November 4, 2014

Private: State Quarantine Powers Under the Constitution: Fear in an Age of Ebola

CDC, civil confinement, Demore v. Hyung Joon Kim, Ebola, Jolly v. Coughlin, Kaci Hickox, O'Connor v. Donaldson, Quarantine, Shelton v. Tucker, Smith v. Doe

by Lawrence O. Gostin, University Professor and Founding O’Neill Chair in Global Health Law at Georgetown University Law Center, and Eric A. Friedman, Associate at O’Neill Institute for National and Global Health Law at Georgetown University Law Center.

As fears of Ebola sweep the nation, several governors are instituting quarantine and other restrictive policies based on fear, not science. These appear to reflect political agendas and responding to the public’s clamoring for greater protection, expressed as an over-abundance of caution. But the rule of law stands precisely to prevent the state from depriving individuals of liberty based on irrational or exaggerated public fear. Legal standards on the state’s police powers to protect the public’s health and safety are well developed. Civil confinement of individuals who have not committed an offense is a massive deprivation of liberty that requires a clear justification beyond public fear. State statutes and constitutional law require sound scientific evidence of significant risk, reflecting a delicate balance between public health and civil liberties. Current quarantines (and calls for travel bans) are reminiscent of 19th Century views of walling off borders, which is impossible in a modern globalized world.

The touchstone of the law is public health necessity. Imposed quarantines represent a significant burden on people’s liberty, leading courts and legislators to create a high standard that must be met for mandatory quarantines. States such as New York require that quarantines be “necessary” to protect the public’s health. New Jersey's quarantine law requires a quarantine to be “by the least restrictive means necessary to protect the public health.” Simply put, a quarantine that is at odds with public health and scientific knowledge is also at odds with the law.

Supreme Court and Civil Confinement

Local and states quarantine laws predate the founding of the republic, with the earliest municipal ordinances in Boston (1647) and New York (1663). During the next century, states such as Massachusetts and New York enacted quarantine statutes. By the time the Constitution was drafted, quarantine was well established. In Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding state compulsory vaccinations), the Supreme Court affirmed state police powers when necessary to protect the public’s health and safety, not going “beyond what was reasonably required for the safety of the public.” Jacobson at 28. Although quarantine is principally a state and local power, the federal government has more limited quarantine authority to prevent the international and interstate spread of infection.

Although the states undoubtedly have the authority to issue quarantine orders, the Supreme Court has set clear standards for civil confinement, recognizing that quarantines implicate fundamental liberty interests. The Supreme Court has primarily examined constitutional standards for civil commitment of persons with mental illness. Lower courts have applied constitutional standards for civil commitment to other forms of civil confinement, notably quarantines. See, e.g., Best v. St. Vincents Hosp. (2003), 2003 U.S. Dist LEXIS 11354 (overturned in part on other grounds). Civil commitment and quarantine implicate similar individual interests because both entail state-imposed non-criminal confinement to prevent a future risk to the public’s well-being.

The Supreme Court has established three key requirements for civil commitment. First, they must be based on an individualized risk assessment, requiring scientific evidence. Second, they must be the least restrictive means available to advance the state interests. Third, the state must provide individuals subject to quarantine procedural due process rights, including a hearing. 

Individualized risk assessment

An individual risk assessment means that before a state may confine a person, it must make a determination that the particular individual presents a risk to the public. As Justice Souter has explained succinctly, “Due process calls for an individual determination before someone is locked away.” Demore v. Hyung Joon Kim, 538 U.S. 510, 551 (2003) (Souter, J., concurring on jurisdiction and dissenting on the merits). While the Court has disconcertingly eroded this principle by carving out an exception in the case of detentions related to deportation proceedings, see Demore (permitting temporary detention of deportable aliens for removal proceedings without a hearing to determine that the individual was a flight risk or danger to the community), the principle remains for civil confinement. It is not enough that the individual belongs to a class of people who could present a risk. As the Court has stated, “A finding of ‘mental illness’ alone cannot justify a State's locking a person up against his will…there is…no constitutional basis for confining such persons involuntarily if they are dangerous to no one.” O’Connor v. Donaldson, 422 U.S. 563, 575 (1975).

The magnitude of infringement on a person’s liberty remains an important touchstone. A greater restriction, such as involuntary confinement of “particularly dangerous individuals” require an individualized assessment, whereas the Supreme Court has permitted more minor restrictions, such as the requirement that sex offenders register with the state. Smith v. Doe, 538 U.S. 84, 104 (2003).

