Ebola Quarantines: False Imprisonment or Good Medicine?

*Thomas Warns



Though Ebola has been ravaging West Africa, just four people have been diagnosed with Ebola in the United States, two of which were exposed to the virus while overseas. Last week however, New York’s Bellevue Hospital accepted its first Ebola patient, Dr. Craig Spencer, a night after he went bowling with friends and rode the subway. Dr. Spencer had spent the last month treating Ebola patients in West Africa, and had been back in New York for almost a week. This development prompted the Governors of New York and New Jersey to jointly agree to begin quarantining healthcare workers returning from trips to Ebola-stricken countries like Guinea, Liberia, and Sierra Leone. Some hailed the move as a welcome move to protect Americans, while other criticized it as driven by fear rather than science.

This situation took an unexpected turn when the first person to be detained under this new policy, a nurse named Kacy Hickox, shared her experience with the media. Kacy Hickox complained that the conditions of her confinement were bad, that the employees who interacted with her were not forthcoming with information, and that she was being treated like a criminal rather than a hero. What followed was a wave of criticism for the mandatory quarantine policy; Kacy Hickox was allowed to fly home to Maine, and Governors Cuomo and Christie had to soften their quarantine policy. Now, they insist, they will merely ask people to quarantine at home if they are determined to be at risk, and will compensate them for lost wages.

The first question to ask from this whole episode is as follows: did New York and New Jersey have the authority to detain the nurse? The CDC claims that the federal government has authority to enact quarantines under the Commerce Clause of the Constitution, which is a dubious reading of that clause. Fortunately, that debate can be sidestepped, since the actions here were taken by state governments; at the state level, the government unquestionably can exercise its police power to isolate and quarantine individuals that are suspected of having communicable diseases.  Historical precedent for such actions is scarce, but the Spanish flu in 1918 prompted cities and states to quarantine patients while closing schools, and New York isolated tuberculosis patients that wouldn’t comply with treatment while it mulled a strict quarantine in the 1990s.



Even if quarantine is a valid exercise of police power by the state, was it properly exercised here? On the one hand, the situation looks doubtful. Despite having an elevated temperature from one reading, numerous other readings found Ms. Hickox had no fever. She displayed no other symptoms of the disease. Ms. Hickox was detained without much of a chance to contest her detention, and received essentially no notice that this might happen to her when she came back to the U.S. (the policy had been announced one day earlier). All of these restrictions to Ms. Hickox’s liberty should be taken quite seriously.

On the other hand, the quarantine was not without any basis in reason. Ms. Hickox had been in direct contact with Ebola patients in West Africa, just like the infected Dr. Spencer. Further, out of an abundance of caution, it was not unreasonable to weigh the one elevated temperature heavily, even if other readings before and after were normal. Mistakes when treating Ebola can be deadly. And while there was no hearing given to the nurse, the only rebuttal she could have mustered was that she did not have Ebola; that fact won’t be known for as long as 21 days, which is the maximum incubation period of the virus. When dealing with a public health crisis, the government can quarantine now and provide process later. This is the cautious approach most Americans want.

Perhaps the White House...does not want to panic people a week before a major election by admitting that it downplayed the health risks of Ebola?

The White House immediately criticized the ban as unnecessary and “not grounded in science.” That opinion is curious, however, considering the fact that the federal government is simultaneously keeping its own soldiers under quarantine when they return from West Africa. Clearly they realize quarantine has some value. Perhaps the White House is motivated by electoral politics, rather than science, and does not want to panic people a week before a major election by admitting that it downplayed the public health risks of Ebola?

It doesn’t help that the CDC guidelines appear to be changing as well. Though it has consistently said that Ebola is only transmitted through direct contact with the bodily fluid of a symptomatic Ebola patient, it states that individuals should not even be within three feet of someone that is suspected of having the disease because it could be spread by droplets in the air. This haziness calls to mind an earlier press conference, where the head of the CDC said that one couldn’t get Ebola from an infected person on the bus, but that infected people shouldn’t take the bus because they might infect others. Our healthcare system has so little experience with Ebola that we are learning things on the fly. The CDC for instance had to beef up the safety procedures for healthcare workers after two nurses contracted Ebola from Thomas Eric Duncan, America’s first Ebola patient.

Can a less restrictive home quarantine work just as well? Unfortunately, it will not. Dr. Spencer originally lied and claimed he was self-quarantining himself, before the NYPD examined his MetroCard usage and caught him in his lie. Contrary to popular belief, healthcare workers, even those going on humanitarian missions to Africa, are not saints; they’re still human beings that can lie and make mistakes when it is convenient for them. Paying quarantined individuals lost wages is a fair compromise, but a home quarantine for high risk individuals will not cut it. Some people do not have the self-control to play it safe if they think they’re not ill.

Indeed, some humanitarian workers lack the desire to quarantine themselves, not just the will.  Ms. Hickox’s humanitarian mission to West Africa was certainly laudable, and she obviously has a tremendous amount of empathy for suffering people a continent away. That makes her decision to resist quarantine so curious – doesn’t she care about protecting people in America too? If her goal is to stop the spread of Ebola, why not treat her 21-day quarantine in America as an extension of her humanitarian mission in West Africa? Ms. Hickox, however, whined about the quarantine, and after being released to a home quarantine in Maine, refuses even to stay home there. Her desire to resist a home quarantine is not singular.



What do the scientists and doctors think about a quarantine? While the doctors at the CDC say it isn’t necessary and is potentially harmful, plenty of other experts support Governors Christie and Cuomo. The 2011 Nobel Prize winner for Medicine and Physiology, whose work centered on the immune system, supports the quarantine. Dr. Jeffrey Drazen and other editors from the influential New England Journal of Medicine argued that though the quarantine had some efficacy, it was unnecessary because a fever would provide the proper notice for healthcare workers that they have become contagious and need to seek medical attention. Unfortunately, that has been scientifically proven to be inaccurate in 13% of cases. Other doctors have questioned whether the cost of discouraging some from going to West Africa was truly that great, since many of the workers have little experience or training under the terrible conditions they are thrust into, and are likely not as effective in fighting the disease as assumed.  

So let’s review: the government has the right to quarantine possible Ebola patients, the scientific evidence in favor of the quarantine is quite substantial, and alternative methods such as self-quarantines are simply not effective. It sounds like Governors Christie and Cuomo need to stand tall and fight for what is right, regardless of the political motivations compelling the White House to oppose one, and enforce the quarantine, just as California and Illinois are doing. We should all thank them for that. 

* Thomas Warns is a J.D. Candidate in the Class of 2015 at New York University, and the Editor-in-Chief for the N.Y.U. Journal of Law & Liberty.