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Jacob Sullum
Jacob Sullum
22 Oct 2014
Ebola and the CDC's Dangerous Mission Drift: Controlling Contagious Diseases Is Just One of Many Items on the Agency's To-Do List

Before Tom Frieden became director of the U.S. Centers for Disease Control and Prevention in 2009, his two … Read More.

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Voter Fraud, Abortion Safety and Other Phony Emergencies: Two Texas Laws Illustrate a Politically Poisonous Legislative Habit

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8 Oct 2014
No Local Option on Gay Marriage: Federalism Is No Longer a Viable Approach to Same-Sex Unions, If It Ever Was

Bob Barr, the former Georgia congressman who wrote the Defense of Marriage Act (DOMA) in 1996, later … Read More.

Ebola Emergencies and Questionable Quarantines: Crying 'Disease' Does Not Justify Forcible Isolation of Asymptomatic Health Care Workers

Comment

In a 1993 decision upholding the involuntary hospitalization of a Newark man with tuberculosis, New Jersey Superior Court Judge Donald Goldman noted that "the claim of 'disease' in a domestic setting has the same kind of power as the claim of 'national security' in matters relating to foreign policy." Goldman's point is worth keeping in mind as states such as New York and New Jersey implement quarantine policies that most experts view as a panicky overreaction to the potential threat posed by medical workers returning from Africa after treating Ebola patients.

Abuse of the authority to restrict liberty in the name of disease control, Goldman wrote, "is of special concern when the other interest involved is the confinement of a human being who has committed no crime except to be sick." We should be even more vigilant when the people whom the government seeks to confine are neither sick nor contagious.

New Jersey Gov. Chris Christie initially claimed that Kaci Hickox, the nurse who last Friday became the first person to be forcibly isolated under that state's new policy, was "obviously ill." But by Monday, when Hickox was released from University Hospital in Newark after repeatedly registering a normal temperature and testing negative for Ebola, Christie had to concede she was not sick, meaning she currently poses no threat to other people.

Hickox was nevertheless sent back to Maine, where she lives, for three weeks of home confinement. The same fate awaits other health care workers who arrive in New Jersey or New York after interacting with Ebola patients.

In an open letter to New York Gov. Andrew Cuomo, more than 100 AIDS activists, clinicians, scientists and academics urge him to reconsider that requirement, which they say is medically unjustified and counterproductive because it is apt to deter health care workers from going to Africa, where they are desperately needed to help control Ebola at its source. "There is no evidence that indicates quarantines are superior to active monitoring for symptoms with respect to preventing transmission of (Ebola)," they write.

That observation could be legally significant, because courts often ask whether a public health intervention is "the least restrictive alternative." They also commonly demand "clear and convincing evidence" that a person whom the government seeks to confine poses a threat to the public.

In the 1993 New Jersey case, for example, Judge Goldman emphasized that the TB patient was actively contagious, that he had repeatedly failed to comply with treatment, and that he was homeless, which in the judge's view made confinement to a hospital the least restrictive alternative. Asymptomatic health care workers such as Hickox are not contagious, and they should be highly motivated to comply with monitoring protocols. Furthermore, the Ebola virus, unlike the tubercle bacillus, is not transmitted by air.

Those factors should weigh in favor of a legal challenge to excessively stringent Ebola quarantine policies. Yet most commentators seem to think such a challenge, which Hickox threatened to bring, is unlikely to succeed.

"Being physically confined by the government feels like a fundamental violation," writes CNN legal analyst Danny Cevallos. "But it's rarely a legal violation." Northwestern University law professor Eugene Kontorovich reports that he "found no cases in which a quarantine has been lifted (on) due process grounds," although "there have been some successful challenges to conditions of quarantine."

Then again, when was the last time state governments sought to quarantine an entire class of asymptomatic, noncontagious people? "I'm very worried about it," said Georgetown University law professor Lawrence Gostin, who signed the open letter to Cuomo, in an interview with The New York Times. "And I'm one who thinks that we should always privilege public health. I'm not a civil libertarian."

As Gostin's concerns demonstrate, conceding that force can be justified in preventing the spread of communicable disease does not mean it always is. And if the courts do not step in when it isn't, who will?

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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