Drop the Kleenex and Put Your Hands Up
February 09, 2017
by Sean Philpott-Jones, Chair, Bioethics Program of Clarkson University & Icahn School of Medicine at Mount Sinai
Drop the Kleenex and Put Your Hands Up
For the past week, mainstream, alternative, and social media outlets here in the United States and abroad have been consumed with discussion and debate about the legality and morality of President Trump’s recent travel ban. However, the so-called Muslim travel ban is not the only set of potentially controversial restrictions put into place recently.
Unbeknownst to most, the federal government is also planning to expand greatly the power of the US Centers for Disease Control and Prevention (CDC) to detain people who are suspected of carrying a dangerous communicable illness. Also known as quarantine – a term that comes from the Italian word for forty, in honor of the practice in Early Renaissance Venice to make trading vessels remain anchored offshore for 40 days before entering the port – the detention, isolation and even forcible treatment of those potentially exposed to a infectious disease like tuberculosis or Ebola is one of the most powerful and one of the most contentious tools in the public health arsenal.
The authority of local, state, and federal officials to do this comes from the parens patriae powers of the state. Latin for "parent of the nation," parens patriae refers to the legal doctrine that the government has a responsibility to protect those who cannot care for themselves. This includes, for example, the power of the state to intervene against an abusive or negligent parent. More broadly, it also encompasses the government’s responsibility to protect the health and welfare of the general population, which is accomplished through public health policies and practices like food safety inspections, fluoridation and chlorination of municipal water supplies, immunization programs and requirements, and the use of isolation and quarantine to prevent the spread of disease.
The decision to quarantine a person is not something to be taken lightly. Doing so places restrictions on an individual’s civil rights, including their right of movement and their right of assembly. They may also experience significant economic, psychological, social, and even physical injuries as a result of being quarantined.
Thus, quarantine can be justified only if it is absolutely necessary to protect others. To put it another way, the forcible detention of someone believed to be infected with a dangerous infectious disease is ethically and legally defensible only if it meets the standards of the harm principle, as originally articulated by philosopher John Stuart Mill. In his classic work On Liberty, Mill argued that, “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”
Most public health ethicists and lawyers argue that the use of quarantine must not only meet the harm principle, but it must also be proportional to the danger faced and be transparent in its application. For example, you wouldn’t quarantine someone with a disease that cannot be spread from person to person. Similarly, quarantine might be made voluntary rather than compulsory. It is also expected that public health authorities clearly communicate the reason for the quarantine order and allow for a process of appeal.
This is why the expanded powers of the CDC, should they be enacted, raise considerable concern.
Currently, the CDC is limited to detaining those who are entering the country or crossing state lines unless they get approval from local and state officials. The agency is also limited to quarantining people exposed to a handful of deadly and highly infectious diseases, such as cholera, tuberculosis, and plague.
Under the new regulations, however, CDC officials will be able to detain anyone in the country who is exhibiting signs that they are infected with a potentially dangerous disease, such as a high fever, headache, or cramps. Of course, these symptoms are pretty indiscriminate; a person with a fever of 104°F may be infected with Ebola or they may just have a bad case of the flu. The proposed rules will also allow the CDC to detain someone for up to 72 hours before their case is subject to medical and legal review. That review will be conducted by CDC officials themselves, raising concerns about transparency, objectivity, and due process.
It should thus come as no surprise that many public health practitioners and health policy experts are concerned about these newly proposed quarantine regulations. Not only are they worried about the lack of legal safeguards and the potential for abuse by overly zealous officials, most believe that the expansion of the CDC’s quarantine powers may actually elevate the threat of epidemic disease. People who are experiencing clinical signs of a dangerous illness, for example, may choose to hide their symptoms from public health authorities rather than run the risk of being detained.
Quarantine is a very potent weapon in the fight against infectious disease, but the decision to deploy this “nuclear option” should be done carefully and judiciously. Individual civil liberties must be protected even during a public health crisis. But as we saw during the 2014 Ebola outbreak, when public figures like Donald Trump and Chris Christie called for a blanket quarantine of those returning from West Africa despite the lack of an evidence-based reason to do so, government officials are far too quick to pull this trigger.
Giving the CDC greater authority and power to detain people on public health grounds will do little to prevent new outbreaks of infectious disease in the US, but it will further chip away at our already eroded civil liberties and rights.