As we watch other countries of the world "lock-down" entire cities, ordering their citizenry to stay indoors and preventing travel outside of cities, provinces and regions, we have been considering the possibility of similar actions in the US. We know more than a few political leaders find such an idea alluring in limiting the spread and intensity of COVID-19 spread, "Look at China!" is the refrain.
It just isn't that easy.
Unlike China or even Italy, the US has certain constitutional principles, that however inconvenient in the present circumstances, are likely to limit use of involuntary isolation and quarantine. However, there is no denying the specter of such draconian measures can still have the intended effect.
Federal authority to establish quarantines or isolation for US citizens is limited to those people crossing national and state borders. It is that authority that allowed federal authorities to impose quarantines on repatriated individuals and cruise ship passengers. The federal government could also impose a quarantine by limiting travel across state lines. However, there is a long tradition of using a very light touch. The federal government was quick to point out that repatriated American citizens returning from Wuhan were quarantined voluntarily until someone decided to make a break for it. At which point, the government stopped being so nice.
States have greater authority to require involuntary quarantines and isolation. During the anthrax scare after 9/11, a number of state passed some version of the State Emergency Health Powers Act that authorized, upon declaration of a state health emergency, state health departments to:
- Close or evacuate any facility and decontaminate any material it deems to be a threat to public health
- Procure, using condemnation if necessary, facilities and materials necessary to address the public health emergency, including communications devices, carriers, food, fuels, real estate and clothing
- Require a health care facility to provide services necessary to address the health emergency as a condition of licensure in the state, transferring ownership to the local public health authority if necessary.
- Establish routes and limit transportation in and out of a stricken area.
- Permit the local public health authority to purchase and distribute medical and pharmaceutical supplies and to ration same if necessary
These powers would persist only as long as there existed a declaration of a public health emergency. Furthermore, the state is required to use the least draconian methods necessary to preserve the goal of protecting public health while limiting the imposition on civil rights. Not all states have adopted a version of the State Emergency Health Powers Act, in which case much older health legislation, often dating back to the yellow fever epidemic controls.
Use of the State Emergency Health Powers Act, except in a very targeted manner, will be difficult to achieve given constitutional protections of individual rights. Limiting access to a particular apartment building would likely be acceptable. Cordoning off multiple city blocks won't fly with civil libertarians, many of them judges. For that reason, the National Guard's presence in New Rochelle, NY is described as "supporting health care efforts" and not as a quarantine.
So why even bring it up?
The threat of quarantine serves an important public purpose. For much of the outbreak thus far, not everyone viewed it as a serious matter due in part due to the lack of gravitas with which it was being handled at the federal level and in part due to the complacency that has emerged in our available vaccine and antibiotic era. Even after COVID-19 was identified as a threat, handshakes and hugs persisted.
No matter how unrealistic, the idea of mass quarantines or even the more probable individual quarantine serves the purpose of focusing public attention on preventive measures offered voluntarily by every individual, such as keeping one's distance, avoiding handshakes and vigorous hand washing.
The King Co. WA Director of Public Health, Patty Hayes, said as much when releasing this intervention matrix:
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“We’ve moved into the second level … We are at the ready to institute the third level,” Hayes said. “We haven’t had to do this because our public has been extremely compliant … But the health officer does have the authority to involuntarily isolate or quarantine individuals.”
This threat of quarantine would, of course, be idle were there not a serious health emergency underway. Public health officials keep their jobs by inspiring trust. Raising unwarranted alarms is a career killer not to mention dangerous to the public. The fact that a public health official is willing say she would and could suspend certain civil liberties, is a forceful statement about the need for individual responsibility in limiting the spread of the virus. In other words, to defeat COVID-19, America is going to have to put the public back in public health.
Call with questions after you wash your hands.
#flattenthecurve
Emily Evans
Managing Director – Health Policy
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