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Health & Science

Is It Legal To Quarantine Someone Who's Not Sick?

AUDIE CORNISH, HOST:

The quarantines that some states are imposing to control Ebola are raising questions about how far government can go to control diseases. NPR's Rob Stein reports legal experts are debating whether states are exceeding their authority.

ROB STEIN, BYLINE: When it comes to the government's power to quarantine people, legal experts like James Hodge, Jr., all agree one thing is clear.

JAMES HODGE, JR.: If you look closely at state and local public health powers across all states, they've got the authority to quarantine.

STEIN: Especially when it comes to highly infectious diseases that pose a risk to the public.

HODGE: Quarantines always had a place in the history of the country to make sure that we at least limit the numbers of persons that might get further exposed to a potentially highly infectious and potentially fatal condition.

STEIN: Hodge, who's at the Sandra Day O'Connor College of Law in Arizona says, patients with tuberculosis, for example, are routinely quarantined against their will to make sure they take their medicine and don't spread the disease. And Ebola could clearly pose a threat to the public.

HODGE: If you have a suspected or known person who has been exposed to a highly infectious condition, like Ebola, that is sufficient for imposing a quarantine order.

STEIN: And Hodge argues someone like nurse Kaci Hickox in Maine fits that definition, since she just returned from treating Ebola patients in West Africa.

HODGE: She was in a hot zone environment. And there was at least some indication, initially, upon receipt via screening at the airport that she had some sort of higher than normal temperature - one of the warning signs for Ebola.

STEIN: While Hickox maintains that she has never had any Ebola symptoms, Hodge argues she's still in the 21-day incubation period, so she's not in the clear. Plus, local public health authorities say, she's refusing to obey their order to stay home.

HODGE: That she is seeking to evade it does give them additional impetus to take more steps than what they would have to otherwise.

STEIN: But others argue that states like Maine and New Jersey are going way too far. Lawrence Gostin at Georgetown University is a leading authority on quarantine law.

LAWRENCE GOSTIN: I think what the states are doing pushes the boundaries of lawfulness.

STEIN: That's because there are limits on the government's power to do something as drastic as confine someone against their will.

GOSTIN: It is a massive deprivation of liberty. And since it's a massive deprivation of liberty, it has to be done on an individual basis, based upon scientific evidence. And the person has to have the right to due process of law.

STEIN: That means states can't quarantine every single health worker who treated Ebola patients in West Africa. Gostin says, they need more specific evidence someone poses a risk, like their skin was exposed to an Ebola patient's blood, or, of course, they already have a fever. Only people with symptoms can actually spread Ebola.

GOSTIN: You can't just simply deprive someone of their liberty for 21 days just because you want a complete abundance of caution. The law won't let you take someone's liberty away if they pose an exceedingly low risk to others.

STEIN: So Gostin predicts that quarantines like Maine's, which go beyond measures recommended by the Centers for Disease Control and Prevention, would lose if challenged in court. But Wendy Mariner of Boston University says, not necessarily. Judges tend to defer to health authorities, especially during disease outbreaks.

WENDY MARINER: Judges are just as scared of Ebola as anybody else. And they're probably going to say, well, (laughter) we'll just go with the state here 'cause if this person turns out to be infected later, they don't want to be blamed.

STEIN: Mariner recalled the story of a man who was quarantined in Dallas during the 2003 epidemic of SARS. That was a highly contagious airborne disease.

MARINER: They brought a judge to review him, and, of course, everybody put on big protective stuff, including the judge. Well, guess what? If you have a judge having to wear protective covering being around, you know, the person, the judge is going to say, OK, lock him up. (Laughter).

STEIN: Turns out the man did not have SARS. As for Ebola, we won't know whether the quarantines being imposed around the country are legal until the cases work their way through the courts. Rob Stein, NPR News. Transcript provided by NPR, Copyright NPR.