The critical reckoning over forced quarantines is still to come.
Consider this scenario.
Sometime in January or February – as the Ebola epidemic explodes out of West Africa – we’ll start experiencing larger, more frequent outbreaks in American cities. With the flu as a background to confound suspected cases of Ebola, public health departments will be hard pressed to “track and trace” all of the potential “contacts” when perhaps dozens of Ebola cases pop up in their cities.
Unable to pinpoint who might have come in close contact with Ebola, and be at risk of contracting the virus, they will reach for their most absolute tool – forced quarantine – as a way to mitigate threat amidst uncertainty. The number of people who will be placed into forced quarantines could easily number in the hundreds.
If this scenario sounds far fetched, take a closer look at the accelerating epidemic in West Africa. If the rate of spread doesn’t start to subside soon (there are some encouraging signs of deceleration in Liberia, but spread is accelerating in Guinea and Sierra Leone) it’s just a matter of time before Ebola breaks out to a region with closer connections to the U.S. -- like Latin America. Once it goes to such a market, and becomes epidemic, the U.S. would be importing far more than the sporadic case.
This begs the question, how will state and federal governments exercise their authority to quarantine people in such a scenario. As we have seen from recent events, that legal power is sweeping, poorly defined, and absolute.
Under current law, the federal government is responsible for quarantining individuals traveling from outside the U.S. or between states, while state governments have quarantine authority over people traveling within state boundaries.
Federal and state governments must have a factual basis to support a quarantine. There must be a plausible reason to believe that a person placed in quarantine was exposed to a suspect pathogen, or might be incubating the disease. But it’s left mostly up to the government to develop that basis. And it needn’t be a high bar.
The quarantine also needs to be discriminating. The government can’t quarantine an entire city, for example. But the government could quarantine an entire plane if it was believed that an airborne pathogen was released inside; or an entire classroom of children if one child might have exposed others to a virus.
The Bush Administration attempted to set out more parameters around how quarantine would be used in a public health emergency such as a bioterrorist act, by issuing a new regulation interpreting the decades-old legal authority. But in trying to spell out some general parameters, the Bush-era rule also exposed just how absolute and intrusive the underlying legal authority is. It spooked civil libertarians.
Instead of grappling with these concerns, and tightening some of the parameters around how quarantine would be used through a revised regulation, the Obama Administration abruptly pulled the rule, and replaced it with nothing. President Obama signed a patchwork of executive orders to give CDC clear quarantine authority in regards to some emerging respiratory pathogens like SARS and MERS. But the regulation interpreting the federal quarantine authority remained outdated.
As a result, we are left with the worst of both worlds -- a sweeping legal authority with no modern regulation laying out its terms. If there’s confusion now amidst conflicting state Ebola policies, the Obama Administration shares in the blame.
The Bush rule proved controversial on two key points. The first was a requirement on airlines to keep passenger records that would be used by public health officials to track down people who might have been expose to a pathogen while in flight. The airlines complained that these requirements were costly and burdensome.
The second controversial provision was a new concept of “provisional quarantine.” This policy would have allowed the federal government to detain people for up to three days, with no method for appeal, if the Centers for Disease Control and Prevention believed that a person was exposed to or infected with certain illnesses. After three days, the government would have a burden to make a more substantial showing, and the individual would have the right to petition for release.
While the term “provisional quarantine” was new, the underlying concept was not. In effect, this new construct actually had greater controls around it than the underlying authority that already exists, and is being vigorously exercised in Connecticut, New York, New Jersey, Illinois, and a growing list of other states.
There was a lot of pressure from the White House to get the rule in place. They wanted to have clear parameters in the event of a pandemic or act of bioterrorism. But in trying to put some considerations around the exercise of quarantine, the feds had the effect of exposing those aspects of the law that also make people uneasy.
Clearly federal and state government needs to retain clear authority to hold people in quarantine in the event of an outbreak with a deadly pathogen. Quarantine is a basic tool for combatting spread of a deadly pathogen and protecting the broader public health. But the quarantine authority should have clear boundaries on how it would be exercised, and appropriate guardrails to prevent abuse. These matters are too important to be figured out on a try and fail basis or made up as we go.
It’s easy to think through some of the key questions that should be answered in advance in state and federal regulations, but haven’t been. Under what conditions can people be held? What amenities do they need to have access to (phone, Internet, a shower)? What happens when someone is quarantined outside his or her state?
The list can go on. Can people be quarantined alongside others suspected of having the same illness, and thus risk exposure to an infection that they might otherwise, not be harboring? Who gets to determine the diagnostic tests that can be used to vacate someone from quarantine, or the results that need to be achieved?
These are just some of the obvious questions that come to mind. None of these questions have been sufficiently answered in law or regulation.
Even if a regulation can’t anticipate the specific answers without knowing the pathogen, at the very least, policy should provide a framework for resolving them.
Ebola disease will never become epidemic in the U.S. (so long the virus doesn’t mutate in ways that make it far more contagious). But the prospect of larger and more frequent outbreaks is likely. As we have seen with the anxiety engendered by just a few isolated cases, if we were to have even a dozen cases in a major U.S. city, it could have a substantial impact on our economic and social life.
In such a circumstance, the temptation of government leaders may well be to use their quarantine authorities with no frills, roping in individuals who may have – to their own estimation – only the most cursory risk of being exposed. It sounds prudent, until you’re the one being isolated. In bigger outbreaks, quarantine could encompass hundreds of unsuspecting, and otherwise healthy individuals.
Before that day arrives, we should demand more clarity from the state and federal governments on exactly what rights people will be afforded, and the conditions of their detention. For a start, the Obama Administration could resurrect the Bush quarantine rule, and start implementing the parts that people agree on.
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