December 2015
FEAR, POLITICS, AND EBOLA
How Quarantines Hurt the Fight Against Ebola and Violate the Constitution
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Fear, Politics, and Ebola
How Quarantines Hurt the Fight Against Ebola and Violate
the Constitution
Cover Photos
Top: © Benjamin Vess/Dreamstime.com
Bottom: REUTERS/Jim Bourg
©2015 ACLU Foundation
©2015 Yale Global Health Justice Partnership
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Contents
i. Foreword
........................................................................................................................ 4
ii. Glossary
........................................................................................................................ 6
I. Introduction
.................................................................................................................. 7
II.The Science and History of Ebola
........................................................................... 10
The 2014 Ebola outbreak in West Africa
............................................................ 10
How Ebola spreads
.............................................................................................. 11
An overwhelming scientific consensus that Ebola quarantines
don’t make sense
................................................................................................. 15
III. The Federal Response to Ebola
............................................................................ 20
CDC’s initial stumbles allow political interference with the shaping of
federal policy
........................................................................................................ 21
The revision of CDC guidelines
........................................................................... 22
IV. State Responses to Ebola
....................................................................................... 25
States respond to and fuel hysteria with overly restrictive
quarantine policies
............................................................................................ 25
States secretive on numbers of people quarantined
....................................... 27
West African community members were subject to considerable
stigma due to fear of Ebola
................................................................................. 29
V. State-based Quarantines Hurt the Fight Against Ebola
..................................... 31
VI. Ebola Quarantines Violate the Constitution
....................................................... 35
States violated individuals’ constitutional rights by imposing
quarantines and movement restrictions that were scientifically
unjustified when less restrictive alternatives were available
......................... 36
Some states failed to safeguard individuals’ right to due process
................. 39
Some states quarantined individuals under inhumane conditions
that violated constitutional standards
............................................................... 41
VII. Recommendations
................................................................................................. 43
VIII. Acknowledgements
.............................................................................................. 45
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i. Foreword
A
multitude of expert panels have been convened over the past year to draw lessons learned from the
manifold global failures to respond to the Ebola epidemic in West Africa. Yet comparatively little
attention has been paid to the widespread failure in the United States—which did not experience an
epidemic—to appropriately manage public anxiety and support people returning from the affected region.
This report is a critical first step of an overdue national reckoning.
The Ebola epidemic firmly entered the American consciousness in October 2014 with the tragic death in
Dallas of Liberian Thomas Eric Duncan. His infection, and the subsequent illness of two of his nurses at
Texas Health Presbyterian Hospital, sparked disproportionate, nation-wide hysteria and outsized fear of an
outbreak in the United States.
The report correctly places responsibility for the ensuing panic squarely at the feet of our nation’s political
leaders. Through sheer or willful ignorance, or simple political expediency, many governors enacted
quarantine measures and other restrictive policies that not only misled the public, but threatened to actually
undermine—rather than protect—public health both at home and in Ebola-affected countries.
Our leaders were enabled by a fear-mongering mass media that
also ignored established medical science, further stoking panic and
compounding an already immense public disservice.
My own colleagues experienced the fallout first hand.
After working with Doctors Without Borders/Médecins Sans
Frontières (MSF) in Guinea, Dr. Craig Spencer returned home to New
York in October 2014. When he developed the first signs of Ebola
infection, he immediately self-isolated and informed local health
authorities, which took swift action to safely hospitalize him. He followed strict protocols for returning
aid workers that were based on firm medical evidence—namely that asymptomatic individuals are not
contagious. Before he fell ill—and after—Craig followed the guidelines to the letter. Yet he was vilified as a
reckless liar and a threat to public health.
Kaci Hickox, a Doctors Without Borders nurse, returned to the United States the day after Craig was
hospitalized. Although she displayed no symptoms, she was quarantined under a hastily arranged New
Jersey state policy, notably enacted just days before mid-term elections. She posed no public health threat
whatsoever. Yet fear, and perhaps politics, trumped science. Like Craig, she too was cruelly stigmatized.
Quarantine policies had a trickledown effect. After returning from Guinea I was not permitted to return to
work for 21 days, despite not coming into direct contact with Ebola patients. For volunteers like me who
take time off to work overseas, the restrictions effectively cut my field time in half. Quarantine measures
and the additional restrictions and stigma they inspired were fundamentally paradoxical; they served as a
This report is a
critical first step
of an overdue
national reckoning.
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disincentive for aid workers, thus impeding ending the epidemic at its source, the only way to truly prevent
it from reaching our own shores.
Many field staff chose to remain in Europe until their 21-day incubation period had passed, or to stay
isolated from family members, despite being symptom-free. At a time when traumatized aid workers needed
emotional support, aid agencies faced significant hurdles caring for returned staff.
As this report makes abundantly clear, the Ebola virus is difficult to catch. In order for it to spread, a person
must come into direct contact with the bodily fluids of a highly infectious individual or body. The authors
lay out in plain language the scientific and medical facts. These facts were dutifully communicated by the
nation’s leading medical figures during the peak of national hysteria in October and November 2014. But
common scientific sense went largely unheeded.
Science, not misinformation and fear, must drive public health policy, including—even especially—when it
is not politically expedient. This report serves as an indispensable recounting of a collective failure, and as a
stark exercise in lessons learned. It is essential reading for the citizens of this country, and its elected leaders.
— Deane Marchbein, MD
President, Doctors Without Borders/Médecins Sans Frontières USA
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ii. Glossary
Self-monitoring
A monitoring regime under which those potentially exposed to an infectious disease assume responsibility
for assessing and reporting their own health status. For Ebola, this would involve taking one’s temperature
twice daily and reporting a fever or other possible symptoms to the relevant authorities.
