On Thursday morning in Maine, a 33-year-old nurse and her boyfriend went for a bike ride. Many looked on in horror.
Kaci Hickox had recently returned from Sierra Leone, where she spent a month treating Ebola patients with Doctors Without Borders. On Friday, October 24, screeners at Newark’s Liberty International Airport reportedly determined that she had a fever. Hickox was then whisked away to a local hospital and kept in isolation, before being freed to return home on Monday.
Reports emerged late on Thursday that negotiations between Hickox and state officials about the RN’s liberty had broken down. The compromise would have prevented her from mixing it up with the public but allowed her to get outdoors for a bit of fresh air and exercise. After the breakdown, Governor Paul LePage announced that he would “exercise the full extent of his authority allowable by law,” which begs the perfectly reasonable question: What is the extent of that authority?
The Quarantine Power
Earlier this month, a column by law professor Michael C. Dorf examined the extent of federal and state power to quarantine potential disease carriers. (“Containing Ebola: Quarantine and the Constitution,” Justia.) The article, which deserves a read for its discussion of the constitutional nuances at play, indicates that the states and the federal government have the power to implement quarantines. How they may implement them, though, is the issue of the day.
Dorf discusses the difficulty in choosing a standard by which governments must prove that someone should be quarantined. The ultimate criminal-law standard, for example, falls flat in this context. No one would argue that the government ought to have to establish beyond a reasonable doubt that each and every person to be quarantined actually has the capacity to infect others with Ebola.
Even if the standard were much lower—say, a preponderance of the evidence—how could officials effectively head off the spread of disease? Dorf:
If even one in a thousand people is likely to pose a risk of infecting the general public with a highly contagious deadly disease, then the government should be able to quarantine all one thousand, even though the probability that any one of them is infected is far below even a preponderance ... .
Fear of the Downside
With the breakdown of talks between Kaci Hickox and health officials, it looks like contemporary courts may have the chance to hash out the issue of power to quarantine.
Hickox would point to her lack of symptoms and the fact that Ebola-infected patients cannot transmit the disease unless they display signs of illness. The state of Maine would counter that she had a fever upon her return from West Africa (Hickox disputes that). It would also stress that you cannot rule out Ebola in the first 21 days after the point of exposure.
What the courts would decide is anyone’s guess. But remember that judges notoriously fear that defendants they release on bail will commit violent crimes. That fear shapes many pretrial release decisions. A similar one may determine the scope of government power to enforce Ebola quarantines.