants to challenge his or her status, he/she can argue that the action violates equal protection, due process, or conflicts with federal policy.
Equal protection challenges involve quarantine regulations that are discriminatory. In 1900, for example, San Francisco required only its Chinese inhabitants to be vaccinated for bubonic plague, and restricted their movements unless they showed proof of their vaccination. The law was challenged in Jew Ho v. Williamson and Wong Wai v. Williamson. Because the restrictions were imposed on a single group, it violated the equal protection clause, and were thus invalidated.
Due process challenges — challenges that allege the government denied a person liberty — rest on the kind of analysis seen in Jacobson. In those cases, courts weigh three factors: what interest is affected by the government action, the risk of error/any possible other safeguards, and the government's interest.
Challenges to quarantine based on due process have not been that successful. A 1922 case in Illinois upheld the quarantine of a woman who had never been ill with typhoid, but who the government believed carried the illness. The Supreme Court of Illinois found, "it is not necessary that one be actually sick, as the term is usually applied, in order that the health authorities have the right to restrain his liberties by quarantine regulations."
In 1963, a New York federal judge upheld the 14-day quarantine of a woman who had no symptoms, no evidence of contact with an infected person, and who had merely come from an infected area. The court upheld the quarantine, saying:
[The] judgment required is that of a public health officer and not of a lawyer used to insist on positive evidence to support action; their task is to measure risk to the public and to seek for what can reassure and, not finding it, to proceed reasonably to make the public health secure. They deal in a terrible context and the consequences of mistaken indulgence can be irretrievably tragic. To supercede their judgment there must be a reliable showing of error.
In the very specific case of ebola, there's a chance that state quarantine might conflict with the Obama Administration's policy of not discouraging health workers from going to the hot zone. However, federal policy cannot preempt a state quarantine. The federal law itself would have to be contradictory, and the law allows states to have more restrictive quarantine restrictions than the government. As pointed out by Professor Eugene Kontorovich in the Washington Post, the Supreme Court has held that unless the federal government has quarantine laws or regulations inconsistent with those of the states, "the laws of the state on the subject are [presumptively] valid."
It's unlikely that an equal protection claim will be made by anyone being quarantined under for ebola. There's no evidence that people are being quarantined for their race, like happened in San Francisco in the early 1900s.
It would therefore fall to a due process claim. However, as Professor Kontorovish argues, precedent is not on their side:
There are extremely few contexts where the state can deprive someone of liberty without any showing of wrongdoing, or any personal conduct whatsoever: conscription, quarantine, and in a milder fashion, jury service. The case law basis for conscription goes back only to 1918 (also the time of the first widespread quarantines n the U.S.), but it has proven impervious to a liberalized due process clause. Quarantine is safe too.
Moreover, 20th century quarantine cases have typically death with tuberculosis and small pox, both of which are far less lethal than Ebola, and about which much more was known. (The most common form of smallpox had a 30% fatality rate, less than half that of Ebola.) All this shifts the presumption of validity even more towards the state.
Under the basic Mathews v. Eldridge balancing test for these kind of deprivations of liberty, the gravity of the of government's interest and adequacy of pre-deprivation process are key factors. The long incubation period and deadly effects all counsel for allowing a deprivation of liberty without any showing of illness. Locking a patient up after they develop a fever simply does not substitute for doing so in advance.
If a plaintiff claims that, rather than being aimed at public health, the ebola quarantine regulations are being created purely to calm the public fears, then that concern may not outweigh the invasion being visited on them. Professor Gostin told Fortune:
Government cannot use public fear as a rationale for depriving a person of liberty. Indeed the rule of law stands precisely to prevent that kind of injustice. The only basis for lawful quarantine is significant risk based on science.
On the other hand, the plaintiff would have to prove that the quarantine was based on nothing more than politics. Nurse Kaci Hickox has repeatedly argued that there's no science behind the quarantine she was going to be subject to, but Jacobson allows the government to take their pick of science experts in their determinations. Given the tendency for courts to defer to state judgment in quarantine cases, it seems unlikely that such a case would win.