[T]here are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.
DoD News Briefing, Secretary of Defense Donald H. Rumsfeld (February 12, 2002 11:30 am) (transcript).
This weekend, I watched as the authorities in Dallas finally get around to disinfecting the apartment where the Ebola sufferer from West Africa was staying. Yet the poor people with whom the man had resided had been previously ordered not to leave the apartment. Four days went by until they were moved. As one news organization put it, “Dallas woman and family are quarantined in apartment with sweat-stained sheets used by Ebola victim.” I wondered about the legal authority for the quarantine order, not to mention the medical advisability of keeping these innocent people in a small apartment for four days when the apartment held articles containing the sick man’s body fluids.
So, I spent some time doing research. Here is a brief overview:
- Isolation and quarantine are public health practices used to stop or limit the spread of disease. Isolation is used to separate ill persons who have a communicable disease from those who are healthy. Isolation restricts the movement of ill persons to help stop the spread of certain diseases. For example, hospitals use isolation for patients with infectious tuberculous. Quarantine is used to separate and restrict the movement of well persons who may have been exposed to a communicable disease to see if they become ill. These people may have been exposed to a disease and do not know it, or they may have the disease but do not show symptoms. Quarantine can also help limit the spread of communicable disease. Isolation and quarantine are used to protect the public by preventing exposure to infected persons or to persons who may be infected. In addition to serving as medical functions, isolation and quarantine also are “police power” functions, derived from the right of the state to take action affecting individuals for the benefit of society.
- Pursuant to 42 U.S. Code § 264(e) and here, and scary though it may be, the 50 states and the various Indian tribes have the primary authority to deal with outbreaks like Ebola assuming the patient is not at a US port of entry or is not likely to travel between the States or reservations. The inept response of Texas is why I say that this “local control” is scary. (“Don’t mess with Texas.”)
- Finding the applicable laws in each of the 50 states and relevant tribal jurisdictions is not an easy task, and so far as I was able to determine there is no primer collecting those laws that would make research easier for lawyers and judges. Some enterprising student law journal, with an online presence, could do a great service by compiling and publishing such a list of state and tribal laws dealing with isolation and quarantine.
- Long ago, under the concept of the “police power,” the Supreme Court basically said that the states could do pretty much what they wanted when it came to infectious diseases. See Jacobson v. Massachusetts, 197 U.S. 11, 11-12 (1905) (upholding law requiring payment of a fine for failure to obtain a small box vaccination).
- The federal government has the power to prevent the entry of communicable diseases into the United States. Importantly, the federal government is also authorized to take measures to prevent the spread of communicable diseases between states. The Commerce Clause and 42 U.S. Code § 264 provide the basic legal authorities for federal action. See also Code of Federal Regulations, Title 42, Pt. 70 Interstate quarantine.
- The Centers for Disease Control and Prevention (CDC) has been delegated with the primary authority to deal with the federal response to infectious diseases. These diseases include cholera, diphtheria, infectious tuberculosis (TB), plague, smallpox, yellow fever, and viral hemorrhagic fevers, such as Marburg, Ebola, and Crimean-Congo hemorrhagic fever (CCHF), Severe Acute Respiratory Syndrome (SARS), and influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic. See here and here.
- The CDC has a good web site setting out many of the legal authorities relevant to the federal mission of thwarting the spread of infectious diseases. See here, for example, entitled “Specific Laws and Regulations Governing the Control of Communicable Diseases.”
I am entirely clueless when it comes to these sorts of things. I don’t think I am alone.
It seems to me that it would be a good idea if lawyers and judges became more familiar with the laws that deal with infectious diseases and the civil rights of people in this country who may be impacted by the global spread of these diseases. The specter of “big brother” with a stethoscope and a sidearm is not solely the province of lunatics.
Update, October 6, 2014
With thanks to a commentator, “repenting lawyer,” I am pleased to call the attention of readers to a particulary informative article; that is, Jorge L. Contreras, Public Health Versus Personal Liberty – The Uneasy Case for Individual Detention, Isolation, University of Utah – S.J. Quinney College of Law (January 31, 2011) (abstract; free download available through the Social Science Research Network). The article discusses “the circumstances, if any, under which public officials may detain individuals against their will in order to protect the public from communicable diseases. In other words, when do utilitarian principles of social good trump the guarantees of individual rights afforded by the Constitution?”