Civil liberties, isolation, quarantine, Ebola and other terrifying diseases

[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?”

RGK

14 responses

  1. Did the county or the state have jurisdiction? County goverment in general is not very good but in Texas the state government may not be much better. Four days is a good head start in any case.

  2. There is a substantial body of case law, though old on quarantine, was in the casebooks on health law in 70s and early 80s because of aids. It all predates the due process revolution and assumes MDs know best, presumably danger to self or others would be the standard now, maybe clear and convincing evidence, with challenge following confinement perhaps using habeas, on analogy to bank cases, might have Duabert issues. We really need fed legislation given that travel is now the plague carrier. With SCOTUS narrowing Commerce Clause and trying to mind read Founders who knows. Typhoid Mary is making a guest appearance on tv show the Knick. My recollection is she would not stop being a cook, witch lead to her being looked up. There was a surgical procedure she refused. We did have federal leprosy facilities in LA and HA and some requirement to live there but they were closed and the statutes repealed perhaps 30 years ago

  3. As a physician who is a frequent expert witness I think I can authoritatively say that medicine and law mix about as well as oil and water.

    One of the problems when doctors need to take away civil liberties is that the fields are just so different.

    1. The law favors a prolonged, deliberate approach, and (when possible) avoids deciding cases before the facts are developed. In medicine most decisions must be made based on incomplete, and often conflicting information.

    2. Law makes many it’s decisions on based on burdens of proof. In carefully reasoned opinions evidence is measured against an a priori yardstick of how much proof you need to withdraw specific rights. Absent every required element of proof, the rights prevail.

    Many medical decisions are statistical, or even worse ad-hoc. Differential diagnosis, the fundamental medical thought process, is not entirely understood even by the physicians who are the best at it. Many of the most difficult medical decisions simply come down to [some expert] has looked at all the data and this is our best guess so far.

    Unlike the law, medicine has no illusion of finality in its decisions. When treatments go poorly the first thing you do is re-evaluate the diagnosis.

    3. In the law, you do not need to punish every criminal to ensure law and order — so long as enough people are caught and punished to deter crime. Because of this you can afford to exclude evidence and occasionally give someone a “get out of jail free” card as a way to vindicate certain rights.

    In containing an epidemic you need actually to control a very large percentage of disease (although not strictly 100%) to make the epidemic curve flip from going up to going down. Thus there is no concept analogous to “due process” in medicine — every datum from any source and with any history gets added to the diagnostic process.

    4. Law values its history. Medicine adores novelty to a fault.

    The two fields are so different, that it is a continuing challenge for me merely explain each side to the other. For example, I am regularly asked to testify to “a reasonable medical certainty” even though neither doctors nor lawyers can tell me what the phrase means. Many of the lawyers I work with are surprised to find out that there is no such concept in medicine.

    In the setting of an epidemic, I don’t know the answer. If the judges let doctors make the decisions, the decisions will not look like law — and rights will be infringed. If we try to bend medical realities to make them look like our laws then the microbes — completely ignorant of our enlightened constitution — will punish us severely.

    As I said, as one who is steeped in, and deeply respects, both systems I do not know how to make the two play nice together in the epidemic context. Heaven help the doctors and lawyers who come to the table relatively ignorant of the people sitting on the other side.

  4. ABA publication has nice short article on law SciTech Lawyer issue 4, 2011. Triggered by quarantine of Lawyer Speaker over drug resistant tb. It is on webb for free, but do not have skills to further reference

  5. And for those looking for current references, Typhoid Mary is a character and storyline at the new Cinemax series, The Knick, with Clive Owen. A show that HBO easily could have put on HBO, except for its desire to expand its market on Cinemax.

  6. Dear JDM,

    What a fascinating and informative comment. In particular, this part of your comment punched me in the eye: “In the setting of an epidemic, I don’t know the answer. If the judges let doctors make the decisions, the decisions will not look like law — and rights will be infringed. If we try to bend medical realities to make them look like our laws then the microbes — completely ignorant of our enlightened constitution — will punish us severely.”

    Perhaps the answer is to “mint” more folks like you and then integrate them into the decision making structure at the CDC. We now have medical ethicists advising doctors and hospitals, and many of those folks have interdisciplinary backgrounds in medicine and philosophy. A similar model might be constructed for doctors cross-trained as lawyers.

    In any event, thank you again for you insightful remarks. If nothing else, I hope someone in authority reads what you wrote and thinks hard on the subject.

    All the best.

    RGK

  7. repenting lawyer,

    Thanks so much. I found the article and will update the post with a citation and hyperlink to it. All the best.

    RGK

  8. Would it be possible to declare a region to be a medical emergency area? I suppose this would be done by the governor who would then ask the president to do the same and provide technical and medical assistance.

  9. jsneff,

    I don’t know.

    42 U.S. Code § 264 seems to speak to persons rather than areas. That said, one might imagine a case where (1) one could infer that anyone in a large area had been exposed (2) assuming a long incubation period and (3) the geometric manner that an infected person can potentially spread a disease by having multiple contacts and those multiple contacts having multiple contacts.

    Your question is fascinating and very important. Thanks for your engagement.

    All the best.

    RGK

  10. I have reviewed the mathematics of epidemics and found that for Ebola the percentage of those exposed and subsequently become infected is not known. It is assumed to be large as a precautionary measure.

    The World Health Organization believes that some Ebola cases and deaths were not reported. The most recent report gives about 6,300 cases and 2,900 deaths (46%). Exposure involves contact with bood, body fluids, clothing, needles and contaminated medical equipment used by an infected person and contact with infected wildlife.

    There is good reason to believe that multiple contacts have a much higher risk of subsequent infection than single contacts. In the case of a single contact an unjustified assumption of high risk could lead to an unneccesary violation of the persons civil rights.

    In any case the number of persons infected with Ebola world wide is small and the number of persons exposed to the Ebola virus is larger but still small. Those with the greatest risk becoming infected with Ebola are health care providers.

  11. Pingback: Governor Christie, Ebola and locals acting like yokels « Hercules and the umpire.

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