The big news now is obviously Coronavirus Disease 2019 aka COVID-19 and the response to it raises some big civil rights issues. Health officials and governments around the world are working to prevent or re3duce the spread of the disease. COVID-19 spreads from person to person via respiratory droplets created when an infected person sneezes or coughs. You can be exposed to those droplets directly if you are close enough to the source (within 6 feet) or by touching a surface that has droplets on it and then touching your eyes or mouth. Clearly the best way to avoid the illness is to wash your hands and keep things clean.
Another method is staying away from sick people. How do we do that if we can’t tell who is sick? Many governments are asking people who are sick to voluntarily isolate themselves to prevent the spread of the virus. Of course many people just don’t want to do that, so what to do? Can we force people into quarantine? This is America. We have rights. You can’t tell me what to do. I have a job, being in quarantine would prevent me from going to work to make money to feed my family.
NYSBA President Hank Greenberg was interviewed by Fortune Magazine about government’s power in the United States to enforce quarantine decrees.[i] He states that officials have “tremendous authority” to trace and isolate virus carriers, based on a “vast body of law” over communicable diseases.
The first step is usually voluntary quarantine. State law has no provisions regarding voluntary quarantine but the State Health Department gives guidance to local authorities to have procedures in place to effect voluntary quarantines. For example, the Health Department created a Model SARS Quarantine Agreement to be agreed to by patients potentially affected by SARS.[ii] Actor and author Rob Delaney recently described how effective a well-coordinated response to a communicable disease can be. On his Twitter feed he recalled when in 2010 he contracted Hepatitis A while working at MTV. The Los Angeles Department of Health was notified and they managed the outbreak with hospitalizations where needed and appropriate treatment.[iii]
Health departments are constantly updating their recommendations. There is a recent update for EMS services[iv], and for public schools[v]
What about people who won’t voluntarily isolate themselves. For an individual we can start with the New York Public Health Law, §225 and Article 21 which are concerned with the prevention and spread of communicable diseases. A physician can make a report to a health official about a patient that they consider to be a health risk to others. That patient is then brought before a magistrate who holds a hearing and can order that the patient be committed to a hospital or other institution created to treat the particular disease.
How about a group, say a family where one person is sick? Or an airplane full or people arriving from an area where the virus is widespread, or a cruise ship of several thousand people? Can the government just "lock these people up”? For the protection of public health, yes they can.
Of course this raises some serious issues of due process guaranteed by the 14th Amendment. There are two aspects of due process, Procedural Due Process and Substantive Due Process. A law must pass both tests. An order of isolation or quarantine deprives a person of an essential right, the right to liberty. Therefore such a law must bear a “substantial government interest”, in this case the management of a communicable disease.[vi] In addition it must provide Procedural Due Process, weighing the risk of erroneous deprivation of liberty against the government’s interest in confinement.[vii] The government wishes to confine the patient to protect the public from a communicable disease and thus must give a proper hearing allowing the patient an opportunity to object to the confinement. Perhaps the most famous cases of isolation was Typhoid Mary, who was isolated on an island in the East River for 3 years and then for another 23 years until her death.
With cruise ship and airplanes, the Center for Disease Control (CDC) gets involved. They have a detailed website all about the virus and the government’s plan for managing it.[viii] They have a page devoted to the legal authority for fighting communicable diseases,[ix] and specifically for the power to quarantine.[x] They have included a sample quarantine order for COVID-19 patients.[xi]
A current case is the Princess Cruise ship that was denied dockage on March 4, 2020 by California State and local health authorities. Since then, State and Federal health authorities have worked together with the cruise line to devise a plan to get the passengers off the ship and into quarantine.[xii]
In essence the Federal Government through the CDC and other agencies is responsible for preventing communicable diseases entering the country. States are responsible for enforcing quarantine orders within their territory and managing outbreaks. The CDC is authorized by 42 Code of Federal Regulations parts 70 and 71 to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases.[xiii] The CDC must reevaluate your quarantine within 72 hours and you do not waive your rights to seek judicial intervention to make a judicial determination on your isolation.
So, in summary, the CDC has the power to detain anyone entering the United States and determine if they have a communicable disease and order a quarantine. States have the power to order a quarantine if a doctor or health official determines it is necessary, after a due process hearing. It requires a careful balance between the civil rights or an individual and the protection of the general public.
[iii] https://twitter.com/robdelaney/status/1236743055534891009 Permission to use granted by author
[vi] Beatie v. City of New York, 123 F3d 707 (2d Cir 1997)
[vii] Mathews v. Eldridge, 424 U.S. 319, 335 (1976)
[xiii] https://www.law.cornell.edu/cfr/text/42/part-70 and https://www.law.cornell.edu/cfr/text/42/part-71
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.