Abuse of the authority to restrict liberty in the name of disease control, Goldman wrote, "is of special concern when the other interest involved is the confinement of a human being who has committed no crime except to be sick." We should be even more vigilant when the people whom the government seeks to confine are neither sick nor contagious.
New Jersey Gov. Chris Christie initially claimed that Kaci Hickox, the nurse who last Friday became the first person to be forcibly isolated under that state's new policy, was "obviously ill." But by Monday, when Hickox was released from University Hospital in Newark after repeatedly registering a normal temperature and testing negative for Ebola, Christie had to concede she was not sick, meaning she currently poses no threat to other people.
Hickox was nevertheless sent back to Maine, where she lives, for three weeks of home confinement. The same fate awaits other health care workers who arrive in New Jersey or New York after interacting with Ebola patients.
In an open letter to New York Gov. Andrew Cuomo, more than 100 AIDS activists, clinicians, scientists and academics urge him to reconsider that requirement, which they say is medically unjustified and counterproductive because it is apt to deter health care workers from going to Africa, where they are desperately needed to help control Ebola at its source. "There is no evidence that indicates quarantines are superior to active monitoring for symptoms with respect to preventing transmission of (Ebola)," they write.
That observation could be legally significant, because courts often ask whether a public health intervention is "the least restrictive alternative." They also commonly demand "clear and convincing evidence" that a person whom the government seeks to confine poses a threat to the public.
In the 1993 New Jersey case, for example, Judge Goldman emphasized that the TB patient was actively contagious, that he had repeatedly failed to comply with treatment, and that he was homeless, which in the judge's view made confinement to a hospital the least restrictive alternative. Asymptomatic health care workers such as Hickox are not contagious, and they should be highly motivated to comply with monitoring protocols. Furthermore, the Ebola virus, unlike the tubercle bacillus, is not transmitted by air.
Those factors should weigh in favor of a legal challenge to excessively stringent Ebola quarantine policies. Yet most commentators seem to think such a challenge, which Hickox threatened to bring, is unlikely to succeed.
"Being physically confined by the government feels like a fundamental violation," writes CNN legal analyst Danny Cevallos. "But it's rarely a legal violation." Northwestern University law professor Eugene Kontorovich reports that he "found no cases in which a quarantine has been lifted (on) due process grounds," although "there have been some successful challenges to conditions of quarantine."
Then again, when was the last time state governments sought to quarantine an entire class of asymptomatic, noncontagious people? "I'm very worried about it," said Georgetown University law professor Lawrence Gostin, who signed the open letter to Cuomo, in an interview with The New York Times. "And I'm one who thinks that we should always privilege public health. I'm not a civil libertarian."
As Gostin's concerns demonstrate, conceding that force can be justified in preventing the spread of communicable disease does not mean it always is. And if the courts do not step in when it isn't, who will?