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.
quarantine
transitive verb
1: to detain in or exclude by quarantine
2: to isolate from normal relations or communication
Eric
Dredd,
That wasn’t a quarantine.
…
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Oh yes it was.
They had a skin disease, if “you know what I mean Verne.”
Dredd,
That wasn’t a quarantine. However, they or members of their families from a prior generation who emigrated to the US may have been placed in quarantine before entry.
Ellis Island, for example, was a quarantine station.
http://www.ellisisland.se/english/quarantine_islands_newyork.asp
Eric
… Quarantine is, by definition, precautionary.
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Ask the Americans who were put in interment camps during WWII as a “precaution.”
leejcarroll,
Again, the issue here is quarantine, not isolation in which symptom is the key element. Exposure, not symptom, is the key element for quarantine. Quarantine is, by definition, precautionary.
If fighting the Ebola outbreak in Africa has now been heightened to a federal mission – which seems to be the case – then there is other solution than the President opposing reasonable precautionary state-level quarantines for medical professionals who’ve contacted Ebola patients.
The federal government can send medical professionals to Africa under a federal mandate, including direct federal employ, and arrange with employers (as in the case of the nurse with 4 weeks leave) to include the 21 days of quarantine with the weeks-to-months-or-longer block already allotted for the deployment, perhaps analogous to the employment protection for activated National Guard and Reservists.
Furthermore, outside of federal outreach to medical employers, I assume (but don’t know) that medical professionals are volunteering through established medical programs where it would be relatively simple for medical employer and medical program to tweak their SOP to add a 21-day quarantine to the rotation.
Quarantine, after all, is not a novel measure for the medical profession.
This is not about stigmatizing or disallowing volunteers from fighting Ebola at the source. This is about risk management with a reasonable and sensible balancing of interests.
The precautionary quarantine of military personnel who have undertaken a significantly lower-risk activity than treating Ebola patients clearly shows that there is a legitimate state interest in a precautionary quarantine for medical professionals who have undertaken the higher risk of contacting Ebola patients.
On I believe it was Anderson cooper yesterday a couple whom I believed had already been over to Africa once and were planning on returning said they would now not do so if this quarantine goes into effect on all returnees. One nurse dsaid I was able to get 4 week s leave to go over but I cannot get an additional amount of time for being quarantined once I get back and therefore I will not be going pover. We see already that those who said quarantine will impact the effort to fight this disease at its base are correct.
(I see error in what I had typed in my previous post It was supposed to read: And what happens when you quarantine absent ebola 2 tests showed this man to be ebola free)/symptoms using fear instead of sense: http://ac360.blogs.cnn.com/2014/10/28/yale-student-ebola-free-but-quarantined-im-in-disbelief/?hpt=ac_mid Yale student Ebola-free, but quarantined: I’m in disbelief
It is a fascinating legal question. I think State would win a Matthews v Eldridge balancing test.
My quibble with Professor Turley’s post is he blurs the key distinction between isolation and quarantine: symptom versus exposure.
This is significant because he raises symptom as an element of quarantine. While isolating someone is part of the quarantine procedure, isolation and quarantine are not the same thing. In fact, symptom is an element of isolation but not of quarantine. Quarantine implies a lack of symptom. The key element of quarantine is exposure, not symptom.
From http://www.cdc.gov/quarantine/ :
As a practical issue outside of legalistic semantics, the quarantine issue is only partly about science and more centrally about risk management. The science only informs the risk management. It’s telling to me that the military, where risk management is a core practice, is instituting a 21-day quarantine for soldiers who’ve only aided Ebola treatment logistics but not engaged Ebola patients.
Given that medical experts and others who’ve practiced careful caution have contracted Ebola nonetheless without knowing exactly how it happened, it makes sense that volunteers who’ve engaged with Ebola patients would be subject to at least the same level of risk management as soldiers who’ve engaged in less risky contact – at least as a conditional precautionary measure until the current Ebola outbreak is fully diagnosed and the contagious risk is fully controlled.
I agree with the President that volunteers should be supported. Volunteering to treat Ebola at the source is worthy and important. At the same time, on balance, a precautionary 21-day quarantine – made comfortable – upon return from the hot zone does not seem onerous. On balance, such a protocol seems sensible and a low bar of discouragement for a volunteer.
However, it’s striking that a reasonable sense of social-ethical balance seems to be missing with Kaci Hickox, who seems to have little basic regard for upholding stability, trust, and cohesion for her own community.
