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Ebola quarantine is perfectly legal

By Paul Callan, CNN Legal Analyst
updated 2:38 PM EDT, Mon October 6, 2014
A healthcare worker diagnosed with Ebola after returning from Sierra Leone is wheeled in a quarantine tent onto an airplane at Glasgow International Airport in Scotland on Tuesday, December 30, bound for The Royal Free hospital in London. Health officials say the Ebola outbreak in West Africa is the deadliest ever. More than 6,000 people have died there, <a href='http://www.who.int/csr/disease/ebola/situation-reports/en/' target='_blank'>according to the World Health Organization.</a> A healthcare worker diagnosed with Ebola after returning from Sierra Leone is wheeled in a quarantine tent onto an airplane at Glasgow International Airport in Scotland on Tuesday, December 30, bound for The Royal Free hospital in London. Health officials say the Ebola outbreak in West Africa is the deadliest ever. More than 6,000 people have died there, according to the World Health Organization.
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STORY HIGHLIGHTS
  • Paul Callan: Some may be surprised at government's sweeping power to quarantine
  • Callan: Risk of spread of deadly illness justifies temporary override of individual rights
  • Citizens can petition a court for an end to quarantine if it can't be justified medically, he says

Editor's note: Paul Callan, a CNN legal analyst, is a former New York homicide prosecutor and a senior partner at Callan, Koster, Brady, Brennan & Nagler LLP, which litigates matters involving health care issues. Follow him on Twitter: @PaulCallan. The opinions expressed in this commentary are solely those of the author.

(CNN) -- After the quarantine of passengers from a United Airlines flight from Brussels at the Newark airport, many Americans may feel a sense of relief that the government is finally responding aggressively to the threat of an Ebola epidemic.

Others, however, are undoubtedly astonished that the freedom and liberty of American citizens can be terminated without trial by health officials intent on preventing the spread of disease. Will anyone suffering from fever, headache and muscle pain (some of the more common symptoms of early-stage Ebola, according to the Centers for Disease Control and Prevention) have to fear involuntary commitment to a local hospital while tests are run? Isn't this really a form of imprisonment without trial? (And in the Newark incident, fears of an Ebola case proved unjustified.)

Paul Callan
Paul Callan

In fact, involuntary commitment and quarantine is perfectly legal in every American state. Quarantine is as American as apple pie. We can expect to see a lot more involuntary quarantines and hospital commitments in the months ahead as the U.S. struggles to contain the threat of Ebola now emanating from West Africa.

The last time the power to quarantine was widely used in the United States was during the influenza pandemic of 1917-18. At that time, the United States faced a health threat of truly monumental magnitude. Although sources differ on the precise number of worldwide deaths, some estimates range as high as 30 million to 50 million. Deaths in the U.S. may have been as high as 675,000. To put this in perspective, the U.S. population in 1918 was approximately 106 million, while today's population is in the range of 316 million. The 1918 death percentage would translate into over 2 million deaths were a similar health crisis to occur.

Plane passengers temporarily quarantined
Hazmat team cleans quarantined apartment

It is therefore not at all surprising that federal government and the individual states are all permitted to utilize quarantine and involuntary commitment to prevent the spread of disease. In fact, this power under U.S. law reaches back to 1872, when it was first used to prevent the spread of yellow fever.

U.S. laws have grown more sophisticated through the years, as has the practice of medicine. Because quarantine measures have to be invoked with great speed to meet the threat of infectious disease, there is no time for traditional "due process" and other protections traditionally afforded by the Constitution and American law.

The federal government through its agency the CDC is empowered to detain, medically examine and then release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases. The CDC has the power to regulate border crossings and to board airplanes and ships to determine whether the quarantine of passengers and crew is required.

And the exercise of this authority can be delegated to appropriate law enforcement and military authorities by presidential executive order as required by the magnitude of the health threat involved.

All 50 American states as well as American Indian tribes have similar but differing levels of authority to meet the health threat of contagious disease. This power emanates from their authority to protect the health and safety of their residents. Individual towns and cities similarly have health ordinances that permit local authorities to protect residents against the spread of infectious disease.

Texas, for instance, which has been the focus of the nation's attention since the arrival of an Ebola-infected patient, Thomas Duncan, extends the authority to attach a "criminal penalty" to any individual who "refuses to perform or allow the performance" of quarantine measures that have been court ordered.

The court may permit quarantine authority on reasonable suspicion that such health powers are necessary to protect the public health. Please note that this standard is not the "beyond a reasonable doubt" standard that we are accustomed to seeing where an individual is incarcerated for commission of the crime. No jury trial is required to impose quarantine or involuntary commitment once the court has granted quarantine authority.

In New Jersey, the landing site of the United Airlines plane from Brussels, state authorities acting through local health boards are explicitly permitted to "maintain and enforce proper and sufficient quarantine, wherever deemed necessary" under the state's public health statute. (More extensive powers may be granted should the governor determine that a public health emergency exists, though no such emergency has been declared in the United States at this point.)

Although health codes and ordinances throughout the country can be enforced quickly and quite arbitrarily, detained and quarantined citizens still retain their right to petition either a federal or state court for release on the grounds that the detention is not warranted by the medical facts of their case.

Such a petition would be brought in the form of the famous writ of habeas corpus and would result in a court hearing involving the examination of the medical evidence supporting the need for quarantine. Many of the state statutes also explicitly afford the right to decline or refuse medical treatment while under quarantine. Even in the face of a health emergency, the right of the patient to decline medical treatment is likely to remain intact.

American citizens have to understand that in the face of any kind of health emergency that could result in widespread death and illness, traditional constitutional guarantees of liberty and due process must be interpreted in such a way that the public is protected.

Quarantine and involuntary commitment may be permitted as deemed necessary and appropriate by health authorities. After all, the most important role of any government is the protection of the life and health of its citizens.

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