“While the spirit of the Constitution is to be respected not less than its letter, the spirit is to be collected chiefly from its words.”
“A community has a right to protect itself against an epidemic of disease which threatens the safety of its members.”
— Jacobson v. Massachusetts, 1905
In mid-February of this year, the Gazette reprinted a column that I had written some years earlier on the legal authority for a state to quarantine its citizens, focusing particularly on the law of Ohio. I asked them to reprint the column because it appeared to me, by that point two months ago, that the imposition of quarantine orders was an inevitability.
Now, a month into those orders and with several weeks yet to go before the earliest possible termination of them at the beginning of May, debate has begun to increase over the last week about how and when to terminate quarantine orders. My social media feed is nearly overflowing with arguments on both sides of the issue. And, unfortunately, as is often the case in debates that take on a political tone, both sides seem 100% certain that they are right, and that the other is not only misguided, but driven by some evil purpose.
I am neither a legislator, nor an epidemiologist. I have no answers to provide, precisely because there are no easy answers in a pandemic, especially in the early stages. But I know this — we would be wise to listen to one another, and to understand that both sides make their arguments from valid concerns. This illness is not to be underestimated. It is not minor, it is not like any other we have faced, and it is not over-exaggerated. Mitigation efforts are absolutely necessary and appropriate. And despite the absolute necessity of mitigation efforts, their real and harsh effects outside of their public health benefits cannot be dismissed. Real people are suffering greatly — businesses will fail, millions are unemployed, and those who have lost work will lose access to health care, housing, and the ability to put food on the table. The impact on education, domestic violence, child abuse reporting, and elder abuse is real as well.
There is much to be gained from calm discussion and planning. There is only heartache and future loss to be gained from wild rumors and misinformation. But alas, this is a legal column, not a soap box or a bully pulpit. And as we have not had a major pandemic illness in a century, the case law around them is all a century old or older.
Federal law in the area is quite limited, and federal court cases are generally interpreting provisions of state law. One area that is clearly delineated in federal law is the authority, under 42 U.S.C. section 264 to prevent the spread of communicable disease into the United States from foreign countries. This is the power that the president implemented when he first imposed a travel ban from China, and then later on travelers from most European countries. That power also extends to preventing the spread of disease from state to state, and under that power, presidents have issued orders to quarantine persons with specific illnesses.
Most other authority is left to the states, by the reserved powers clause of the 10th Amendment. In a 2014 review of quarantine powers, the Congressional Review Service noted that federal interpretation of the reserved powers clause has remained essentially stable since Gibbons v. Ogden in 1824. Of course, that same CRS article noted that most state quarantine laws hadn’t been changed in 40 to 100 years.
Two major federal cases upheld state power in public health emergencies in the early part of the 20th C. Compagnie Francaise & c. v. Board of Health in 1902 upheld a quarantine order in Louisiana that was part of their 1897 smallpox outbreak. That order prevented healthy Italian immigrants from coming into the city, because the city was in the middle of an outbreak.
Jacobson v. Massachusetts, in 1905, upheld that state’s mandatory vaccination order, again to fight smallpox. Both state’s public health rules were upheld by federal courts. The Jacobson case was just cited by a federal appeals court in upholding Texas’ ban on abortions during its current shelter period. Judge Stuart Kyle Duncan, a Trump appointee to the 5th Circuit Court of Appeals, stated: “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.” The emphasis on the word “all” is the 5th Circuit’s, not mine. And Judge Duncan went on to note that Jacobson specifically authorized limits on public religious worship, an issue that again is hotly contested.
The most recent challenges to quarantine laws came just six years ago from a nurse who was quarantined after treating an Ebola patient. She filed lawsuits in New Jersey and Maine, and while both cases resulted in some concessions to patient rights, the attorneys who handled those cases, Steven Hyman and Normal Siegel, told the National Law Journal in late March that they believe state quarantine orders in the COVID age would survive legal challenge, corrected predicting the Texas order just days later.
We are mere weeks into this pandemic — one that is likely to last many months. The legal challenges will continue to come, but it may be century old case law from the age of smallpox that provides the answers.
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.