The recent cases of actual or suspected Ebola infections in the U.S. were followed by loud and sometimes shrill calls for quick fixes and what may have seemed like obvious solutions. During this time, our leaders would have better protected the public by exercising the appropriate use of public health authority. This authority has been, and always will be, about balance.
States have the legal authority to isolate or quarantine those exposed or already ill with a dangerous disease like Ebola. The U.S. Constitution, however, requires that the use of that power to protect the general population must be balanced against the individual’s rights to autonomy and liberty. Landmark court cases dating back to 1905 (Jacobson v. Massachusetts) have required that any action taken by the government to prevent a public health emergency must be proportional - that is, that the action does not unnecessarily invade personal liberties.
To justify a limitation on these liberties, the law requires states to weigh the risk of harm to others against the burdens on those individuals subject to isolation or quarantine. To achieve this balance, we have to start with the scientific evidence on how and when the disease is spread to others. The most effective defense against spread of disease is achieved when the scientific evidence is effectively communicated to the public. This creates an opportunity for the public to understand the risk the disease poses to them and to have confidence in the measures taken to address that risk. Hopefully, this will also result in more responsible and accurate media reporting. Likewise, when those with the disease or exposed to it understand the evidence, they will understand the justification for, and accept the proportional limitations on their liberty.
Quarantine, isolation and even travel restrictions from one place to another are social distancing measures. Increase the social distance and you will likely reduce spread of the disease. Trust in the exercise of public health authority to protect the public’s health will be a significant factor in the public’s willingness to follow necessary social distancing measures. The public’s adherence to quarantine and isolation requirement will be crucial when, and not if, the time comes when this country is faced with the threat of a highly communicable disease, most likely influenza, bringing significant morbidity and mortality and a severe challenge to our medical resources.
Actions ostensibly taken to protect public health have not always been based on the scientific evidence. One notorious example being the quarantine imposed for a questionable outbreak of “bubonic plague” in San Francisco, and administered, in the view of the court with an “evil eye and an unequal hand,” (Jew Ho v. Williamson, 1900). In that case, quarantine followed purported evidence of the plague and was implemented in a manner that disproportionately and arbitrarily targeted the Chinese community. Evidence in that case suggested that if plague had existed, the measures taken would have increased its spread rather than protected the community from it. Restrictions on liberty in the name of public health which are not based on reason will undermine the credibility and ability of public health authority.
Last month, the Maine District Court reviewed a challenge to the quarantine of Kaci Hickox, a nurse who returned to the U.S. from caring for Ebola patients in Sierra Leone, and was first quarantined in New Jersey and subsequently in Maine. Chief Judge, Charles C. LaVerdiere balanced the scientific evidence of risk to the public and got it right. He concluded that Maine had not met its burden to show that it was necessary to quarantine Ms. Hickox to protect other individuals from the dangers of infection. Based on the medical information provided by state and federal medical experts, Judge La Verdiere determined that Ms. Hickox did not present a risk to others because she was asymptomatic, and as such, according to the medical evidence, could not infect others with Ebola. The court did, however, allow reasonable conditions and restraints to be imposed, including direct monitoring, limitations and notifications to health authorities with respect to travel and notification of any symptoms.
If the medical evidence did not support a need to quarantine Ms. Hickox, why then did the Governors of New Jersey and Maine seek to do so? It is fair to assume that both had the benefit of the medical expertise and scientific evidence about Ebola available to the court, including, ultimately, CDC guidelines which advise that quarantine for asymptomatic individuals is not necessary. Perhaps government officials saw little downside in taking overly cautious measures. Is it possible that the optics and the politics, rather than facts and science, tipped the scale in both instances and resulted in these states’ decisions to order the quarantine? If so, we need to recognize how extremely dangerous that dynamic is to the public’s health.
Trust in the necessity of the legal means to protect the public’s health in these circumstances is a precious commodity, as important to the public’s health as a sufficient supply of vaccine or anti-virals. In the exercise of public health authority, our government officials must be guided by the science, not the politics of disease, in determining what limitations on individual rights are necessary to protect the health of the public. This balance will safeguard both the legitimacy of public health authority and the public’s health.
Donna E. Levin, J.D., is the National Director of the Network for Public Health Law, and former General Counsel at the Massachusetts Department of Public Health.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.