The Flu, TB and Now Ebola: A Rare Legal Remedy Returns

It was nearly 100 years ago that an influenza pandemic led to sweeping quarantines in American cities, and it was more than two decades ago that patients in New York were forced into isolation after an outbreak of tuberculosis.

In modern America, public health actions of such gravity are remarkably rare. So the decisions by New York and New Jersey on Friday to quarantine some travelers returning from the Ebola zone in West Africa have taken public officials into unfamiliar legal and medical territory.

From public health advocates and civil liberties lawyers has come sharp criticism, and the first person to be detained under the new protocol, a nurse who was quarantined in New Jersey upon returning from Sierra Leone, lashed out on Sunday at Gov. Chris Christie as her lawyer said he would mount a legal challenge to her confinement.

Mr. Christie on Sunday defended his policy, and Florida and Illinois have ordered similar restrictions. In Connecticut, nine people who may have been exposed to Ebola have been confined to their homes under an order signed by Gov. Dannel P. Malloy on Oct. 7.

But on Sunday night, barely two days after his joint announcement with Mr. Christie, Gov. Andrew M. Cuomo of New York announced his state would not go as far as New Jersey has.

The nurse, Kaci Hickox, gave a critical interview to CNN on Sunday. Later, in an email to The New York Times, she wrote, “My human rights have been violated, and we must react in order to ensure that other health care workers do not endure such injustice.”

 Donna E. Lieberman, the executive director of the New York Civil Liberties Union, said the most restrictive protocols are far too broad.

“The current order is sweeping in individuals who are asymptomatic and who may never develop symptoms,” Ms. Lieberman said. “I think there is a serious question as to whether the governor has the authority to impose the broad quarantine that he has imposed,” she added.

The quarantine by New Jersey of medical workers returning from Ebola-afflicted areas of West Africa is virtually without precedent in the modern history of the nation, public health and legal experts said on Sunday.

“This is, I think, pushing the envelope quite a bit and is highly counterproductive,” Lawrence O. Gostin, a professor of global health law at Georgetown University, said. “I can’t think of a situation where any jurisdiction in the United States in modern times has simply quarantined a whole class of people.”

In a new era of mass travel and global pandemics, public health officials have seen the utility of quarantines to rein in outbreaks that appear to be spiraling out of control. But the approach, experts said, is an extreme one.

“It doesn’t seem like we’re to that stage yet,” Steven D. Gravely said, a lawyer who helped Virginia rewrite its laws on quarantine to make it easier for the state to respond quickly to disease outbreaks. Instead, he said, “there’s so much anxiety right now, that’s become the problem.”

The power to impose quarantines derives from the general police power granted to states in the Constitution. But over the last century, state and federal authorities have moved away from broadly quarantining categories of people, said Mr. Gostin, adding that one would have to reach back to the influenza pandemic of 1918 to begin to find the sort of blanket approach being employed in response to Ebola in New Jersey.

General quarantines, seen as having only limited effectiveness even when employed against the flu a century ago, fell out of favor as antibiotics and other treatments were developed to more directly address the contagious without affecting those who might have been exposed but display no sickness.

At the height of the AIDS epidemic, quarantines were supported in some quarters, but no such measures were ever adopted. Similarly, there were no quarantines in the United States during recent pandemics of H1N1 or SARS.

The last time patients in New York City were forced into isolation came with the outbreak of multidrug-resistant tuberculosis in the early 1990s, said Wendy E. Parmet, professor of health policy and law at Northeastern University School of Law. In those cases, officials targeted those recalcitrant patients who refused to take their medications, she said, rather than every person who tested positive, and even that practice faced court challenges. The approach resulted in the less restrictive “directly observed therapy,” in which patients were forced to take medications in front of officials, she said.

“I’m very troubled by what we’re seeing and not seeing,” Ms. Parmet said of the current isolation efforts. “Coming down hard makes good press but it doesn’t make good public health,” she said.

Ms. Parmet added: “Treating nurses like criminals is not the way to go.”

While Mr. Cuomo provided the first details of New York’s plans, New Jersey has provided little information about how it plans to carry out its quarantine process.

“I’m very worried about it,” Mr. Gostin said. “We used to think that we had balanced public health and civil liberties, but I think in this case we have forgotten that balance. And I’m one who thinks that we should always privilege public health. I’m not a civil libertarian.”

Udi Ofer, the head of the American Civil Liberties Union in New Jersey, said the policy of quarantining health care workers like Ms. Hickox raised serious concerns “about the state abusing its powers” and could spread the very fear that the order appeared aimed at counteracting.

“By forcibly detaining people, we are also frightening the public and may deter genuinely sick people who fear quarantine from seeking the treatments they deserve,” Mr. Ofer said in an email.

The Centers for Disease Control and Prevention, which formulates and advices on policies such as infection control, does not have regulatory authority over domestic health emergencies. That falls to the states. However, the policy announced on Friday relates to international movement, a realm that legal experts say is solidly within the bounds of federal authority.

And the virus has presented at least one unusual challenge for law enforcement agencies, senior American officials said on Sunday. They described how agencies had urgently investigated a man who wrote a bizarre post on social media that he was going to try and contract Ebola in Africa and then return to the United States.

According to senior American officials, the man traveled to the West African country of Guinea in the past month in the hopes of working alongside humanitarian assistance organizations treating patients. The organizations quickly determined that the man had no medical expertise and was acting strangely, and they turned him away

Even though his Facebook post indicated that he was mentally unstable, mentioning a time machine at one point,  a multi-agency investigation was launched that involved the F.B.I., Customs and Border Protection, and the Centers for Disease Control and Prevention.

In Guinea, C.D.C. officials interviewed the man and took his temperature several times, and determined that he showed no signs of the virus. The C.D.C. had no legal ability to hold the man and he is not in the custody of American or Guinean authorities there, American officials said Sunday.

By Sunday night, officials said they do not believe they can stop him from returning to the United States, but said federal authorities would be closely monitoring him when he arrived, likely in the next several days.

“It’s not that we were trying to prevent him from returning, we were just ensuring that he didn’t pose a health risk to other travelers,” said a senior American official. “When we determined that he didn’t pose a risk we had no issue with him flying home.”

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