Active monitoring
A regime under which public health officials regularly check in with potentially exposed individuals. For
Ebola, individuals are asked to take their temperature twice daily, monitor themselves for symptoms, and
report their health status regularly to a public health authority. No explicit movement restrictions are
imposed.
Direct active monitoring
Direct observation of potentially exposed individuals by a public health authority, which visits the potentially
exposed individual at least once daily to check for fever and other symptoms. The monitored individual
must discuss any plans for travel, work, and use of public spaces.
Controlled movement
Restrictions on the movement of potentially exposed individuals, such as screenings, travel limitations and
restrictions, and social-distancing measures.
Quarantine
The separation of an individual who is not sick or showing any symptoms of disease, because he or she may
have been exposed to an infectious pathogen and, if infected, may be capable of transmitting it.
Isolation
The separation of an individual who is showing symptoms of an infectious disease. Isolation is a precaution
typically taken in hospitals to prevent disease transmission.
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T
he 2014–2015 Ebola epidemic was the largest and most serious such outbreak in history, resulting
in more than 28,000 infections and over 11,000 deaths through August 2015.
1
In three West African
countries—Guinea, Liberia, and Sierra Leone—thousands died as public health systems floundered.
Weak local health care systems meant that an adequate response to Ebola could not be mounted without
help from abroad. Health care workers from around the world traveled to West Africa to administer care
and coordinate public health efforts to curb the infection rate. American health care workers played an
important role in the response, and U.S.-based relief organizations sent considerable staff and resources to
West Africa.
In the face of any international health crisis, the
unhindered participation of the global health
community is critical to reducing harm and
saving lives.The response of health departments
within the United States, however, actually hurt
the effort to combat Ebola. Public policy in the
United States, motivated by misinformation
and unwarranted fear, resulted in scientifically
unjustified quarantines and other restrictions.
These measures primarily affected returning
health care workers, who deserved to be
celebrated as heroes rather than treated as pariahs.
This punitive response discouraged individuals from going to West Africa, diverted the resources of relief
organizations, and infringed on the constitutional rights of an unknown number of Americans. Returning
health care workers faced logistical nightmares and personal, psychological, and social trauma. “The hardest
part of the work I did in Liberia,” says Aubrey F., a nurse who volunteered with Partners In Health, “was
when I returned and was stuck at home for 21 days.”
We do not know precisely how many people in the United States were quarantined. Such data is not publicly
available, and despite repeated requests, state and federal officials did not provide us with this information.
Remarkably, as far as we could determine, no governmental entity has even collected this data. We do know,
however, that no one needed to be quarantined. Quarantine, by definition, is the separation from others of
someone who is not experiencing symptoms or showing signs of infection. Nearly 40 years of encounters with
Ebola—and an overwhelming consensus in the medical and public-health communities—have shown that
1 World Health Organization (WHO), Ebola Situation Reports (Sept. 2, 2015), http://apps.who.int/ebola/ebola-situation-reports.
I. Introduction
Nearly 40 years of
encounters with Ebola have
shown that infected patients
do not transmit the disease
before symptoms appear.
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infected patients do not transmit the disease before symptoms appear, and therefore quarantine was not
and is not needed to prevent the spread of Ebola in the United States for anyone who is willing and able to
self-monitor for symptoms. In fact, no one quarantined in the United States developed Ebola, and no one
transmitted Ebola outside of a hospital setting.
Because the Ebola quarantines of 2014–2015 were not medically necessary, they violated the U.S. Constitution.
A quarantine is a form of imprisonment and therefore a very significant incursion on an individual’s
freedom. Under the Constitution, quarantines are permitted only when the state has a compelling interest in
imposing one and when such interventions are the least restrictive measures available to prevent the spread
of disease. Because the Ebola quarantines were not medically necessary, they did not satisfy those criteria.
Furthermore, quarantined individuals are legally entitled to due process of law, including a timely hearing
before a judge or other neutral arbiter. Few of the states that imposed quarantines did this. States are also
required to quarantine under humane conditions, and not all states did so.
Ebola is a serious and potentially fatal infectious disease. However, experts say the danger posed by Ebola to
the U.S. population was vastly overstated. In previous decades, many Americans traveled abroad to respond
to previous outbreaks of Ebola and other highly infectious diseases and returned home without facing
quarantine or other restrictions on their movement, and without infecting others in the United States. The
Ebola quarantines and other movement restrictions put in place throughout the nation beginning in late
2014 were motivated by fear and by politics, not by medical science.
Media outlets gain readers and viewers when they report on the next “apocalypse,” while governors and other
politicians may believe that an overly aggressive response to a foreign threat like Ebola makes them look
strong. For example, Governor Dannel Malloy of Connecticut, running a tight race for re-election, declared
a public health emergency before any case of Ebola transmission had been known to occur inside the United
States. With the media and politicians stoking fears,
quarantine measures were widely supported by the
American public. There was little room in the political
sphere or popular media for rational discussion of
Ebola.
Aside from a handful of widely publicized cases, the
human impacts of the quarantines did not receive
wide attention. Although the exact number of people
quarantined or otherwise restricted in their movements
in the United States is unclear, a review of these incidents
from media reports shows that hundreds of health care workers returning from harrowing work in West
Africa were essentially confined to their homes and shunned by their communities. Children entering or
returning to the United States from affected countries were separated from their parents and prevented from
going to school. International medical relief organizations found it more difficult to recruit desperately
needed volunteers, and found their management staff spending valuable time dealing with quarantines
in the United States rather than helping manage the crisis in West Africa. Stigma against the West African
community grew. Tax dollars were spent to administer and enforce quarantine orders rather than to tend to
There was little room in
the political sphere or
popular media for rational
discussion of Ebola.
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pressing public health concerns.
