Last Thursday, Maine Gov. Paul LePage bragged about his "robust authority" to keep Kaci Hickox from leaving her home in Fort Kent. The next day, a judge said that authority is not up to the task, since Hickox, a nurse who returned to the United States on October 24 after treating Ebola patients in Sierra Leone, is not sick or contagious and therefore does not currently pose a threat to the general public.
"The State has not met its burden at this time to prove by clear and convincing evidence that limiting Respondent's movements to the degree requested is 'necessary to protect other individuals from the dangers of infection,'" wrote Maine District Court Judge Charles C. LaVerdiere. "According to the information presented to the court, Respondent currently does not show any symptoms of Ebola and is therefore not infectious." Rather than forcible isolation, LaVerdiere ordered "direct active monitoring" aimed at detecting the onset of symptoms should Hickox become ill. He noted that Hickox was already cooperating with such monitoring.
Although Hickox does not pose a public health threat, LaVerdiere said she should be aware that other people might mistakenly think she does. "The Court is fully aware of the misconceptions, misinformation, bad science and bad information being spread from shore to shore in our country with respect to Ebola," he wrote. "The Court is fully aware that people are acting out of fear and that this fear is not entirely rational." The people acting based on this irrational fear, of course, include LePage, New Jersey Gov. Chris Christie, and New York Gov. Andrew Cuomo, whose 21-day quarantine policies for asymptomatic health care workers returning from Africa are medically unjustified but perhaps politically astute in light of the widespread fears noted by LaVerdiere. To me, LePage, who is up for re-election tomorrow, comes across as a bully and a demagogue when he insists that Hickox be confined for no good reason, even while portraying her as unreasonable. But polling suggests that most people agree with LePage's "abundance of caution," which attaches zero weight to liberty.
"As Governor," LePage said in a statement after LaVerdiere's decision, "I have done everything I can to protect the health and safety of Mainers. The judge has eased restrictions with this ruling and I believe it is unfortunate. However, the State will abide by law." Campaigning on Friday, LePage criticized Hickox while stoking the irrational fears mentioned by LaVerdiere. "We don't know what we don't know about Ebola," LePage said. "I don't trust her. And I don't trust that we know enough about this disease to be so callous."
Yet as LaVerdiere noted, the state's own testimony showed that LePage's insistence on a quarantine was unjustified. In an affidavit, Sheila Pinette, director of Maine's Center for Disease Control and Prevention, observed that "Ebola Virus Disease is spread through direct contact with the blood, sweat, vomit, feces and other body fluids of a symptomatic person." She also noted that "individuals infected with Ebola Virus Disease who are not showing symptoms are not yet infectious." And as The New England Journal of Medicine notes, "fever precedes the contagious stage."
By successfully resisting LePage's unreasonable demands, Hickox may help undermine similar policies in other states. Judges weighing coercive public health interventions generally are supposed to require "clear and convincing evidence" that the target poses a threat and that it cannot be addressed by less restrictive measures. LaVerdiere's order shows that a judge who takes those tests seriously cannot approve the panicky overreaction endorsed by LePage, Christie, and Cuomo.