Coronavirus

The Long History of Coercive Health Responses in American Law

By Adam Klein, Benjamin Wittes
Monday, April 13, 2020, 2:56 PM

Nearly 10 years ago, we published in the Harvard National Security Journal a long article about preventive detention—that is, detention justified in law by the need to prevent future harm, rather than as punishment for a past crime. After examining more than a dozen varieties of preventive detention allowed by American law, we concluded that, despite the “civic myth” that preventive detention is disfavored and rare, it is neither prohibited nor “especially frowned upon in tradition or practice.” Surprisingly, American law allows quite a lot of it.

One of the areas we examined was the power of quarantine and isolation to protect the public health. Unfortunately, that power is newly relevant—more relevant than ever before in the living memory of most Americans.

Several basic themes emerge from a survey of the history and law of quarantine in the United States.

First, involuntary measures to control disease have a long history in North America.

Colonies and, later, states have imposed such measures since the beginning of American history, though they have become less frequent as modern hygiene and medicine have reduced the prevalence of infectious disease.

Parliament, which legislated for the American colonies until independence, passed its first statute to regulate the practice of quarantine in 1604, likely in response to a severe outbreak of plague the year before. The law, known as King James’s Act, gave local officials draconian powers to impose and enforce isolation and quarantine of potential plague carriers. Any person infected, residing in an infected house or even being present in one could be “shut-up” in that house until the authorities chose to lift the quarantine, a tactic reportedly used by China to contain COVID-19 in Hubei province.

The earliest recorded quarantines in the colonies were against smallpox, dating back at least to the 1620s. The first formal quarantine law enacted by one of the American colonies followed in 1647, in Massachusetts. By the early 18th century, Massachusetts added a law permitting local authorities to isolate ill people in separate houses.

After independence, coastal states commonly enacted quarantine laws requiring ships’ crews and passengers to remain aboard for a specified period before disembarking. In 1855, Louisiana authorized the Board of Health to establish a quarantine station 75 miles downriver from New Orleans, inspect incoming ships there and quarantine incoming passengers there as necessary.

Epidemics were a grim feature of life in crowded, unsanitary 19th century American cities. States instituted numerous quarantines in response to smallpox, typhoid, cholera, plague, yellow fever, diphtheria and other diseases.

New York City, with its crammed downtown streets, overcrowded tenement housing, and constant ship traffic, had a particularly dire record of epidemic disease. As a result, inbound immigrants arriving at its maritime entry stations were frequently sent to quarantine or isolation—often en masse.

The year 1892, when a cholera outbreak struck New York, provides two vivid examples. In the first instance, the city quarantined, under unsanitary conditions and with no judicial review, 1,200 Russian Jewish and Italian immigrants, 1,150 of whom were initially asymptomatic. Many died, likely as a result of infection acquired during the quarantine.

Later that summer, panic broke out in the city over fears that Asiatic cholera, then present in European ports, would reach the city by sea. When three ships arrived from Hamburg after reporting deaths at sea from cholera, the city began quarantining all incoming steerage passengers on harbor islands. Cabin passengers were quarantined in their staterooms.

Some upper-class passengers protested their detention in the media and to politicians, but no passenger filed a lawsuit challenging the detention. In fact, no constitutional challenge was brought against any New York quarantine confinement until 1895.

Second, state and federal laws continue to authorize compulsory quarantine or isolation of disease carriers.

States’ powers of quarantine and isolation derive from their inherent police power to protect public health. In Gibbons v. Ogden, the Supreme Court listed “quarantine laws” and “health laws of every description” as within the reserved police powers of the states, whose legitimate exercise, even when applied to interstate commerce, is not precluded by the Commerce Clause.

Modern hygiene, sanitation, vaccination and other public health measures have made infectious disease outbreaks far less common. But they never disappeared altogether, and state laws have continued to provide health authorities with disease-related detention powers.

Until recently, the most commonly used isolation laws were tuberculosis-control statutes. (Coronavirus-related orders will probably exceed TB-control orders by orders of magnitude.) TB-control laws authorize the detention of recalcitrant carriers whose refusal to comply with mandated courses of treatment can spread the disease and create drug-resistant strains. Most states have TB-control statutes specifically authorizing public health authorities to isolate carriers in their homes or in hospitals under such circumstances. The authority to restrain continues until it is determined that the person is no longer infectious or otherwise ceases to be a danger to the public health, such as by voluntarily complying with his or her treatment regime.

California’s law, for example, permits authorities to detain TB carriers who present a substantial likelihood of transmitting the disease to others, including those who refuse to take medication or follow infection control precautions. On a recent episode of the Lawfare podcast, Josh Sharfstein discussed his experience ordering people detained under Maryland’s TB-control law during his tenure as Baltimore’s health commissioner. State courts have upheld these statutes—imposing additional procedural safeguards in some cases but finding the detentions themselves substantively unproblematic.

Some states have analogous statutes authorizing the preventive isolation of HIV-infected persons who repeatedly refuse to take steps to avoid transmitting the virus. This is far more controversial than TB isolation, however, largely because HIV is much more difficult to transmit. These statutes have been seldom used; one survey found only 10 instances nationwide in a nine-year period.

