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Is Forced Quarantine for Ebola Legal?

ebola virus particles

Ebola virus particles

New York, New Jersey, Illinois and Florida this week instituted mandatory confinement for certain people exposed to ebola.

Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons? Yes. Has this sort of thing been done before? Yes. Will it be effective? No. Is it just a political ploy to garner votes from a panicked public? Oh my yes.

Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons?

Yes. The federal government derives its authority for isolation and quarantine from the Commerce Clause of the Constitution. Under the Public Health Service Act, the Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases.

The authority for carrying out these measures is been delegated to the Centers for Disease Control and Prevention (CDC). Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to apprehend, detain, and examine people arriving to the United States and traveling between states who are suspected of carrying communicable diseases.

Though the paranoid-a-sphere rediscovers these provisions on a regular basis and makes much of them, the basic idea of the government forcibly quarantining people for the sake of public health goes back into the 19th century.

That said, the power to detain and quarantine often is left to the states, and both New York and New Jersey law provide for it. New York allows the decision to be challenged in a magistrate court; New Jersey does not have a similar law, though technically any form of detention can be broadly challenged under habeas corpus. But good luck with that– the Florida Supreme Court laid down the precedent in saying “The constitutional guarantees of life, liberty and property, of which a person cannot be deprived without due process of law, do not limit the exercise of the police power of the State to preserve the public health so long as that power is reasonably and fairly exercised and not abused.”

CommunityThe Dissenter

Is Forced Quarantine for Ebola Legal?

ebola virus particles

Ebola virus particles

New York, New Jersey, Illinois and Florida this week instituted mandatory confinementfor certain people exposed to ebola.

Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons? Yes. Has this sort of thing been done before? Yes. Will it be effective? No. Is it just a political ploy to garner votes from a panicked public? Oh my yes.

Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons?

Yes. The federal government derives its authority for isolation and quarantine from the Commerce Clause of the Constitution. Under the Public Health Service Act, the Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases.

The authority for carrying out these measures is been delegated to the Centers for Disease Control and Prevention (CDC). Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to apprehend, detain, and examine people arriving to the United States and traveling between states who are suspected of carrying communicable diseases.

Though the paranoid-a-sphere rediscovers these provisions on a regular basis and makes much of them, the basic idea of the government forcibly quarantining people for the sake of public health goes back into the 19th century.

That said, the power to detain and quarantine often is left to the states, and both New York and New Jersey law provide for it. New York allows the decision to be challenged in a magistrate court; New Jersey does not have a similar law, though technically any form of detention can be broadly challenged under habeas corpus. But good luck with that– the Florida Supreme Court laid down the precedent in saying “The constitutional guarantees of life, liberty and property, of which a person cannot be deprived without due process of law, do not limit the exercise of the police power of the State to preserve the public health so long as that power is reasonably and fairly exercised and not abused.”

Has this sort of thing been done before?

Yes. The Florida precedent case cited above dealt with forced quarantine of a tuberculous patient in 1952.

Just recently in Dallas, Texas, after her boyfriend was diagnosed as the first ebola case in the United States, Louise Troh and her family were asked not to leave their home. When Troh tried to leave anyway, a Dallas judge issued a confinement order, forcing a quarantine on Troh and her family. Police stationed outside of the family’s home enforced the order.

In 2007, a 27-year-old man was forcibly placed in a Phoenix hospital ward reserved for sick prisoners. The man suffered from a deadly strain of tuberculosis known as XDR-TB. Doctors say he is virtually untreatable. He has been forced to live in a hospital cell in complete isolation.

Though never implemented, in 1985 at the height of the HIV/AIDS epidemic, a majority of Americans favored quarantine of patients, with 48 percent approving of identity cards for those who tested HIV-positive, and 15 percent of Americans even supporting tattooing those with AIDS to mark them as “dangerous.”

Further back in America’s history are multiple examples of forced quarantine, including Hawaiian leper colonies, and the isolated TB wards and Ellis Island medical isolations of the 19th century.

The record is not pretty, but the record exists.

Will it be effective for ebola?

No. The New York and New Jersey quarantine laws at present only apply to a) health care workers b) returning from African “hot zone” countries through c) only two airports, JFK and Newark who d) had contact with ebola. That’s a very select group, chosen largely because New York’s sole ebola patient fit that exact profile. Persons such as regular travelers who fit the same profile,or persons who just flew internationally with the profiled individuals, are not included.

In addition, the New York and New Jersey plans seem to rely 100 percent on individuals who fit the profile self-identifying themselves for the mandatory quarantine. Anyone who wished to avoid it, especially a health professional who knew s/he was not an active carrier based on clearly identifiable and well-known symptoms such as a high fever, could just dummy up at the airport. Alternately, s/he could route flights to land somewhere else and take the bus home to Manhattan.

What does happen when a healthcare worker enters this quarantine system? There is only one example in New Jersey so far, and it is not a pretty one. Kaci Hickox, returning from volunteer work in Sierra Leone, was detained against her will for seven hours at Newark Liberty International Airport on Friday before being forcibly transferred to a local hospital, escorted by eight police cars, where she will be held for an unspecified period of time. Hickox did not have a fever when brought to the hospital and has tested negative for ebola, yet is inside the system now and those things do not appear to matter. Connecticut, which enacted a similar policy, has quarantined nine people who have so far showed no symptoms.

Quarantining actually infectious people, who may indeed be a danger to public health is one thing. But like taking off our shoes and other security theatre that followed 9/11, the quarantine plan seems designed more for show than any hint of practicality.

Is it just a political ploy to garner votes from a panicked public?

Oh my yes. All of the state governors who pushed the plan through without the endorsement of the CDC or New York’s mayor are in election battles. The governors of New York, New Jersey, Illinois and Florida are up for reelection in about a week, and New Jersey governor Chris Christie is famously testing the waters for a possible 2016 presidential run. New York’s mayor is not up for reelection for years.

Fear-mongering works; ask any politician who has beaten the drum of “9/11, 9/11, 9/11” since, well, 9/11. People are scared, mostly based on ignorance fanned by media who themselves seek to profit from fear.

That sort of disease seems more dangerous in the long run than a handful of ebola patients.

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Peter Van Buren writes about current events at blog. His book,Ghosts of Tom Joad: A Story of the #99Percent, is available now from Amazon

Image by NIAID under Creative Commons license

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Jane Hamsher

Jane Hamsher

Jane is the founder of Firedoglake.com. Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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