The Doctors Without Borders nurse fighting state-imposed Ebola quarantines, first in New Jersey and now in Maine, has threatened to challenge the restrictions in court.
“If the restrictions placed on me by the state of Maine are not lifted by Thursday morning, I will go to court to fight for my freedom,” Kaci Hickox told Matt Lauer of the “Today” show via Skype.
Last Friday, Hickox arriving at Newark airport from Sierra Leone, where she was working with Ebola patients. She was detained for seven hours at the airport and then placed in an isolation tent with no shower or flushable toilet after a second temperature reading indicated fever. She tested negative for the virus and was allowed to leave on Monday after waging a media war against Republican Gov. Chris Christie’s 21-day quarantine policy for healthcare workers exposed to Ebola.
Now back in her home state of Maine, Hickox again finds herself at odds with state officials who expect her to remain quarantined at home for 21 days, the incubation period for Ebola. Since she left New Jersey, she hasn’t had a fever or tested positive for the virus.
Could she win a court fight?
Under Maine law, there has to be an “actual or threatened epidemic” to impose a quarantine. Paul Millus, a civil rights attorney who is not representing Hickox, told The Washington Post in an e-mail the state could have a hard time proving that as Hickox hasn’t shown symptoms. “Moreover, it is not quite clear that they would be able, medically speaking, to produce clear and convincing evidence that would require Ms. Hickox to quarantine,” he said.
Hickox’s lawyer, Norman Siegel, told the Bangor Daily News: “The conditions that the state of Maine is now requiring Kaci to comply with are unconstitutional and illegal and there is no justification for the state of Maine to infringe on her liberty.”
Siegel previously described New Jersey’s policy, which is similar to Maine’s, as “overly broad” — a phrase that hints what his legal strategy may be if Hickox decides to file suit.
Lawrence Gostin, a Georgetown University professor who heads the O’Neill Institute for National and Global Health Law, told the Wall Street Journal this is the first time he can recall the government imposing a quarantine on a class of people — doctors exposed to Ebola — rather than on a case-by-case basis depending on symptoms.
“That pushes the envelope more than I’ve seen it in my lifetime,” he said. “We are basically depriving individuals of liberty for 21 days just because they have traveled from a particular part of the world. That seems to me wrong legally and ethically and is against science.”
If a court agrees Maine is depriving Hickox of her liberty in violation of the Constitution, it could strike the state’s quarantine law down for being too broad. However, some legal experts are skeptical this argument will succeed.
Writing for the Volokh Conspiracy, Eugene Kontorovich pointed out courts, including the Supreme Court, have deferred to the authority of state health officials in public health emergencies. Quarantines are rare and there are few relevant cases – Hickox’s lawyer acknowledged they “could be setting a precedent.”
But Kontorovich claims the few cases on the books don’t bode well for Hickox: “A brief review of the cases suggests it extremely difficult to challenge such an action without a clear showing of medical unreasonableness, or discriminatory application,” he wrote. “Indeed, I found no cases in which a quarantine has been lifted due process grounds (though there have been some successful challenges to conditions of quarantine).”
In addition, he noted modern quarantine cases dealt with tuberculosis and smallpox, which are less lethal than Ebola. “All this shifts the presumption of validity even more towards the state,” he wrote, noting courts weigh the validity of the government’s interest against the individual’s right to liberty.
While states are given broad authority, there are some limits on what they can do in the name of protecting public health. Basically, they can’t do anything “arbitrary, oppressive and unreasonable,” a legal standard applied when people claim a public health law infringes on their freedom.
Another claim Hickox could pursue is false imprisonment — the crime of restraining someone without justification. Given court deference to state authority on public health matters, this claim is unlikely to succeed.
Consider the case of Mary Crayton. In 1911, New York health officials quarantined her for 15 days because she lived in a house close to someone with smallpox. Crayton said they never proved she’d been exposed. She sued the state for wrongful imprisonment and other damages, claiming health officials made townspeople think she’d been exposed to “a loathsome disease, was unfit to be at large or pursue her occupation, and thereby deprived her of her earnings, injured her feelings, held her up to ridicule, and caused her to be shunned by her fellow citizens.”
She lost. A state appeals court ruled that even an error in judgment on the part of health officials didn’t amount to “unreasonable and arbitrary” action.