Kaci Hickox Ebola Virus Quarantine Raises Constitutional Issues

BY ERIN HOOVER  –  The Commerce Clause of the Constitution provides that Congress has the power to “regulate Commerce with foreign Nations, and among several states.”[1] Thereby, federal government has the authority to impose a quarantine on people who enter and leave the United States and travel between states. This is codified in Section 361 of the Public Health Service Act (PHSA), which provides that the U.S. Secretary of Health and Human Services is granted the authority to undertake measures that prevent the spread of communicable diseases. [2].

However, the states derive their authority for quarantine from the 10^th Amendment, which defers to the state the rights and powers “not delegated to the United States.” In Gibbons v. Odgen, Justice Marshall explicitly reserved the power to enact quarantine laws to the states. [3]

It was under this police power that Kaci Hickox, a nurse who treated Ebola patients in Sierra Leone, was quarantined in a tent outside a New Jersey hospital this October. Despite the fact that Ms. Hickox was asymptomatic and tested negative for Ebola, New Jersey health officials still subjected her to a mandatory quarantine order because she had direct exposure to individuals suffering from the Ebola virus.[4] New Jersey’s current quarantine order includes asymptomatic people who have had exposure to the virus, which, according to Lawrence Gostin of Georgetown University, makes it the first time in modern history the United States has “quarantined a whole class of people.” [5]

Ms. Hickox plans to challenge the quarantine based on a violation of her constitutional right to due process.  The 14^th Amendment provides that no state shall “deprive any person of life, liberty, or property without due process of law.” [6] Procedural due process requires the consideration of three factors, espoused in Mathews v. Eldridge: 1) the private interest affected by the government action; 2) the possibility that a person will be mistakenly deprived of the interest due to the need for additional or different procedural safeguards; and 3) the government interest at stake.  [7]

However, the state of New Jersey did not consider the second factor of the Mathews test when it deprived Ms. Hickox of her liberty in order to protect the government’s interest in public health, safety, and welfare. The state apparently had some procedural safeguards in place: Ms. Hickox was questioned about her stay in Sierra Leone, her temperature was taken, and she was tested for the Ebola virus.  But despite the fact that her temperature was normal and she tested negative for the virus, Ms. Hickox was quarantined merely based on the fact that she came in direct contact with the virus.

The government simply doesn’t have the authority to enact such a broad quarantine; the risk of injustice and the imposition on civil liberty is too great. The state is responsible for both enacting and enforcing the requisite procedural safeguards in order to prevent exactly what happened to Ms. Hickox, namely a quarantine that was unreasonable, unsupported by the medical evidence, and ultimately unnecessary. [8]

1. U.S. CONST. art. I, § 8, cl. 3.
2. 42 U.S.C. § 264.
3. 22 U.S. 1 (1824).
4. Kaci Hickox, Her story: UTA grad isolated at New Jersey hospital in Ebola quarantine, (29 October 2014), http://www.dallasnews.com/ebola/headlines/20141025-uta-grad-isolated-at-new-jersey-hospital-as-part-of-ebola-quarantine.ece
5. Connor Adams Sheets, Kaci Hickox’s Ebola Quarantine Raises Legal Questions Surrounding Response by Chris Christie, Andrew Cumo, (27 October 2014), http://www.ibtimes.com/kaci-hickoxs-ebola-quarantine-raises-legal-questions-surrounding-response-chris-christie-1714276
6. U.S. Const. amend. XIV, § 1.
7. 424 U.S. 319 (1976).
8. Benjamin Weiser and J. David Goodman, The Flue, TV and Now Ebola: A Remedy Returns, (26 October 2014, http://www.nytimes.com/2014/10/27/nyregion/as-states-look-to-halt-ebola-restrictions-prompt-a-debate.html.

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Erin Hoover is a 2016 Staff Editor of the Race and Social Justice Law Review.

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