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Excerpted From: Andres F. Quintana and Mikayla R. Quintana, Surviving the Covid-19 Pandemic of 2020: A Constitutional and Policy Review of Involuntary Medical Quarantine, 11 Wake Forest Journal of Law and Policy 327 (2021) (486 Footnotes) (Full Document)
The unremitting Coronavirus 2019 (“COVID-19”) crisis of 2020 continues to engulf our national consciousness. The World Health Organization (“WHO”), the United States Centers for Disease Control and Prevention (“CDC”), and individual states recognize that the world faces a life-threatening pandemic caused by the emerging COVID-19 virus, the respiratory disease originating from the novel coronavirus SARS-CoV-2. As this highly contagious, communicable disease steadily sweeps across the world, the United States is among the nations scrambling to cope with the virus's catastrophic economic, social, and political impact. Governors and mayors nationwide have declared States of Emergency and issued “Shelter-In-Place Orders.” As reports forecast COVID-19's continual proliferation and a protracted timeline for achieving a viable vaccine, it remains a matter of time before public sentiment and preoccupation navigates towards broader medical quarantine measures. While the term “quarantine” has a definitive medical connotation, the term, pragmatically, concerns only two public options: voluntary medical quarantine and, the primary focus of this Article, involuntary medical quarantine. The latter constitutes the coercive separation and complete restriction on the movement of people who have been infected or exposed to COVID-19 but are not yet infirm. The former trusts the general public to willingly comply with quarantine laws and follow government premonitions about the laden risks of domestic and overseas travel, group gatherings, unsanitary contacts, and other similar events, all in conjoint effort to curb the community spread of COVID-19. Not surprisingly, victims who become infected or exposed to COVID-19 have freely resorted to a motley of voluntary quarantine measures, ranging from self-imposed confinement to one's abode (sometimes known as “shelter-in-place”), curfews, or hospital admissions hoping to receive specialized medical treatment, to lesser restrictions designed to proscribe an individual from engaging in certain societal activities like attending school or going to work.
History, if not common prudence, dictates that not all civilians are ready to willingly forsake their individual civil liberties in favor of a public benefit or collective good. This may be particularly true among members of the general public who have not contracted this disease and thus may perceive little or no reason for their quarantine. Indeed, whether constrained by onerous financial burdens or galvanized by personal convictions, the most contumacious group of people likely to resist involuntary medical quarantine will be “asymptomatic carriers” of COVID-19; that is, individuals who unwittingly acquire and circulate the COVID-19 virus, transmit the virus to another, but manifest no apparent evidence of this communicable disease. In fact, protests responding to states' decisions to require face masks and enforce “Stay at Home” orders demonstrated the increasing distress and backlash within the general population to quarantine measures.
Involuntary medical quarantine has thus become the primary method to restrain these asymptomatic COVID-19 carriers from venturing into the public and spreading the disease. Nevertheless, this coercive measure is considered unsavory. Without mincing words, involuntary medical quarantine is regarded as the most primeval measure of government action meant to tackle disease dispersion in the name of public protection. However, as drastic and inequitable as involuntary quarantine may seem, it has been medically effective and a classic tool in aggressing communicable diseases throughout early American history.
Now that there is demonstrated necessity to implement involuntary medical quarantine to curb the accelerated transmission of COVID-19, compelling due process and equal protection issues under the U.S. Constitution have been rekindled. The balance between an individual's civic responsibility to protect other members of society and our country's expanding obligation to respect and uphold the individual rights, liberties, and autonomy of our citizenry is complex and evolving. This legal calculus may become more intensified as public health officials find themselves confronted with threats of uncertain origin, magnitude, and risk. It is beyond cavil that medical quarantine has deprived, and will deprive, a person of his or her liberty and thus inevitably impair fundamental rights. The most obvious rights are the encroachment on the individual's fundamental right to travel, “freedom of movement, right of free association, possibly freedom of religion and almost surely restricting freedom of assembly.”
Contrary to the developing world, the United States arguably has not confronted a countrywide infectious disease epidemic since the 1918 Influenza Outbreak. It remains unclear whether our current legal architecture for coordinating, imposing, and enforcing medical quarantine has been adequately modernized to jibe with changing cultural and social zeitgeists with a larger, more mobile, better informed, and highly diverse populace. Moreover, based on media reports and perceived political wrangling, there are serious reasons to question whether state and federal governments are adequately equipped to cogently or cooperatively deploy medical quarantine to curtail the community spread of COVID-19.
As of the time of this publication, involuntary medical quarantine laws to specifically deal with the COVID-19 pandemic have not yet been enacted, much less any constitutional challenges thereto. A constitutional challenge of involuntary medical quarantine laws would undoubtedly present novel legal issues and force state Supreme Courts and the U.S. Supreme Court to venture into uncharted legal waters.
Part I of this Article summarizes what we currently know about COVID-19. Part II summarizes the last major pandemic that the United States faced--the 1918 Influenza Outbreak--and remarks on the similarities and differences between our nation's responses to that outbreak and the COVID-19 pandemic. Parts III and IV analyze the legal authorities to impose quarantine and its constitutional limitations through the prism of substantive and procedural due process protections. Further, these parts try to predict how an ideologically divided U.S. Supreme Court might balance equal protection and due process law with the need to protect individual freedoms. Finally, Part V of this Article considers the mental and emotional consequences of involuntary quarantine.
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As the COVID-19 pandemic continues to wreak havoc within medical, economic, political and social infrastructures, the world desperately anticipates a vaccine or treatment to combat this virus. After considering involuntary quarantine through legal, medical, historical and social prisms, the decision to employ involuntary quarantine will be debated into the near future. Soon, the courts, if not the U.S. Supreme Court, may be pressed to once again weigh equal protection and due process rights against individual liberties and compelling government interests. At the moment, given the severity of involuntary medical quarantine, it can be assumed that a deprivation of civil liberties is justified if such quarantine is expressly sanctioned by the medical community. As demonstrated in this Article, unnecessary quarantine measures imposed by state governments can be hazardous and counterintuitive. Only when there is a clear relationship between the legal and medical communities with regards to individual civil liberties and public health can the U.S. Supreme Court fully address the constitutionality of involuntary quarantine.
Andres F. Quintana, Esq., B.A., University of California at Berkeley, J.D., University of California at Berkeley School of Law.
Mikayla R. Quintana, B.S. candidate, Boston College.
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