“It is necessity which makes laws, and force which makes them observed.”
— Voltaire, “Des Lois,” Dictionaire Philisophique, 1764
“In this world you’ve just got to hope for the best, prepare for the worst and take whatever God sends.”
— Lucy Maud Montgomery , “Anne of Avonlea”
Life is all about being prepared. The big test, the big interview, and the big game all require adequate preparation. The law is no different. It too likes to be prepared for any situation and to make sure that the right person or people are in charge when it counts. In the courtroom, the judge rules by the gavel. At a crime scene, the policeman’s badge carries the day. At a blaze, the fire chief’s helmet runs the show. During times of health crisis, the law looks to public health professionals to keep us all safe.
As epidemiologists worldwide wait with bated breath to see if the next pandemic is upon us, local health departments are preparing as well. Ohio law provides that local boards of health may make any order necessary for, “the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisances.” In times of “emergency caused by epidemics of contagious or infectious diseases,” those orders can be declared to be emergencies and can take effect immediately upon their passage.
Among the powers given to local boards of health is the power to quarantine and isolate — to confine persons to certain spaces and to prevent large gatherings in which diseases could be easily spread. These orders could include the closing of public carriers like rail, bus and airline travel, or the canceling of sporting events and other large gatherings. Whether it be confinement to their own homes, to hospitals, to military bases, or even to cruise ships, we see examples of this power around the world right now.
Most of Ohio’s health laws were written in the mid to late 1800s during outbreaks of polio, tuberculosis, and other diseases that are largely controlled or even eliminated today. They were updated several years ago because of the ease of modern travel and because of worries about bioterrorism. But the most important portions of Ohio law, as it pertains to the current Covid-19 outbreak, are those portions that relate to persons possibly exposed, but not actually sick.
If a person is known to have been exposed to a dangerous and communicable disease, the health commissioner may order that the person be “isolated” — confined to their residence, a hospital or any other suitable place. The board of health may place a placard on the premises, warning people to stay clear, and may employ “quarantine guards” to make sure that the person does not leave and expose the general public to the illness. The quarantined person is specifically prohibited from attending any gathering, including school and church.
If a person or multiple persons are confined to a home because of illness, the health department is required to provide them “food, fuel, and all other necessaries of life, including medical attendance, medicine and nurses, when necessary.” If the person is later able to repay those costs, they must. If they are not able to pay, then the city, village or township where the person lives must reimburse the health department for those expenses.
On a federal level, the United States Code permits the Surgeon General to make regulations that he or she deems necessary in order to prevent the introduction of diseases into the United States or the transmission of diseases across state lines. Among those powers is the ability to apprehend and detain U.S. citizens, although that power may only be used when specifically approved by an executive order of the president. The CDC can also confine persons in a hospital or in their homes and may require that they continue to be isolated for as long as it takes for them to no longer be contagious.
The current outbreak in China remains, like a wildfire, uncontained. The CDC notes on website that it is, “an emerging, rapidly evolving situation.” There are 15 reported cases in the U.S. (not counting passengers recently evacuation from a cruise ship), but should persistent person-to-person spread of the virus begin to occur in the United States, American law is prepared to take steps to control the spread of illness within our borders.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas. He has written a weekly column on law and history for the Gazette since 2005.