Alex Woodruff is a Policy Analyst at Boston University School of Public Health. He tweets at @aewoodru.
The COVID-19 outbreak has sparked numerous state and federal orders to slow the spread of this illness and protect the public, including orders to stay at home and close businesses. In this time of rapidly changing policies, it is valuable to understand where the state gets the authority to act and how far that power extends.
Though now part of our colloquial vocabulary, words like isolation and quarantine are not just descriptive; they have legal meaning and relate to the government’s powers to act in the public’s interest. Isolation is a targeted approach for individuals already diagnosed with a disease while quarantine restricts the movement of individuals or groups exposed to an illness, some of whom may not be sick. Both strategies restrict the movement of individuals and are considered a severe deprivation of liberty.
So far the US has used a mixture of voluntary and involuntary orders to contain the spread of COVID-19. Most “orders” began as voluntary (such as recommended “self-isolation”), and then many became compulsory as the spread worsened. If these strategies fail it is possible that more serious measures will be employed. Many countries have turned to mandatory quarantines to control the disease’s spread. In the US involuntary quarantine and isolation measures are considered a form of civil commitment, a legal action that requires due process.
To evaluate the role of the federal and state governments to protect against the spread of disease, health law experts Michael Ulrich and Wendy Mariner (faculty members in the department of Health Law, Policy and Management at Boston University School of Public Health) wrote a legal analysis in 2018 of the government’s ability to act during pandemics and the 2017 CDC regulations of isolation and quarantines.
The CDC’s 2017 regulations were likely enacted in response to criticism that, during the Ebola outbreak, the CDC did not do enough to contain the spread. These regulations amended the CDC’s power to issue quarantines, but the analysis reveals that some of those amendments conflict with what the CDC actually has the authority to do. The Department of Health and Human Services (and as an extension, the CDC) only has the statutory authority to issue only certain types of restrictions that prevent the spread of certain contagious diseases from foreign countries or across state lines. Once a person is traveling inside the United States, involuntary isolation can only be imposed after an individual has been diagnosed with the associated illness. There is only federal authority to mandate the isolation of diagnosed people and quarantines at the border, not a state-level quarantine.
Despite lacking clear statutory authority to enforce them, the CDC did issue guidelines for quarantines during the Ebola scare though the states were under no obligation to follow them. Through their “police power,” states have considerable authority to issue these measures to protect their residents. But even here the authority has limits. As a matter of substantive due process, the legality of state-issued quarantine and isolation measures depends on the severity and communicability of the disease and the likelihood that a person will transmit it to other people. They must be justified by a lack of alternatives to prevent transmission.
Another issue with the 2017 CDC regulations is their lack of guidance on the issue of the individual’s right to procedural due process. Individuals the government wishes to isolate have the constitutional right to a judicial determination that detention is legal. Such due process must evaluate if the person’s behavior justifies the mandated isolation. For example, if the individual is willing to isolate and seek medical care as needed, they may not require a court-ordered isolation. But if she states her intention to engage in activities that could spread the disease, a court-mandated isolation would be justified.
The 2017 regulations do not incorporate these requirements and may encourage overly broad quarantine measures. This discrepancy between the law and the regulations leaves such orders vulnerable to legal challenge. While it may be tempting to overlook due process in the time of crisis, it is critical to prevent the misuse of civil commitment, particularly when our government has a long history of using these laws inappropriately against minority populations and the poor.
The benefit of voluntary isolation and quarantine is that they afford some protection to those who cannot reasonably comply, such as essential workers or those who are financially compelled to continue working. Mandatory quarantines may maximize public health, but they come at a cost. They can affect people’s ability to stay financially stable, access necessary services, and take care of themselves and their family.
If the public can adequately adhere to voluntary measures, escalation to involuntary measures may not be necessary. In a recent article, Prof. Mariner explained that for voluntary measures to be successful, mutual trust between the public and public health officials is critical. There has never been a more important time for effective leadership and a sense of community. Voluntary collective action by the public avoids legal complexities and in many cases may adequately safeguard public health.