Jacobson v. Massachusetts held that during an epidemic, there is no constitutional right to resist inoculation. Although that case is often cited as the justification for Buck v. Bell (mandatory sterilization), the case also stands by itself, that during times of a virulent epidemic, the government gets to do whatever it wants to protect the general welfare.
Perhaps what scares me most about Ebola (which isn’t nearly as contagious as movies would lead you to believe), is the utter civil liberties mess that would happen if there was even hints of an outbreak. The CDC could roll in and quarantine people, lock down populations, and turn life into a police state, very quickly. They have almost limitless authority, and our legal system would impose no restraints.
Dr. Scott Gottlieb at Forbes speaks to the likely course of events:
Yet given the deadly nature of the Ebola virus, and the popular worry it’s likely to engender, one can expect the CDC and health authorities to pull out all the stops. The response could include invocation of the CDC’s evolving quarantine authorities.
These federal powers comprise a set of rules that gives CDC sweeping authority to hold and isolate Americans in a public health emergency. These authorities haven’t been fully updated in decades. They’ve only been amended in piecemeal fashion to deal with modern threats like SARS and MERS. In advance of what may be a very public test of these powers, the collected scheme deserves closer scrutiny.
Updated quarantine regulations were first proposed in 2005 during the Bush Administration amid fears of pandemic flu. The regulations spelled out in detail how CDC would exercise its sweeping powers to involuntarily confine sick individuals and those believed to be exposed to certain deadly and contagious diseases. The rules also focused efforts on quarantine at airports. Among other things, it held airlines responsible for keeping records to help health officials track down people coming off flights, in the event they would need to be located later for quarantine.
In the event of an outbreak, CDC could effectively detain people involuntarily for up to three days, if they suspect someone was infected. This discretion is quite broad, to include any “ill person” with symptoms consistent with the disease.
The set of regulations also included a new “provisional quarantine” rule that would have allowed CDC to detain people involuntarily for up to three days, with no mechanism for appeal. CDC had to believe a person was infected with certain pathogens. Among the diseases included were pandemic flu, infectious tuberculosis, plague, cholera, SARS, diphtheria, and viral hemorrhagic fevers such as Ebola.
The regulations also defined “ill person” to include anyone with the signs or symptoms commonly associated with the diseases in question. This gave CDC more flexibility in deciding whom to quarantine by capturing a broader and earlier range of symptoms as the basis for holding an individual. It allowed for greater exercise of discretion public health officials and those staffing quarantine stations.
The regulations were an attempt to provide clarity to how quarantine would be implemented. But in spelling out its proposed procedures, the rule raised concerns that the feds were assuming too much jurisdiction to detain people involuntarily. In short, CDC got itself into political trouble by merely clarifying how it proposed to implement federal authorities that the agency long held, and still maintains.
Even worse, the CDC can hold someone who is not sick, but may have come into contact with the disease “for such time and in such manner as may be reasonably necessary.”
In the presence of a suspect case of Ebola, the official CDC website details‘Specific Laws and Regulations Governing the Control of Communicable Diseases’, under which even healthy citizens who show no symptoms of the virus could be forcibly quarantined at the behest of medical authorities. The existing regulations stipulate, “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.”
In other words, you don’t have to be sick to be detained. Just suspected by health officials of having been in contact with someone who might have had the disease.
The regulations say a person “may be detained for such time and in such manner as may be reasonably necessary.” Is that three days or thirty? There are no rules.
And there is now to challenge this, anywhere. Due process whatever.
While the rule was never fully implemented, in its absence, one can assume that CDC would implement quarantine in keeping with these general constructs.
President Obama withdrew the Bush quarantine rule in 2010 because the provisions, when spelled out in regulation, proved controversial. Airlines, in particular, balked. Yet in its place the Obama Administration implemented a series of Executive Orders, and fell back on the CDC’s original quarantine provisions. The status quo could be just as troubling as the controversial regulation that it displaced.
You can be sure that once the panic hits, these very regulations would be dusted off, and the troops would roll in. I found this article from 2002 concerning steps following an smallpox outbreak:
State governments recently submitted draft plans for responding to a smallpox outbreak but, citing security concerns, most states are saying very little about their plans.
Professor Lawrence Gostin, director of the Center for Law and the Public’s Health at Georgetown University Law School, said “there are huge logistical problems” with a quarantine, “not to mention the civil liberties implications of taking away people’s liberties en masse.”
Asked whether he can envision troops being called in to enforce a quarantine after an outbreak, Gostin answered, “Sure. Just consider what might happen if a smallpox carrier landed at Kennedy Airport in New York. If you were the governor of New York, would you close down JFK? Would you stop travel between New York and New Jersey? There is a whole range of options.”
Indeed, the National Guard could be called in to set up roadblocks, as the Yugoslav government did when a smallpox epidemic broke out in that country in 1972.
Now, you may say, Josh, what are you crazy? Do you want an Ebola outbreak? Of course not! I read The Hot Zone years ago, and am still mortified. Ebola, like many other diseases, poses a serious public health risk that could kill many. But,as with all public concerns, the government should not be able to run roughshod over civil liberties, without any concern for due process of law. Vague standards that give the CDC unfettered discretion may take things too far. Accused terrorists would be afforded more due process than people thought to be infected with diseases. The time to discuss these things is now, before an outbreak. Because, you can be certain that once something happens, the executive will execute, and there will be no debates.