It is time to reflect on the missteps authorities took in responding to Ebola in the United States, and to correct
them where necessary. It is critical that we do so. While a few states moderated their quarantine policies after
public hysteria died down, many continue to mandate quarantine in inappropriate circumstances, and those
policies will remain in place in any future outbreaks.
2
In our age of global travel and trade, new epidemics of
Ebola—and diseases that from a public health standpoint are far more dangerous—will inevitably emerge
and cross international borders. We need to learn from the mishandling of the U.S. Ebola epidemic that
wasn’t, and respond to future health scares with smart policies based on decades of scientific evidence, not
reactive policies based on misinformation and political grandstanding. Punitive and scientifically baseless
approaches violate the law and make us less safe.
2 In August 2015, for example, six Birmingham, Alabama, reghters were quarantined after coming into contact with a sick man who had
just returned from West Africa, though the authorities did not even know whether that man was positive for Ebola (he was later found not to be).
Sneha Shankar, Ebola Outbreak: Alabama Man Being Tested for Virus, 6 Fireghters, 2 Family Members Quarantined, International Business
Times, Aug. 5, 2015, http://www.ibtimes.com/ebola-outbreak-alabama-man-being-tested-virus-6-reghters-2-family-members-2039362.
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The 2014 Ebola outbreak in West Africa
T
he West African Ebola outbreak of 2014 was recognized early in the year, though it had likely begun the
previous December.
3
On March 23, Guinea became the first country to report the outbreak to the World
Health Organization (WHO),
4
and the disease eventually spread and became epidemic in three African
countries—Guinea, Liberia, and Sierra Leone—where thousands died and thousands more were infected.
After receiving word of the outbreak in March 2014, the international medical community began to mobilize.
Non-governmental organizations (NGOs) and government agencies sent staff and volunteers to West
Africa to respond to the crisis, among them many American citizens and permanent residents. Numerous
organizations were involved, and during the height of the Ebola outbreak in fall 2014, hundreds of people
were moving between the United States and West Africa as part of the public health response.
5
Despite the involvement of numerous international relief organizations on the ground, the severity of the
epidemic went unrecognized for months by the international community. Finally, on August 8, 2014, the
WHO declared a Public Health Emergency of International Concern. “The possible consequences of further
international spread are
particularly serious in view
of the virulence of the virus,
the intensive community and
health facility transmission
patterns, and the weak health
systems in the currently
affected and most at-risk
countries,” wrote the WHO
in declaring the emergency.
“A coordinated international
response is deemed essential
to stop and reverse the
3 Sylvain Baize et al., Emergence of Zaire Ebola Virus Disease in Guinea, New Eng. J. Med. 371, no. 15, Oct. 9, 2014.
4 World Health Org. (WHO), Ebola Virus Disease in Guinea (Mar. 23, 2014), http://www.who.int/csr/don/2014_03_23_ebola/en/.
5 Doctors Without Borders was among the rst organizations to respond, and many others followed suit, including Partners In Health, Mercy
Corps, International Medical Corps, International Rescue Committee, Samaritan’s Purse, and West African Medical Mission. Governments also
sent health care workers and other resources to support the response, with the United States sending personnel from a number of federal agencies
and departments including the Centers for Disease Control and Prevention (CDC), the National Institutes of Health (NIH), the Department of
Health and Human Services (HHS), the Department of State, and the Department of Defense.
II.The Science and History of Ebola
0
200
400
600
800
1000
New cases per week
Jan
2014
Jan
2015
Mar
May
Jul
Sep
Mar
May
Jul
Sep
Nov
Figure 1: The number of Ebola cases in West Africa rose dramatically during the fall of 2014.
Public fears rose concurrently in the United States.
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international spread of Ebola.”
6
The number of cases surged between September and December 2014. In the most affected countries, the
incidence of new cases reached several hundred per week. Epidemiologists warned that the disease could
claim hundreds of thousands of lives if the world community did not provide substantial help. Through
August 2015, when it appeared that the epidemic was winding down, over 28,000 people had been infected
with Ebola and over 11,000 had died from the disease (Figure 1).
7
How Ebola spreads
The death in October 2014 of Liberian Ebola victim Thomas Eric Duncan, and the drama that surrounded
it, riveted the nation. Two weeks later there was widespread alarm in the United States when it was discovered
that Dr. Craig Spencer, a physician with Médecins Sans Frontièrs (MSF
8
), had come down with symptoms
of the disease and had been traveling around New York City in the days before his illness. But the risk of
transmission to others from Dr. Spencer was practically non-existent.
Most cases of Ebola begin with the onset of fever and malaise, followed by vomiting and diarrhea.
9
Ebola is
known as a hemorrhagic fever, but contrary to popular belief, it does not commonly cause overt bleeding.
10
Symptoms typically appear between 8 and 10 days after exposure, but
the onset of illness has been reported as varying from a minimum of 2
days to a maximum of 21 (hence the recommended quarantine period
of 21 days).
11
And Ebola is certainly a highly deadly disease, killing
between 20 and 80 percent of those who develop symptoms (though
the mortality rate for those who receive proper medical care is at the
lower end of this range, and perhaps as low as 5 to 10 percent).
But while Ebola is a very deadly disease, it is not a very infectious one. That is, if you get it, your chance
of dying is high—but your chance of getting it from another infected person is extremely low, unless you
are a caregiver of someone with Ebola in the late stages of the disease and lack access to the necessary
protective equipment and the training to use it properly. Compared to other major infectious diseases such
as influenza, measles, tuberculosis, pertussis (whooping cough), or SARS, it is not an easy disease to catch.
12
Ebola Virus Disease first emerged in 1976, when two outbreaks were detected in Sudan and the Democratic
Republic of the Congo. Since then there have been a total of 26 outbreaks of Ebola. After four decades
6 WHO, Statement on the 1st meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa (Aug. 8, 2014), http://www.
who.int/mediacentre/news/statements/2014/ebola-20140808/en/.
