David Fidler, a law professor at Indiana University, said states are allowed to create mandatory quarantines under the 10th Amendment of the U.S. Constitution, which grants powers to the states not specifically given to the federal government. According to the Centers for Disease Control and Prevention, the federal government derives its authority to quarantine from the commerce clause of the Constitution, and under Section 361 of the Public Health Service Act, the U.S. HHS secretary may take measures to prevent the spread of communicable diseases from other countries into the U.S. and between states. The CDC has authority to carry out that function.
States, in turn, have police power functions to control the spread of disease and have laws to impose isolation and quarantine. Laws vary by state, but in some states, local health authorities implement quarantines. In most states, breaking a quarantine is a criminal misdemeanor, according to the CDC. State law in New Jersey, for example, says that the New Jersey Department of Health and Senior Services and local boards of health have the power to “maintain and enforce proper and sufficient quarantine, wherever deemed necessary.”
Still, Fidler said, legally, he believes some state actions have gone too far. States implementing mandatory quarantines must show they're justifiable based on scientific and public health principles and that they're done in the least restrictive way possible in terms of civil liberties, according to constitutional case law, he said. The initial quarantines put forth by New York or New Jersey don't meet those conditions, Fidler argues.
“If you don't have a scientific or epidemiological basis for what you're doing, first, you're not actually protecting public health … and second, you're restricting civil liberties in a severe way without a reason,” Fidler said.
It's a similar argument to the one being made by the American Civil Liberties Union of New Jersey.
“When the science and medicine suggest that mandatory public health reporting is sufficient and a quarantine is unnecessary then it becomes an unacceptable deprivation of liberty,” said Alexander Shalom, a senior staff attorney for the ACLU of New Jersey. “What this is all driven by is a constitutional belief that these public health decisions need to be driven by science and medicine rather than fear and politics.”
The ACLU is “staying on top of the issue to monitor it to determine whether or not there are legal challenges that should be brought,” Shalom said.
The medical community contends that quarantining healthy people makes little sense given that people are not infectious until they have fevers or other symptoms. Also, the disease is not airborne. Ebola is spread through contact with an infected person's bodily fluids.
The best way to stop the spread of Ebola is to eradicate it at its source in West Africa, said Linda Greene, with the Association for Professionals in Infection Control and Epidemiology.
“This is a worldwide health issue and the more that we can do to help and aid these people, the more it will keep us safer as whole and keep our nation safer,” Greene said.
She and others worry that enforcing mandatory quarantines will discourage more healthcare workers from volunteering where they're most needed.
“By helping them, we'll only serve to get the outbreak under control faster,” said Louise Dembry, vice president of the Society for Healthcare Epidemiology of America.
SHEA supports asking those exposed to take their temperatures twice a day and monitor for symptoms rather than forcing them into quarantines. Dembry said she thinks it's unlikely healthcare workers asked to self-monitor would fail to do so.
“You're talking about a very dedicated group of healthcare personnel, and it's in their best interest—and I think they know this—to report when they have any type of concern,” Dembry said.
Many others, however, aren't so sure that controlling the spread of Ebola should be left up to self-monitoring individuals.
In explaining his decision to impose a mandatory quarantine, New Jersey Gov. Christie said he had already tried a voluntary quarantine with an NBC News crew exposed to the disease. That crew violated its voluntary quarantine, he said.
“I made the decision right then, after having that experience, that there was going to be no more voluntary quarantine in New Jersey, because you just cannot count on people to do that,” Christie said at a news conference Friday. “And the stakes are just too high to count on people to do it. We have the legal authority to do it. We're doing it.”
And Georgia Gov. Nathan Deal said in a statement Monday, “I have developed, in coordination with my Ebola Response Team, a policy to more aggressively monitor travelers from affected countries, symptomatic or not, and quarantine if need be. We are taking these proactive steps to protect the health of the people of our state, and this new policy is an altogether effective and appropriate response at this time.”
Eugene Kontorovich, a law professor at Northwestern University, said whether to impose a mandatory quarantine isn't just a question of science but one of trade-offs as well.
“Let's say she goes home to self-report. Let's say she misses a day,” Kontorovich said. “Is the public obligated to leave it up to this person and their discretion and good behavior to determine whether a disease will spread potentially?”
The U.S. Supreme Court has repeatedly affirmed the legality of mandatory quarantines, he said, though it hasn't generally defined their permissible scope.
“It is not required that the person be sick or definitely exposed,” Kontorovich said. “That would largely defeat the point of the quarantine, which is to get out ahead of the disease and prevent its spread. It's understood the quarantine will be overinclusive, will be inconvenient and stop people who are not sick.”
The situation, he said, is also somewhat similar to Jacobson v. Massachusetts, a Supreme Court case from the beginning of the 20th century in which the justices upheld Massachusetts' mandatory vaccinations against smallpox at the time.
This is also far from the first time mandatory quarantines have been issued in the United States. The last time large-scale isolation and quarantine were implemented was during the Spanish flu pandemic in 1918-19, according to the CDC.
Most frequently, individuals have been forcibly quarantined for tuberculosis. But those restrictions have been imposed on people who were perceived to be threats to others because they were behaving questionably or refusing to take proper precautions, Fidler said.
Nonetheless, Fidler said he believe mandatory quarantines are “draconian” and should be seldom used.
“The exercise of these sorts of powers is very rare, and it should be rare,” Fidler said, “because they're not usually effective.”
Maryland leaders also have announced strategies in recent days to deal with those potentially exposed to Ebola.
Maryland Gov. Martin O'Malley announced Monday that the state's public health officials would directly monitor the health of all travelers who return to Maryland from West Africa, in line with the new CDC guidelines announced later in the day. The contact information for individuals who report a final destination of Maryland will be provided to the state's health department. All travelers will be contacted daily by a new outbound call center established by the state to record temperature information. Individuals who are at “some risk,” as determined by the new CDC guidelines, may face additional movement restrictions. “High risk” individuals who have had a known exposure to the virus—such as a splash of bodily fluid on exposed skin or a needle-stick injury—will be asked to remain at home for the entire 21-day incubation period.
Florida is mandating twice-daily, 21-day health monitoring for people returning from Ebola-stricken countries.
Adam Rubenfire contributed to this report.
Follow Lisa Schencker on Twitter: @lschencker
