Public Health

The Coronavirus and the Constitution

From Louisiana State University law professor Ed Richards.

|The Volokh Conspiracy |

A reader asked me about the constitutionality of quarantines and similar measures; I haven't studied the subject at all, but I thought I'd ask, Prof. Ed Richards, who is an expert in the field (both on the law side and on the public health side; he has an M.P.H. as well as a J.D.). Prof. Richards was kind enough to pass along the following:

The coronavirus is dominating the news. As with the SARS epidemic in the early 2000s, China has exacerbated the hysteria by withholding critical information about the spread of the disease. At this point in time, it is impossible to predict whether this coronavirus outbreak will become a major threat to the world's health. For perspective, the CDC estimates that flu has infected 22,000,000 people in the US and 12,000 have died so far this flu season. Based on the experience of past novel virus outbreaks, it is likely that the final toll from coronavirus will be a tiny percentage of the usual toll from flu.

What drives the fear we are seeing is the 1918-1919 flu pandemic, which infected 500,000,000 people and killed at least 50,000,000 worldwide. It killed about 675,000 in the US, out of a population of around 100,000,000. Given the disruption caused by the relatively tiny number of cases and deaths we see from the coronavirus even now, a pandemic infecting hundreds of millions of people would disrupt world order and paralyze governments. It is this existential threat to the state that lies behind the Constitutional basis of public health law.

Much of our colonial population lived with a constant treat of contagious disease. The major cities were on rivers at or near the coast to have access to shipping and they were plagued with disease-carrying mosquitoes. Sewage ran in the streets and contaminated the drinking water wells. Shipping from foreign ports brought a constant threat of epidemic disease. The first comprehensive look at life expectancy in the U.S. was done in Boston and was published as the Shattuck Report in 1849. It found that the average life expectancy in cities was around 25 years and 35 years in the countryside. Most of those premature deaths were due to infectious diseases.

While there was a high background level of infectious diseases such as malaria, it was the periodic epidemics that threatened public order. Ten percent of the population of Philadelphia died of yellow fever between September and November, 1793. There were similar outbreaks throughout the colonial period of yellow fever, smallpox, cholera, and typhoid fever.

Colonial boards of health may have been the first administrative agencies in the US. They exercised Draconian powers that were rooted in English law. The English statutory and common law recognized the right of the state to quarantine and limit the movement of plague carriers. Blackstone observed that disobeying quarantine orders merited severe punishments, including death. The argument of counsel in Smith v. Turner, 48 U.S. 283, 340-41 (1849) described measures to control a yellow fever outbreak in Philadelphia:

For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia.

These powers are classic police powers, exercised by the states. While they were not at direct issue in Smith, the power to quarantine ships was upheld against commerce clause and foreign affairs challenges in Morgan's Steamship Co. v. Louisiana Board of Health (1886). The power to establish cordons sanitaire was upheld in Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana (1902). The right of the state to require vaccination was upheld in Jacobson v. Massachusetts (1905).

There is no direct Supreme Court precedent on the due process rights of a person subject to quarantine or isolation, but there is state precedent that the constitutional requirement is provided by the writ of habeas corpus. There is state precedent that isolation or quarantine cannot be indefinite without triggering a periodic right to review of the need for the restriction, which is consistent with Supreme Court precedent on restrictions for mental health commitment and the restrictions for dangerous persons such as sexual predators. While some states have granted more extensive due process rights through statute, it is likely that the Supreme Court would not find these necessary as a US constitutional matter under the Matthews v. Eldridge (1976) test.

These cases represent more raw power than is obvious when looking at them from our modern frame of reference. If you were suspected of being exposed to smallpox, but were not infected, being put in the pest house was often a death sentence. This was known at the time, and damage suits for being subjected to the risk of infection were rejected by the courts.

Despite the belief of the anti-vaxers, modern vaccines are extremely safe. But the smallpox vaccine at issue in Jacobson was not safe. It was manufactured in an unsanitary process that risked contamination with dangerous bacteria and viruses. (Even modern smallpox vaccine is dangerous for some people. It is not made from smallpox, but it is a live virus that can cause severe illness or death in persons with immunosuppression secondary to HIV, cancer treatment, or organ transplantation.) Thus the court in Jacobson understood that in ruling that the state could force an individual to submit to smallpox vaccination, it was ruling that the person could be subjected to a real risk of injury or death.

