Balancing Interests and Risk of Error: What Quarantine Process Is Due After Ebolamania

• Publication year: 2021

96 Nebraska L. Rev. 100. Balancing Interests and Risk of Error: What Quarantine Process Is Due After Ebolamania

Balancing Interests and Risk of Error: What Quarantine Process Is Due After Ebolamania

Jennifer Jolly-Ryan(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 100

II. The Good Samaritan Nurse's Return Home from Sierra Leone ................................................. 104

III. Historical Background of Quarantines ................. 110

IV. State and Federal Quarantine Powers ................. 114
A. The States' Broad Police Powers and Quarantines. . 115
B. The Federal Government's Commerce Power and Quarantines ....................................... 117

V. Procedural Due Process Limits on Quarantine Powers . 118
A. Weighing Individual Liberty Interests Quarantines Infringe ........................................... 121
B. Weighing the Risk of Error in Quarantine Procedures ........................................ 128
C. Weighing Government Interests, Adding Eradication of Discrimination .................................. 131

VI. Conclusion ............................................ 137

I. INTRODUCTION

The risk of deadly infectious diseases with pandemic potential, including Zika, Ebola, Severe Acute Respiratory Syndrome (SARS), a resurgence of tuberculosis, and acts of biological terrorism, is increasing worldwide.(fn1) As the potential for the spread of disease and acts of bio-

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logical terrorism grows, the potential for losing individual civil liberties also grows. The courts will struggle to strike a balance between public and private interests.

The possibility of involuntary quarantines of American citizens remains a controversial topic. During a presidential primary debate on February 6, 2016, one of the candidates, New Jersey Governor Chris Christie, said he would quarantine travelers coming home from the Olympics in Brazil to prevent the Zika virus outbreak from spreading in the United States.(fn2) The possibility of quarantining American citizens was in the news again, despite medical evidence that said quarantine may be an ineffective tool to fight the spread of the mosquito-borne Zika virus.(fn3)

The government historically uses two tools in response to a serious threat to public health from the threat of the spread of disease-isola-

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tion and quarantine.(fn4) Isolation is "the separation of persons who have a specific infectious illness from those who are healthy and the restrictions of their movement to stop the spread of that illness."(fn5) Quarantine, the subject of this Article, is "the separation and restriction of movement of persons who, while not yet ill, have been exposed to an infectious agent and therefore may become infectious."(fn6) The distinction between the two is that isolation confines one who is already infected with disease and ill, while quarantine confines one who is asymptomatic and healthy.(fn7) As a practical matter, whether a situation is called quarantine or isolation, the result is the same. There is a significant loss of individual liberty. But most important, there is likely a greater risk of error and possibly overreaction based on fear in the quarantine of a healthy, asymptomatic person. The focus of this Article is upon people who are asymptomatic, but who are nonetheless quarantined. Due Process concerns are the greatest in the context of quarantining asymptomatic individuals. Asymptomatic individuals are most at risk for unnecessary loss of their liberty and procedural due process violations. A symptomatic person who is affirmatively infected with a disease that will spread from person to person rightly prompts the severe governmental action of isolation. In those cases, individual liberty interests necessarily give way to protect the public in an emergency.(fn8)

On a continuum of due process rights for asymptomatic individuals, "legal, scientific, political, and social issues become more complicated. Procedural due process safeguards should increase . . . because the level of restraint on liberty increases" as the necessity for restraint on a person's liberty becomes more questionable.(fn9)

This Article questions whether we are so focused on public safety that we lose sight of liberty in the context of some quarantines. On the one hand, government interest in public safety may indeed be so strong that it trumps individual rights in almost all cases of threatened communicable diseases or biological terrorism. Alternatively, political influence and public fear may be an equal or greater threat to civil liberties. Therefore, additional constitutional protections for people the government threatens with involuntary quarantine may be necessary.

