March 2006 Bar Bulletin
By Jaime Drozd Allen
You are sick, your neighbor is sick and the government has ordered you into a quarantine facility with other sick people and little medical attention; but you have no way to challenge your containment, no choice in medical care, you may be without your family and there is nothing to do about it.
Sounds like something that happens only in the movies? Under new laws being encouraged in the aftermath of bioterrorism fears, anthrax scares, and threatening outbreaks of SARS and the avian (aka bird) flu, the scenario could be possible.
History of Quarantines
The use of quarantines is not new. They have been used throughout history to separate the sick from the healthy. The first "quarantine" occurred during the Black Death in 14th-Century Venice when ships had to lay anchor for 40 days before landing.1 The term comes from the Latin word for 40.2
By the mid-20th Century, modern medicine and antibiotics largely eradicated the need for quarantines. However, recent events have brought to a head the possibility of a large-scale quarantine in this country.
In the frenzy to deal with these new diseases and threats, many government officials have jumped to the conclusion that federal- or state-ordered quarantines are a necessary tool to have available in case of an outbreak or terrorism attack. And, disturbingly, all too many citizens have not protested these measures, perhaps thinking, "It won't be me," or "We'll do whatever it takes." But, are such drastic measures really necessary?
State and Local Authority
The federal government does not have the power to enact a quarantine.3 State and local authorities retain considerable, if not all, authority to institute public health measures by the police power delegated to them through the Due Process Clause of the 14th Amendment.4
For instance, in Washington, the state Board of Health is charged with adopting "rules for the imposition and use of isolation and quarantine."5 The board has delegated authority to the cities to "make all such quarantine or other regulations as may be necessary for the preservation of the public health, and to remove all persons afflicted with any infections or contagious disease to some suitable place to be provided for that purpose."6
The U.S. Supreme Court has said that compulsory health regulations that invade bodily liberty are allowed because:
[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.7
Similarly, the Washington Supreme Court has found that "the city has the power to enact the ordinance here in question and has the power to create health and quarantine officers e by charter and ordinance provisions."8
Model State Emergency Health Powers Act (MSEHPA)
In the wake of September 11 and the anthrax scare that followed, the Centers for Disease Control encouraged the drafting of the Model State Emergency Health Powers Act in an effort to streamline local laws. Because the power to act to preserve the public's health is constitutionally reserved primarily to the states, the Model Act is designed for state -- not federal -- legislative consideration.9
The MSEHPA is broad: It allows public health authorities to take over hospitals, seize drug supplies, quarantine people exposed to infectious pathogens, draft doctors to treat them, force patients to be vaccinated and order police to restrain residents from leaving contaminated areas.10
One of the main civil liberties concerns is that the act would allow people to be detained without due process, isolating them without any ability to challenge a quarantine decision.11 There-fore, someone who is mistakenly quarantined and put with other ill people may have means for appeal or other recourse.
The problem is exacerbated because the exact process for instituting quarantines is generally left to the discretion of local authorities, making discrepancies and uneven application in different localities inevitable. Moreover, the model law does not seem to contemplate that carrying out a large-scale quarantine will not be easy.
A large-scale quarantine also could create a police state, causing people to panic and flee, causing the epidemic to spread farther.12 Logistically, it will be difficult to identify a suitable location for thousands of disease-ridden people -- a problem recently brought to light in the wake of Hurricane Katrina.
While quarantines are necessary for an orderly, civilized society and have been used effectively to stop the spread of tuberculosis and other diseases, there are difficulties to applying them fairly and without quashing individual liberties. There is a fine line between quarantining citizens for the good of society and unabridged authority to institute quarantines that conflict with the basic civil rights and freedoms guaranteed by the Constitution.
While it is clear that government has the right, if not the duty, to quarantine individuals if there is a major disease outbreak, it is much less clear how a quarantine should be carried out, by whom and with what limitations. Large-scale quarantines that are not strictly defined can undoubtedly infringe on people's individual rights and freedoms. n
1 "The Most Dangerous Woman in America, History of a Quarantine," at http://www.pbs.org/wgbh/nova/typhoid/quarantine.html.
3 See Lawrence O. Gostin, The Model State Emergency Health Powers Act: Public Health and Civil Liberties in a Time of Terrorism, 13 Health Matrix 3, at * 4 (2003).
4 See id.
5 RCW 43.20.050(2)(d).
6 See RCW 35.22.280(29), 35.23.440(50).
7 Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358 (1904).
8 City of Seattle v. Cotin, 144 Wn. 572, 576, 258 P. 520 (1927) (plaintiff challenged Seattle's order to place him in quarantine).
9 Gostin, 13 Health Matrix at * 5 (2003).
10 Bernadette Tansey, Health Bill Endangers Civil Rights, San Francisco Chronicle, November 25, 2001.