Photo by Benedikt Geyer on Unsplash
Chloe Knue, Associate Member, University of Cincinnati Law Review
I. Introduction
The world is in the midst of a COVID-19 crisis. So far, there have been over 729,100 cases world-wide, including 141,995 in the U.S.[1] The outbreak has prompted the government to respond. Officials have set up airport checkpoints, limited foreign air travel, and people with a high risk of exposure are being isolated or quarantined.[2] The Center for Disease Control and Prevention (“CDC”) distinguishes between isolation and quarantine.[3] According to its definition, “[i]solation separates sick people with a contagious disease from people who are not sick.”[4] Quarantine is a preventative measure for people who show no symptoms.[5]
The COVID-19 outbreak is one of the few times in our nation’s history where it has become necessary to ask: May the government forcibly isolate or quarantine people in the face of a nationwide health risk?[6] The short answer is yes, and both the federal government and states have a role to play.[7]
Section II is subdivided. Part A discusses the constitutionality of quarantine. Part B summarizes the limited quarantine case law of the U.S., focusing on Smallpox and Ebola. Section III argues that quarantine and isolation authority is a necessary government function. Section IV concludes that if a COVID-19 quarantine case reached the Supreme Court, the government would prevail.
II. Background
A. Federal and State Constitutional Authority
The Commerce Clause grants Congress the power to regulate anything that has an effect on interstate or international commerce.[8] Under that authority, it enacted 42 U.S.C.A. § 264 which “provide[s] for the apprehension . . . of any individual reasonably believed to be infected with a communicable disease . . . .”[9] COVID-19 falls under the “[s]evere acute respiratory syndromes” category listed in Executive Order No. 13295.[10] Congress originally charged the CDC with carrying out this statute.[11] But “[i]n the modern era, the CDC has most commonly played a supportive role, with the States taking the lead in quarantine matters.”[12] Presently, states have a large role to play given their inherent “police power functions to protect the health, safety, and welfare of persons within their borders.”[13] The cases that follow involve constitutional challenges to federal and state quarantine authority.
B. Case Law
In United States v. Shinnick, a woman named Ellen Siegel was quarantined for Smallpox in a federal hospital in Staten Island, New York.[14] Although she did not have any symptoms, the quarantine was set to last for 14 days, which was the full length of the incubation period.[15] Federal officials were concerned about Ms. Siegel’s health because she had visited Stockholm, Sweden.[16] Local Swedish authorities considered “Stockholm . . . a small pox infested area . . . .”[17] Ms. Siegel’s daughter sued the government and asked the court to determine whether the quarantine was permissible.[18] The court proved unwilling to take any chances. The district court reasoned that U.S. officials “[are] not free and certainly not bound to ignore the fact[ ] that opportunity for exposure existed during four days in Stockholm, [and] no one on earth could know for fourteen days whether or not there had been exposure . . . .”[19] Thus, it chose to defer to health experts and uphold the limited quarantine.[20]
Fifty-three years later in, Hickox v. Christie, a New Jersey district court employed a more detailed analysis, but ultimately reached the same result.[21] In Hickox, the plaintiff, Kaci Hickox, was a nurse who spent about a month treating Ebola patients in Sierra Leone, Africa.[22] When Ms. Hickox returned to the United States, New Jersey officials were concerned about her direct exposure to the deadly disease.[23] New Jersey officials placed her under quarantine, where she intermittently developed a fever.[24] Authorities held Ms. Hickox for 80 hours as a precaution.[25] She brought a civil rights action under 42 U.S.C. § 1983.[26] State officials argued that they were protected under qualified immunity,[27] which “shields government officials from civil liability as long ‘as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”[28]
First, the court looked to quarantine case law to determine whether it “‘put[ ] [officials] on notice . . . .’”[29] According to the court, past case law dictated that quarantine orders will be upheld unless “they [are] found to be arbitrary and unreasonable in relation to their goal of protecting the public health.”[30] The court agreed with New Jersey state officials that the quarantine was reasonable based on Ms. Hickox’s work in Sierra Leone.[31] Thus, state officials would not have been aware of any constitutional violation.[32]
Next, Ms. Hickox tried to compare her situation to a civil commitment.[33] Civil commitment case law, unlike quarantine case law, has well-defined boundaries under the Fourth and Fourteenth Amendments.[34] According to the court, “[t]he civil commitment power permits the state to execute a quasi-arrest and includes the power to involuntarily hospitalize a citizen, sometimes for an indefinite period of years.”[35] The court, however, found this analogy unpersuasive because state officials would not have known to consult civil commitment case law.[36] Nonetheless, the court found that even if this analogy applied, the constitutional requirements for a civil commitment were satisfied.[37] Under the Fourth Amendment, there was probable cause—the plaintiff had just returned from treating Ebola; a disease responsible for killing over 11,000 people.[38] And under the Fourteenth Amendment, which has substantive and procedural due process components, the court found that New Jersey officials acted reasonably in an “emergency situation[.]”[39]