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This Article analyzes whether the courts should shift the balance to protecting individual liberty interests when reviewing quarantine procedures and balancing individuals' civil liberties against the government's legitimate interest in protecting the public from the spread of serious communicable diseases. It questions whether the government's strong interest in eradicating discrimination should be added as an equal factor to the government's interest in protecting the public health when balancing private versus public interests under Mathews v. Eldridge.(fn10)

Part II explains the impetus for this Article-the recent case of a volunteer nurse with Doctors Without Borders/Medecins Sans Frontieres (MSF).(fn11) The government quarantined her after she returned to the United States from treating Ebola-infected patients in Sierra Leon.(fn12)

Part III provides a history of quarantines, particularly focusing on their discriminatory past. Part IV summarizes the constitutional basis for the state and federal governments' power to quarantine. Part V discusses the constitutional limits of the government's quarantine power and the due process tests courts use to balance individual freedoms, considering the government's very strong interest in protecting public health. It compares civil quarantine law to criminal law, analyzes the risk of error in current quarantine procedures involving Ebola, and suggests additional government interests the courts should consider under the Mathews v. Eldridge test in considering the constitutionality of quarantine procedures.

The Article concludes that individuals facing quarantine have a significant liberty interest at stake. Unless quarantine procedures are clothed with significant safeguards, the risk of error in mistakenly quarantining a healthy individual, who poses no public health threat, is high. Finally, the government's interest in protecting the public from the spread of disease is compelling. However, the Article concludes that what little consideration the courts have given to the con-

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stitutionality of quarantine procedures under Mathews v. Eldridge is underinclusive. Quarantine cases call for additional procedural safeguards, given the government's history of using quarantine as a tool for discrimination. Additionally, the government has a compelling interest in eradicating and guarding against the discrimination that quarantine may cause, as inadvertent as it may be. The government also has an interest in encouraging medical-relief workers to fight the spread of disease. The government has an interest in avoiding quarantine procedures that might discourage medical-relief efforts and stymie medical-relief organizations' recruitment efforts, which benefit the United States.

II. THE GOOD SAMARITAN NURSE'S RETURN HOME FROM SIERRA LEONE

The development of quarantine law and the controversial quarantining of American citizens remained dormant until a recent outbreak of the deadly Ebola virus on another continent.(fn13) The controversy surrounding quarantine erupted with a volunteer nurse's return home to the United States after treating Ebola patients as part of a medical relief effort.(fn14) On October 24, 2014, a Good Samaritan nurse with Doctors Without Borders, Kaci Hickox, returned to the United States after volunteering in Sierra Leone to fight the disease.(fn15) With her return, the fear of Ebola spread faster than the virus in West Africa.

Upon her arrival in the United States, the nurse presented no symptoms specific to Ebola.(fn16) However, through an entry point at Newark International Airport, health officials quarantined the volunteer nurse after learning she treated Ebola patients in Sierra Leone for a month.(fn17) A New Jersey statute empowered the Department of

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Health to enforce a quarantine to protect the public health when deemed necessary.(fn18) Two days before the nurse's arrival home to the United States, New Jersey Governor Chris Christie announced Executive Order 164, which created a joint Ebola Response Team to protect the public in New Jersey from the arrival or spread of Ebola.(fn19) The nurse had departed Sierra Leone on the very day Governor Christie signed Executive Order 164 into law.(fn20) The nurse spent two days in Brussels, Belgium, between leaving Sierra Leone on October 22, 2014, and arriving at the New Jersey International Airport on October 24, 2014.(fn21) The nurse was not questioned, quarantined, or delayed by officials in Belgium in any way.(fn22)

The quarantine procedures created pursuant to New Jersey Executive Order 164 provided any person arriving in New Jersey on a flight originating from West Africa was subject to a twenty-one day mandatory quarantine if a noncontact fever check revealed an elevated temperature.(fn23) Additionally, any individual who treated an Ebola patient was subject to the mandatory quarantine regardless of the results of the noncontact fever check.(fn24)

Immigration and health officials questioned the returning nurse for several hours at the airport about where she traveled and who she had medically treated.(fn25) She...