And what happens when you quarantine absent using fear instead of sense: http://ac360.blogs.cnn.com/2014/10/28/yale-student-ebola-free-but-quarantined-im-in-disbelief/?hpt=ac_mid Yale student Ebola-free, but quarantined: I’m in disbelief
And when we think about quarantines let’s go back to AIDS and remember the hysteria before logic, intelligence, knowledge and common sense took over. People were calling for wholesale quarantines.
My last one and I promise I will stop…
Ebola life cycle—you can see on the left how it gets encapsulated into humans
http://viralzone.expasy.org/all_by_species/5016.html
Finally, inside the MSF Ebola treatment unit
The average diameter of an Ebola virion is ~ 80 nm, which is somewhat smaller than an influenza virion (~ 80-120 nm). But Ebola virions are ~ 920-1000 nm lengthwise whereas influenza virions are usually rightly spherical (but can also have filamentous forms occasionally). http://viralzone.expasy.org/all_by_species/207.html
Highlights from NYTimes article below:
The WHO says the number of new Ebola cases could reach 10,000 per week by December, best case scenario is 11,000-27,000 new cases by January 20, 2015 (assuming 70% are treated in situ), worst case scenario is 1.4 million new cases. This is why we have to let as many healthcare workers in to West Africa as soon as possible.
http://www.nytimes.com/interactive/2014/07/31/world/africa/ebola-virus-outbreak-qa.html
The article above mentions the drug ZMapp which is made in tobacco plants.
http://www.cnn.com/2014/10/03/health/ebola-tobacco-plant/
Dredd@5:21p.m.
Or they could not find a suit big enough to fit some of the participants.
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find another tent?
Medicins Sans Frontieres weighs in.
http://www.msf.org/article/ebola-quarantine-can-undermine-efforts-curb-epidemic
The leading question in the African Diaspora: Where was the WHO?
http://www.inprofiledaily.com/?q=article/unanswered-questions-ebola-outbreak-part-one
I am conflicted. On the one hand, I believe that the CDC and its epidemiologists should be the ultimate authority in the land with regards to the latest and greatest ebola virus protocols as this would be based on hard evidence/science. We will end up with chaos if each state decides to undermine the CDC’s authority. I would believe the CDC that the person is not shedding the virus until he/she is symptomatic with a fever. The problem comes with those who traveled to West Africa and come to the U.S. and don’t recognize when they become symptomatic. Healthcare workers in general would recognize a fever and would get help and get quarantined immediately. Others I’m not so sure. Ultimately, we will have a vaccine, but the real test is coming in January when someone/group has to decide how to conduct a fair study to determine the vaccine’s effectiveness in West Africa.
http://www.washingtonpost.com/national/health-science/as-researchers-develop-ebola-vaccine-early-human-clinical-trials-show-promise/2014/10/22/7d3e0978-58a7-11e4-bd61-346aee66ba29_story.html
Dieter Heymann
It has now become quite obvious why both Christie and Cuomo caved. One lawyer of Ms. Hickox has stated on TV that he was preparing a habeas corpus case which would have forced the government of New Jersey to “produce Ms. Hickox in court”. Governor Christie had only two choices. Bring Ms. Hickox to a regular court in protective gear or have the session held in her tent with everyone in protective gear. In the first case he would have to justify why a person who does not show any symptoms of Ebola should be in protective gear. My hunch is that a disgusted presiding judge would have ruled immediately to set her free. In the second case there would have been a TV fest of giant magnitude. The Hickox-side may have even demanded that Governor Christie come and testify because he had stated during the press conference that he and Cuomo had cooked up the new regulation overnight. So he caved.
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Or they could not find a suit big enough to fit some of the participants.
Annie
» What is airborne transmission? …
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That is when wrong wingers whisper fear stuff in their ears to mock exceptional American science (Mocking America – 4).
To Bill W (from Oct 27 at 0101):
http://thehill.com/blogs/floor-action/house/222095-house-dems-urge-confirmation-of-surgeon-general
It has now become quite obvious why both Christie and Cuomo caved. One lawyer of Ms. Hickox has stated on TV that he was preparing a habeas corpus case which would have forced the government of New Jersey to “produce Ms. Hickox in court”. Governor Christie had only two choices. Bring Ms. Hickox to a regular court in protective gear or have the session held in her tent with everyone in protective gear. In the first case he would have to justify why a person who does not show any symptoms of Ebola should be in protective gear. My hunch is that a disgusted presiding judge would have ruled immediately to set her free. In the second case there would have been a TV fest of giant magnitude. The Hickox-side may have even demanded that Governor Christie come and testify because he had stated during the press conference that he and Cuomo had cooked up the new regulation overnight. So he caved.
Just in Chicago.