As quarantines constitute a major infringement of liberty, it would be unconstitutional to quarantine a generalized class of people absent a determination that the particular individual poses a public health risk. It is not enough, for example, that a person has tuberculosis; the state must also demonstrate that the individual will not voluntarily comply with treatment. Best.

Least restrictive means

Curtailing a person’s fundamental personal liberties, if justified by a sufficiently strong state interest, must be narrowly tailored. The Supreme Court has stated, “Even [when] the governmental purpose [is] legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488. In the context of civil commitments, the DC Court of Appeals has held that even after civil commitment of a person with mental illness to a hospital, the person was entitled to the least restrictive setting within that hospital. The Court determined that “[a] statute sanctioning such a drastic curtailment of the rights of citizens must be narrowly, even grudgingly, construed in order to avoid deprivations of liberty without due process of law.” Covington v. Harris, 419 F. 2d 617, 623 (1969).

Courts have applied this requirement in the context of impinging liberty interests to prevent the spread of contagious disease, chiefly tuberculosis—even though courts often do not reach the constitutional question because state statutes often require a showing of the least restrictive alternative. See, e.g., Jolly v. Coughlin, 76 F.3d 468 (1996) (granting a prisoner a preliminary injunction to be released from medical keeplock, i.e., almost complete confinement to his prison cell, upon refusal to submit to screening for latent tuberculosis, based on the Religious Freedom Restoration Act of 1993, which requires the least restrictive alternative means of furthering a compelling government interest where that interest burdens an individual’s free exercise of religion). Matter of New York City v. Antoinette R., 165 Misc. 2d 1014 (1995) (permitting detention in a hospital setting of an individual with tuberculosis who refused to voluntarily comply with appropriate medical treatment).

There are limits to how far the state must go in making less restrictive alternatives available. For example, it is unlikely that a state would be required to provide economic incentives to inductive people to comply with medical treatment for tuberculosis, even if the alternative is the more restrictive approach of civil commitment to a hospital during the course of medical treatment for tuberculosis. (Response to Public Comments Concerning Proposed Amendments to Section 11.47 of the Health Code 7 [March 2, 1993].)

Procedural due process

Procedural due process, including the right to a hearing, is fundamental to the U.S. constitutional scheme. As the Supreme Court has stated plainly: “The Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). Civil confinement is such an interest. See, e.g., O'Connor v. Donaldson, 422 U.S. 563, 580 (1975) (Berger, C.J., concurring) (“There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.”). See also Lessard v. Schmidt, 349 F. Supp. 1078, 1091 (E.D. Wis. 1972) (determining that “involuntary confinement in a mental institution for 16 or 26 days is a significant deprivation of liberty, and one which cannot be permitted under our Constitution without a hearing.”) The Supreme Court set an intermediate evidentiary “clear and convincing” standard to determine future dangerousness. See Addington v. Texas, 441 U.S. 418 (1979).

The procedural safeguards depend on the liberty interest at stake, with a three-part test:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335.

Courts have applied the requirement to provide a hearing in the infectious disease context, including district courts in New York and West Virginia. See Best; Greene v. Edwards, 164 W. Va. 326 (1980). In Green, the West Virginia Supreme Court borrowed from an earlier holding on involuntary hospitalization for the mentally ill. It held that due process protections of the U.S. and West Virginia Constitutions required that an individual the public health authorities determined should be committed to a state tuberculosis institution have a hearing that included a right to counsel, to confront witnesses, and to an appeal

The Science of Individualized Risk Assessment

Centers for Disease Control and Prevention (CDC) guidelines for states on preventing transmission of Ebola Virus Disease (EVD) use scientific evidence to calibrate risk. The agency recommends restricting the movement of individuals only to prevent genuine risks, using a tiered approach depending on the level of risk. Because they recommend individualized risk assessment based on scientific evidence they comport with constitutional standards. The guidelines tier people traveling from one of the three most affected countries (Liberia, Sierra Leone, and Guinea) into categories of zero, low, some, and high risk—depending on potential exposure and symptoms (because EVD is transmissible only in symptomatic individuals). Levels of permissible restrictions on movement vary accordingly to the risk category.

The CDC recommends individualized assessments of risk. For example, a health worker who has treated Ebola patients in West Africa (unless at known heightened risk due to exposure without personal protective equipment to the body fluid of a symptomatic Ebola patient) would be considered to be at some risk, and would undergo direct active monitoring. This means that at least once a day, a public health official would directly observe the health worker monitoring her temperature and other possible Ebola symptoms, with a second check-in by phone. This is a reasonable measure to ensure compliance. Further restrictions would be possible, including avoiding mass transit and public places, but only if warranted by an individualized assessment.  

