October 28, 2014

Who has the power to quarantine?

Daily Briefing

    The White House has said it does not have the authority to overrule governors on quarantine policies, but legal and public health experts say that the federal government does have quarantine powers that it could assert, especially in cases of international or interstate travel, Politico Pro reports.

    Background on quarantine controversy

    Responding to growing concern about Ebola following the most recent case in New York, governors of some states—including New York and New Jersey—have implemented mandatory quarantine policies for health care workers returning from Ebola-stricken nations.

    Kaci Hickox, a nurse who had been treating Ebola patients for Doctors Without Borders (globally known as Medecins Sans Frontieres, or MSF) in Sierra Leone, was the first workers to be isolated under the new policies. She was quarantined for three days in a tent outside University Hospital in Newark, New Jersey, after arriving at Newark Liberty International Airport last week.

    Quarantined nurse: 'I am scared for those who will follow me'

    At the airport, a forehead scanner indicated that she had a 101-degree fever, but a later reading found that her temperature was a normal 98.6 degrees. Hickox tested negative for the virus.  

    According to Hickox and her attorney, her quarantine area consisted of a tent structure, a bed, a folding table, port-a-potty structure, and little else. She had no access to a shower or television. On Sunday, she was granted access to a laptop with internet access, but prior to that, she had "no connection to the outside world except [her] iPhone."

    After a weekend of media coverage and threats by her lawyers to file a constitutional challenge to the quarantine on the grounds that forcing the nurse into isolation violated her right to due process, New Jersey Gov. Chris Christie (R) said she would be allowed to finish her 21 days of monitoring at home in Maine.

    Who has the power to quarantine?

    Although instituting quarantine could bring a political firestorm, the practice is legal for both state and federal governments, according to UPMC's Jennifer Nuzzo.

    Through the 1944 Public Health Services Act, the federal government has the power to contain infectious diseases from other countries. Meanwhile, states may take necessary steps to contain diseases under the 10th Amendment, which gives state governments powers not directly given to the federal government.

    According to Michael Dorf, an expert on constitutional law and civil liberties at Cornell Law School, the two entities both have the power to implement various quarantine standards. "There's no question the federal government can implement all kinds of quarantines at the border," says Dorf, citing a federal law that authorizes the Surgeon General to prevent the spread of infectious diseases across state and federal borders.

    States are also empowered to implement their own reasonable quarantines in the interest of protecting the public, says Dorf.

    However, the federal government may not force states to implement quarantines.

    In addition, state and federal quarantine powers are limited, in that the public health regulations used to impose a quarantine  cannot be "arbitrary, oppressive, and unreasonable," according to Scott Bomboy, editor-in-chief at the National Constitution Center.  Dorf adds that no person has the "absolute right" to avoid quarantine, but that an individual does have the right to "challenge" a particular quarantine.

    How quarantine procedures have (and haven't) changed with time

    Could the federal government overrule a state quarantine?

    The White House and health officials have urged New Jersey and other states to reconsider their quarantine policies.

    "Let's not forget the best way to stop this epidemic and protect America is to stop it in Africa," says Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases. He adds, "You can really help stopping it in Africa if we have our people, our heroes, the health care workers, go there and help us to protect America. We can't lose sight of that."

    However, the Obama administration said it did not have the power to intervene in the states' decisions. And although CDC has issued new guidelines for travelers who may have been in contact with Ebola patients, the agency does not have the regulatory power to enforce those guidelines in states.

    How to handle travelers: CDC introduces four Ebola risk levels

    White House Press Secretary Josh Earnest said, "We have a federal system in this country in which states are given significant authority for governing their constituents. That certainly is true when it comes to public safety and public health."

    CDC director Tom Frieden adds, "If [states] wish to be more stringent than CDC recommends, that's within their authority in the system of government we have."

    Nuzzo challenges that interpretation, saying the federal government could overrule a state order by asserting that it interferes with interstate travel and trade.

    Similarly, Arizona State University law professor James Hodges says, "There's actually quite clear authority for the CDC to step in and systematically engage in quarantine in key situations."

    Earnest says that states generally will adhere to the new CDC guidelines for travel (Gerstein, PoliticoPro, 10/27 [subscription required]; Fuchs, Business Insider, 10/27; Fisher, Forbes, 10/27).

    What you need to know about Ebola

    The Daily Briefing has been tracking the Ebola outbreak since early 2014, and the Advisory Board's experts have created myriad resources for hospitals to help them prepare for the potential cases and reassure their communities about the disease.

    Here's an overview of our top coverage and resources.

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