We are pleased to present this symposium featuring commentary from participants in the “Between Complacency and Panic: Legal, Ethical and Policy Responses to Emerging Infectious Diseases” conference held on April 14, 2017, at Northeastern University School of Law. The conference was sponsored by the Center for Health Policy and Law and the American Society for Law, Medicine, and Ethics (ASLME), with support from The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Stay tuned for more posts!
On August 1, 2014, while Ebola raged in Guinea, Liberia, and Sierra Leone, Donald Trump tweeted: “The U.S. cannot allow Ebola infected people back! People that go to faraway places to help out are great-but must suffer the consequences.” Most experts agree that epidemics are best avoided where the population is educated, well-nourished, and resilient, with access to effective medical and public health resources. Yet, too often, the first response to the threat of an epidemic is to keep people out of the country or quarantine them. It is worth considering why this is so, and how we can do better.
A New Foreign and Interstate Quarantine Rule
On January 19, 2017, the day before Trump’s inauguration as President, the Centers for Disease Control and Prevention (CDC) issued final regulations for detaining individuals suspected of harboring a “quarantinable” communicable disease (QCD). Why would the Obama Administration issue new rules? The explanation in the Federal Register offers 2 reasons: (1) responding to the Ebola epidemic and outbreaks like MERS and measles; and (2) clarifying and codifying “current practice” “to make the public aware of their use.”
The first reason is odd, because the statute authorizes quarantine measures only for QCDs that are listed in an Executive Order of the President, and measles is not a listed QCD. However, the CDC is concerned about people entering the US with TB, which was not a listed QCD until 2003. (The CDC withdrew an earlier 2005 notice of proposed rulemaking after receiving highly critical comments.)
The second reason is also puzzling. Agencies are not in the habit of issuing regulations merely to let the public know what they are already doing. The explanation of the new rule’s costs and benefits may offer some insight. It describes the rule’s benefits as “avoiding litigation.” Could the CDC be worried that its “current practice” was not authorized?
What Does the Rule Say?
The Public Health Service Act, 42 U.S.C. §264(b), (c) authorizes the federal government to apprehend, detain, examine or place restrictions on (1) any person who is coming into the US from a foreign country, but (2) only for the purpose of preventing the introduction, transmission or spread of a communicable disease listed in an Executive Order of the President (i.e., QDCs). The new rule allows the CDC Director to apprehend anyone arriving into the US who might have been exposed to a QCD. The person can be detained for up to 72 hours before the Director needs to issue a Federal Order authorizing the detention. Then the Director has another 72 hours to “reassess” the Order (or maybe just begin to reassess, the text is unclear), and issue a second Order to continue, modify or end detention. Only now, perhaps 6 or more days after apprehension, can the person even request a medical review, which is limited to determining whether the Director’s belief that the person might have been exposed to a QCD was reasonable. The medical reviewer then issues a written report to the Director (no deadline stated), and the Director can issue a third Order (who knows when?). Only at this point, can the person challenge the last Order. But, the challenge is limited to new or changed medical or other facts; there is no provision for challenging the legal basis for any Order. (The explanation, but not the rule, notes that people should be able to petition for habeas corpus relief, but how many people even know what that is?)
What Could Possibly Go Wrong?
First, the rule makes an error of law – common among the lay public, but puzzling for a government agency. Having a disease – much less the mere possibility of exposure to disease – is not a sufficient ground for depriving a person of her liberty, protected by the Fifth Amendment’s Due Process Clause. The U.S. Supreme Court has not heard a case concerning contagious disease quarantine. But two principles established by the Court in cases about civil commitment of persons with mental illnesses, such as O’Connor v. Donaldson (1975), and Foucha v. Louisiana (1992), are generally applied to contagious diseases by analogy. The first principle is that no one can be involuntarily detained simply because he is ill. The rule fails this principle by authorizing involuntary detention solely on the basis of a reasonable belief that a person was exposed to a QCD. The second principle is that no person can be involuntarily detained unless that person is likely to harm others by transmitting his infection. (I leave aside the more contentious issue of whether or when danger to one’s self is justifiable, because it is not relevant to quarantine.) The rules fails this principle by omitting it entirely. Thus, civil commitment or involuntary detention is only justifiable when a person (a) has a serious contagious disease, and (b) also is likely to engage in behavior (voluntary or involuntary) that can transmit that disease to others unless detained. Without both factors, there is no danger to the public and no justification for involuntary detention. (To be sure, there may be rare instances in which a brief, temporary detention may be justified to confirm or deny whether a person meets both factors, but the rule goes well beyond that exception.) Moreover, the determination of both factors must be made by a judge following a hearing with procedural due process protections. In the rule, all decisions are made by public health officers.
Second, the rule leaves too much discretion in the hands of lower level officials. The process has 10 steps, which makes strict compliance unlikely. Laws should delineate the bounds of official discretion to avoid arbitrary and capricious actions, no matter who is in charge. No one should not have to depend on good graces of particular officials. History is replete with examples of the inappropriate and ineffective use of quarantine, most often targeting immigrants and low-income and minority populations. The new rule is not likely to perform much better.
Third, the rule imposes harsh measures on people without offering the resources needed to protect the public from disease. At the very least, people in quarantine (whether voluntary or involuntary) need access to communication with their loved ones, food, water and medicines, protection from job loss, and often a good lawyer. Instead, much of the rule’s text is devoted to disclaiming any federal responsibility to pay for anything a detained person needs beyond medical care during involuntary incarceration.
Fourth, the rule may have little application beyond a few travelers here and there. But rare events get publicity, like the shameful quarantine of Kaci Hickox in 2014. No one wants to see videos of public health officials dragging a newly arrived passenger into custody. Yet, no American government can force everyone to comply with rules they oppose. Our public health system depends on public trust, and public trust depends on fair rules.
Finally, and most important, the rule fails to take advantage of the CDC’s scientific expertise to offer technical assistance in disease prevention. Instead, it turns the agency into a border patrol. The CDC knows that most of what we need to prepare for and survive an epidemic has nothing to do with quarantine. It is hard to believe that this rule was its first choice.
Why Not Choose Real Preparedness?
Perhaps the agency felt sidelined during the Ebola epidemic, when states often ignored its advice and the White House handed leadership over to a new Ebola Czar, Ron Klain, a lawyer no less. Could the new rule be an effort to regain respect and preserve the CDC budget?
Ari Shulman writes in Hedgehog Review about a cycle of mutual mistrust between health agencies and the public. If the public finds official recommendations not credible (one of Shulmans’ examples is the CDC’s recommendation that all women of childbearing age should abstain from alcoholic beverages unless using contraception), the public loses faith in the agency and may consider its actions to be merely political. When “agencies sense their authority slipping,” he writes, they may “double down with overreaching recommendations,” perpetuating a vicious cycle of mutual distrust.
I might add that the more an agency’s budget is in jeopardy, the more pressure it feels to defend its turf. But when this results in claims for more power, based on risks that have little credibility, the public may simply tune out.
Given the consensus that preventing the spread of contagious disease depends on ensuring a resilient population, emergency preparedness should focus on providing the resources the population needs. TIME’s May 15 cover story about preparing for “the next pandemic” does not even mention the new rule – or quarantine – as a relevant strategy. Quarantine rules look out of touch with modern public health measures such as scientific approaches to prediction, prevention (at the source, often overseas, and vaccines), and treatment. Even though the CDC is not responsible for delivering health care or other necessary resources, it has the scientific expertise to offer technical assistance to the federal and state governments. It should be the country’s trusted public health advisor, not the border patrol.