7 WHO, supra note 1.
8 Known in English as Doctors Without Borders.
9 Mike Bray and Daniel Chertow, Clinical Manifestations and Diagnosis of Ebola Virus Disease, UptoDate (Mar. 2015), http://www.
uptodate.com/contents/clinical-manifestations-and-diagnosis-of-ebola-virus-disease.
10 Ibid.
11 CDC, Signs and Symptoms: Ebola (Ebola Virus Disease) (Nov. 2014), http://www.cdc.gov/vhf/ebola/symptoms/index.html.
12 The Henry J. Kaiser Family Foundation, Ebola Characteristics and Comparisons to Other Infectious Diseases, http://kff.org/infographic/
ebola-characteristics-and-comparisons-to-other-infectious-diseases/ (last visited Aug. 27, 2015).
Ebola is not a very
infectious disease.
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of encounters with Ebola, medical professionals and scientists have built an extensive scientific literature
and a considerable base of knowledge about how the disease is transmitted and how to provide effective
supportive care. Given the seriousness of Ebola, public health experts’ practice is to rush to the site of any
outbreak and trace those in close contact with
every suspected or confirmed case (“contact
tracing”) to map the course of infections.
And the evidence from four decades of such
contact tracing provides a clear and uniform
picture: person-to-person transmission of
Ebola occurs only when the bodily fluids of
an infected individual—saliva, blood, vomit,
diarrhea, or semen—come into direct contact
with broken skin or mucous membranes.
13
Transmission requires direct, close contact
with an Ebola patient in the later stages of the
disease or after their death. There has never
been a documented case of Ebola transmission
from an asymptomatic individual.
14
The infectiousness of these bodily
fluids depends on the “viral load”—the
concentration of infectious virus in the bodily
fluids. With high viral load, individuals’ bodily
fluids are more infectious, and with lower viral
loads, their bodily fluids are less so. Early in the
symptomatic period, an infected individual
has an extremely low viral load and is unlikely
to spread the virus. However, the level of virus
in the blood skyrockets as symptoms progress, and remains high even after the patient has died.
15, 16
A study
of over 700 patients in Liberia found that none had contracted Ebola from a person who exhibited only a
fever.
17
Although there has been much concern in the United States about someone transmitting Ebola when
13 Linda Meyers, Thomas Frawley, Sarah Goss, & Christopher Kang, Ebola Virus Outbreak 2014: Clinical Review for Emergency Physicians,
Annals of Emergency Med., Oct. 23, 2014.
14 Lindsey R. Baden et al., Ebola — An Ongoing Crisis, New Eng. J. Med. 371, no. 15, 1458–59 (Oct. 9, 2014). In rare cases sexual
transmission may occur from those who have recovered from Ebola Virus Disease, because the virus may persist in semen (see Suzanne E. Mate
et al., Molecular Evidence of Sexual Transmission of Ebola Virus, New Eng. J. Med. (Oct. 14, 2015), http://www.nejm.org/doi/full/10.1056/
NEJMoa1509773?query=featured_ebola#t=article). However, this is irrelevant for quarantine policy for people who have never experienced
acute Ebola virus disease, and can be addressed via safer sex and hygiene practices (see World Health Organization, Persistent virus in people
recovering from Ebola virus disease, Oct. 14, 2015, http://www.who.int/csr/disease/ebola/virus-persistence/en/).
15 Towner JS, Rollin PE, Bausch DG, et al. Rapid diagnosis of Ebola hemorrhagic fever by reverse transcription-PCR in an outbreak setting
and assessment of patient viral load as a predictor of outcome. Journal of virology. 2004;78(8):4330–4341.
16 Dowell SF, Mukunu R, Ksiazek TG, Khan AS, Rollin PE, Peters CJ. Transmission of Ebola hemorrhagic fever: a study of risk factors
in family members, Kikwit, Democratic Republic of the Congo, 1995. Commission de Lutte contre les Epidemies a Kikwit. The Journal of
infectious diseases. 1999;179 Suppl 1:S87–91.
17 Daniel S. Chertow et al., Ebola Virus Disease in West Africa—Clinical Manifestations and Management, New Eng. J. Med. 22, 2054–57
(2014).
Figure 2: Ebola viral load explodes 4-5 days after onset of
symptoms. No virus is generally detectable in the blood before
that onset.
1.25B
0
1 2 3 4 5 6 7 8
Days post onset of symptoms
RNA copies/ml blood serum
9 10 11 12 13 14 15
2.5B
3.75B
5B
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they first experience symptoms, people are very unlikely to transmit the disease at that stage. “People who
are not very sick are not vomiting and having diarrhea and therefore don’t have a mechanism to shed virus,”
said Dr. Daniel Bausch of Tulane University, a virologist and expert on hemorrhagic fevers who has spent
much time in Africa and worked for the Centers for Disease Control and Prevention (CDC), who also
contributed to the training of clinicians headed to West Africa.
18
Much of the Ebola transmission in West Africa during this outbreak has been linked to burial processes,
funeral rites, and the provision of care to individuals in homes and in hospitals and other treatment centers
when their viral loads are extremely high.
19
Care providers are at particular risk because they are likely to
have direct contact with infected fluids, and because personal protective equipment is tricky to remove and
can fail—or is not used at all because the disease wasn’t expected.
Scientists do not speak in absolute terms—they rarely say “never”—and this has made it difficult for the
general public to understand how Ebola is transmitted and to gauge the risk to themselves and their families.
Scientists, however, have attempted to address irrational concerns about the contagiousness of the virus.
Vincent Racaniello, Professor of Microbiology & Immunology in the College of Physicians and Surgeons
of Columbia University, surveyed 23 existing studies and case reports on Ebola disease, and found that
transmission never resulted from contact with an asymptomatic person who subsequently developed Ebola.
