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Can the Government Quarantine Me?

Can the Government Quarantine Me?

The Ebola Effect and the Constitution.

The late September arrival of Ebola-postive Thomas Eric Duncan at Texas Health Presbyterian Hospital has caused many Americans to worry about their personal health in the event of an Ebola outbreak. Right on the heels of that worry, however, is a worry of another kind.

What about your personal rights? In particular, what about that most fundamental liberty interest: freedom from confinement.

As Professor Eugene Kontorovich noted at The Volokh Conspiracy earlier today, this question has caused the (now released) quarantined nurse to threaten a legal challenge to the constitutionality of her recent confinement in New Jersey.

So what are your rights when faced with involuntary quarantine?

The answer, while simple, is completely unsatisfying and even a bit concerning: It depends. As a result, the true “answer” is a very nuanced and fact intensive inquiry into each particular case of confinement. Books can be written (and have been) about the legality of involuntary confinement in the face of a public health crisis, but this blog post may serve as highly generalized primer for the curious.

To begin, quarantining “separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.” [Emphasis Added]. Note that “quarantine” refers to the confinement of those who are not currently sick, but have been exposed to an infectious disease and may ultimately develop symptoms. “Isolation,” on the other hand, refers to confinement of individuals who are sick.

Whether it be isolation or quarantine however, the test for determining the constitutionality of confinement is essentially the same. The United States Supreme Court, in Matthews v. Eldridge, laid out three very general factors in order to determine what procedures must accompany governmental deprivations of liberty. The states have to follow these factors, but ultimately, the authority for confinement typically rests in the hands of the states, rather than the federal government, by way of the generic but long upheld “police power.”

Broadly speaking, the factors entailed a balancing test of 1) the private interest that will be affected by the official action considered; 2) the risk of an erroneous deprivation of such interest through the procedures used, and 3) the Government’s interest in containing the individual.

As you can imagine, that leaves a lot of room for interpretation and discretion. It is typically for the state courts and legislatures to weigh these factors to determine the legality and appropriateness of confinement. For example, in a 1993 New Jersey case, a court was determining the the legality of isolating a Tuberculosis patient:

Illness alone cannot be the basis for confinement… To justify confinement it must be shown that the person is likely to pose a danger to self or to others. The proofs must show that there is a “substantial risk of dangerous conduct within the forseeable future.” These proofs must be shown by clear and convincing evidence. The terms of confinement must minimize the infringements on liberty and enhance autonomy. Periodic reviews are required. Lesser forms of restraint must be used when they would suffice to fulfill the government interests.” [Internal Citations Omitted]

Rightly, the New Jersey court in this case, along with countless other courts that have considered the issue of involuntary confinement, understood the gravity of the precedent their decisions set. The court noted the very personal clash of competing interests. Said the court,

Hardly any state interest is higher than protecting its citizenry from disease. Hardly any individual interest is higher than the liberty interest of being free from confinement.

That said, it has been clear from the nation’s founding that no right is absolute. Your rights, while robust, may at times be diminished when they unduly hamper or infringe on the rights of others. Indeed, one of the most famous public health cases in the nation’s history, Jacobson v. Massachusetts, put it succinctly.

[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint… Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own… regardless of the injury that may be done to others.

So can the government quarantine you? It depends.

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Comments

I’ll suggest another factor to those Matthews v. Eldridge factors…

4. YOUR voluntary conduct in bringing yourself in contact with a dangerous contagion.

Here, you have a do-gooder nurse who is now bitching (I use the term advisedly) about having a few days of restriction on her movements AFTER putting herself in a hot-zone for one of the most dangerous diseases on the planet in term of lethality.

HELL YES. She can be quarantined.

    JimMtnViewCaUSA in reply to Ragspierre. | October 27, 2014 at 2:18 pm

    I dunno, have to say I admit some sympathy for
    “her recent confinement in New Jersey.”

    I wouldn’t want to be quarantined in New Jersey either. 🙂

      California has 20+ times the land of New Jersey, and yet only 3 times the population. One gathers that in California people don’t like each other very much, that is that in New Jersey people like each other 7 times more.

