Protecting public health while preserving human rights

Coronavirus in the US


WHEN THE STORY FIRST BROKE in late 2019 with reports of a SARS-like respiratory coronavirus taking hold in Wuhan, the capital city of China’s Hubei Province, just a few dozen cases had been reported with little evidence to suggest the virus was any more readily communicable than other coronavirus illnesses such as the common cold. Even when researchers identified it as a novel coronavirus, health officials still had no reason to suspect COVID- 19 might be more virulent and easily transferrable than initially thought.

Just six weeks after the first case was reported, as travelers made their way from China across the globe to celebrate Chinese New Year, vacationers boarded cruise ships in the region, and business travel continued unabated, COVID-19 had turned deadly — the death toll just in China surpassing the total global fatalities seen in the 2002 – 03 SARS epidemic. And by early April, close to 1.5 million — and climbing daily — had been infected in more than 200 countries, leaving close to 100,000 dead in its wake.

At the beginning, Chinese health officials struggled to contain the outbreak even as researchers made almost daily breakthroughs as to the nature of the disease. Wuhan was essentially shut down in late January — a quarantine-like lockdown later expanded to include more than 50 million throughout the country. Other countries quickly followed suit, employing social distancing in an effort to “flatten the curve” and protect the health and safety of their citizens.

By the time the World Health Organization (WHO) determined the outbreak a global pandemic on March 11, multiple new cases were being reported every day around the globe.

In the United States, the Trump Administration’s response included issuing a travel ban on January 31 denying entry to foreign travelers whose itineraries included any affected area followed swiftly as the situation on the ground changed almost daily with additional restrictions in late February, the declaration of a state of emergency on March 13, and guidelines from the Centers for Disease Control and Prevention (CDC) limiting gatherings to under 50 people two days later.

Mary Anne Bobinski

Dean Mary Anne Bobinski

“A number of different court decisions have established the rights of a government to impose restrictions on individual liberty in order to protect the public’s health, although the scope will vary depending on the circumstance,” Emory University School of Law Dean Mary Anne Bobinski explains. “For example, the federal government has the power to regulate when goods or people are entering the country but has limited powers on movement between states. At the borders, the scope of that power is greater in terms of restricting the entry of non-citizens or people who are not legally entitled to be here than it would be in restricting the entry of citizens.”

Tools of containment

Under direction of the Centers for Disease Control (CDC) US citizens returning from China went through health screenings at the airport and evacuees or travelers arriving from affected areas — such as the 195 Americans returning from Wuhan on state department-chartered flights and those released from quarantine aboard cruise ships — were subject to either quarantine or isolation upon return.

Yet, even as worldwide efforts to contain the spread persisted, infections continued to swell, begging the question, “How do we navigate the legal implications of protecting public health while infringing as little as possible on individual human rights?”

“Until we have a better test to determine more rapidly whether someone is carrying the virus, quarantine is the best tool we have,” says Polly J. Price 86C 86G, Asa Griggs Candler Professor of Law and professor of global health in the Rollins School of Public Health at Emory University. “It’s a big infringement on people’s liberties because most of those in quarantine will not get sick. That’s what happened in Dallas, Texas, during the Ebola crisis of 2014. Out of the hundreds of hundreds of people local authorities were monitoring for three-week stints, only two nurses with direct contact with the initial patient actually got sick.”

In 1905, Jacobson v Massachusetts was one of the few pre-1960 cases ruled on by the US Supreme Court which challenged the state’s authority to supersede individual liberties. In this case, at issue were orders mandating citizens to receive the smallpox vaccination. At the time, the court upheld the Cambridge, Massachusetts Board of Health’s authority, but the concepts of state power and personal liberty remain topics of debate more than a century later.

“Public health scholars have been working on this issue for 20 years, trying to ensure that the law supports public health while also ensuring that there are some basic procedures for individual liberties,” Bobinski relates. “For example, Georgia has a rule about quarantine that sets up a process identifying when quarantines can be used when a public health emergency has been declared and also includes possible recourse for individuals to be able to challenge the quarantine orders.”

Regardless of the state of public health, life still has to go on, businesses still need to operate, workers still need wages coming in, and people still need access to basics such as food and medical care. So, what happens when individuals are forced into quarantine or isolation? Other than, as Price suggests, filing a habeas corpus petition or other court challenge to a public health order, the options for recourse are fairly limited.

“In terms of employment, some states may have laws which could offer some protection in these cases, but Georgia is an ‘at-willemployment’ state, meaning employees can be let go without cause,” says Joyce Kitchens 81L, of Kitchens New Cleghorn. “The best option if you’re sick, think you’ve been exposed, or a physician has identified you as vulnerable would be to apply for Family and Medical Leave Act (FMLA) protection. As long as you’ve worked 12 months, more than 1,250 hours or more the previous year, and your employer has 50 or more employees, you are legally entitled to FMLA.”