“All transmissions that could be assessed involved an obviously sick individual, and never from anyone
who was healthy,” he observed.
20
In an interview, he concluded that the risk of contracting Ebola from an
asymptomatic person is effectively zero, and that far greater risks are assumed by each of us in our everyday
lives.
The preeminent American medical journal, the New England Journal of Medicine, explained in an editorial
at the height of alarm over Ebola in the United States,
We have very strong reason to believe that transmission occurs when the viral load in bodily
fluids is high, on the order of millions of virions per microliter. This recognition has led to
the dictum that an asymptomatic person is not contagious; field experience in West Africa
has shown that conclusion to be valid…. Furthermore, we now know that fever precedes
the contagious stage, allowing workers who are unknowingly infected to identify themselves
before they become a threat to their community.
21
Both the White House and the CDC, recognizing the scientific consensus, have acknowledged that
asymptomatic individuals are not contagious.
22
Other observations strongly support these conclusions. Available data show that no passenger or crewmember
18 See NPR, Dr. Daniel Bausch Knows The Ebola Virus All Too Well, Sept. 22, 2014, http://www.npr.org/sections/
goatsandsoda/2014/09/22/349882298/dr-daniel-bausch-knows-the-ebola-virus-all-too-well.
19 Bray, see supra note 9; Daniel G. Bausch et al., Assessment of the Risk of Ebola Virus Transmission from Bodily Fluids and Fomites, J. of
Infectious Diseases 196.Supp. 2, S142–S147 (2007).
20 Virology Blog, Nobel Laureates and Ebola Virus Quarantine (Nov. 4, 2014), http://www.virology.ws/2014/11/04/nobel-laureates-and-ebola-
virus-quarantine/.
21 Jeffrey M. Drazen, et al., Ebola and Quarantine, New Eng. J. Med. 371 at 2029--2030, Nov. 20, 2014.
22 The White House, President Obama Provides an Update on the US-led Response to Ebola (Oct. 25, 2014), https://www.whitehouse.gov/ebola-
response; CDC, Ebola (Ebola Virus Disease) Fact Sheet (June 5, 2015), http://www.cdc.gov/vhf/ebola/pdf/ebola-factsheet.pdf.
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on a flight has ever contracted Ebola, even while transporting a person with Ebola.
23
The case of Patrick
Sawyer—who traveled on several international flights with active diarrhea and vomiting and yet infected no
one during air travel—highlights the difficulty of transmission even where bodily fluids from an infected
individual are present.
24
The case of Thomas Eric Duncan in the United States teaches us the same lesson.
No one in the emergency room Duncan visited early in the course of his illness became infected, nor did any
of his family members—and they were living with him in a small apartment for days after he fell ill.
25
Craig
Spencer’s fiancée did not contract Ebola despite living with Spencer until he was hospitalized.
26
Even when fulminant disease is present, those using personal protective equipment (PPE) properly within
a well-equipped modern hospital have not contracted the disease. Nina Pham, the nurse who cared for
Thomas Eric Duncan at Texas Presbyterian Hospital, contracted Ebola because she was not wearing proper
PPE during Duncan’s second visit to the hospital and because the decontamination protocols in place were
inadequate.
27
The breach in PPE was not emphasized in the early reporting surrounding Nina Pham, which
gave the misimpression that transmission had occurred with proper equipment and protocols (such as
proper decontamination) in place. This was an error in public communication of risk and of the nature
of the cases in Texas, which undermined public confidence in public health officials and raised fears of a
generalized epidemic in the United States.
With tens of thousands of Ebola cases in and near cities in
West Africa with international airports, there was reasonable
concern about the disease spreading to other countries. In
fact, isolated cases in countries like the United States should
have been expected. Such cases did not, however, create a
risk of a generalized epidemic in this country. If Ebola was
a blazing fire spreading across West Africa, then it was to
be expected that an occasional “ember” would land in the
United States. But Ebola can become an epidemic only in
places where those embers can spark a larger fire—places
where patients with symptoms cannot be quickly isolated
and treated, and where basic supplies (such as bleach,
rubber gloves, and burial bags) are in catastrophically short supply. When the outbreak hit, Liberia had
only recently emerged from civil war, and had only approximately one doctor for every 100,000 residents
(the United States has one doctor for every 350 residents).
28
Liberia, Sierra Leone and Guinea had weak
23 Regan et al., Public Health Response to Commercial Airline Travel of a Person with Ebola Virus Infection — United States, 2014,
Morbidity and Mortality Weekly Report (MMWR) 64, no. 03, 63–66 (Jan. 30, 2015).
24 James Nye, Ebola Victim Who Sparked Fears of a Worldwide Outbreak Was American, Mail Online (July 29, 2014).
25 Ibid.
26 Soon after Spencer was diagnosed, his fiancée and two of his friends were served quarantine notices. The New York Civil Liberties Union
represented all three in getting their quarantines ended early. It also assisted Spencer in avoiding unnecessary quarantine when he returned from a
subsequent trip to West Africa.
27 National Nurses United, Statement by RN’s at Texas Health Presbyterian Hospital as provided to National Nurses United (Oct. 15, 2014),
http://www.nationalnursesunited.org/blog/entry/statement-by-registered-nurses-at-texas-health-presbyterian-hospital-in-dal/.
28 Data is from 2010. Akhenaten Benjamin, Siankam Tankwanchi , Çağlar Özden, & Sten H. Vermund, Physician Emigration from Sub-
Saharan Africa to the United States: Analysis of the 2011 AMA Physician Masterle, PLOS Medicine (Sept 17, 2013), http://journals.plos.org/
plosmedicine/article?id=10.1371/journal.pmed.1001513.
We don’t ask if hepatitis
B will mutate to become
airborne, so why do we
ask it for Ebola?
