HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, October 28, 2014

Guest Blogger Research Fellow and Lecturer in Law Tara A. Ragone- State Quarantines: Balancing Public Health with Liberty Interests

Ragone_lg_1Nurse Kaci Hickox is a powerful reminder that states must carefully balance patient’s liberty interests when crafting appropriate, reasonable responses to potential threats to public safety.

Beginning with New York and New Jersey last Friday and now continuing with Illinois, Florida, Maine, and Virginia, states are issuing quarantine orders that exceed the CDC’s federal response. New York and New Jersey initially announced that individuals who had direct contact with a person infected with Ebola while in Liberia, Guinea, or Sierra Leone would be subject to a mandatory 21-day quarantine even if they showed no signs of infection.

Under this policy, New Jersey quarantined Maine nurse Kaci Hickox in a tent at University Hospital in Newark after she returned from caring for Ebola patients in Sierra Leone, even though reportedly she did not initially display any symptoms and subsequently tested negative for the disease. The American Civil Liberties Union demanded that Governor Chris Christie disclose how the state had determined that mandatory quarantine of healthcare workers was medically necessary and expressed its “serious constitutional concerns” regarding the policy. New Jersey quickly changed course, announcing that Ms. Hickox would be permitted to return home, subject to Maine’s home quarantine requirement.

Each state enjoys broad police powers to protect the health, safety, and welfare of those within its borders, which powers may include the authority to order quarantines to limit the spread of infectious diseases like Ebola. But individuals also have a constitutionally protected right not to have their liberty infringed without due process of law. Imposing a quarantine affects an individual’s freedom of movement. How can a state fulfill its duty to protect the health and well-being of its residents without violating individuals’ Fifth Amendment rights?

A state must carefully balance its legitimate public health concerns with the rights of individuals. Balance is the simple answer, though, and in practice, the answer is far more nuanced and difficult to identify.

In upholding a mandatory vaccination law against a substantive due process challenge in 1905, the United States Supreme Court in Jacobson v. Massachusetts recognized that courts may need to intervene to protect an individual where the state exercises its police power “in . . . an arbitrary, unreasonable manner, or . . . [goes] so far beyond what was reasonably required for the safety of the public.” A state must exercise its police powers reasonably and may not act arbitrarily.

Building on this concept of reasonableness, Professors David Fidler, Lawrence Gostin, and Howard Markel (abstract) have discerned four limits that courts have imposed on quarantine authority: The individual must be -

  1. Actually infectious or have been actually exposed to an infectious disease;
  2. Placed in safe and habitable conditions;
  3. Treated in a non-discriminatory manner; and
  4. Afforded procedural due process.

As explained by the United States Supreme Court in Mathews v. Eldridge, what procedural due process must be afforded individuals before they are quarantined is a fact-specific inquiry that generally requires the balancing of three factors: “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.”

Some lower courts have analogized quarantines to involuntary confinement of mentally ill patients and adopted similar procedural due process protections. In Greene v. Edwards, for example, a 1980 per curiam decision, the Supreme Court of Appeals of West Virginia reasoned that because “involuntary commitment for having communicable tuberculosis impinges on the right to ‘liberty, full and complete liberty’ no less than involuntary commitment for being mentally ill,” the state must provide the same procedural due process protections in both situations, namely:

(1) an adequate written notice detailing the grounds and underlying facts on which commitment is sought; (2) the right to counsel and, if indigent, the right to appointed counsel; (3) the right to be present, to cross-examine, to confront and to present witnesses; (4) the standard of proof to be by clear, cogent and convincing evidence; and (5) the right to a verbatim transcript of the proceedings for purposes of appeal.

Similarly, in City of Newark v. J.S., a New Jersey Superior Court Judge held that the standards and procedures required by the New Jersey Supreme Court in involuntary civil commitment proceedings must also be followed when the state seeks to involuntarily commit a patient to a hospital pursuant to the state’s TB control statute.

The states vary considerably in how they exercise their authority to institute quarantines. As a recent Congressional Research Service Report notes, some states like Louisiana require a court order to quarantine individuals against their will (with exceptions for some diseases), while many others permit health officers to make the call without judicial oversight. In some states, the state health department has authority to identify the diseases subject to quarantine, but in others, statutes specify eligible diseases.

One commonality among state quarantine laws that the CRS Report points out is “their ‘overall antiquity,’ with many being between 40 and 100 years old.” States should review their laws and procedures to ensure they comply with due process commands and reflect contemporary scientific knowledge about disease. The Network for Public Health Law published an issue brief in June 2012 that collected some useful model tools that states may consider, including bench books from Washington, Oregon, and Texas.

Ensuring due process does not mean that individuals will not be quarantined. Newark satisfied its due process burden in J.S., and thus the patient was quarantined. Although the Supreme Court of West Virginia in Greene granted the writ of habeas corpus, it delayed release of the patient for thirty days to permit the state to comply with the due process requirements.

Individual liberty interests may need to yield to the state’s interest in protecting public safety. But states must acknowledge and validate the fundamental value of these liberty interests by complying with due process. Remembering less restrictive alternatives, forced quarantine of an asymptomatic healthcare worker in a makeshift hospital tent with a portable toilet and no shower, hundreds of miles from her home, where she is willing to comply with home monitoring restrictions, may not be constitutional, even if the state provides wi-fi.

-Research Fellow and Lecturer in Law Tara A. Ragone [Cross-posted to Health Reform Watch.]

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