    Chem_Geek in reply to Ragspierre. | October 27, 2014 at 2:38 pm

    Wrong.

    My take is that the nurse is bitching about the way in which she was treated when she arrived in New Jersey. It was according to her story, very heavy-handed.

    A different approach to the matter could have been that questions were asked about her general health and with a medical officer present she could have been given a general health check… then with her permission she could have been placed in voluntary quarantine or isolation.

    Australia has had medical staff returning from West Africa. There was a scare with a nurse in Cairns. The nurse had placed herself in voluntary home quarantine…. and ditto for other returnees. The nurse developed a fever and she went to the Cairns hospital. (There is uproar about what happened at the hospital but that is another matter). The nurse was tested and the tests came back negative for ebola.

    Also, Australia now has a ban in place for immigrants from West Africa.

    If the nurse had been handled in the same way as Australian medical staff then she would have no cause to be bitching about the heavy handed way in which she was treated… and I have read this particular nurse has form when it comes to raising matters…. so…. her whole experience could have been a set up.

Another Voice | October 27, 2014 at 2:53 pm

The initiative to use common sense has now come and gone. When Cuomo did a double back on Christie, you know for a fact it is all political theater from here on in. The left will tie confinement/isolation to racial profiling and their war on women and prep themselves for the 2016 election. They’ll use the number of people who die from Ebola in relation to how many people died by car accidents in the same time period and in that frame will legislate for more regulation oversight via presidential fiat, more heavily than we have witnessed to date. If the left can use this, they will. Keeping our country in flux in their thinking, is to their advantage. They’re not as concerned about disease control as they’re about federal government control.

A truly moral and conscientious person would self-quarantine.

    You comment reflects an impossible view of humans, and thus your statement, in that it expects an impossible, is itself immoral.

      Australian medical staff returning from West Africa have been in self-quarantine. It is logical that other medical staff should be allowed to respond in the same way.

    Speaking as someone who works in a hospital, if I had to provide care for an Ebola patient, no one would have to force me into quarantine. I’d volunteer enthusiastically, symptoms or no symptoms. I wouldn’t want to give the disease to my children or anyone else. This should be an easy decision for anyone who works in health care, especially for anyone who has VOLUNTEERED to work with Ebola patients.

    It seems that some people have an ironic contempt for our society — a society that has afforded them a great deal wealth and leisure time to fight diseases elsewhere.

    10 up votes and 0 down votes to a statement that leads “a truly moral and conscientious person would …”

    Oh my G-d! That mindset is fatally presumptive. It fails upon close examination in grammar, and if applied in practice celebrates harsh judgement that is quickly divisive, and produces a false security, for many enough will fail to self-quarantine, and that includes those who are indeed moral and conscientious as well as those — nearly all — who like to believe they are so, and would be able to self-quarantine, yet when in the quarantine at some point of the moment important break it.

    G-d knows who is how, and there are NONE “truly moral and conscientious” at every moment. or at least they are rare, a handful among millions.

    And what does “truly” mean in modification of “moral and conscientious”? “Moral and conscientious” stands alone as a state of being, a modifier only can lower it. And so that “truly” does! There are no so such people, we are ordinary humans, not supermen and superwomen, all decent law and justice must mark to that fact. Truly, “truly” was a flag of the subconscious of the writer’s soul, the that bold indictment of a statement was a foolish trump.

    Any law or policy that EXPECTS SUPERMEN is immoral, a blight upon good law and order. The law and good politic must see people as they are, in all their faces and beings, and deny none of it.

    Against a plague quarantines are needed, and they need to be policed. Humans yearn so hard to breathe free — even the greatest saint will, in some chance moment, seek a moment of freedom from a quarantine if it is not strict, watched and guarded.

    The word itself comes from the 40 day period sailors from a plague city would wait outside an Italian port. “Quaranta” is Italian for forty.

    She was not given the choice according to her story. The heavy-handedness was done by TSA and CDC…. and yes I think there is more to the story… something we are not being told, especially when this particular nurse has form.