The language in the public health cases parallels the language in the national security cases at the time. The Court saw epidemic disease as the same level of threat to the state as invasion by a hostile military force and one that was much more frequent. The founders were all personally familiar with the Draconian police powers exercised by states when they were drafting the Constitution. Most had lost family members to epidemics. From an original intent analysis, the power of the states to take decisive action to stop the spread of disease is clear. (It is not so clear how much they would see this power belonging to the Federal Government, but it is easily justified under the modern reading of the commerce clause.)

Power does not equate to wisdom. A cordon sanitaire for yellow fever makes no sense today when it is known that it is a mosquito-borne illness. The same applies for the many infectious diseases that are vector or water borne. The long-term control of infectious diseases that are spread in the environment was achieved through the sanitary movement that was begun with the recommendations in the Shattuck Report. These include strategies such as sewage and drinking water treatment, not the restriction of individuals. Conversely, in modern times some states found that their new statutory due process rights for disease carriers made it difficult to deal with outbreaks of drug-resistant tuberculosis.

During the current coronavirus outbreak, passengers are being quarantined on cruise ships. We know the difficulty of controlling norovirus outbreaks on cruise ships. Given that the crowded conditions on ships are ideal for spreading disease, it will be no surprise if there is a high incidence of coronavirus infection among the quarantined passengers.

The harder question is, how many of those persons were infected on the ship after the quarantine was imposed? A recent study from Wuhan, China found that 43% of early cases were caused by spread in the hospital. If it was necessary to quarantine the cruise ship passengers, could further transmission of the coronavirus have been prevented by quarantining the passengers in more appropriate facilities onshore? If the spread of the coronavirus on the ship results in a shipboard epidemic, will the quarantine ultimately increase the risk of spread of the virus into port cities?

The Constitution puts few limits on the legal power to protect the nation from epidemic disease. But power without expertise and resources means little. Once the traditional killers were controlled—smallpox, polio, cholera, etc.—public and political support for public health withered. The federal and state governments have cut staffing and resources for public health for decades.

Individuals refuse to get immunizations that are necessary to keep herd immunity intact. The lack of paid sick days for many employees, and the pressure to work sick in many workplaces, facilitates the spread of disease.

We do little to prevent the 15-60,000 deaths and the hundreds of thousands of hospitalizations due to the yearly flu pandemic. It is not surprising that we are unprepared for new threats when we cannot respond to effectively to existing threats. Public health infrastructure cannot be created on an emergency basis. It must be built over decades.

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  1. Wasn’t this litigated during the spread of the AIDS virus, when courts ruled that people with the virus could not be restricted or required to notify others of their condition? I’m not very familiar with the actual cases at this point, but wouldn’t those precedents just be hauled out?

    1. Would they all apply, given what we now know about how HIV is spread (meaning casual contact is safe) but casual contact is not save with this Corona virus?

    2. I’m not sure what you mean. Laws requiring disclosure of HIV status to sex partners and medical providers have been upheld.

    3. Disclosure laws are constiutional and some states had them. Quarantines were a fantasy of homophobes on the right, but were politically defeated because even many conservatives understood that “locking up gay people like the Nazis did” was not going to fly politically.

  2. Tangentially related: ‘Typhoid Mary’ was quarantined for three years, until she agreed to no longer work as a cook. She later changed her name and began working as a cook again, leading to typhoid outbreaks, and was subsequently confined for the rest of her life.

    (in case someone isn’t familiar with the story, she was an asymptomatic but highly contagious carrier)

  3. “… a constant treat of contagious disease …”

    Uh, threat maybe?

    Volokh is under Reason now, but I expect some proofreading above the Reason standard from Volokh.

    1. I know it is a cut and paste from Prof. Ed Richards, but “treat [sic: threat]” tag would be appropriate passed on to the prof.
      “treat [sick]” would just be snarky.

    2. A constant treat of infectious disease — (insert least favorite fast food joint here).

  4. Impressive rundown from Ed Richards—shows the advantages of educating smart people in multiple disciplines. Makes me wonder what might be possible if would-be originalist attorneys ever decided to add history degrees.

    1. Why?

      Actual knowledge of history would likely prevent them from asserting what they already know to be true.

    2. Maybe smart people who are conservatives usually don’t get PhD degrees in history? Or at least people smart enough to look at what the small payout is compared to the time invested, and that getting tenure in liberal academia is a parlor game?