— Dr. Daniel Bausch, Tulane University
FEAR, POLITICS, AND EBOLA
15ACLU • GHJP
health infrastructures, almost non-existent public health capacity to monitor and diagnose diseases, and
little spending devoted to health. Their few already overburdened hospitals were quickly overwhelmed, and
it took months for the international community to begin to fill the gap. The American public health system
is well enough staffed, trained, and equipped to prevent even a small-scale Ebola outbreak, and the risk of a
major outbreak of Ebola in the United States is negligible.
Some scientists inadvertently fueled the public’s misunderstanding of the risk of Ebola by musing in the
press about the possibility of the airborne transmission of the virus. Ebola cannot travel efficiently through
the air, and though it can be aerosolized briefly in certain rare circumstances (such as intubations), and
can spread through the splashing of large droplets (like any fluid-borne disease), it is not airborne.
29
The
likelihood of a human virus like Ebola mutating so as to change its mode of transmission is next to zero.
30
Such a drastic change in mode of transmission has never been seen in a human virus before. While it is a
theoretical scientific possibility, it is extraordinarily unlikely and should not drive public policy with respect
to Ebola (any more than it should with respect to other non-airborne diseases such as HIV or hepatitis B).
While open and free inquiry is a key part of scientific discourse, scaremongering in the pages of the New
York Times about the remote possibility of airborne Ebola transmission, in the midst of public panic about
an outbreak, was gratuitous and misleading, and contradicted a large body of scientific knowledge.
31
An overwhelming scientific consensus that Ebola quarantines
don’t make sense
There is broad consensus in the scientific community that, because the risk of transmission from
asymptomatic individuals infected with Ebola is so low, quarantines of asymptomatic individuals with
potential Ebola exposure are unnecessary.
32
Quarantines could be effective tools for preventing the transmission of a disease that fits—at a minimum—
two biological conditions: It is often infectious before symptoms appear, and it is deadly or has other serious
medical consequences.
While Ebola is highly deadly, it is not transmitted before symptoms arise and therefore does not meet the
minimum criteria required to justify quarantine.
Even when a disease may fulfill these criteria, quarantines have been rarely used in recent history because of:
•
The severity of these measures.
29 Seth Judson et al., Understanding Ebola Virus Transmission, 7 Viruses, 511-521 (2015). Ed Yong, Ebola From Pigs to Monkeys, The Scientist
(Nov. 15, 2012), http://www.the-scientist.com/?articles.view/articleNo/33277/title/Ebola-from-Pigs-to-Monkeys/.
30 Vincent Racaniello, What We Are Not Afraid to Say About Ebola Virus, Virology Blog (Sep. 18, 2014), http://www.virology.ws/2014/09/18/
what-we-are-not-afraid-to-say-about-ebola-virus/. Taj Azarian et al., Impact of Spatial Dispersion, Evolution, and Selection on Ebola Zaire Virus
Epidemic Waves, 5 Sci. Rep. (2015).
31 Michael Osterholm, What We’re Afraid to Say About Ebola, N.Y. Times (Sep. 11, 2014), http://www.nytimes.com/2014/09/12/opinion/what-
were-afraid-to-say-about-ebola.html.
32 Jeffrey M. Drazen, M.D. et al., Ebola and Quarantine, 371 New Eng. J. Med. 2029 (Nov. 20, 2014), http://www.nejm.org/doi/pdf/10.1056/
NEJMe1413139; Interview with VR, Interview with Daniel Bausch, Interview with LM; WHO, Ebola Virus Disease Fact Sheet N. 103 (Aug. 2015),
http://www.who.int/mediacentre/factsheets/fs103/en/; Osterholm et al., see supra note 30.
FEAR, POLITICS, AND EBOLA
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•
The ethical and legal issues involved.
•
The feasibility of successful implementation.
•
Questions about their effectiveness.
•
The adverse complications of their use on public and individual health.
•
The availability of other less restrictive treatment or prevention approaches.
33
In short, quarantine is an intervention of last resort, and requires an extensive analysis of disease-specific
criteria as well as the broader considerations outlined above. Most infectious diseases fail this test, and
quarantine “should not be considered a primary public health strategy in most imaginable circumstances.”
34
In the United States, quarantine and other harsh measures have been deployed in the past in response
to outbreaks of plague and smallpox, and “have consistently accelerated rather than slowed the spread
of disease, while fomenting public distrust and, in some cases, riots.”
35
The most recent use of large-scale
quarantine for SARS in parts of Asia and in Canada also sparked controversy about the effectiveness of these
measures.
36
There may be extraordinary and individualized cases where a deadly disease is not infectious in the
asymptomatic phase and yet quarantines would make sense, if, for example, the possibly infected individuals
refused to or were unable to monitor themselves for the onset of symptoms, and less-restrictive alternatives
were for some reason unworkable. Health care workers returning from the fight against Ebola in West Africa
do not, however, fit into that narrow category. They have monitored themselves for symptoms, and as with
Dr. Craig Spencer from MSF, contacted health authorities and agreed to be isolated when they saw that they
had elevated temperatures suggesting onset of disease. They also have a major incentive to self-report at the
earliest signs of disease, because early treatment can dramatically improve the chances of survival, as health
care workers would well know.
Movement restrictions short of full quarantine may be justified in some circumstances—for example, it
might be appropriate to ban someone who had documented exposure to the disease from boarding a cruise
ship that lacks the facilities to deal with an Ebola patient, in case that person does become ill. Overall, these
kinds of exceptional cases will be rare, and not a basis for large-scale quarantine or movement-restriction of
health care workers and others who may have come in contact with someone with the disease.
Many different voices within the scientific community have spoken out against the Ebola quarantines. Dr.