The federal government’s quarantine powers derive from its power to regulate interstate and foreign commerce. Section 361 of the Public Health Service Act grants federal officials the authority “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other state or possession.” This authority extends to a list of communicable diseases specified by Executive Order 13295.

42 U.S.C § 264(d) also provides for the “apprehension and examination of persons” when the following factors are present: The person is “reasonably believed to be infected” with a communicable disease in a communicable or precommunicable stage, and the person is moving between states or is a probable source of infection to persons likely to move between states. This federal detention authority was used only once between 1963 and 2011, when our article was published, to detain Andrew Speaker, the Atlanta lawyer who traveled with drug-resistant TB in 2007.

Despite this limited use, the federal government’s Commerce Clause powers nonetheless provide a capacious source of independent public-health authority, including for compelled quarantines and isolation if needed. In theory, the states, being the repository of plenary police powers, might be expected to have primacy in responding to disease epidemics. Historically, that was true. But the prevalence of interstate travel in modern life, the fact that international and interstate travel are the vectors by which pandemic diseases spread geographically, and the federal government’s greater resources make an increased federal role consistent with the federal government’s enumerated constitutional powers and inevitable as a practical matter.

Third, Supreme Court precedent makes clear that the Constitution allows nonconsensual measures to stop an epidemic.

In a 1905 case, Jacobson v. Massachusetts, the Supreme Court upheld compulsory vaccination during a smallpox outbreak. It explained that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good…. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Courts continue to rely on Jacobson to uphold compelled quarantines. Most recently, during the 2014-2016 West Africa Ebola outbreak, two federal district courts relied on Jacobson to uphold involuntary quarantines of travelers returning from affected countries. In Hickox v. Christie, the judge explained that New Jersey officials were “entitled to some latitude in its prophylactic efforts to contain what is, at present, an incurable and often fatal disease.” In Liberian Community Association of Connecticut v. Malloy, the court held that Connecticut’s temporary quarantine, “limited in duration to the incubation period of a virus responsible for an epidemic that killed over 11,000 individuals, was not objectively unreasonable.”

Fourth, in this area, necessity, as reasonably determined by public health experts, is the measure of legality.

Jacobson adds two related principles that we anticipate would be decisive in legal challenges to coercive measures of epidemic control.

The first is whether the measure is deemed necessary by experts in public health, a factor on which the court in Jacobson placed great weight:

[I]t is to be observed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the board of health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions.

The second is that courts should review such judgments deferentially, intervening only if they are arbitrary, unreasonable or far beyond what is reasonably necessary:

[I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.

This recognizes, appropriately, that health experts possess vital scientific expertise that the judge does not, and that in an epidemic the exigency of stopping the outbreak trumps most competing considerations. This level of deference is perhaps analogous to the “substantial evidence” standard in administrative law, which requires only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” and which the Supreme Court has analogized to review of factual findings by a jury.

Under Jacobson, courts might reject a measure only if it were arbitrary, were unreasonable or went far beyond what was reasonably required for the safety of the public. Such a finding would likely be closely tied to whether or not it had been adopted on the recommendation of experts in public health.

One example of courts’ rejecting a measure is Jew Ho v. Williamson, which challenged a wholesale quarantine of San Francisco’s Chinatown in response to an outbreak of bubonic plague in 1900. The city had sealed off San Francisco’s Chinatown with barbed wire, while police enforced the quarantine. Jew Ho, a small-business owner who lived just inside the quarantined area, challenged the board’s action, arguing that it was both illegal and enforced only against Chinese residents. A federal district court ultimately agreed, holding that the quarantine was not medically justified and thus not a reasonable regulation authorized by the police power, and that its racially discriminatory enforcement violated the Fourteenth Amendment’s Equal Protection Clause.

In sum, despite the prevailing libertarian strain in the American legal tradition, the Constitution grants officials ample flexibility in responding to disease outbreaks, including significant impositions on individual liberty.

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This history suggests a few additional lessons for today’s crisis:

  • Americans need not envy authoritarian systems for their putative superiority at responding to public health crises. The U.S. Constitution provides the flexibility needed to respond to epidemics, while retaining important safeguards against infringements on liberty that are arbitrary, manifestly pretextual or not grounded in public health necessity.
  • The U.S. system also offers vital advantages in responding to pandemics and other emergencies. Political accountability and free media force authorities to provide timely, accurate information and drive officials to improve performance. Official transparency, in turn, fosters public trust and helps persuade citizens to comply voluntarily.
  • Officials considering coercive measures would be wise to consider certain prudential guidelines:
  • Coercive measures should be a last resort and must be used carefully to avoid triggering public resistance and undercutting voluntary solidarity.
  • Governments must also ensure that quarantines or other measures appear equitable and rest on clearly articulated ethical principles—something not always true in the past, as New York’s divergent treatment of steerage and cabin passengers during the 1892 cholera outbreak shows.

The full article in the Harvard National Security Journal, which contains supporting citations, is available for download here.

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