    3. It wouldn’t help, Stephen.

      First of all, it wouldn’t solve all of the many problems with originialism, such as “why do we care what racist slaveholders thought about what the laws mean?” and “why would we give up the iterative common law process where we learn from the past but are not controlled by it?” and “how do we solve the Michel H. level of generality problem?”.

      And the second problem is that it isn’t as though lawyer-historians can be counted on to be honest. They will still be advocates, which means they are going to be much more likely to be prostituting their history degrees than saying anything objective.

      1. Ironically, you’ve struck on the issue with all knowledge, is that it is more often than not turned towards supporting pre-existing belief systems. It’s why science advances one funeral at a time. It’s also why outsiders to a specialized field often make innovative breakthroughs. And it’s also why professional historians, in my favorite example, made fools of themselves when discussions of the Second Amendment comes up *cough* Michael A. Bellesiles *cough*.

      2. First of all, it wouldn’t solve all of the many problems with originialism, such as “why do we care what racist slaveholders thought about what the laws mean?”

        That’s an argument against constitutionalism, not originalism.

        It makes no sense to say, “We care that they banned cruel & unusual punishment, but we don’t care what they meant by that.”

        1. We absolutely should not care what a man who thought it was OK to rape his slave thought to be a cruel and unusual punishment. We have evolved, as Trop v. Dulles correctly held.

          1. Nonresponsive. If the argument is, “We shouldn’t care what he thought,” then why should we care about the 8th amendment at all? Why should we care about any provisions of the constitution up to that point? All of them are the products of that same mind that had that thought.

            Also, as Scalia pointed out, the whole evolving standards of decency thing is a rhetorical scam. As actually implemented it’s meant to freeze the law, not to allow it to evolve. Maybe we think that revoking citizenship for crimes is reasonable — but a guy who thought that locking people up because their ancestors were from Japan was a good idea said otherwise 60 years ago, so we’re stuck with that.

            1. We should care about the Eighth Amendment because it wasn’t adopted on Madison’s say-so- rather, it was a duly enacted law that went through legal process. As such, it was the product of many minds, not one, and it is also subject to the common law system, where it can be refined and broadened or narrowed according to lived experience and social consensus.

              The Eighth Amendment we interpret now is not the Eighth Amendment of 1787; it’s the Eighth Amendment our legal system, including Trop v. Dulles, has produced.

              And no, I don’t think Scalia’s objection to evolving standards of decency has merit. There’s nothing in the doctrine that says that it is a one way ratchet. For instance, let’s say that science showed that one of the old punishments was actually less psychologically scarring than doing time in a typical prison. That evidence would be admissible in an Eighth Amendment challenge.

              The reality is that it is EFFECTIVELY a one way ratchet because our modern values are superior to the ones of hundreds or thousands of years ago (including the values Scalia subscribed to as part of his religion). We are RIGHT about such things as slavery, and racial discrimination, and not torturing prisoners, and treating gays and lesbians with humanity, and a whole bunch of other things. So yes, that’s the direction that society normally evolves in. But nothing in the Trop standard precludes a “deevolution” if there was evidence to support it.

  5. Other than the act that this was super interesting (and honestly kinda scary) display of police power, I have no comment. The fact that we have quarantined people just because they were potentially sick, or even Japanese, does not seem in line with modern era sensibilities. I’d like to think we are more educated, yet… if we did see a pandemic, something like this would likely happen.

  6. I don’t think there is a Federal power to enact a quarantine, even though the Federal government has now instituted one with the people they are flying back from China. My view is the power to quarantine is a state-based power.

    If Congress passed a law about quarantines, would it actually be constitutional?

    I don’t think we should have any illusions about 2019-nCov. It is highly virulent, very easily spread. We do not know the true mortality rate, but we know it is at least 2.1% (Chinese government data). The actual death rate is probably much higher. There is a reason the crematoria in China are pumping out SO2 like mad, and working 24/7.

    2019-nCov is a very serious public health threat to our country.

    1. One can view Japanese internment during WWII as a type of quarantine. The lesson here is that whether the Federal gov actually has the police power do do it, or not, during a time of actual crisis courts will likely go along. The fact that people can travel much more easily across state lines and federal airports are under Federal govt jurisdiction probably means that in a crisis we will likely see a federal quarantine upheld.

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