As we saw in China, and now in Italy, if the scale of an outbreak grows, corresponding quarantine orders can increase exponentially very quickly, which can have a profound impact on everything from business operations to healthcare to access to basic necessities. In the US, there is great concern that mass event cancellations, “non-essential” businesses shuttered for weeks, curfews in some jurisdictions, and other social distancing strategies will have a significant, long-lasting negative impact on the economy.

“When we think about how to respond to a public health threat — whether it’s a contagious disease, a nuclear incident, etc. —we assume society is going to continue to function in the usual way even though the threat is present,” Bobinski reflects. “But some of the public health measures put in place in China — where millions of people are ordered to selfquarantine or risk arrest — raise questions of how people can have access to food or medical care. When there’s a public health challenge that goes beyond the individual and ripples out into society, that can have a real economic impact.”

What we learned from Ebola

At the height of the Ebola virus outbreak in West Africa, a Liberian citizen visiting family in Dallas, Texas, became the first patient to be diagnosed with the virus in the United States. Two nurses who cared for him in the hospital tested positive for the virus within days of his death.

Polly J. Price

Professor Polly J. Price

“When Ebola showed up in Dallas, it was not something local authorities had prepared for in terms of how to quarantine large numbers of people, especially health providers,” Price says. “Local officials in Dallas, the state health department, and officials from the CDC created something like a ‘war room’ to make sure all the bases were covered, including legal issues about quarantine. Most people whom Dallas authorities determined had been exposed, including the Liberian man’s family, complied with the public health orders voluntarily, to remain confined to their homes.”

Although relatively few people nationwide experienced quarantine during the 2014 Ebola outbreak, the public’s outcry for more draconian measures coupled with an experience gap at the local enforcement level highlighted the need for a hard look at state quarantine laws as well as the development of a contingency plan. “That outbreak and the aftermath in the courts exposed the need to have a system in place so decisions aren’t being made in a time of crisis,” Liza Vertinsky, associate professor of law reflects. “In Georgia, for example, because of what happened in Dallas, we are thinking ahead to define minimum process protections to safeguard human rights.”

“Judges in Georgia, for example, have available to them a ‘Pandemic Bench Guide,’ prepared by the Judicial Council of Georgia. The guide covers legal standards for involuntary treatment for communicable disease, emergency powers of the Governor, and, of course, quarantine and isolation,” says Price.

A common misconception among the general public holds the federal government responsible for instituting and enforcing quarantine, isolation, or other measures. The reality is, the CDC operates in an advisory capacity only during a public health crisis and as the crisis unfolds, the states will bear the brunt of the response.

“There are federal quarantine regulations but the federal government has limited authority within the boundaries of the states, which means state public health officials take up the primary burden of the work in determining when quarantine is needed,” Bobinski explains. “And states have made adjustments to their quarantine rules over the past 10-20 years to make sure the efforts to protect the public health also provide some legal recourse to individuals if they feel the rules have intruded too much on their liberties.”

Price adds, “Except at the nation’s borders, the federal government, with the expertise of the CDC, is not in charge. America’s defense against epidemics is divided among 2,684 state, local, and tribal public-health departments. Federal quarantine orders are not only rare, but they are implemented and enforced by state health authorities, not federal officials, meaning state and local health departments provide the labor, set the rules, monitor people who might have been exposed to the virus, and trace the contacts of those who fall ill.”

What states can expect from the federal government is expert guidance and support. “The CDC spends a lot of time working to establish best practices and guidelines to advise local jurisdictions,” Vertinsky explains.

“If you have a preparedness system in place, then when you have to react to a public health threat, you’ve practiced who makes decisions and how you make decisions. One of the things that concerns me the most are the cuts in public funding toward emergency preparedness. Pandemics are inevitable and at the very time we need to be investing in strategies for addressing disease outbreaks, the necessary funds aren’t there.”

The challenge of trust

Between fear and changing public attitudes on what used to be standard medical advice — such as vaccination protocols — gaining compliance during a crisis can make containment difficult.

“Any time you employ a measure to preserve the public health that the population might object to, implementation becomes much more complicated,” Vertinsky says. “There used to be a lot of deference given to local health officials who were relying on evidence- based measures to justify their actions legally. Now, that is under challenge, which makes achieving a politically and socially accepted balance difficult.”

Price agrees, “I think the most challenging aspect of any outbreak is the pandemic of fear that sets in when people don’t trust what they hear from government officials. People are afraid, and when they hear about a confirmed case, or the rumor of one, they want the government to protect them, and they can react in counter-productive ways.”

Across the nation, “panic buying” and hoarding stripped store shelves and caused critical shortages on things like water, hand sanitizer, masks and other basic necessities —all of which continue to make properly equipping those on the front lines such as healthcare providers even more difficult.

“The US legal system has been here before —just over a century ago, during the pandemic influenza of 1918 – 19, the most severe pandemic in recent history,” says Price. “Then, too, public officials faced constraints on their knowledge, authority, and capacity to deal with the crisis. The result was a patchwork approach that radically, if temporarily, changed American life. For COVID-19, health officials emphasize that similar measures are ‘the only viable strategy at the current time.’”

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