Quarantines (and Law?)

The news has, understandably, been saturated the last two days with the story of the U.S. citizen infected with a drug-resistant form of TB who has been quarantined by the federal government, the first time in over four decades that the feds have invoked such an important and exceptional authority.

Missing from nearly all of the accounts that I’ve read, though, is any discussion on the law of quarantine, an essential aspect of national security law, and yet one that has been largely neglected in the aftermath of 9/11. The seminal case, of course, is Jacobson v. Massachusetts, in which Justice Holmes held that the state’s compelling interest in protecting the public health outweighed an individual’s Fourteenth Amendment-based liberty interest. But Jacobson is over a century old, and there are lots of subsequent developments that suggest that Holmes’s open-ended reasoning may not be quite so limitless today.

All of this raises the question of why we seem indifferent to the legal implications. Don’t get me wrong — I’m not suggesting that the government lacks the authority to quarantine individuals infected with TB. 42 U.S.C. 264 seems to expressly provide to the contrary. But on the theory that every case is precedent (except Bush v. Gore, anyway), shouldn’t this case provoke at least some discussion of the current legal authorities vis-a-vis quarantine, and the constitutional issues that invocation of such a sweeping power to detain naturally raise?

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5 Responses

  1. Patrick S. O'Donnell says:


    There is some informative literature that discusses “current legal authorities vis-a-vis quarantine, and the constitutional issues that invocation of such a sweeping power to detain naturally raise”. See, for instance: Lawrence O. Gostin, Jeffrey P. Koplan, and Frank P. Grad, “The Law and the Public’s Health: The Foundations,” pp. 3-22, and James J. Misrahi, Gene W. Matthews, and Richard E. Hoffman, “Legal Authorities for Interventions During Public Health Emergencies,” pp. 195-210, in Richard A. Goodman, et al., eds., Law in Public Health Practice (New York: Oxford University Press, 2003). Federal quarantine law is treated on pp. 104-106. Among items of interest:

    In Greene v. Edwards, 263 S.E.2d 661, 663 (1980), “the West Virginia Supreme Court reasoned that there is little difference between loss of liberty for mental health reasons and the loss of liberty for public health rationales. Persons with an infectious disease, therefore, are entitled to similar procedural protections as persons with mental illness facing civil commitment. These procedural safeguards include the right to counsel, a hearing, and an appeal.”

    “[L]aws authorizing compulsory public health measures were enacted at different times, with different disease-causing agents or diseases in mind, and may rely on different or inconsistent medical and legal approaches to disease control. [….] [L]aws enacted 50 to 60 years ago to deal with polio may not be sufficient to deal with viral hemorrhagic fevers, foot and mouth disease, West Nile virus, or a bio-engineered weapon. Moroever, these laws may not necessarily reflect a modern understanding of infectious diseases, biology, or epidemiology; current treatment methods; or present-day standards of due-process.”

    As to Jacobson v. Massachusetts and the 1901-1903 Boston smallpox outbreak, the authors conclude that “how courts today would react to a quarantine on the scale of the Boston smallpox outbreak is unclear.”

    Finally, and most importantly, we learn that “As the need for large-scale personal-control measures diminished through the advent of antibiotics and improved public health in the 1950s, courts became increasingly concerned with individual rights and due process. As a result, courts generally scrutinize very closely government actions that result in the involuntary commitment of persons. For example, courts have held, in the context of civil commitment to mental hospitals, that involuntary commitment is a significant deprivation of liberty requiring that the state afford the individual due process of law. In the context of detaining infectious persons, due process requires that the state provide written notice of the behavior or conditions that allegedly pose a risk to the community, access to counsel, a full and impartial hearing, and an appeal. Even though the state may ordinarily provide notice and a hearing before detaining someone, the law recognizes emergency exceptions in which the state may be able to afford the person a post-deprivation hearing. In such cases, the government generally has the burden of proving its case by ‘clear and convincing evidence,’ a legal standard somewhat greater than a ‘preponderance of the evidence,’ but less than ‘beyond a reasonable doubt.'”

    See too: Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint (Berkeley, CA: University of California Press, 2000).

  2. Steve Vladeck says:

    Thanks Patrick — I’m fairly familiar with the work of Gostin et al. (although less so Misrahi), and you bring up all the key points. What I’m curious about, though, is why the media seems so uninterested… Have we become that routinized to the idea of extra-judicial detention that no one stops to question its scope?

  3. Patrick S. O'Donnell says:

    One answer to your question may simply involve the numbers at stake. I’m not sure how many people would have to be quarantined to arouse the media, but I suspect it would have to be fairly large: hundreds? thousands?

    I don’t think that it’s so much that we’ve “become…routinized to the idea of extra-judicial detention that no one stops to question its scope” (there’s simply not enough experience here to trigger, so to speak, routinization with the idea, putting aside a few recent films), but rather that public health concerns hit home with many folks and reasonable and unreasonable fears and risk assessments prompt individuals, rightly or wrongly, to trust the powers-that-be on this score.

  4. Catherine says:

    Physical health and mental health are not on par and, thus, committing people with each disease should be different. No one has contracted a fatal mental illness from sitting near another person with it. A key distinction. The government should be able to quarantine people with contagious diseases that pose a risk to life.

  5. Patrick S. O'Donnell says:

    The analogy of “involuntary commitment” is for individual rights and due process reasons and does not presume that all features of mental illness map onto all features of physical illness, i.e., there are certainly differences between the two (yet both can entail involuntary commitment), but for the legal purposes of the analogy and its background rationale (i.e., involuntary commitment), the differences don’t give us sufficient reasons to dispense with the analogy. And the law does allow for government to quarantine people with contagious diseases that pose a risk to life, as the literature above attests.