Paul In Sweden | October 27, 2014 at 3:14 pm

Can people that wantonly disregard safety protocols(as we have seen by health professionals & tabloid employees) be prosecuted and if so, what would be the charges? Reckless endangerment? Possession & transportation of a known lethal biological agent?

Weighing as an RN, I say Ms. Hickox is a disgrace to the profession. A little bit elitist of her to demand that she not have restrictions upon returning from exposure to an highly infectious, contagious seriously fatal disease. Look at the doctor who returned from treating Ebola patients (despite all precautions)- he “self-quarantined” for a few days, then went about his business and is now fighting for his life.

Ellis Island was set up to screen immigrants for infectious diseases as well as to be sure they had a sponsor and not become a burden on society.

Gender, race, ethnicity and culture matter not to a disease – can’t get much more “equal” than that.

    According to her story Hickox was never given that opportunity. The charge in the story is that she was not told why she was being treated that way…. and I think that this is a valid complaint.

    What if, instead of heavy handed behaviour, Hickox had been asked a series of questions, then been examined by a medical officer, not one who is either TSA or CDC and that she had been cleared. What if, instead of being put in a situation where she became hot and bothered, leading to an increase in the surface temperature, not the internal temperature, it had been explained that due to the increase in temperature she needed to go to the hospital for further checks. The situation as described was that the attendant placed a thermometer on the forehead and the said “you have a fever now”!!

    What if there had been a discussion about the need to self-quarantine and she had agreed to this measure… I assume that this particular discussion never took place.

    Hickox did not have a fever, and the staff at the airport really did treat her in a heavy-handed way, just like the TSA does when it selects the disabled, elderly and children to go through more scrutiny than is necessary.

a civilian goes over on her own and can fight quarantine.
soldiers ordered to go over have no such recourse.
damned odd.

Midwest Rhino | October 27, 2014 at 4:18 pm

The only CDC protocol I know of is the one saying if temperature is under 100.4, go ahead and fly. They seem to have changed that a little for anyone in recent direct contact with Ebola patients, but the change seemed mostly due to political pressure. But the cost for cleaning up the planes and bowling alleys out of “an abundance of caution” (or hysteria) is indeed real.

Some sort of medical worker isolation, from Ebola patients, before leaving the endemic country, would seem preferable. But if good science says they are not contagious till (and probably days after) they reach 100.4, then they should only require close watching, maybe even daily checks from another nurse.

As it is, it seems they are assuming the current protocols are wrong. Seems they would need a basis for that conjecture. There are still zero US cases where contact from Ebola patients in early stages, has infected someone. Just the two nurses with faulty protection at late stages.

    Good science? Where is that? Where are the studies? Tell us, oh scholars, without sparing the data points that outlie your theory.

    What we know already: Not every case of ebola is known as to where it was transmitted from. There are some sufferers that may have transmitted the virus prior to being symptomatic. There are a subset of cases where the incubation period appears to have been longer that 21 days. This strain is evolving quicker than other strains.

    Policy ideals are driving the protocols more than the dread precautions needed in the face of such a fatal pandemic.

      Midwest Rhino in reply to bvw. | October 27, 2014 at 6:48 pm

      “This strain is evolving quicker than other strains.”
      I’ve been hearing variations of that … and it seems it does evolve more quickly now, …

      “However, the fact that the virus is evolving does not mean that killer sneezes are just around the corner. ….
      evolving a new mode of transmission — e.g., a viral lineage switching from being transmitted by blood to being transmitted by air — seems to be much, much rarer. …. We haven’t ever seen a switch in transmission mode occur in any of the viruses that cause serious human disease today. In fact, the viral family to which Ebola belongs (the Filoviridae) seems be about 10,000 years old and, as far as we know now, is entirely made up of viruses that are transmitted by body fluids.

      So should we be worried about Ebola’s evolution at all? Yes.
      http://evolution.berkeley.edu/evolibrary/news/141003_ebola

      It is indeed a fluid situation. But we have four carriers that were around in public at least up to the fever point and zero were infected. It just seems we/they need some better justification for locking people up than “Obama is an anti-American incompetent trouble maker, so we can make up our own science”.

