This August, the Centers for Disease Control and Prevention (CDC) issued a proposed regulation outlining the parameters of the federal government’s authority to impose public health orders such as bans on travel and quarantines in response to outbreaks of infectious disease. Despite posing serious threats to public health and civil liberties, the regulations have received very little public attention. Fortunately, it is still possible for the Obama Administration to revise the regulation before President-elect Trump takes office.
The Harm of Ebola Quarantines
When the government imposes movement restrictions in a manner that respects scientific evidence and upholds constitutional rights, these measures can in theory be effective at curbing the spread of disease. Yet when the government institutes these measures without regard for scientific evidence and individual rights, public health suffers. The Ebola quarantines imposed in 2014 demonstrate the risk. Although decades of study revealed that Ebola cannot be transmitted unless an individual is symptomatic, fear and the political pressures of an election season led states to quarantine asymptomatic individuals for weeks without justification.
As detailed in a report co-authored by the ACLU and the Yale Global Health Justice Partnership, these quarantines caused international medical organizations to experience as much as a 25 percent drop in recruitment of American health care workers. Volunteers worried that they would lose their jobs if they had to spend an additional three weeks in quarantine upon their return to the United States, and many were unwilling to be kept away from their children and loved ones for such an extended—and unnecessary—period.
In addition to the systemic harms of reactionary public health policies, we have seen firsthand the very personal harms of quarantines driven by public fear rather than scientific evidence. As students at Yale Law School, we provide legal representation to eight individuals who were quarantined in Connecticut in 2014: two public health workers and a family of Liberian immigrants. Though none had been exposed to Ebola or posed any threat to public health, the state confined these individuals to their homes for weeks. The state failed to provide these individuals with food or other basic necessities and failed to inform some that they had the legal right to challenge their quarantine orders in court. To this day, Liberian Americans in Connecticut experience shame and stigma as a result of wrongly being labeled a threat to public health.
President-elect Trump’s stance during the Ebola outbreak indicates his administration may support actions with negative effects on public health and individual rights. Through a series of Twitter posts, he stoked public fears and promoted exclusionary policies, including border closures, that would have undermined public health efforts. He insisted that doctors who travel abroad must “suffer the consequences” of their humanitarian efforts, labeled President Obama a “Psycho!” for refusing to stop flights from West Africa, and claimed that “Ebola is much easier to transmit than the CDC and government representatives are admitting.” These views manifest a dangerous disregard for scientific evidence, civil liberties, and public health.
Unfortunately, CDC’s proposed regulations do little to protect public health against these harms in a future outbreak. As we detailed in a comment submitted on behalf of Médecins Sans Frontières, the International Rescue Committee, and the Yale Global Health Justice Partnership, and others, the proposed regulation suffers from four primary shortcomings. Each could enable future administrations to institute dangerous movement restrictions that contravene scientific principles and undermine volunteer efforts to curb outbreaks of infectious disease.
Four Changes Needed to the CDC Regulations
First, the proposed regulation permits indefinite detention without the issuance of a formal public health order and with absolutely no due process protections. Though the CDC has noted that it “does not expect that the typical public health apprehension will last longer than 72 hours,” the proposed regulations place no limit on how long officials may detain an individual while deciding whether to formally quarantine or isolate her.
That means that a future administration could hold travelers—either returning from abroad at the airport or traveling across state lines—in government custody for days or weeks without providing an explanation or an opportunity for the individuals to challenge their detentions. The CDC must constrain this power by placing an upper limit of hours—not days—on the period under which government officials may detain an individual without serving a written order of quarantine or isolation. This reform is required by the Constitution and is sound policy, given that the threat of indefinite apprehension will serve as an impediment to recruiting volunteer health care workers.
Second, the proposed regulation fails to clearly state that the federal government will not issue public health orders that restrict individuals’ liberty unless these orders are necessary and there are no less restrictive ways to protect public health. For example, during the last Ebola outbreak some states monitored the health of travelers returning from West Africa through daily check-ins by phone with a public health official, which is less restrictive than quarantine and proved just as effective. The Constitution prohibits the government from placing more onerous restrictions on individual liberties than is necessary—as determined by sound scientific evidence—to protect the public from the threat of disease.
Third, the proposed regulation fails to guarantee quarantined individuals speedy access to courts, which provide an important check on the misuse of government power by ensuring that the government makes an adequate showing of scientific necessity. Currently, the proposed regulations would allow a future administration to quarantine an individual for three days without providing any legal or medical justification for the quarantine before a neutral decision maker. Yet under the Constitution, absent emergency circumstances, the federal government must provide an individual with legal notice and an opportunity to be heard at a hearing before the government restricts the individual’s liberty. In emergency situations, the government must hold this hearing before a neutral decision maker within 72 hours of initiating the quarantine.
Fourth, the proposed regulations would allow a future administration to perform any ‘medical examination’—no matter how invasive—without the individual’s consent, so long as the testing is “reasonably necessary to diagnose or confirm the presence or extent of infection.” In fact, nowhere in the text of the proposed regulations does the CDC address issues of consent. Informed consent is a fundamental principle of medical ethics that should not be violated absent extraordinary circumstances in which no other alternative exists. Because placing an individual in isolated detention will always provide an alternative to a non-consensual, invasive medical examination, we can imagine no situation in which the CDC would be ethically (or legally) warranted in conducting a medical examination against an individual’s will. To prevent a future administration from violating the bodily integrity and autonomy of citizens through forced examinations, the CDC must explicitly require informed consent for all medical examinations and treatment, with the option of voluntary isolation in lieu of such procedures.
The Need for Action
Without these reforms, the proposed regulations invite future administrations to impose quarantines and other movement restrictions to win political approval, even when these measures are not necessary and could result in dire consequences for public health. The CDC can and should put in place the legal structures necessary to ensure that responses to future outbreaks of disease are based in science and protect civil liberties before the next president takes office. These changes will ensure that future public health orders do not run counter to global efforts to stem outbreaks of infectious disease, but rather serve public health.