As health officials wait to see whether the SARS virus has peaked or whether it will continue to spread around the world, they are attacking the disease on several fronts. First, of course, are the efforts to identify its cause and find a preventive vaccine and cure. Second, are the efforts to slow, if not stop, the spread of the virus.
The former is very much the province of the thousands of medical researchers around the world who are now working on the problem. The second effort involves not only the courageous front-line doctors, nurses, and health care workers who are caring for SARS victims, but also hundreds of epidemiologists and public health experts who are trying to find an effective way to stop the spread of the disease. The problem, of course, is that the world today is interconnected and people are able to cross oceans and continents in a matter of hours simply by getting on to an airplane. And where people can go, the virus can go as well.
In some of the areas most affected by the SARS virus, public health and governmental authorities have begun to use one of the oldest public health techniques against the spread of disease: quarantine. The idea of quarantine, secluding those who are suffering from or have been exposed to a dangerous disease from the rest of human society, is an ancient one going at least as far back as the plague pandemics of the late Middle Ages and the early modern period.
Already, thousands of people have been quarantined in China, other parts of Asia, and Toronto, Canada. In addition, the World Health Organization has issued travel advisories warning travelers not to travel to various parts of the globe in order to avoid unnecessary exposure to the SARS virus.
So far, the United States has been relatively fortunate. The number of SARS cases remains small and there have not been any deaths. But no one, including the CDC or the federal government knows whether this will continue. One may certainly hope for the best, but public health officers also must always prepare for the worst. If the worst occurs, and SARS continues to spread, then the federal and state governments here in the United States will have to think about the best way to stop the spread of SARS and may well need to consider using some form of quarantine. If so, they will need to think about the legal aspects of this public health device.
In essence, when a government orders an individual quarantined, it is potentially depriving that individual, who has committed no crime, of a fundamental right granted by the Constitution: liberty. Quarantine is, in effect, imprisonment of a sort. As such, it is a serious infringement on the civil rights of the individual who is subject to the quarantine order. How do we justify such an action?
Every government, both state and federal, has what lawyers refer to as "police powers." These are powers inherent in government to enact laws that enable its officers to do what is necessary, within the scope of the law, to maintain order and the safety of society. To do this is one of the principal purposes of government. Certainly, the need to prevent the spread of a deadly disease falls within such powers. In the case of both the federal and individual state governments, the main legislation on the books today giving the government the right to do that are the laws that give government the power to order that quarantines be imposed.
In the case of the federal government, this is the legislation that was first enacted in 1878 as part of the Quarantine Act. This legislation, which has since been added to and amended, was directed at the danger posed by the importation of cholera and yellow fever by vessels originating in foreign countries and docking in U.S. ports. This law allowed the federal government to put into quarantine any vessel coming to the U.S. from a country in which a communicable disease existed and which was carrying any person, animal, or goods that might be infected with that disease or any individual who had traveled on that vessel. In addition, most states have laws that parallel the federal act (and, in some cases predate it), which confer similar powers of quarantine upon them.
It is, perhaps, ironic that we may be forced in 2003 to utilize a public health technique hundreds of years old and one which has been legislatively authorized for more than a century to combat a current disease. But, sometimes, old techniques continue to be effective and, until something new and better can be devised, must still be used.
Undoubtedly, however, if state or federal officials are forced to use their powers of quarantine, there will be questions as to how these laws are to be used and what limits they include. There may, perhaps, even be litigation to test whether such powers are permitted under our Constitution.
Because quarantine is, in many respects, such a draconian technique and permits the government to deprive individuals of their civil rights, issues of due process will surely become important.
We must hope, however, that fear of the disease will not induce government officials or the general public to decide to sacrifice rights without good justification. If quarantine is to work from a legal and political perspective, and not simply from the medical perspective, then calm heads must prevail.