    ” But if good science says they are not contagious till (and probably days after) they reach 100.4, then they should only require close watching, maybe even daily checks from another nurse.”

    The temperature recommendation, which was originally 101.5, was lowered after the nurse with the low grade fever was given the go ahead to fly by the CDC.

    The problem is, fever isn’t always the FIRST symptom that presents. It’s assumed that if your temperature is elevated, your body is fighting off an increased viral load and you are “probably” contagious. A WHO study showed that 13% of patients infected didn’t have a fever.

    The problem is, we don’t know at what point an infected person is shedding enough virus to infect another. An abundance of caution doesn’t seem to be misplaced at this time with so many unanswered questions about this particular outbreak.

      Midwest Rhino in reply to Sanddog. | October 27, 2014 at 7:26 pm

      Abundance of caution has seemed to be the political response, and it is very expensive to individuals and the economy. I wish the same alarm had been raised about the sick illegal aliens being bussed around the country by Obama. I guess because Ebola is a known killer in Africa, it got traction.

      I don’t expect more Ebola cases here, except for a few workers that MIGHT come over with it, or possibly some of the military that were sent over there. So one more news cycle and Ebola could be out of the news. The fears will be dismissed as paranoia, but we are still vulnerable to worse things walking across the Southern border.

      Anyway, that’s kinda my thinking, trying to shift the attention to the dangers of open borders. The “lock em up, just in case” mentality appears as anti-science, anti due-process messaging. I’ve seen several (knowledgeable sounding) doctors sure that it just isn’t transmitted by casual contact until later stages. And none of the “lock em up” arguments have used science, just skepticism.

      as I see it.

        Midwest Rhino in reply to Midwest Rhino. | October 27, 2014 at 7:41 pm

        oh, I thought of a better way to look at it.

        In the spirit of “never let a crisis go to waste”, Ebola should be used to expose our vulnerability to the open Southern border, more than to lock women up out of an abundance of caution.

        Obama got to come out on the side of the doctors and save the poor woman under “assault”. He should instead be exposed for giving polio symptoms to at least dozens of American kids.

          You bet, Obama and the crony elites have opened the borders to killers — and not just felons, but microbiota pestilence carried by those come over the border without entry medical checks. Like Obama’s policies left many combat zone personnel dead for the exposure to harm those policies introduced, the immigration and travel policies are endangering.

        The “science” shows it’s a contagious disease with a lethality rate between 25-90% depending on the strain and how early it’s diagnosed. The “science” suggests that fruit bats may be the natural reservoir of Ebola but at this point it’s not proven. There is no cure. “Science” shows it’s transmitted through contact with bodily fluids, including sweat and droplets from sneezing and coughing at short distances. The “sciene” shows it survives longer outside the host at colder temperatures.

        Since we’re heading into winter and the cold and flu season, I’d “suggest” there is reason for concern, particularly since the disease has been introduced into this country by politics, not by accident.

          Midwest Rhino in reply to Sanddog. | October 28, 2014 at 11:44 pm

          Thanks for replying, this is probably too late.

          But none of those “science” things you mention have anything to do with the claim that asymptomatic people can spread Ebola. The doctor and nurses may have even fudged on the protocol, yet infected no one.

          That belief is pure speculation. The best they have is “we don’t know how some people got it”, but in Africa people were eating the fruit bats, or taking the bodies of the dead and washing them. The last study I saw even included the possibility gods could be asymptomatic carriers, contagious for a certain period.

          Midwest Rhino in reply to Sanddog. | October 28, 2014 at 11:45 pm

          dogs that is … not gods lol

    If following guidelines prevents disease, why is Dr. Craig Spencer being treated for Ebola?