Anthony Fauci, the Director of the National Institute of Allergies and Infectious Diseases at the National
Institutes of Health (NIH), is a clinician who has treated Ebola patients and been a leader in the country’s
response to every major infectious threat in the United States for over 30 years. Dr. Fauci has unequivocally
33 A notable exception was the 2003 SARS epidemic. J. Barbera, et al., Large-Scale Quarantine Following Biological Terrorism in the United
States: Scientic Examination, Logistic and Legal Limits, and Possible Consequences 2711–2717, JAMA, 286(21).
34 Ibid.
35 George J. Annas, Wendy K. Mariner and Wendy E. Parmet, Pandemic Preparedness: The Need for a Public Health—Not a Law Enforcement/
National Security—Approach, ACLU (Jan. 2008), https://www.aclu.org/sites/default/files/field_document/asset_upload_file399_33642.pdf.
36 D. Barbisch, K. L. Koenig, & F. Y. Shih, Is There a Case for Quarantine?: Perspectives From SARS to Ebola. Disaster Med. and Pub.
Health Preparedness 1–7, Mar. 23, 2015.
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stated that quarantines are unjustified and that monitoring of those returning from disease-affected areas is
sufficient to stop any Ebola outbreaks on our shores.
37
Furthermore:
•
The Infectious Disease Society of America, the Society for Healthcare Epidemiology of
America, and the Association for Professionals in Infection Control and Epidemiology all
unequivocally opposed the quarantine of returning health care workers in an unprecedented
joint statement in October 2014.
38
•
The President of the American Medical Association has criticized the quarantines as well:
“It is critical that we respect and support U.S. health professionals who are volunteering to
help bring this epidemic under control in West Africa.”
39
•
The AMA’s Code of Medical Ethics emphasizes that decisions related to quarantine or
isolation must be based on scientifically sound information.
40
Ebola has now reached the United States twice and may very well do so again, but this is not the first deadly
infectious disease to arrive here. In fact, several such cases have occurred in the past decade without inciting
national panic. In 2008, a woman in Colorado was diagnosed with Marburg virus, a hemorrhagic fever
virus related to Ebola, after returning from a trip to Uganda.
41
In March 2014, just as the 2013–2015 Ebola
outbreak was beginning to draw international attention, a man was hospitalized in Minnesota with what
turned out to be a case of Lassa Hemorrhagic Fever, a disease with many similarities to Ebola. Both patients
received proper treatment under safe conditions and survived their infections. Neither case drew much
media attention, let alone calls for quarantines and border closures.
Indeed, in 2014 a much less publicized Ebola outbreak occurred in the Democratic Republic of the Congo.
42
Like every previous Ebola outbreak, no travel or other restrictions were placed on health care workers
or others traveling from Congo to the United States. Individuals were trusted to self-monitor and take
appropriate precautions. And in neither the 2014 Congo outbreak nor any of the prior outbreaks was anyone
in the United States infected with Ebola by a health care worker.
Simply put, the evidence does not support quarantines and movement restrictions for asymptomatic people
who may have been exposed to the Ebola virus. What it does support is close monitoring of such people, and
37 Benjamin Bell, Infectious Disease Specialist Dr. Anthony Fauci Rejects Mandatory Quarantine, ABC News (Oct. 26, 2014), http://abcnews.
go.com/Health/infectious-disease-specialist-dr-anthony-fauci-rejects-mandatory/story?id=26465651; NBC News, Fauci: Returning Ebola Health
Workers Shouldn’t Face ‘Draconian’ Rules (Oct. 26, 2014), http://www.nbcnews.com/storyline/ebola-virus-outbreak/fauci-returning-ebola-health-
workers-shouldnt-face-draconian-rules-n234141.
38 Assoc. for Prof’ls in Infection Control and Epidemiology, Joint Statement: Leading Infectious Disease Medical Societies Oppose Quarantine
for Asymptomatic Health Care Personnel Traveling from West Africa (Oct. 31, 2014), http://www.apic.org/For-Media/Announcements/
Article?id=4d3c286c-1ef6-4aef-95f6-85f3f020af47.
39 Alice Park, Ebola Quarantines ‘Not Grounded on Science,’ Say Leading Health Groups, Time, Oct. 27, 2014, http://time.com/3542069/
ebola-quarantines-not-grounded-on-science-say-leading-health-groups/.
40 Id.
41 CDC, Imported Case of Marburg Hemorrhagic Fever: Colorado, 2008, http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5849a2.htm
(last visited Aug. 4, 2015).
42 CDC, 2014 Ebola Outbreak in Democratic Republic of the Congo, http://www.cdc.gov/vhf/ebola/outbreaks/drc/2014-august.html (last
visited Aug. 4, 2015).
FEAR, POLITICS, AND EBOLA
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rigorous training of health care workers who may come
into contact with an Ebola patient. But Ebola quarantines
provide no public health benefits, hurt people for no
reason, and harmed the fight against Ebola in West Africa.
After nearly four decades of rational American responses
to Ebola epidemics, the quarantines set a dangerous
precedent for dealing with future public health crises,
which require sound scientific evidence to guide effective
policy.
Ebola quarantines also waste scarce public-health resources, and impose a multitude of costs on public-
health authorities and individuals alike. Many of those costs are hidden. For individuals, they can include
costs associated with transportation, housing, lost wages and business opportunities, legal and administrative
fees, health care delivery, and child or elder care expenses for quarantined individuals unable to perform
such duties. They also squander the valuable time of public-health and law-enforcement personnel. In
some cases, states station shifts of police officers outside individuals’ homes for 24 hours a day during the
21-day quarantine period. In many jurisdictions, public health officials are required to pay home visits
to quarantined individuals at least once a day to take their temperature and to monitor for other Ebola
symptoms. All of this is expensive. Many of the economic costs of mandatory quarantine are borne by
strapped state and local health departments that are already swamped with other responsibilities.
43
It’s important to recognize that quarantines also took a psychological toll on many of those affected. Dr.
