Monday, February 10, 2020

The Coronavirus and the Constitution

By Eugene Volokh - February 10, 2020 at 08:01AM

A reader asked me about the constitutionality of quarantines and similar measures; I haven't studied the subject at all, but I thought I'd ask, Prof. Ed Richards, who is an expert in the field (both on the law side and on the public health side; he has an M.P.H. as well as a J.D.). Prof. Richards was kind enough to pass along the following:

The coronavirus is dominating the news. As with the SARS epidemic in the early 2000s, China has exacerbated the hysteria by withholding critical information about the spread of the disease. At this point in time, it is impossible to predict whether this coronavirus outbreak will become a major threat to the world's health. For perspective, the CDC estimates that flu has infected 22,000,000 people in the US and 12,000 have died so far this flu season. Based on the experience of past novel virus outbreaks, it is likely that the final toll from coronavirus will be a tiny percentage of the usual toll from flu.

What drives the fear we are seeing is the 1918-1919 flu pandemic, which infected 500,000,000 people and killed at least 50,000,000 worldwide. It killed about 675,000 in the US, out of a population of around 100,000,000. Given the disruption caused by the relatively tiny number of cases and deaths we see from the coronavirus even now, a pandemic infecting hundreds of millions of people would disrupt world order and paralyze governments. It is this existential threat to the state that lies behind the Constitutional basis of public health law.

Much of our colonial population lived with a constant treat of contagious disease. The major cities were on rivers at or near the coast to have access to shipping and they were plagued with disease-carrying mosquitoes. Sewage ran in the streets and contaminated the drinking water wells. Shipping from foreign ports brought a constant threat of epidemic disease. The first comprehensive look at life expectancy in the U.S. was done in Boston and was published as the Shattuck Report in 1849. It found that the average life expectancy in cities was around 25 years and 35 years in the countryside. Most of those premature deaths were due to infectious diseases.

While there was a high background level of infectious diseases such as malaria, it was the periodic epidemics that threatened public order. Ten percent of the population of Philadelphia died of yellow fever between September and November, 1793. There were similar outbreaks throughout the colonial period of yellow fever, smallpox, cholera, and typhoid fever.

Colonial boards of health may have been the first administrative agencies in the US. They exercised Draconian powers that were rooted in English law. The English statutory and common law recognized the right of the state to quarantine and limit the movement of plague carriers. Blackstone observed that disobeying quarantine orders merited severe punishments, including death. The argument of counsel in Smith v. Turner, 48 U.S. 283, 340-41 (1849) described measures to control a yellow fever outbreak in Philadelphia:

For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia.

These powers are classic police powers, exercised by the states. While they were not at direct issue in Smith, the power to quarantine ships was upheld against commerce clause and foreign affairs challenges in Morgan's Steamship Co. v. Louisiana Board of Health (1886). The power to establish cordons sanitaire was upheld in Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana (1902). The right of the state to require vaccination was upheld in Jacobson v. Massachusetts (1905).

There is no direct Supreme Court precedent on the due process rights of a person subject to quarantine or isolation, but there is state precedent that the constitutional requirement is provided by the writ of habeas corpus. There is state precedent that isolation or quarantine cannot be indefinite without triggering a periodic right to review of the need for the restriction, which is consistent with Supreme Court precedent on restrictions for mental health commitment and the restrictions for dangerous persons such as sexual predators. While some states have granted more extensive due process rights through statute, it is likely that the Supreme Court would not find these necessary as a US constitutional matter under the Matthews v. Eldridge (1976) test.

These cases represent more raw power than is obvious when looking at them from our modern frame of reference. If you were suspected of being exposed to smallpox, but were not infected, being put in the pest house was often a death sentence. This was known at the time, and damage suits for being subjected to the risk of infection were rejected by the courts.

Despite the belief of the anti-vaxers, modern vaccines are extremely safe. But the smallpox vaccine at issue in Jacobson was not safe. It was manufactured in an unsanitary process that risked contamination with dangerous bacteria and viruses. (Even modern smallpox vaccine is dangerous for some people. It is not made from smallpox, but it is a live virus that can cause severe illness or death in persons with immunosuppression secondary to HIV, cancer treatment, or organ transplantation.) Thus the court in Jacobson understood that in ruling that the state could force an individual to submit to smallpox vaccination, it was ruling that the person could be subjected to a real risk of injury or death.

The language in the public health cases parallels the language in the national security cases at the time. The Court saw epidemic disease as the same level of threat to the state as invasion by a hostile military force and one that was much more frequent. The founders were all personally familiar with the Draconian police powers exercised by states when they were drafting the Constitution. Most had lost family members to epidemics. From an original intent analysis, the power of the states to take decisive action to stop the spread of disease is clear. (It is not so clear how much they would see this power belonging to the Federal Government, but it is easily justified under the modern reading of the commerce clause.)

Power does not equate to wisdom. A cordon sanitaire for yellow fever makes no sense today when it is known that it is a mosquito-borne illness. The same applies for the many infectious diseases that are vector or water borne. The long-term control of infectious diseases that are spread in the environment was achieved through the sanitary movement that was begun with the recommendations in the Shattuck Report. These include strategies such as sewage and drinking water treatment, not the restriction of individuals. Conversely, in modern times some states found that their new statutory due process rights for disease carriers made it difficult to deal with outbreaks of drug-resistant tuberculosis.

During the current coronavirus outbreak, passengers are being quarantined on cruise ships. We know the difficulty of controlling norovirus outbreaks on cruise ships. Given that the crowded conditions on ships are ideal for spreading disease, it will be no surprise if there is a high incidence of coronavirus infection among the quarantined passengers.

The harder question is, how many of those persons were infected on the ship after the quarantine was imposed? A recent study from Wuhan, China found that 43% of early cases were caused by spread in the hospital. If it was necessary to quarantine the cruise ship passengers, could further transmission of the coronavirus have been prevented by quarantining the passengers in more appropriate facilities onshore? If the spread of the coronavirus on the ship results in a shipboard epidemic, will the quarantine ultimately increase the risk of spread of the virus into port cities?

The Constitution puts few limits on the legal power to protect the nation from epidemic disease. But power without expertise and resources means little. Once the traditional killers were controlled—smallpox, polio, cholera, etc.—public and political support for public health withered. The federal and state governments have cut staffing and resources for public health for decades.

Individuals refuse to get immunizations that are necessary to keep herd immunity intact. The lack of paid sick days for many employees, and the pressure to work sick in many workplaces, facilitates the spread of disease.

We do little to prevent the 15-60,000 deaths and the hundreds of thousands of hospitalizations due to the yearly flu pandemic. It is not surprising that we are unprepared for new threats when we cannot respond to effectively to existing threats. Public health infrastructure cannot be created on an emergency basis. It must be built over decades.


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