“It turns out that Kaci Hickox is a registered democrat and Obama supporter who works for the CDC. “The nurse currently quarantined in New Jersey is an employee for the Centers for Disease Control and a registered Democrat with a history of left-wing advocacy,” reports GotNews.com.”

http://www.thegatewaypundit.com/2014/10/breaking-ebola-nurses-ties-to-cdc-scrubbed-from-website-is-far-left-progressive-obama-supporter/#disqus_thread

    Another Voice in reply to davod. | October 27, 2014 at 6:23 pm

    With all her experience, perhaps CDC would transfer her to work the unit at Bellevue and help alleviate the absence of call in-sick staff. She would be able to put some the energy she spouts towards an effort here at home.

    That is why I think that the experience was a set up… something about the story is not quite right.

” … authority for confinement typically rests in the hands of the states”.

The states have been losing [and freely acquiescing] their authority for years to the fed. Big mistake. 0B0LA is the apparent winner here … until the virus gets out of hand and cases start to appear exponentially. Then you’ll see 0B0LA do a 180 and new regs will issue. And I’ll be back to tell you all ‘I told you so’. Any bet takers?

City of Newark v. JS is not a useful parallel here. That concerned involuntary confinement of a patient who was already in the country. Such a patient can only be quarantined or isolated, or allowed to mix with the population at large.

The current nurse case is quite different. It involves a person who wishes to enter the country despite the strong possibility that she carries a deadly disease. To isolate her from the American public, it is not necessary that she be confined, it is only necessary that she be denied entry during the time that she presents a danger.

The question of confinement really has nothing to do with it. Whatever the government’s powers of confinement may be, they have nothing to do with its powers – and obligations – to control its borders.

A few decades ago, voluntary quarantines were almost universally obeyed because people understood the need.

Today’s me-first attitudes are the same that enable people to avoid mandatory immunizations for their children out of a sense of egotistical elitism.

Democrats like this nurse are just such special little snowflakes.

    Ragspierre in reply to Estragon. | October 27, 2014 at 5:32 pm

    In thinking about this, it occurred to me that this could be a manifestation of Oikophobia, a malady common among Collectivists.

    The nurse will go into some of the worst pest-holes on the planet to help people there (fine as far as it goes…even thankworthy in isolation [see what I did there?]).

    But she can’t be troubled a few days with catching up on her reading here at home.

    Worth a thought…

      I think you are right. Kaci Hickox apparently believes that no one should question her cavalier attitude about potentially redistributing the burdens of Ebola to her own homeland. “From each according to his ability, to each according to his need.”

      It’s been remarkable to hear her complaints about her accommodations. Are they any worse than what she was dealing with in Ebola-stricken Africa?

      the story did not state whether or not Hickox would undergo voluntary quarantine. The issue in the story was heavy handed involuntary quarantine…..and I smell a set up in this story.

    For the most part, yes. The common morality of the times and place has to be considered — does it support self-control or erode-corrode self-control? In Africa that nurse was almost certainly far more careful, because that is the current common social morality in the face of a calamity. Yet immediately upon her return to modern Western culture 2014, she jumped into me-ism and victim-centrism, those being common in the age of the Selfie and Ferguson.

      bvw in reply to bvw. | October 27, 2014 at 10:20 pm

      As these two days played out, and judging by the media response, this nurse’s story appears to be pushed out by a coordinated and potent PR team, keeping it on message and pushing it out top of fold where otherwise it might not have gotten top billing. This is very dangerous, it is not in the zone of public safety anymore.

      I fear for what the Generals and Admirals will have to do to beat this “Science Says!” campaign back, for it is false science, or rather power-politics on top of lightweight and sparse science.

    JerryB in reply to Estragon. | October 27, 2014 at 7:28 pm

    I guess I’m now an “egotistical elitist.” I want the gov to have the power of quarantine for the same reason I want the freedom to refuse shooting toxins and carcinogens into my kids. Yesterday, I was just a wacko. Today, I have proof. The CDC that doing such a wonderful job controlling Ebola is the same CDC that knowingly published fraudulent studies showing vaccine safety and efficacy, for the MMR and the flu shot. See Sharyl Attkisson for more details.

