Quarantine Protocols and Civil Liberties

As technology and globalized markets reach further into previously inaccessible regions, our world veritably shrinks and we risk exposure to exotic diseases. Sometimes, as is the case in recent years, the diseases of old return for an encore performance. I’m sure we all remember the recrudescence of Ebola in West Africa in 2014 and the concomitant fearmongering by public health officials here in the United States; Thomas Frieden, then-director of the CDC, compared the Ebola outbreak to the AIDS epidemic of the 1980’s. Yes! He seriously said that.

Foolish comments notwithstanding, let’s not be mistaken. Ebola—otherwise known as Ebola virus disease (EVD)—is extraordinarily deadly with, according to the World Health Organization, an average fatality rate of 50%. And Ebola isn’t the only wee-beastie out there. Indeed, many health agencies worldwide acknowledge a category of communicable diseases that don’t receive their due attention and thrive in tropical and subtropical climes—appropriately named neglected tropical diseases (NTDs)—causing considerable hardship to more than a billion people. That’s quite frightening, but as I adamantly maintain: fear is the one true contagion.

Many admirable healthcare workers and volunteers returned from relief efforts in West Africa only to be imprisoned in their homes for twenty-one days, the incubation period for EVD. This is a scandal.

I don’t know as many of my rights as I ought to and I suspect this is true for a lot of people, not just Americans. We are all familiar with legal buzzwords like “freedom of speech,” “human rights,” “due process,” “informed consent,” and “probable cause.” Law & Order—and recent publicized encounters by police with people of color—have been rather instructive. Nonetheless, our civic and legal ignorance can leave us in rather precarious situations which perpetuate negative attitudes towards the justice system, and the government generally.

Would we, when stopped by airport security or customs agents, know whether our rights were being violated? Whether we could be detained based on a list of ambiguous symptoms?

Quarantine and Isolation

It might seem trivial to have two definitions for separating sick—or potentially sick—individuals from the rest of the population. However, language is important, particularly where legal matters are concerned. Plucked directly from the CDC’s website:

 

• “Isolation separates sick people with a contagious disease from people who are not sick.”
• “Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.”

 

The list of diseases for which one can be quarantined includes cholera, the plague, yellow fever, and others. And that list can be revised by Executive Order of the President of the United States. [Cue ominous music]. I suspect I don’t need to explain why the prospect of revision in this instance is terrifying.

One small digression: can we please give the plague a different fucking name please? Yersinia pestis is neither pestilence nor scourge in 2017.

The Public Health Service Act

The federal government has great latitude when it comes to quarantine and isolation practices. Indeed, one could say the federal government has the moral imperative to safeguard the health of its citizens from devastating diseases. Enacted in 1944, the Public Health Service Act codified the federal government’s power to apprehend and detain individuals suspected of having particular communicable diseases. Per the CDC, “[t]he act gave the U.S. Public Health Service (PHS) responsibility for preventing the introduction, transmission, and spread of communicable diseases from foreign countries into the United States.” Specifically, it gives the Secretary of the Department of Health and Human Services (HHS) this authority.

The act was praised as an important milestone for the PHS. Aside from consolidating and tidying up all pertinent laws and retaining all of its important duties, the PHS could begin issuing grants to research institutes as its annual federal appropriations increased. Among other things, the PHS could also commission qualified scientific experts and nurses to help advance public health goals. This was definitely a crucial victory for public health.

Federal Versus State

We also have to consider states that adopt legislation to protect the public’s health. Which type of law prevails in this quarantine and isolation business, federal laws or state laws? Problems of this sort have plagued our country since it’s inception. The supremacy clause states that federal law supersedes state law in cases of conflicting legislation. That’s great news for same-sex marriage. Not so great for marijuana, a Schedule I Controlled Substance, which has legitimate medical applications. How about for other things like quarantine and isolation measures?

It falls upon states to protect individual freedoms during a public health emergency; by the way, the Secretary of the HHS has the authority to declare public health emergencies. A group of individuals attempted to promulgate a few recommendations for states to protect individual liberties and autonomy. Here’s what they had to say:

“Quarantine and isolation orders must be conducted in accordance with substantive and procedural due process, and any restrictions of civil liberties should be legal and as minimally restrictive as reasonably possible. To this end, states should ensure that the following five threshold requirements are met: 1. the individual must pose an actual threat to the public; 2. the intervention must be reasonable and effective; 3. it must be conducted in a manner that comports with equal protection and due process; 4. individuals must be provided with safe and comfortable conditions; and 5. reasonable compensation for loss of income must be ensured.”

It looks great on paper, especially numbers four and five. I wonder whether any health or government official has ever considered them when drafting quarantine measures. Compare it to this more opaque statute from § 264 Regulations to Control Communicable Diseases of the Public Health Service Act.

“On recommendation of the National Advisory Health Council, regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a communicable stage and (1) to be moving or about to move from a State to another State; or (2) to be a probable source of infection to individuals who, while infected with such disease in a communicable stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.”

I suggest everyone read that statute in its entirety. It would also be beneficial to look over the whole of the Public Health Service Act and the various amendments enacted since 1944.

Let’s forget the obvious pallor of fear and claustrophobia that takes over when forcibly confined to a small venue.

There is something alarmingly tyrannical about government-mandated quarantine and isolation. It pushes the whole “it’s for your own good” attitude uncomfortably into the realm of the authoritarian. Last year, the CDC proposed amendments to broaden its foreign and domestic quarantine regulations “to best protect the public health of the United States.” (Check out Ed Yong’s article from The Atlantic for more on this matter.) And at the beginning of this year, the CDC finalized its new regulations to quarantine Americans. Very soon I suspect reality will play out like the scene from Hot Fuzz when Simon Pegg’s character confronts the Neighborhood Watch Alliance.

I’m more conflicted than may at first be apparent. I am immensely grateful for having been born in a country with an amenable, secular constitution that safeguards my rights and the rights of my fellow brothers and sisters. (Although, I think we could use a few more amendments.) As laws begin to catch up with the zeitgeist, if you exclude the retrograde plans the current administration has, we can, within reason, live out our existences in precisely the manner we choose. And I am also all for alleviating the suffering of disease and death from the world.

Yet, I cannot help but feel the government may be traipsing along the wrong side of the treacherous interface between public health and civil liberties. Remember: Ebola isn’t spread via food, water, or air. One must come into contact with the bodily fluids (e.g. blood, urine, semen, feces, etc.) of an infected person. How often does one truly come into contact with someone else’s bodily fluids? (I suppose that was a rhetorical question for some readers.)

Does anyone remember the quarantine of San Francisco’s Chinatown? Perhaps, but it behooves us to take a quick refresher course. The Black Death returned for two noteworthy encore performances in the United States: once between 1900-1905 and again from 1907-1908. During the former years, a Chinese immigrant who lived in San Francisco’s Chinatown had died a wretched death from what appeared to be Yersinia pestis. As a result, city health officials—under the cover of darkness, no less—preemptively enclosed the whole of Chinatown in rope and barbed wire barricades; business run by whites were not barricaded, of course. This is, admittedly, a more dramatic example from our more barbaric and racist past. Nonetheless, we ought to learn from the rebarbative bits of history, lest we bring back racist injunctions and unscientific protocols.

Should we capitulate before out government? Should we surrender some of our rights and freedoms to combat communicable diseases? Do we permit ourselves to be treated like criminals for the sake of preserving the public’s health, behind rope and barbed wire barricades? Would that truly be for the greater good?