Thread: State, federal quarantines, isolations likely be subject to constitutional challenges

State, federal quarantines, isolations likely be subject to constitutional challenges

November 6, 2014 | By Dibya Sarkar

While federal and state governments can impose quarantines and isolation measures to stop the spread of diseases like Ebola, their orders will likely be subject to constitutional challenges.

A Congressional Research Service legal sidebar review (pdf), which was published on the Public Intelligence blog, says such orders would be subject tohabeas corpus challenges that allege unlawful detention and due process such as legal hearings that establish a reason for detention.

Recently, New York and New Jersey, among other states, imposed quarantine policies for healthcare workers and others who have had contact with Ebola patients. In Maine, a nurse, who treated Ebola patients in Sierra Leone before returning to the United States, defied a quarantine order by the governor there. But a judge, who sided with the nurse since she was not showing any symptoms of the disease, ordered her to submit to health monitoring, which she agreed to.

Ebola is not contagious unless people show symptoms, such as high fever.

While modern legal challenges to such quarantine and isolation orders are "not extensive," there are a few cases that can shed light on the issue, the CRS sidebar says.

For example, in 1963, a federal district court in United States v. Shinnick upheld a public health service isolation of a medical passenger arriving from Stockholm, Sweden. At the time, the World Health Organization had declared the city a smallpox-infected area and the traveler could not show proof that she had been vaccinated. The court would not substitute its own judgment on whether the traveler had been exposed to the infection and if she would spread it.

"However, at least one state court has ruled that when a state confines an individual in order to prevent the spread of disease, the state must provide the individual with procedural due process protections such as, inter alia, notice explaining the grounds for confinement, the right to counsel, and the right to engage in cross-examination," according to the CRS sidebar. It would also likely apply to a federal government quarantine.

The sidebar added that quarantines could be subject to equal protection challenges. In Jew Ho v. Williamson, a court invalidated a quarantine because it only applied to Chinese residents. It said the requirements were "unreasonable, unjust and oppressive," resulting in discrimination and violation of the Fourteenth Amendment.

For more:
- read the CRS legal sidebar about quarantines and isolations (pdf)

Related Articles:
CDC issues new guidance for healthcare workers treating Ebola patients
Americans worried about Ebola, but confident in health officials, new survey finds
Pentagon forming rapid-response Ebola team to help if other US cases arise

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