A bowling alley, a coffee stand, a meatball shop, and three subway lines. The locations seem innocuous enough to the average patron. But hazardous materials (“hazmat”) crews mobilized to sterilize these site after Dr. Craig Spencer visited each before being diagnosed with the Ebola virus.
Spencer was infected with the virus in Africa where he and other volunteers labored to contain the outbreak on that continent. Unsurprisingly, the volunteers who have returned home after their stints have spurred panic among many residents in New York City and throughout the Northeast. In response to these concerns, several states have instituted quarantine measures for those returning from countries with ongoing Ebola outbreaks.
Kaci Hickox, a nurse who recently returned from treating Ebola patients in West Africa, has questioned the legality of the quarantines that she has been subjected to in New Jersey and now at her home in Maine. She has stated that she will not comply with the 21-day in-home quarantine that the Maine state government has imposed upon her. She stated that if the restrictions were not removed she would “go to court to obtain [her] freedom.” Maine health officials have said that they would seek a court order against Hickox to keep her quarantined at home if she does not voluntarily comply. Maine Governor Paul LePage defended the quarantines, stating that “[w]hile we certainly respect the rights of one individual, we must be vigilant in protecting 1.3 million Mainers, as well as anyone who visits.”
Many in the media have criticized the quarantine measures as unnecessary and detrimental to the medical aid effort to Africa. While policy discussion is productive and helps lead to optimal solutions, it is ultimately the duty of state governments to protect the health of citizens, within the bounds of the constitution. If Kaci Hickox ends up challenging the constitutionality of these measures in court, she is unlikely to succeed.
The Supreme Court uses a balancing test articulated in the case Mathews v. Eldridge to weigh the rights of an individual against the government’s interest in depriving them of their liberty. As articulated by Northwestern University Law Professor Eugene Kontorovich, under this test “the gravity of the government’s interest and adequacy of pre-deprivation process are key factors. The long incubation period and deadly effects all counsel for allowing a deprivation of liberty without any showing of illness. Locking a patient up after they develop a fever simply does not substitute for doing so in advance.”
Although there are not many instances of State imposed quarantines in the past century, quarantines were imposed to contain tuberculosis and smallpox outbreaks. No court has yet found quarantine measures unconstitutional. As noted by Kontorovich, one relatively recent case from 1963, U.S. ex rel Siegel v. Shinnick decided by the Eastern District Court of New York, upheld a quarantine. The court upheld the State’s 14-day confinement of a plaintiff who had visited an area abroad infected with smallpox, even though there was no evidence that she had symptoms of the disease or had been directly exposed. The court noted:
“[The] judgment required is that of a public health officer and not of a lawyer used to insist on positive evidence to support action; their task is to measure risk to the public and to seek for what can reassure and, not finding it, to proceed reasonably to make the public health secure. They deal in a terrible context and the consequences of mistaken indulgence can be irretrievably tragic. To supercede their judgment there must be a reliable showing of error.”
States must be given the latitude to make difficult judgment calls regarding what is necessary to maintain not only public health and safety, but to prevent panic or people taking matters into their own hands. The Maine State Police officer posted outside the home of Kaci Hickox is not there only to protect the community, but for her protection as well. In the face of such a virulent disease as Ebola, and one that has so intensely captured the public’s attention, it is unlikely that courts would find this use of quarantine unconstitutional.