To meet substantive due process, a public health intervention must be based on a public health necessity, an effective intervention, have a demonstrable means-end connection, be proportionate to the threat involved, and be the least restrictive means of accomplishing the goal. In addition, Daubert explains the parameters of the procedural due process. Due process in a quarantine situation does not always involve a judicial hearing, but it must contain the following elements: notice to the affected individual, an opportunity to contest the government's action, access to legal counsel, and a final decision that is subject to review by a court of law. She includes with a discussion of how due process came to be applied in situations of quarantine, by viewing due process as a continuum, with infected individual on one end of the spectrum and the exposed individual on another. She thinks that due process should increase as the likelihood of infection decreases. Finally, she looks at the current procedural and substantive due process framework might work in the event of a large-scale quarantine. To do so, she discusses the due process required in involuntary mental health commitments and how that might translate to a quarantine scenario.
In part three, Daubert discusses the current quarantine procedural due process requirements at both the federal and state levels. In December 2003, states were encouraged to review their public health laws, and to adopt model acts to update state quarantine procedures. The two model acts suggested include the Model State Emergency Health Powers Act and the Turning Point Model State Public Health Act. These new acts were motivated by the increased threat of bioterrorism in a post 9-11 world. These acts recognize...
It also limits quarantines to a 30-day period, though a public health authority may seek a continuance o the original quarantine. Federal law provides for a 3-day provisional quarantine of individuals without an order. After three-days, the person must receive a written quarantine order and can protest the quarantine through a writ of habeas corpus.
Daubert concludes with a discussion of ways that due process guarantees can be protected if the country is faced with a large-scale quarantine. First, she recognizes that in a pandemic some people will be denied due process. Access to the courts must be increased so that impacted people can seek review. There also needs to be a remote process for review so that impacted individuals can seek judicial review without risking spread of the disease to court personnel. States are encouraged to develop Bench Books, which would detail the appropriate standards for quarantines, because many judges are unfamiliar with quarantine law. Finally, due to the fact that quarantine proceedings can involve a large number of people, jurisdictions should have plans to deal with these large numbers, including the appointment of temporary judges, if necessary.
References
CDC. (2005). Fact sheet on legal authorities for isolation/quarantine. Retrieved March 8, 2009 from Centers for Disease Control and Prevention. Web site: http://www.cdc.gov/ncidod/sars/factsheetlegal.htm
Daubert, M. (2007). Comment: Pandemic fears and contemporary quarantine: Protecting liberty through a continuum of due process rights. 54 Buffalo L. Rev 1299.
