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Volokh Conspiracy

Constitutional challenge to quarantine unlikely to succeed


Kaci Hickox, the nurse forcibly quarantined by New Jersey upon her return from West Africa, is threatening a legal challenge to her confinement. Her lawyers claim she is being deprived of her liberty in violation of the Due Process Clause of the 14th Amendment.

Due process cases are fact specific, and I am not privy to information NJ authorities had before them or their decision-making process. However, it is highly unlikely that she will prevail.

While the Supreme Court has long held quarantines to be constitutional, it has not ruled directly on the scope of permissible quarantines. However, in the famous case of Jacobson v. Massachusetts, the Court did uphold a blanket mandatory vaccination law, under which resisters were put in jail. The principle here is the same as with quarantine—that one's normal rights to bodily integrity are suspended by a general and serious public need, especially of an epidemiological variety.

Still, in part because quarantines have rarely been imposed since World War II, there is relatively little direct precedent on their permissible scope and circumstances. But a brief review of the cases suggests it extremely difficult to challenge such an action without a clear showing of medical unreasonableness, or discriminatory application. Indeed, I found no cases in which a quarantine has been lifted due process grounds (though there have been some successful challenges to conditions of quarantine).

One case upholding a quarantine has facts that look strikingly like Hickox's. In U.S. ex rel Siegel v. Shinnick, 219 F.Supp. 789 (E.D. NY 1963), the plaintiff was confined for 14 days on her return from a "smallpox infected area" abroad, despite a lack of any evidence of direct exposure or symptoms. The court upheld the action, noting:

[The] judgment required is that of a public health officer and not of a lawyer used to insist on positive evidence to support action; their task is to measure risk to the public and to seek for what can reassure and, not finding it, to proceed reasonably to make the public health secure. They deal in a terrible context and the consequences of mistaken indulgence can be irretrievably tragic. To supercede their judgment there must be a reliable showing of error.

Perhaps the ACLU, which is also questioning the current quarantine, thinks that due process has expanded so much that it might even prohibit this most traditional use of the police power. I doubt it. There are extremely few contexts where the state can deprive someone of liberty without any showing of wrongdoing, or any personal conduct whatsoever: conscription, quarantine, and in a milder fashion, jury service. The case law basis for conscription goes back only to 1918 (also the time of the first widespread quarantines n the U.S.), but it has proven impervious to a liberalized due process clause. Quarantine is safe too.

Moreover, 20th century quarantine cases have typically death with tuberculosis and small pox, both of which are far less lethal than Ebola, and about which much more was known. (The most common form of smallpox had a 30% fatality rate, less than half that of Ebola.) All this shifts the presumption of validity even more towards the state.

Under the basic Mathews v. Eldridge balancing test for these kind of deprivations of liberty, the gravity of the of government's interest and adequacy of pre-deprivation process are key factors. The long incubation period and deadly effects all counsel for allowing a deprivation of liberty without any showing of illness. Locking a patient up after they develop a fever simply does not substitute for doing so in advance.

UPDATE: I just saw news reports that the nurse is being released.