The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
To date, state and local governments have enforced quarantine orders to prevent the spread of the Coronavirus. And, for the most part, courts have upheld these orders, even when they conflict with enumerated constitutional rights, including the right of assembly, the right of free exercise, and the right to keep and bear arms. There is another Supreme-Court-recognized right that could come into conflict with a quarantine order: the right of family unity. Could the government forcibly separate families to prevent the spread of Corona?
The New York Times published an op-ed urging the United States to adopt such a "smart quarantine." Here is an excerpt:
There are three main challenges to building a smart quarantine system in the United States. First, we must vastly increase our capacity for testing and tracing contacts.
Second, we must create — and at times mandate — humane quarantine processes. With considerable success, China, South Korea and Singapore have tested far more of their populations and concurrently mandated tiered isolation and quarantine.
Third, American families will be asked to endure separations that are more difficult than what many have currently experienced. Family units are the hotbed of viral spread, and doing the right thing for your family simultaneously does the right thing for the community.
If we inspire, inform and mobilize the public, we can accomplish the needed separations mainly voluntarily and always in a way that respects civil liberties to the highest degree possible while protecting the public's health (and the nation's economy).
In a smart quarantine, anyone in a family who is not well — and if you're sheltering in place, whomever you are with is considered "family" — must get tested and be separated from the family until results return. While awaiting results, the separated family member can move into temporary accommodations overseen by medical professionals and be tested.
Those that test negative remain in quarantine in their accommodations, and if they test negative again at 14 days, they can return home, where they must continue to shelter in place. Those that test positive leave their temporary accommodations and enter a more formal Covid-19 recovery facility. Most of these people will recover and will be sent home in about two weeks after testing negative at least twice. People who get worse will be sent to an acute care facility.
Would the state have a compelling enough interest to separate parents from their young children for weeks at a time? How would this order fare under Moore v. City of East Cleveland?
I also doubt this policy would be particularly effective. Brian Leiter explains why:
If you're going to forcibly separate people from their family because they are ill, until tests clear them, then people simply won't disclose their conditon to the authorities, which will make things worse, not better. This is a case where the public health experts don't seem to be thinking about the unintended consequences of their proposal given how people will, quite predictably, respond. What am I missing?