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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