Four people were quarantined in Dallas, Texas after Thomas Duncan was admitted to the hospital. One woman (the girlfriend of the Ebola victim), her son, and her two nephews were confined to the apartment where Thomas Duncan began showing symptoms of Ebola.[1] They were not allowed to dispose of the soiled linens because of the current indecision on how to safely transport these Category A hazardous materials.[2] Food wasn’t being delivered to them, and when she tried to leave she was given a confinement order from Dallas County Judge Clay Jenkins.[3] Armed guards began enforcing that order.[4] To make things worse the power went out due to strong storms in the area.[5] So with one case of Ebola in the US, four people began living with intermittent power, highly infectious Ebola waste, an unstable food supply, and armed guards making sure her personal hell stays that way. As Ebola cannot be transmitted during the incubation period, these people are not even contagious. This is no way to conduct a quarantine and bodes poorly for the future.
Many studies have been performed on quarantine subjects.[6] There is a great deal of stress on quarantined individuals even when the quarantines are handled more professionally and humanely, and about 30% experience depression and symptoms of posttraumatic stress disorder.[7] A quarantine is hard to manage logistically, has long term consequences for the quarantined, and barring the presence of one armed guard for every two people, can be counterproductive as people flee to uninfected areas to avoid it.[8]
Many people have wondered if a widespread quarantine could happen and what form it could take if it did. Isolation of a healthy and competent individual is one of the worst deprivations of liberty imaginable. Doing this especially without clear, scientific proof that quarantines are effective undermines trust in the government and in the medical community. Public health scholar NE Kass summarized the basic problem: “Programs that are coercive should be implemented only in the face of clear public health need and good data demonstrating effectiveness.”[9] There is no empirical evidence that large-scale quarantine is effective[10] and small-scale quarantine instead of self- or health system monitoring for temperature seems strange. Indeed, the four people in that apartment seem free from Ebola so far whereas a nurse who treated Duncan turned up positive after days of self-monitoring for temperature.
Currently, federal quarantines seem difficult to impose and states will be in charge of implementing their own responses. The Public Health Service Act (PHSA)[11] gives the federal government the authority to invoke medical quarantine in response to outbreaks of certain infectious diseases, including Ebola. As the PHSA is based on the Commerce Clause of the Constitution (allowing Congress the authority to regulate interstate commerce) there is some question as to whether the PHSA could be applied by the federal government to quarantine people not engaged in economic activity or traveling interstate.[12] It seems likely that the Commerce Clause could be successfully invoked on the argument that Ebola infections have an effect on interstate commerce and thus should be subject to federal regulation. The PHSA allows the Surgeon General to create regulations necessary to prevent the spread of specific communicable diseases with the approval of the Secretary of Health and Human Services;[13] this can be invoked for the apprehension and examination of “any individual reasonably believed to be infected . . . moving or about to move from a State to another State; or to be a probable source of infection to individuals who . . . will be moving from a State to another State.”[14]
It’s unclear how this would be implemented currently as we have no Surgeon General[15] and the acting Surgeon General has been absent, deflecting matters to the CDC.[16] The CDC has no direct regulatory role and is limited to a support and advisory role to state efforts, similar to the WHO’s role with regard to international states.[17] The lack of coordination between the states can be seen directly in the squabble over the disposal of the ashes of Duncan’s incinerated belongings in a Louisiana landfill, which has been blocked by judicial order.[18] Until there is a Surgeon General or a functioning interim Surgeon General the CDC will likely be responsible for coordinating efforts but it will lack the support of the PHSA in doing so.
The CDC manages 20 Quarantine Stations throughout the US at ports-of-entry and land crossing where international travelers are likely to arrive.[19] CDC personnel staffing these Stations determine if an ill person can enter the US and what, if anything, should be done to prevent the spread of disease.[20] According to the CDC’s website, “CDC has the legal authority to detain any person who may have an infectious disease that is specified by Executive Order to be quarantinable.”[21] The CDC states the source of this authority is the PHSA, saying that “the authority for carrying out these functions on a daily basis has been delegated to the [CDC]”.[22] The CDC explains that it is in charge at points of entry, but that states and local authorities are responsible for enforcing “isolation and quarantine within their borders.”[23] The CDC has a useful page listing and linking to the pertinent sections of the United States Code (USC) and the Code of Federal Regulations (CFR).[24]
There has been some noise about “Ebola quarantine camps,” sometimes said to be operated by FEMA, being set up throughout the United States. Often is it also implied that US officials are stirring up public fear so it can put people into the camps without outcry as part of some nefarious plan. I will address the first part, but I’ll leave the second part to be evaluated by your own litmus tests of believability. FEMA has a “Biological Incident Annex” that details the federal response to a bioterrorism or natural disease outbreak.[25] There is one subparagraph dealing with quarantine: “The scope of the disease outbreak may require mass isolation or quarantine of affected or potentially affected persons. Depending on the type of event, food, animals, and other agricultural products may need to be quarantined to prevent further spread of disease. In addition, livestock or poultry may need to be vaccinated or depopulated, and the movement of animals and equipment on and off affected premises may be restricted. In this instance HHS and USDA will work with State, tribal, territorial, and local health and legal authorities to recommend the most feasible, effective, and legally enforceable methods of isolation and quarantine. If interstate travel restrictions, including restrictions on arriving international travelers, are determined to be necessary, HHS will work closely with DOS, DHS, the Department of Transportation, and State, tribal, territorial, and local authorities to implement any recommended measures. In the event that foreign nationals are subject to isolation and/or quarantine, HHS will work through DOS to notify affected foreign governments.” This section is light on details, but this reflects the federal government’s lack of experience and authority regarding enforcing quarantines.
