Quarantining the Law of Quarantine: Why Quarantine Law Does not Reflect Contemporary Constitutional Law
Wake Forest Journal of Law & Policy, Vol. 9, No. 1, pp. 1-33 (2018)
34 Pages Posted: 26 Feb 2019 Last revised: 27 Sep 2019
Date Written: 2019
Over the past thirty years, public health legal scholars have reached a consensus that contemporary notions of substantive and procedural due process, as they have developed in civil commitment cases, apply when states quarantine individuals to prevent the spread of a communicable disease. Both civil commitment and quarantine, after all, restrict an individual’s liberty in order to prevent harm to others. However, because involuntary quarantines have been used rarely in the U.S. in the post-antibiotic period, until the 2014 Ebola outbreak, no federal court had the opportunity to consider the validity of that consensus. When that opportunity arose following the Ebola quarantines, two federal courts refused to reach the merits of the plaintiffs’ constitutional claims on jurisdictional grounds. Most importantly, the two courts concluded that the defendants had qualified immunity because the constitutional restraints on quarantine had not been clearly established.
This Article looks at the practical and doctrinal factors that have prevented courts from updating the law of quarantine. The paper begins by reviewing quarantine, examining its history, and exploring the development of the scholarly consensus as to what the Constitution requires when states impose it. In Part II, I discuss the practical and jurisdictional factors, including standing and qualified doctrines that have prevented courts from updating and clarifying the constitutional restraints applicable to quarantine. In Part III, I discuss why the lack of updating is troubling from a public health perspective, and offer some tentative thoughts about how we can release the law of quarantine from its constitutional and jurisdictional quarantine.
Keywords: public health, quarantine
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