To quarantine or not to quarantine – that is the question. On January 28, 2020, Americans onboard a Boeing 747 erupted in cheers as they landed in Alaska. The scene, described as “uplifting” by Alaska’s Chief Medical Officer, came after the passengers were evacuated from Wuhan, China, the epicenter of a fast-growing outbreak of the new coronavirus. Their next stop, California – where all passengers were to be detained at the March Air Reserve Base as federal officials worked to mitigate the spread of the virus.
The coronavirus, or the 2019-nCov virus, was first reported in Wuhan, China and has spread to more than 20 countries, including the United States. As of February 5, the virus has killed over 500 people and close to 28,000 cases have been reported. The virus likely originated in animals, before making the jump to humans. The virus has progressed to include human-to-human transmission that can occur before the infected person has developed symptoms. The increased spread of the virus beyond Chinese borders prompted the World Health Organization to declare a global health emergency and the U.S. government to issue a 14-day quarantine order.
At first, evacuees were voluntarily detained at the base in California for three days. Health officials, at the time, emphasized that there was no quarantine order. However, passengers under voluntary stay were unable to freely leave the base. If a passenger requested to leave early, officials emphasized that the request would be a discussion.
However, on January 31, the federal government issued its first quarantine order in 50 years. A “quarantine” is the isolation of an asymptomatic person who was potentially or actually exposed to a communicable disease. The federal quarantine was partly prompted by a passenger’s request to leave the base. Under the order, entry into the United States is restricted for foreign travelers who were in China’s Hubei Province within 14 days prior to entry. United States citizens, permanent residents, and immediate family members of United States citizens are allowed entry but are subject to the 14-day quarantine. The question now becomes, if a person does not voluntarily agree to be quarantined, can the federal government involuntarily quarantine the individual?
The answer is “yes,” but the issue is complicated.
Generally, both states and the federal government have quarantine power. The federal government derives its quarantine power from the Commerce Clause of the Constitution. The Commerce Clause allows the federal government to “regulate commerce” between states and other nations. This includes people traveling between foreign nations and states.
Section 361 of the Public Health Service Act (PHSA) further defines the scope of the federal government’s quarantine power. Under this regulation, the Centers for Disease Control and Prevention (CDC) is authorized to oversee the quarantine of travelers coming into the United States or traveling between states. The CDC can only execute a quarantine when authorized to do so by a Presidential Executive Order.
In the case of coronavirus, the quarantine of evacuees falls squarely within the power of the federal government. The CDC acted in compliance with the PHSA, executing quarantine power authorized by an executive order. Further, the travel of the evacuees from another country back into the United States subjects the evacuees to federal quarantine regulations through the Commerce Clause.
Although the government has the power to quarantine the passengers and the CDC acted in compliance with the regulations, there are underlying issues as to whether the PHSA provides adequate protection for those who may be under involuntary quarantine.
First, there are strong public policy considerations that involuntary quarantine may encroach on individual rights and result in impermissible discrimination. Specifically, being quarantined can disproportionately impact the rights of immigrants, minorities, and those in poverty or be applied unjustly during times of panic and fear. For example, in Jew Ho v. Williamson, a federal circuit court struck down a quarantine order that applied exclusively to a Chinese community in San Francisco, California. In the infamous case of Hickox v. Christie, a nurse coming home to the United States after treating Ebola patients in Africa was involuntarily quarantined. The nurse quickly filed a case alleging that the 80-hour quarantine violated her Fourth and Fourteenth Amendment rights. Although the court found that the quarantine did not violate any laws, the parties eventually settled on inclusion of additional quarantine protocols, ensuring that quarantine is applied appropriately. The complexity of these cases solidifies the public policy concern, demonstrating the need for adequate protection against discrimination during times of quarantine.
Second, there is a strong legal debate as to whether constitutional rights are adequately protected under current quarantine regulations. The PSHA was expanded in 2017 to provide officials with the needed flexibility to address novel public health issues. However, some argue that the regulations fail to safeguard constitutional protections. Since involuntary quarantines are a form of civil commitment, involuntary quarantines must comply with both substantive and procedural due process requirements. Under substantive due process, quarantine is justified where there is evidence that the person in question has the disease and the person is likely to take actions that put the community at risk. Some argue the government focuses only on meeting the first factor of the requirement rather than meeting both before implementing a quarantine. Further, there is debate as to whether the act meets due process requirements as the regulation currently requires no judicial determination, the individuals must affirmatively request a hearing and there is no standard for timely review of the case, and the case is heard by a person within the CDC.
There is no precedent on how a court might decide the matter if one of the 195 quarantined Americans pursues a challenge to a federal quarantine order under the expanded PSHA. Only time will tell if the current quarantine process provides adequate protections for the rights of individuals.
Sources
42 U.S.C. § 264 (2012)
42 C.F.R. § 70 (2017)
42 C.F.R. § 71 (2017)
Allison Aubrey, Trump Declares Coronavirus A Public Health Emergency And Restricts Travel From China, NPR News (Jan. 31, 2020 4:42 PM).
Andrew Joseph, Study Reports First Case of Coronavirus Spread by Asymptomatic Person, Scientific American (Jan. 31, 2020).
BBC News, Coronavirus Declared Global Health Emergency by WHO, BBC News (Jan. 31, 2020).
Bill Chappell, Coronavirus: Americans Evacuated from Wuhan will Remain at U.S. Air Base for 3 Days, NPR News (Jan. 29, 2020 10:16 AM).
CBS News, What is the Coronavirus from China and What are the Symptoms, CBS News (Jan. 31, 2020 6:26 PM).
CDC, Quarantine and Isolation – Legal Authorities for Public Health Orders, CDC, (last visited Feb. 1,2020).
Coronavirus Live Updates: As China Clamps Down on Negative news, Quarantines on Land and Sea, N.Y. Times (Feb. 5, 2020 11:28 PM).
Elizabeth Cohen et al., US Government Declares the Novel Coronavirus a Public Health Emergency and Suspends Entry for Forgein Nationals who Visited China, CNN (Jan. 31, 2020 6:06 PM).
Hickox v. Christie, 205 F. Supp. 3d 579, 585 (D.N.J. 2016)
Jew Ho v. Williamson, 103 F. 10, 12 (C.C.N.D. Cal. 1900)
Lawrence Gostin & Lindsay Wiley, Public Health Law Power, Duty, Restraint, 416-28 (3d ed. 2016).
Lindy Washburn, Ebola Nurse Settles Case Against Christie, NorthJersey.com (July 28, 2017 2:50 PM).
Michael Ultrich & Wendy Mariner, Quarantine and the Federal Role in Epidemics, 71 SMU L. Rev. 391, 392—95 (2018).
Rob Stein, CDC Seeks Controversial New Quarantine Powers to Stop Outbreaks, NPR News (Feb. 2, 2017, 4:47 AM).
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