Last Friday, a federal judge ruled that the state of Maine could not force a mandatory ebola quarantine on nurse, Kaci Hickox, who recently returned to the U.S. from Sierra Leone. According to CNN:
District Court Chief Judge Charles LaVerdiere ordered nurse Kaci Hickox, who recently returned to the United States after treating Ebola patients in Sierra Leone, to submit to “direct active monitoring,” coordinate travel with public health officials and immediately notify health authorities should symptoms appear. Another hearing is scheduled for Tuesday.
Hickox was held under quarantine in New Jersey after she returned to the U.S. because she had broken a fever. Since then, Maine, New York, Florida, Illinois, California, Georgia, Connecticut, Maryland, and Virginia have enacted some form of mandatory quarantine of some level or another. I’ve heard a lot of people, even within libertarian circles, arguing in favor of the mandatory quarantines. I think that these views are largely based on fear and misinformation. First, are these mandatory quarantines even constitutional? Let’s do a brief constitutional analysis.
By forcing a mandatory quarantine on someone, the state is taking away their liberty. Under the Fifth and Fourteenth Amendments, the state may not deprive one of “life, liberty, or property without due process of law.” Therefore, quarantines are a matter of substantive due process. (For a brief tutorial on substantive due process, click here). The courts will have to apply a strict scrutiny test because one’s liberty is a fundamental right. There are three prongs to a strict scrutiny analysis:
- (1) The government must have a compelling interest in the law which would restrict one’s liberty;
- (2) The government must narrowly tailor the law to meet that interest; and
- (3) The government must use the least restrictive means possible to meet that interest.
Does the government have a compelling interest in enforcing mandatory quarantine laws for people who exhibit symptoms of ebola? Absolutely! The government certainly has an interest in protecting its citizens from a deadly disease. There really isn’t much of a question here. The government can easily prove this prong of the strict scrutiny test. No problems yet.
Are mandatory quarantine laws narrowly tailored to meet the government’s interest of protecting citizens from deadly diseases? Maybe. This is where it becomes a bit tricky. Some states enacted laws which would require anyone who has had any contact with an ebola patient or anyone who recently visited areas of Africa known to have the ebola virus to be quarantined for at least 21 days, despite not showing any symptoms of the virus. This is clearly not narrowly tailored to protect the public from this deadly disease. Other states require the quarantine only if there has been a known exposure to ebola such as splashing bodily fluids or a needle stick. This is much more narrowly tailored to meet the government’s compelling interest. In the case of Ms. Hickox, her quarantine was not narrowly tailored to meet the government’s compelling interest because she was showing no actual symptoms of ebola. Therefore, I do not believe that her quarantine was constitutional. However, I could see cases where a quarantine would be constitutional, such as the case of Thomas Eric Duncan, the first person to die from this disease, and the staff who treated him. In those cases, where the patients showed symptoms of ebola, a 21-day quarantine would be justified.
Are the mandatory quarantine laws the least restrictive means possible to meet the government’s compelling interest? No! Not in these cases. In the case of Ms. Hickox, she was originally quarantined in a New Jersey hospital for 21 days. This is certainly too restrictive because she showed no real signs of the ebola virus other than having a fever. When she returned to Maine, officials wanted her to stay in her home for 21 days. While this is less restrictive than the hospital, it is still unconstitutional because of the restrictive nature of the order:
Late Thursday, the judge had ordered stricter limits on Hickox, requiring that she “not to be present in public places,” such as shopping centers or movie theaters, except to receive necessary health care. The temporary order permitted her to engage in “non-congregate public activities,” such as walking or jogging, but said she had to maintain a 3-foot distance from people. And it forbade her from leaving the municipality of Fort Kent without consulting local health authorities.
I think that Judge LaVerdiere got it right when he lifted the restrictions that she not be present in public. I do agree that she should submit to regular checkups and screenings, but only because I think that it is the responsible thing to do and Ms. Hickox seems to agree:
Standing with her boyfriend Ted Wilbur, outside their home in Maine, Hickox told reporters the decision was a “good compromise” and that she would continue to comply with direct active monitoring.
“I know that Ebola is a scary disease,” she said. “I have seen it face-to-face. I know we are nowhere near winning this battle. We’ll only win this battle as we continue this discussion, as we gain a better collective understanding about Ebola and public health, as we overcome the fear and, most importantly, as we end the outbreak that is still ongoing in West Africa today.”
Therefore, mandatory quarantines are likely to be unconstitutional if the patient tests negative for the virus or shows no symptoms of having the virus. However, mandatory quarantines are more likely to be constitutional for patients who have shown symptoms of the virus or tested positive.
This is where we need to separate a legitimate concern from fear-mongering. I’m no doctor, so I’ll let the experts from the Mayo clinic explain what ebola is, its symptoms, causes, and risk factors. According to the experts, ebola is spread through blood, bodily fluids, mostly in Africa, and not through the air. Should we be concerned? Absolutely. Should we be fearful of every person who comes in from Africa and institute travel bans for anyone seeking to come into the country from those areas? Absolutely not! in fact, the chances of you getting ebola are about 1 in 13.3 million, which is less than being killed in a plane crash (1 in 11 million), being killed by a lightning strike (1 in 9 million), or being killed in a car accident (1 in 9100). So if you decide to be fearful of ebola, I would recommend that you don’t fly anywhere, stop driving, and don’t go outside while it’s raining. You’re more likely to die from those than from ebola. For the rest of us, we will just continue to live our lives.