In Liberian Community Association of Connecticut v. Malloy, the court conducted a similar analysis in another Ebola case.[40] Two of the plaintiffs, Ryan Boyko and Laura Skrip, went to Liberia to participate in humanitarian efforts.[41] But unlike Ms. Hickox, it was uncertain whether Boyko or Skrip had any direct exposure.[42] Both parties were permitted to self-monitor back in the United States until Boyko developed a fever.[43] Connecticut officials demanded Boyko and Skrip quarantine themselves, and police officers were enlisted to ensure that neither party left home.[44]
Boyko and Skrip raised constitutional challenges and officials defended on qualified immunity grounds.[45] “Specifically, the defendants assert[ed] that the ‘Supreme Court ha[d] never squarely addressed the question of what due process and the Fourth Amendment require an official to do (or refrain from doing) when [he or] she is forced to decide whether to quarantine individuals who may have been exposed to Ebola, or another deadly infectious disease, . . .’”[46] Like Hickox, the court turned to quarantine case law and the civil commitment analogy.[47] The result was the same; state officials would not have had notice that their quarantine order was unconstitutional.[48]
III. Discussion
Quarantine is an uncomfortable topic. No one wants to think about being physically confined and separated from society. Nonetheless, quarantine is a necessary and appropriate function of government. We choose to accept government, rather than go rogue, because we, as human beings, desire order and structure. This choice, like any other, comes with trade-offs. Some of the trade-offs in our democratic society include paying taxes, enlisting in the draft, eminent domain—and quarantine. Quarantine, in other words, is just one of several unsavory sacrifices we may be asked to make for the greater good of all Americans. As the number of coronavirus cases continues to increase, a frank discussion about the “Q-word” is warranted.
First and foremost, the threat of quarantine is minimal. Quarantine comes up more often in the case of fictional movies, like Contagion or Outbreak, rather than actual case law. The government has only taken this action in extreme circumstances, and thankfully, epidemics and pandemics do not happen often. This is why we have so few examples in our case law and are limited to discussing quarantine in the context of infectious diseases like Smallpox and Ebola. Nonetheless, it is important to understand the benefits of quarantine and the safeguards embedded into our system.
Quarantine is constitutional and serves an important government interest. Generally, people find that the government encroaches too much on our freedom or not enough. This places the government between a rock and a hard place—but not in this context. State officials have been charged with keeping its residents healthy; it is required to do so. And there is only one proven way to do that in the infectious disease context—isolation and quarantine. Thus, the government has no choice but to intervene quickly and efficiently. Isolation and quarantine allows the government to control the spread of new diseases as closely as possible. Most reasonable people can come to terms with the logic of isolation—separating sick people from the healthy people to root out the spread of the disease. However, reasonable people start asking questions, as they did in the cases above, when seemingly “healthy” people are quarantined.
The plaintiffs in Hickox and Liberian Community Association argued that there was no probable cause because they were not sick. But anytime there is exposure or even potential exposure to a deadly disease like Ebola, there is probable cause. A person can carry and spread a disease before they show any signs of illness during the incubation period. Government officials choose to err on the side of caution.[49] They do not want to roll the dice on whether a person has or has not been exposed to certain microscopic germs.[50] Gambling on people’s health could have extreme consequences, especially for the most vulnerable members of the population.[51] For example, the quarantine of an asymptomatic person, who later develops symptoms, could be the difference between life and death for children and the elderly.[52]
There are also important safeguards that minimize any potential for abuse of the government’s quarantine power. The first safeguard is broad, and it has been a part of our democracy from the beginning: the critical role that the media plays in reporting the news and demanding transparency from the government. Quarantine is a buzzword. People are scared of it, and with that fear comes intrigue. Wherever there is a quarantine, the media is reporting on it. Think about the amount of news coverage that has been dedicated to COVID-19—thousands of hours. It has become the full-time job of many reporters, and government officials are being bombarded with questions. Moreover, people who have been released from quarantine get interviewed about their experiences. Not only does the media make it very difficult for the government to hide information, but it also provides an incentive for officials to treat people with dignity and respect behind closed doors.
