This paper reviews Maureen Daubert's 2007 law review article examining the legal framework governing quarantine and isolation in the United States. Beginning with the CDC's definitions and enforcement authority, the paper traces the history of quarantine from biblical times through colonial America to modern federal and state statutes. It then analyzes the substantive and procedural due process protections owed to individuals subject to quarantine orders, including notice, the right to contest, access to counsel, and judicial review. The paper also addresses how these protections might be applied during a large-scale pandemic, drawing parallels to involuntary mental health commitment procedures.
In her article, Maureen Daubert discusses the legal ramifications of quarantine. Before undertaking a study of Daubert's article, it is useful to understand how the Centers for Disease Control and Prevention (CDC) approaches the issue of quarantine and isolation. The CDC distinguishes between the two terms: isolation refers to the separation of people who have already contracted an infectious illness from the healthy population, while quarantine refers to the separation of people who have been exposed to an infectious illness from the general population (CDC, 2005). The CDC stresses that both isolation and quarantine can be voluntary or mandatory.
State and local authorities have the power to compel isolation and quarantine based on their police powers, which give them the authority to safeguard the health of their citizens (CDC, 2005). At the federal level, the Secretary of Health and Human Services bears responsibility for preventing the spread of disease within the United States. The President may issue executive orders for isolation and/or quarantine to prevent the spread of the following infectious diseases: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndrome (SARS), and avian influenza (CDC, 2005). Violation of a federal quarantine order is a misdemeanor crime, and violation of state and local quarantine or isolation orders may also carry criminal penalties (CDC, 2005).
Daubert begins by examining the history of quarantine. She mentions the biblical use of quarantine and isolation applied to leprosy victims, as well as the effective use of quarantine in medieval Europe, where populations were concerned about the spread of the plague and other infectious diseases. She then discusses how the practice of quarantine developed in the Americas, where it was initially directed at diseases entering by sea.
In 1647, the Massachusetts Bay Colony enacted a maritime quarantine against Barbados, which became the first formal quarantine in America. By 1797, Massachusetts had formalized its state quarantine powers. In 1796, Congress enacted its first federal quarantine statute in response to a yellow fever epidemic. While some states argued that the federal government lacked authority to enact such a statute — asserting that the power to quarantine was a police power reserved to the states — the federal government maintained it possessed such authority under the Commerce Clause. Currently, Title 42 of the United States Code and the Robert T. Stafford Disaster Relief and Emergency Assistance Act both grant the federal government the power to impose a quarantine, and this power has survived legal challenges. Moreover, modern quarantine is frequently a combined state-federal action, with the federal government authorized to provide and receive assistance to and from state and local governments.
Daubert next examines the legal limits on the government's ability to impose a quarantine. Because quarantine necessarily infringes upon individual rights, it is a tool that must be used in a specific manner. A central question is whether the government must afford procedural and substantive due process rights to individuals subject to a quarantine or isolation order. It is clear that people are entitled to some due process, but it is equally clear that, given the realities of infectious disease transmission, individuals may need to be detained prior to receiving due process — otherwise the quarantine becomes meaningless.
To satisfy substantive due process, a public health intervention must be based on a genuine public health necessity, employ an effective intervention, demonstrate a clear means-end connection, be proportionate to the threat involved, and represent the least restrictive means of accomplishing the goal. Daubert also explains the parameters of procedural due process. Due process in a quarantine situation does not always require a judicial hearing, but it must include the following elements: notice to the affected individual, an opportunity to contest the government's action, access to legal counsel, and a final decision subject to review by a court of law.
Daubert develops a framework for how due process came to be applied in quarantine situations by viewing it as a continuum, with the infected individual at one end of the spectrum and the merely exposed individual at the other. She argues that due process protections should increase as the likelihood of infection decreases. Finally, she examines how the current procedural and substantive due process framework might function in the event of a large-scale quarantine, drawing on the due process requirements established for involuntary mental health commitments and considering how those standards might translate to a quarantine scenario.
"Model acts and provisional quarantine timelines under current law"
"Recommendations for judicial access and review during mass quarantine"
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