There appears to be a race by politicians to show who is more serious about Ebola by imposing greater and greater restrictions on anyone suspected of being a carrier. It now appears that we may have our first court challenge to these limitations and there are viable claims to be made. The American Civil Liberties Union is acting on behalf of a nurse, Kaci Hickox, who has been under quarantine after she arrived at Newark International Airport. I will be discussing the case on CNN this afternoon with Wolf Blitzer.

The ACLU is moving to a possible lawsuit that challenges the basis for Gov. Chris Christie’s mandatory quarantine of healthcare workers as unconstitutional. Hickox remains in New Jersey state custody over her objections. Her international aid organization, Doctors Without Borders, has also objected to the confinement following her work in Sierra Leone.

She was quarantined on Friday, shortly after another Doctors Without Borders volunteer working in Guinea, Columbia Presbyterian Hospital employee Dr. Craig Spencer, tested positive for Ebola. Spencer tested positive six days after returning to the U.S. That case led Christie and New York Gov. Andrew Cuomo to hold a press conference saying that they were going to reject the standards of the Centers for Disease Control standards and imposed their own restrictions to impose far stricter conditions. The new protocols would require travelers from West Africa to go into 21 days of quarantine even though they show no symptoms.

New Jersey state law contains a highly generalized provision giving the Department of Health the power to “maintain and enforce proper and sufficient quarantine wherever deemed necessary.” The question is what the basis for the action must be to satisfy constitutional standards. Obviously, if someone has a disease, the state has much greater authority. The laws states that the Department “has the power to remove any person infected with a communicable disease to a suitable place, if in its judgment removal is necessary and can be accomplished without any undue risk to the person infected.” However, Hickox has no symptoms.

Federal law also has such a provision authorizing the Surgeon General and other federal officials to impose quarantines to prevent the spread of communicable diseases. Federal regulations state that

Quarantinable communicable disease means any of the communicable diseases listed in an Executive Order, as provided under section 361 of the Public Health Service Act. Executive Order 13295, of April 4, 2003, as amended by Executive Order 13375 of April 1, 2005, contains the current revised list of quarantinable communicable diseases, and may be obtained at http://www.cdc.gov and http://www.archives.gov/federal_register. If this Order is amended, HHS will enforce that amended order immediately and update that Web site.

Recently President Obama signed an executive order as a “quarantinable communicable disease.”

Experts have criticized the United States for policies based on hysteria as opposed to science. A person is not contagious until someone is experiencing symptoms. Hickox was scathing in her condemnation of Christie and her description of the conditions of quarantine as “inhumane.” She also disputed Christie’s assertion a day earlier that she was “obviously ill.” She stated that “If [Christie] knew anything about Ebola he would know that asymptomatic people are not infectious.”

The White House joined that criticism and seems to have convinced Cuomo to reconsider his position. He said that medical workers who had contact with Ebola patients in West Africa but did not show symptoms of the disease would be allowed to remain at home and would also receive compensation for lost income.

After Cuomo back down a bit, Christie also issued a statement saying that New Jersey residents not displaying symptoms would also be allowed to serve the quarantine in their homes.

Unfortunately, this issue falls within a dangerously ambiguous area of the law. While large-scale quarantines have occurred in our history for such emergencies as Spanish Flu, the authority to order such confinement has remained highly questionable for people who are not clearly contagious.

Such public health authority is largely a modern construction. Indeed, federal authority to quarantine has been linked to the Commerce Clause and interstate movement. Until recently, federal isolation and quarantine has been authorized for these diseases (note the last one):

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

Actions are generally taken under section 361 of the Public Health Service Act (42 U.S. Code § 264) by the U.S. Secretary of Health and Human Services.

The issue of disease curtailment has historically been a state not a federal issue — even though the authority is again implied. While Article I, Section 10 mentions state authority over “inspection laws,” the Constitution is otherwise silent. However, the Supreme Court has long recognized the power of states to impose quarantines as a basic element of their authority as a matter of the 10th Amendment. That power was discussed in 1824 in Gibbons v. Ogden by Chief Justice John Marshall. The Court recognized that quarantine laws (and inspection laws generally) “form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government.”

The current federal regulations however suggest an almost entirely discretionary agency decision:

§ 70.6Apprehension and detention of persons with specific diseases.
Regulations prescribed in this part authorize the detention, isolation, quarantine, or conditional release of individuals, for the purpose of preventing the introduction, transmission, and spread of the communicable diseases listed in an Executive Order setting out a list of quarantinable communicable diseases, as provided under section 361(b) of the Public Health Service Act. Executive Order 13295, of April 4, 2003, as amended by Executive Order 13375 of April 1, 2005, contains the current revised list of quarantinable communicable diseases, and may be obtained at http://www.cdc.gov/quarantine and http://www.archives.gov/federal_register. If this Order is amended, HHS will enforce that amended order immediately and update its Web site.
[77 FR 75884, Dec. 26, 2012]

That is a disconnect with the areas of law governing civil detention and quarantines.

Once again, such actions are historically focused on people with proven communicable diseases. Moreover this confinement satisfies the definition of being in custody or prison under the Constitution since it is generally involuntary. When that occurs before trial, there is still an arraignment and showing of probable cause of not jus the underlying crime but the danger of flight or violence. To be sure, the standard for civil confinement is more relaxed and, according to Addington v. Texas (1979), can be based on a “clear and convincing evidence” standard, as discussed by people like Michael Dorf. However, it is unclear how such a standard would apply in situation like Ebola. What is clear and convincing evidence of the disease of an asymptomatic person is hard to define. Indeed, these new measures appear driven more by politicians than medical experts.

The problem is the lack of a limiting principle. If the risk of contamination is enough for clear and convincing evidence, the government could use such a rationale to confinement huge numbers of people for this and other diseases. The problem is that courts have spent decades removing key protections from areas like civil detention and increasing the authority of agency in the use of discretionary powers. If that body of law governs the issue of quarantine, it would allow for effective mass incarceration with little recourse in court. The federal regulations reflect this wide-open discretionary standard.

This is a case where an early lawsuit might not be a bad idea to allow courts to better articulate the standard before we have a true domestic crisis.

The New Jersey Department of Health just released the following statement:

Since testing negative for Ebola on early Saturday morning, the patient being monitored in isolation at University Hospital in Newark has thankfully been symptom free for the last 24 hours. As a result, and after being evaluated in coordination with the CDC and the treating clinicians at University Hospital, the patient is being discharged. Since the patient had direct exposure to individuals suffering from the Ebola Virus in one of the three West African nations, she is subject to a mandatory New Jersey quarantine order. After consulting with her, she has requested transport to Maine, and that transport will be arranged via a private carrier not via mass transit or commercial aircraft. She will remain subject to New Jersey’s mandatory quarantine order while in New Jersey. Health officials in Maine have been notified of her arrangements and will make a determination under their own laws on her treatment when she arrives.

Physicians at University Hospital have continuously monitored the patient’s situation since admittance on Friday, following her arrival at Newark Airport from West Africa where she had been treating symptomatic Ebola patients. The patient was initially found to have no symptoms, but later developed a fever. Because she had symptoms, she was subsequently transferred to University Hospital where she was placed in isolation under a quarantine order for review and testing. She was cared for in a monitored area of the hospital with an advanced tenting system that was recently toured and evaluated by the CDC. While in isolation, every effort was made to insure that she remained comfortable with access to a computer, cell phone, reading material and nourishment of choice.