The second safeguard deals with who has decision-making authority. The federal government delegates authority to the CDC, and state governments employ doctors and experts to decide whether someone should be quarantined. This raises the question: Why do courts defer to doctors and not politicians, when dealing with quarantine orders? There are a number of reasons. The most obvious is that doctors, unlike most politicians, have a medical background. Disease control is not a political judgment; rather, it is one that depends on expertise and training that only medical professionals possess. Doctors are also insulated from public and political pressure. They are able to make appropriate decisions based on science and reason without factoring in panic, hysteria, and fear surrounding reelection.
A third safeguard is also warranted, and it could be added directly into quarantine case law. The current standard courts use is that quarantines must be non-arbitrary and reasonable. In most cases, the distinction between reasonable and unreasonable is obvious. Either the plaintiff was exposed to a deadly infectious disease and should be quarantined—or was not. But cases could arise where the issues are more nuanced, specifically in regard to the length of the quarantine. Imagine that a quarantine order was put in place for 21 days where the incubation period for the disease was only 20 days. There is a strong argument that on that 21st day the quarantine becomes unreasonable. This example illustrates the need for a bright-line rule. A quarantine should be considered arbitrary and unreasonable if it lasts longer than the incubation period.[53] This rule would prevent quarantines from becoming oppressive, and people would feel more comfortable knowing there is a scientifically determined finish-line.
IV. Conclusion
If a COVID-19 quarantine case went up to the Supreme Court, the Court would likely rule in favor of the government for all the reasons discussed above. Under normal quarantine-case circumstances, it would not be difficult for the government to defeat a Fourth Amendment challenge. There is probable cause if the person has traveled from Wuhan, Italy, or another part of the world that has been greatly affected by COVID-19. The stronger argument, of the two constitutional challenges, is due process. As the Hickox court “note[d] . . . the private liberty interest at issue here, freedom of movement, is significant.”[54] But this liberty interest is up against the Goliath of an inherently necessary government interest: preventing mass causalities. And for that reason, the government would still win on due process.
Nonetheless, the inquiry doesn’t end there. Even if the Court finds any of “plaintiff zero’s” arguments persuasive, he or she will still have to overcome qualified immunity. This already high burden is raised even higher by the fact that the Supreme Court has never established constitutional standards for what makes the exercise of quarantine authority reasonable. Thus, government officials cannot be sure what exactly is expected of them. At present, the government is making decisions based on its own incentives to quarantine the least amount of people and save the most American lives. And the current approach seems to be working just fine.
[1] The New York Times, Coronavirus Map: Tracking the Outbreak, https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html (last visited Mar. 30, 2020).
[2] Lena H. Sun and Miriam Berger, What We Know About the Mysterious, Pneumonia-Like Coronavirus Spreading in China and Elsewhere, the Washington Post (Jan. 25, 2020), https://www.washingtonpost.com/world/2020/01/21/what-we-know-about-coronavirus-spreading-china-elsewhere/. (“Federal health authorities in the United States announced . . . that they would immediately begin screening passengers for the virus . . .”); Madeline Farber, Coronavirus Quarantines More Than 2 Dozen Washington State Firefighters, Fox News (Mar. 3, 2020), https://www.foxnews.com/health/coronavirus-quarantines-more-than-2-dozen-washington-state-firefighters (“More than two dozen firefighters in Washington State have been quarantined after they were possibly exposed to the novel coronavirus, which has killed at least six people in the state to date.”); Harmeet Kaur, What It Means to be Under a Federal Quarantine, CNN (updated Feb. 5, 2020) https://www.cnn.com/2020/02/04/health/federal-quarantine-what-it-means-coronavirus-trnd/index.html (“Americans who have either been in China’s Hubei province within the last 14 days or have traveled to other parts of mainland China and are showing symptoms associated with the virus will be screened at one of 11 designated US airports and subject to a mandatory quarantine at a nearby facility, the US Department of Homeland Security has announced.”).
[3] CDC, Legal Authorities for Isolation and Quarantine, https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html (last visited Mar. 22, 2020).
[4] Id.
[5] Id.
[6] Kaur, supra note 2 (asks “[i]s the federal government allowed to do this?”).
[7] CDC, supra note 3.
[8] Id.; Hickox v. Christie, 205 F. Supp. 3d 579, 590 (D.N.J. 2016).
[9] Id.; 42 U.S.C.A. § 264 (West).
[10] 42 U.S.C.A. § 264 (West).
[11] CDC, supra note 3; Hickox, 205 F. Supp. 3d at 590.
[12] Hickox, 205 F. Supp. 3d at 590-91 (citing the CDC’s website).