By contrast, several states plan to impose quarantines on any health worker returning from treating Ebola patients in West Africa. These blanket restrictions of liberty flaunt public health science and ethics, suggesting that a climate of fear rather than public health necessity is driving decision-making in statehouses.

The Quarantine of Kaci Hickox

Kaci Hickox – a nurse who treated Ebola patients in Sierra Leone while volunteering for Medicines Sans Frontiers (MSF) – was the first individual quarantined under new state Ebola policies. New Jersey originally quarantined Ms. Hickox for three days in a tent on hospital grounds. New Jersey then released Ms. Hickox to her home state of Maine. Yet, Maine placed her in a home quarantine. These quarantines clearly flouted CDC guidance given the fact that she was completely asymptomatic. Ms. Hickox was subjected to liberty restrictions that were more intrusive then necessary to meet the states’ goal of public protection. Self-monitoring, or the direct active monitoring recommended by the CDC, would have afforded the public ample protection. Further, the fact that she repeatedly has tested negative for Ebola would offer additional reassurance of public safety.

On October 31st, the chief judge of the Maine District Court, Charles C. LaVerdiere, issued an order pending a final hearing, requiring Kaci to: submit to direct active monitoring, coordinate travel with health officials, and immediately inform health authorities if symptoms appear. The Court’s directive conforms to CDC guidelines. The court denied Maine’s request for a full quarantine, stating that Maine did not prove by clear and convincing evidence that limiting Kaci’s movements to the extent requested was “necessary to protect other individuals from the dangers of infection.” The court will schedule a full hearing on the case shortly.

Focusing Attention on the Epicenter of the Epidemic

The United States has been looking inwardly while Ebola spins out of control in West Africa. Our shared humanity in a modern globalized world demands attention to the focal point of enormous suffering. Beyond shared humanity, it is in the U.S. interest to tackle Ebola at its source. If our quarantine policies exacerbate the epidemic in West Africa, thus expanding the reservoir of infection, it will increase, not decrease, domestic risk in the long run. It is therefore in our enlightened self-interest to mobilize a massive response in West Africa.

Quarantines of returning health workers from the region could significantly deter volunteers, undermining the world’s response to Ebola, and facilitating its longer-term continuation, even its surge in the region. This would create a heightened potential for the virus to migrate to other highly populated cities and ultimately find its way to the U.S. in increasing numbers of people. This is why MSF, the premier organization on the ground fighting Ebola, has fiercely opposed state quarantine policies. These state quarantines, moreover, could have a cascading effect, with other US jurisdictions and other countries following this restrictive and short-sighted model.

World Bank President Jim Kim recently stated that at least 5,000 health workers from outside the region are needed in West Africa. Because of the effect US state quarantines would likely have on the number of foreign health workers who volunteer in West Africa, such quarantines may well have lethal affects abroad, where Ebola’s toll has been devastating in Liberia, Sierra Leone, and Guinea.

Beyond the potential to undermine the rescue response in West Africa, quarantines and travel bans appear to violate the International Health Regulations (IHR), which require a balance between public health, trade, and human rights. When it declared Ebola a public health emergency of international concern, WHO recommended against travel bans and quarantines. Although the U.S. issued a reservation to the IHR based on federalism, it ought to be clear that from an international perspective these restrictive policies are self-defeating and are contrary to the very purposes of the IHR, which seek to promote global health security.

A Climate of Fear

Historically frightening epidemics have provoked overreactions, often stigmatizing and discriminating against entire classes. One of the most invidious measures in public health history was struck down in Jew Ho v. Williamson, 103 F.10 (C.C.N.D. Cal., 1900). Public health officials had quarantined an entire district of San Francisco containing a population of more than 15,000 persons, ostensibly to contain an epidemic of bubonic plague. The quarantine was made to operate exclusively against the Chinese community. The court held the quarantine unconstitutional on grounds that it was unfair—health authorities acted with an “evil eye and an unequal hand.”  Jew Ho serves as a reminder that quarantine can be used as an instrument of prejudice and subjugation of vulnerable individuals or populations.

In today’s Ebola crisis, political actors have similarly overreached, this time targeting those who ought to be regarded as national heroes—physicians, nurses, and other health workers who selflessly volunteer in arduous and hazardous circumstances in one of the world’s poorest regions. Even beyond individual violations of liberty that the quarantines entail, they represent a diversion from the heart of the crisis and the immense suffering in West Africa. Too many politicians and members of the public are inwardly focused—a kind of misguided self-interest. They exhibit a callous neglect of the impact of our coercive policies on the lives of individuals living in the world’s least developed countries. And that is the most troubling observation of all.

Civil rights, Individual liberties