Constitutional challenge to quarantine unlikely to succeed

The Volokh Conspiracy ^ | October 27, 2014 | Eugene Kontorovich

[right-wing agnostic]

Kaci Hickox, the nurse forcibly quarantined by New Jersey upon her return from West Africa, is threatening a legal challenge to her confinement. Her lawyers claim she is being deprived of her liberty in violation of the Due Process Clause of the 14th Amendment.

Due process cases are fact specific, and I am not privy to information NJ authorities had before them or their decision-making process. However, it is highly unlikely that she will prevail.

While the Supreme Court has long held quarantines to be constitutional, it has not ruled directly on the scope of permissible quarantines. However, in the famous case of Jacobson v. Massachusetts, the Court did uphold a blanket mandatory vaccination law, under which resisters were put in jail. The principle here is the same as with quarantine – that one’s normal rights to bodily integrity are suspended by a general and serious public need, especially of an epidemiological variety.

Still, in part because quarantines have rarely been imposed since World War II, there is relatively little direct precedent on their permissible scope and circumstances. But a brief review of the cases suggests it extremely difficult to challenge such an action without a clear showing of medical unreasonableness, or discriminatory application. Indeed, I found no cases in which a quarantine has been lifted due process grounds (though there have been some successful challenges to conditions of quarantine).

One case upholding a quarantine has facts that look strikingly like Hickox’s. In U.S. ex rel Siegel v. Shinnick, 219 F.Supp. 789 (E.D. NY 1963), the plaintiff was confined for 14 days on her return from a “smallpox infected area” abroad, despite a lack of any evidence of direct exposure or symptoms. The court upheld the action, noting:

[Steely Tom]

"The Constitution is not a suicide pact."

- Justice Robert H. Jackson, USSC, 1949.
- Justice Arthur Goldberg, USSC, 1963 (citing Justice Jackson)

[Truth29]

She has a legal team. I wonder who is paying for it and is the DOJ or the Obama Administration backing this challenge in some manner?

[Sasparilla]

The ACLU is footing the bills. The quarantine is based on public safety. All states have a law that “quarantines” (read forcefully contain) mental cases who are a danger to themselves and/or others for public safety purposes. This is not much different from Florida’s Baker Act and other similar states laws.

[mrsmith]

Should be suing under the Americans with Disabilities Act.