Article by William C. Athanas and Charles Prueter (guest author)
To this point, there have not been any significant issues, from a legal perspective, with placing Ebola patients in isolation. If, however, Ebola becomes a pandemic, it is possible that concerns associated with quarantining and isolating patients would arise. Here we explore the federal government's ability to impose quarantines and isolation, particularly in the face of an Ebola outbreak.
Statutory and Regulatory Authority
The U.S. Department of Health and Human Services (HHS), through the Centers for Disease Control and Prevention (CDC), has the statutory authority to act to prevent the introduction, transmission, or spread of communicable diseases—both from foreign countries into the United States and from one state to another state. This statutory authority has given rise to an expansive regulatory regime. The "communicable diseases" referred to in the statute are defined by executive order. That executive order, signed by President George W. Bush in 2003, lists "viral hemorrhagic fevers," including "Ebola."
Under federal regulations, a person with Ebola is prohibited from traveling from one state to another without a required permit from the destination state. Moreover, the CDC has the power to detain, isolate, quarantine, and conditionally release individuals for the purpose of preventing the introduction, transmission, and spread of communicable diseases. The CDC therefore retains the power to issue isolation orders or quarantine orders. "Isolation" means the separation of an individual or group reasonably believed to be infected from those who are healthy. "Quarantine" means the separation of an individual or group reasonably believed to have been exposed, but who are not yet ill, from others who have not been so exposed. Violation of any of these regulations is a federal crime.
Constitutional Implications
The right to travel, to move freely throughout the United States, is constitutionally protected. But, as the Supreme Court explained, "that freedom does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole." Consistent with the principles embodied in the Fifth Amendment's Due Process Clause, in an Ebola-quarantine scenario, due process would likely require the CDC to provide the patient with: a notice of quarantine and/or isolation, proof of medical facts supporting the quarantine and/or isolation, and an opportunity to challenge those facts with the aid of a lawyer.
Relationship to State Power
States, in the exercise of their police powers, have the authority to act to protect the health, safety and welfare of their citizens, including the authority to impose quarantines and isolation. Consistent with the powers described above, the CDC may assist state and local authorities in their attempts to prevent the transmission and spread of communicable diseases. If the CDC's exercise of statutory and regulatory authority conflicts with any state law, however, the state law is preempted. Importantly, the due process analysis above would apply to state-imposed quarantines and isolations.
Conclusion
Given the deadliness of Ebola, as well as the pressure being exerted on the President to act in the nation's best interest, it is conceivable that the federal government will play an increasingly active role in managing the spread and transmission of this disease. Understanding the scope of that role will be important for any healthcare provider seeking to prevent or treat Ebola.
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