Pandemic Fears and Contemporary Quarantine:

Pandemic Fears and Contemporary Quarantine: Protecting Liberty through a Continuum of Due Process Rights by Michelle Daubert

In this article, Daubert discusses the legal ramifications of quarantine. Before undertaking a study of Daubert's article, it is useful to understand how the Centers for Disease Control and Prevention (CDC) approaches the issue of quarantine and isolation. First, the CDC defines isolation and quarantine. Isolation refers to separation of people who have already contracted an infectious illness from the healthy population, while quarantine refers to the separation of people who have been exposed to an infectious illness from the general population (CDC, 2005). The CDC stresses that both isolation and quarantine can be voluntary or mandatory. State and local authorities have the power to compel isolation and quarantine based on their police powers, which give them the authority to safeguard the health of its citizens (CDC, 2005). On a federal level, the Health and Human Services Secretary has the responsibility to prevent the spread of disease in the United States. The President may issue executive orders for isolation and/or quarantine to prevent the spread of the following infectious diseases: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndrome (SARS), and the avian flu (CDC, 2005). Violation of a federal quarantine order is a misdemeanor crime and violation of state and local quarantine or isolation orders may also be crimes (CDC, 2005).

Daubert begins by looking at the history of the quarantine. She mentions the Biblical use of quarantine and isolation on leprosy victims and the effective use of quarantine in medieval Europe, when the populace was concerned about the spread of the plague and other infectious diseases. She discusses how the practice of quarantine developed in the Americas, where quarantine was initially directed at diseases that could enter by sea. In 1647, the Massachusetts Bay Colony enacted a maritime quarantine against Barbados, which was the first formal quarantine in America. By 1797, Massachusetts formalized its state quarantine powers. In 1796, Congress enacted its first federal quarantine statue in response to a yellow fever epidemic. While some states argued that the federal government lacked authority to enact such a statute, because the power to quarantine was a police power, the federal government maintained that it had such power under the Commerce Clause. Currently Title 42 of the United States Code and the Robert T. Stafford Disaster Relief and Emergency Assistance Act both give the federal government the power to impose a quarantine. This power has survived legal challenges. In addition, modern quarantine is frequently a combined state-federal action, with the federal government authorized to give and receive assistance to and from state and local governments.

Next, Daubert looks at legal limits on the government's ability to impose a quarantine. Because quarantine necessarily infringes upon individual rights, it is a tool that must be used in a specific manner. For example, does the government have to afford procedural and substantive due process rights to individuals subject to a quarantine or isolation order? It is clear that people are entitled to some due process, but it is equally clear that, given the realities of the spread of infectious disease, people must be detained prior to receiving due process or the quarantine will be meaningless. To meet substantive due process, a public health intervention must be based on a public health necessity, an effective intervention, have a demonstrable means-end connection, be proportionate to the threat involved, and be the least restrictive means of accomplishing the goal. In addition, Daubert explains the parameters of the procedural due process. Due process in a quarantine situation does not always involve a judicial hearing, but it must contain the following elements: notice to the affected individual, an opportunity to contest the government's action, access to legal counsel, and a final decision that is subject to review by a court of law. She includes with a discussion of how due process came to be applied in situations of quarantine, by viewing due process as a continuum, with infected individual on one end of the spectrum and the exposed individual on another. She thinks that due process should increase as the likelihood of infection decreases. Finally, she looks at the current procedural and substantive due process framework might work in the event of a large-scale quarantine. To do so, she discusses the due process required in involuntary mental health commitments and how that might translate to a quarantine scenario.

In part three, Daubert discusses the current quarantine procedural due process requirements at both the federal and state levels. In December 2003, states were encouraged to review their public health laws, and to adopt model acts to update state quarantine procedures. The two model acts suggested include the Model State Emergency Health Powers Act and the Turning Point Model State Public Health Act. These new acts were motivated by the increased threat of bioterrorism in a post 9-11 world. These acts recognize that genuine public health emergencies may not give public health authorities adequate time to provide written notice of a quarantine. It also limits quarantines to a 30-day period, though a public health authority may seek a continuance o the original quarantine. Federal law provides for a 3-day provisional quarantine of individuals without an order. After three-days, the person must receive a written quarantine order and can protest the quarantine through a writ of habeas corpus.