Ultimately it seems that quarantines will be state-directed affairs unless some emergency legislation is passed giving the federal government more authority. Any increased authority may be challenged by the states for pushing the limits of the Commerce Clause too far. I imagine the likelihood of a state suit will be related to the level of threat Ebola poses at the time any such legislation would be passed. The appointment of a Surgeon General would also give the federal government more authority to regulate, but “regulating” a mandatory quarantine seems a stretch. If Ebola threatens the US too much and reactionary legislation is passed we may see much stronger centralized federal authority for pandemics and other disasters as we come away from the Ebola threat. Fears of “FEMA-run Ebola death camps” are likely a bit misplaced: if you must fear Ebola-death camps, fear ones run by your state, as with the exception of ports-of-call and land borders it seems that the federal government is quite curtailed.
Sources after the cut.
[1] Greg Botelho, CNN , Frustrated woman quarantined with sheets, towels soiled by Ebola patient; http://www.cnn.com/2014/10/02/us/texas-woman-quarantine-ebola-thomas-duncan/index.html
[2] Id.
[3] Ruth Sarah Lee, Psychology Today, Is The Ebola Quarantine Even Legal?; http://www.psychologytoday.com/blog/so-sue-me/201410/is-the-ebola-quarantine-even-legal
[4] Id.
[5] Frustrated woman quarantined with sheets, towels soiled by Ebola patient, supra, note 1.
[6] Is The Ebola Quarantine Even Legal?, supra note 3.
[7] Id.
[8] Harry F. Hull, Washington Post, Why quarantines won’t stop Ebola from spreading in the U.S.; http://www.washingtonpost.com/posteverything/wp/2014/10/03/why-quarantines-wont-stop-ebola-from-spreading-in-the-u-s/
[9] NE Kass, An ethics framework for public health, Am. J. Public Health, 2001.
[10] Cecile M. Bensimon and Ross E.G. Upshur, Evidence and Effectiveness in Decisionmaking for Quarantine, Am. J. Public Health, 2007; http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1854977/
[11] 42 U.S.C. § 201-300
[12] Arjun K. Jaikumar, Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine After Nfib v. Sebelius, 114 Colum. L. Rev. 677 (2014)
[13] Id. at 693.
[14] 42 U.S.C. § 264(d)(1)
[15] Erin Brodwin, Business Insider, The Ebola Crisis Has Exposed A Huge Gap In The Obama Administration; http://www.businessinsider.com/no-surgeon-general-during-ebola-in-us-2014-10.
[16] Recebba Kaplan, CBS News, As calls for Ebola “czar” grow, where’s the surgeon general?; http://www.cbsnews.com/news/as-calls-for-ebola-czar-grow-wheres-the-surgeon-general/.
[17] Laura H. Khan, Bulletin of the Atomic Scientists, Who’s in charge during the Ebola crisis?; http://thebulletin.org/who%E2%80%99s-charge-during-ebola-crisis7723.
[18] Abby Ohlheiser, Washington Post, Judge blocks disposal of Ebola victim’s incinerated belongings in Louisiana; http://www.washingtonpost.com/news/to-your-health/wp/2014/10/13/attorney-general-fights-disposal-of-ebola-victims-incinerated-belongings-in-louisiana/.
[19] CDC, U.S. Quarantine Stations; http://www.cdc.gov/quarantine/quarantine-stations-us.html.
[20] Id.
[21] Id.
[22] CDC, Legal Authorities for Isolation and Quarantine; http://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html.
[23] Id.
[24] CDC, Specific Laws and Regulations Governing the Control of Communicable Diseases; http://www.cdc.gov/quarantine/specificlawsregulations.html.
[25] FEMA, Biological Incident Annex; http://www.fema.gov/pdf/emergency/nrf/nrf_BiologicalIncidentAnnex.pdf.
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