Her complaint was not only that she was confined involuntarily despite being asymptomatic, but that the tent in the hospital parking lot lacked heat, plumbing, a shower, and her clothing consisted of a paper gown. Perhaps New York and New Jersey consider that “hospitality”? Who would not object to that treatment?

    Ragspierre in reply to Another Ed. | October 27, 2014 at 7:12 pm

    Hickox told LaPook some evidence of this comes from the fact that her isolation room in Newark had no shower and only a simple porta-potty with minimal privacy, and that she was for a time given only cold scrubs to wear — and all this despite that fact that she tested negatively initially.

    In its statement on Monday, the New Jersey Department of Health said: “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.”
    _______________

    Where did your information come from?

    When I was in the Army, I was in the hospital with a really bad flu. I had NONE of the things this chickie did, and I was flucking freezing.

http://cdn.pjmedia.com/instapundit/wp-content/uploads/2014/10/todayshowquarantine.jpg

That’s kinda interesting. New York City audience.

Hmmm….

Henry Hawkins | October 27, 2014 at 8:38 pm

Science isn’t truth. Science is the most up to date set of findings, all of it subject to change upon new evidence. Science ‘facts’ are probabilities going up as high as 99.9999% if well enough evidenced, but never to 100%.

There exists a set of data on ebola. Good luck separating it from the politically tainted barkers, now that ebola is a political thing as well. But there is a set of data, and research, and clinicals, and post-studies, and protocols, all of it weighted for veracity respecting the fluidity of new or gathering knowledge.

There must be dozens of experts on ebola. One of them needs to lead our defense against any potential ebola breakout here. Obama hired a political lawyer instead. This was basically a middle finger extended by Obama to America, and two weeks before the midterms at the time.

This guy is no politician – he’s a boy god of the far left, controlled by regents behind the scenes and tightly scripted off the tellalieprompter. He’s no leader either. If he was a QB, here’s how his ‘game’ is going: fumble, interception, loss on downs, fumble, punt, fumble, interception, punt, interception. And another quarter to go. He’s killing his own team’s chances while providing comic relief to the opposing team.

As for the quickly mutating ebola virus, it is a statistical inevitability that a ‘sneezable’ version will evolve if we have forever for it to happen. It may be hundreds to millions of years off. But that required benficient mutation could happen tomorrow, probability speaking.

I know this much, whatever the actual science behind ebola, it is generally wise to assume the worst when you cannot know a thing for sure and being wrong will prove catastrophic. They aren’t doing that. They don’t appear to grasp the logic of it, or perhaps they have some reason to ignore it.

    Ragspierre in reply to Henry Hawkins. | October 28, 2014 at 7:01 am

    It is also a simple fact that the issue of quarantines is a state’s call.

    Pres. ScamWOW and his buds really have no business in it.

      Henry Hawkins in reply to Ragspierre. | October 28, 2014 at 10:46 am

      If anything should be non-political, it’s our response to the threat of a deadly epidemic, of course. I’d expect a collaboration, with the states leading the way, with requested professional assistance by the feds. Sort of like hurricane cleanup, but in a preventive mode.

Yes, she can be quarantined. It’s a well established procedure fallen out of use. I remember yellow quarantine signs on houses from when I was in 1st and 2nd grade.

And to quote Supreme Court Justice Robert H. Jackson from an entirely different matter, but the quote is germane: “The Constitution is not a suicide pact.”

    I also remember quarantined houses. And I remember polio keeping me out of public pools. Now look we have both back — a polio-like enterovirus and a highly fatal virus (ebola). And why? Because public health policy hasn’t kept up with the jet age? Yes, somewhat. But more because of a demoralization of goodly ideals, an “anything goes” ethos of morality overwhelming everything. Sins are no longer quarantined behind closed doors. They are shared and celebrated.

    Yet sins have real components, projections from the higher dimensions of existence, perhaps. In any case here they are, together in this time in our little boat of Spaceship Earth. Celebrated sin and fatal pestilence foist upon even the innocent in the public without corners to escape in!

    An ark of long construction, here the deluge.

    Who can stay dry?

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