[13] CDC, supra note 3; Hickox, 205 F. Supp. 3d at 591 (citing Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905), et al. (“More than a century ago, the United States Supreme Court upheld such exercises of the states’ general police powers to protect public health through quarantines and other measures.”).
[14] U.S. ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 790 (E.D.N.Y. 1963).
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 791.
[19] Id.
[20] Id.
[21] Hickox v. Christie, 205 F. Supp. 3d 579, 603 (D.N.J. 2016).
[22] Id. at 584-85.
[23] Id. at 585-86.
[24] Id. at 586.
[25] Id. at 584-87.
[26] Id. at 588.
[27] Id.
[28] Id. at 589 (quoting McGreevy v. Stroup, 413 F.3d 359, 364 (3rd Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
[29] Id. at 589-90 (quoting Mammaro v. New Jersey Div. of Child Protection and Permanency, 814 F.3d 164, 170 (3rd Cir. 2016)).
[30] Id. at 592 (citing In Jew Ho v. Williamson, 103 F. 10 (C.C.D.C.Cal. 1900) and In re Smith, 101 Sickels 68, 76, 146 N.Y. 68, 40 N.E. 497 (1895)).
[31] Id. at 593.
[32] Id. at 593-94.
[33] Id. at 594.
[34] Id. at 595, 597 (citing U.S. Const, amend. IV and quoting Addington v. Texas, 441 U.S. 418, 425 (1979), et al.).
[35] Id. at 595.
[36] Id. at 595-603.
[37] Id. at 596-97, 600-01, 603.
[38] Id. at 585, 596-97 (citing Medicins Sans Frontieres, Ebola, www.msf.org/en/diseases/ebola).
[39] Id. at 597-603.
[40] Liberian Cmty. Ass’n of Connecticut v. Malloy, No. 3:16-CV-00201(AVC), 2017 WL 4897048 (D. Conn. Mar. 30, 2017).
[41] Id. at *3.
[42] Id. (“While in Liberia, they did not volunteer in a healthcare capacity and did not treat patients. They did not have contact with any Ebola-symptomatic individuals.” However, “[b]efore leaving, the students learned that a cameraman who had spent time at their hotel had developed symptoms of Ebola. Local CDC agents ‘assured Boyko and Skrip that this was a ‘no risk’ interaction as the cameraman had not become contagious until after the last time they saw him.’”).
[43] Id.
[44] Id.
[45] Id. at *7.
[46] Id.
[47] Id. at *8-10 (the court considered the Fourth Amendment outside the civil commitment analogy).
[48] Id. at *8-11.
[49] Hickox v. Christie, 205 F. Supp. 3d 579, 592 (D.N.J. 2016). (the Hickox court referred to this as “[a] better-safe-than-sorry determination . . .”) (citing U.S. ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 791 (E.D.N.Y. 1963)).
[50] Shinnick, 219 F. Supp. at 791 (“[N]o one on earth could know for fourteen days whether or not there had been exposure, . . .”).
[51] Hickox, 205 F. Supp. 3d at 592 (citing Shinnick, 219 F. Supp. at 791) (“It acknowledged that public health officers ‘deal in a terrible context [where] the consequences of mistaken indulgence can be irretrievably tragic.’”); Carolyn Y. Johnson, How the Coronavirus Can Kill People, the Washington Post (Feb. 19, 2020) https://www.washingtonpost.com/health/2020/02/19/how-coronavirus-kills/ (“The general risk factors for this mismatch between the immune system and any respiratory illness include advanced age and underlying chronic illnesses, including, diabetes and high blood pressure, though public health experts are eager to understand more about who is most vulnerable in the current outbreak.”).
[52]Sun and Berger, supra note 2 (“The elderly, young and those with an already weakened immune system are at a higher risk of developing severe lower-respiratory tract diseases, such as bronchitis and pneumonia, according to the [CDC].”).
[53] Hickox, 205 F. Supp. 3d at 591, 601 (This rule was codified in New Jersey at the time Hickox was decided. The statute states: “‘The Department or health officer may, by written order, isolate or quarantine any person who has been exposed to a communicable disease as medically or epidemiologically necessary to prevent the spread of the disease, provided such period of restriction shall not exceed the period of incubation of the disease.’”) (quoting N.J. Admin. Code § 8:57-1.11(c)); the Hickox court also talked about the length of the incubation period in its substantive due process analysis (“[A] detention for a term that does not exceed the incubation period of the disease self-evidently bears a relation to the stated purpose of the quarantine—i.e., to determine whether the disease was present.”).
[54] Id. at 601, 603 (citing Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976)).