Dorothy Morgos, a clinical psychologist who provides mental health services to returning MSF field staff,
observed that combined with the stresses of Ebola missions, quarantine “increased the risk of chronic stress
and compassion fatigue,” and that the lack of proper mental health support for those in quarantine hurt
“relationships with family and friends, increased the sense of isolation, heightened perception of community
rejection and fear, [and] brought unwanted public attention.” As a result, she wrote,
returning field staff were not able to properly process the emotional impact of the Ebola
mission upon return, having to deal instead with the new challenges presented by the
quarantine procedures. Field staff reported fearing returning home after an intense Ebola
mission. They were isolated from the natural emotional support systems and communities,
which usually act as a major mitigating/buffer factor following adverse critical exposure.
Overall, the “home return process” following an Ebola mission had an unexpected long
term negative impact as exhibited in reported symptoms such as delayed chronic emotional
reactions, increased burn out symptoms and other related mental health issues.
44
Bad policies not only hurt hundreds of men, women, and children across the country, but they also cut into
scarce resources available for protecting members of the broader public from diseases far more likely to
affect them than Ebola virus disease.
43 Jessica Firger, Ebola in the U.S.: Who Pays the Bills?, CBSNews (Oct. 31, 2014), http://www.cbsnews.com/news/ebola-in-the-us-who-
pays-the-bills/.
44 Email from MSF, Sept. 9, 2015.
Ebola quarantines waste
scarce public-health
resources, and impose
a multitude of costs.
FEAR, POLITICS, AND EBOLA
19ACLU • GHJP
“I
was not in a position of power,” Dr. Jessica Bender says of the movement restrictions
she faced when she returned from Liberia. Dr. Bender, a physician from Boston, worked
in an Ebola Treatment Unit but didn’t end up treating any Ebola patients. There weren’t
any new cases after she arrived, so instead, Dr. Bender treated patients with other conditions at
a government hospital.
After six weeks in Liberia, “I just wanted to get home to my husband,” Dr. Bender says. Even though she didn’t
treat Ebola patients and wore protective equipment while working in the Liberian hospital, health authorities
determined Dr. Bender had some risk of Ebola exposure. “It was a bizarre experience to sign up to go to Liberia
as part of the Ebola response and yet not actually take care of any Ebola patients,” she says. “Coming home
to be treated the same as other clinicians who actually
were involved in the care of Ebola patients was even more
bizarre.”
Being in the Some Risk category meant Dr. Bender had to
keep herself isolated from the public. “I was told I had to
stay away from public gatherings—concerts and movies—
and from the hospital and any patient care. But I tried to go
out once a day to go for a walk in the snow.”
“I went a little stir-crazy,” she says. “I live in a tiny apartment, and it was also the worst winter in Boston. My
husband went out of town so I was alone for a week. It wasn’t easy.”
Despite the movement restrictions imposed on her, health officials did not serve Dr. Bender notice or inform her
of her legal rights. “No one told me that I had the legal right to challenge these restrictions,” she says. “But I had
seen what happened with Kaci Hickox. I didn’t want to be the one to cause that sort of panic or hysteria.”
The hospital where Dr. Bender normally works also felt the strain from the quarantine. “I tried to catch up on my
administrative and teaching work from home, but obviously it wasn’t what I wanted to be doing,” she says. “My
colleagues at work had to pick up a lot of slack.”
The quarantine policies are still in place throughout the United States. For health professionals like Dr. Bender
who work both in the United States and West Africa, the quarantines are an unnecessary added stress.
“This quarantine is still on my mind and is going to affect me in my future work,” says Dr. Bender. “I plan on going
back to Liberia. Before the Ebola outbreak I spent some time in a Liberian teaching hospital and saw a great need
for medical education,” says Dr. Bender. In the wake of the Ebola outbreak, there is an even greater need for
experienced health professionals to work in Liberia. “Two of the physicians I worked with [in Liberia] died during
the outbreak.”
Dr. Bender worries that the quarantines will keep her from her family and friends. “I have a friend getting married
in the fall and I’m supposed to go to that wedding,” says Dr. Bender. “But if I’m working in a hospital in Liberia and
then fly back to the United States, will I be allowed to go to the wedding?” She also worries about whether her
loved ones will be able to visit her in Liberia. “Being there for 6 months, I want my husband and family to come
visit me. But will they face quarantines when they return home?”
“I felt very healthy when I returned,” says Dr. Bender. “I don’t see how I posed any risk to the general public.
I don’t think the quarantines placed on people in my situation, who never even saw any Ebola patients,
protected the public any way. I think it just served as a barrier for other clinicians to go to West Africa and
work to prevent Ebola so it doesn’t spread and effect America.”
Dr. Jessica Bender
Testimonial
FEAR, POLITICS, AND EBOLA
20ACLU • GHJP
I
n the United States, states and municipalities have the primary responsibility for leading and implementing
public health programs within their borders. Federal agencies like the CDC handle interstate or
international public health issues, but also provide national leadership and guidance on matters of state
jurisdiction.
While the federal response to the Ebola epidemic in West Africa was better than those of many U.S. states,
the early reaction to the crisis involved several missteps that fed a growing unease across the country. When
Thomas Duncan was diagnosed, CDC Director Dr. Thomas Frieden stated that the United States would
“stop [Ebola] in its tracks” and that all hospitals across the United States were well prepared to contain Ebola
cases.
45
Shortly thereafter, the two Dallas nurses were diagnosed with Ebola, showing that hospitals were not
in fact sufficiently prepared, and allowing alarmists to argue that Frieden was also wrong that we would be
able to prevent widespread transmission of Ebola in the United States.
When the first case of Ebola reached the United States in September 2014, U.S. authorities failed to effectively
manage the affected patient, the public health response, and public understanding of the disease. The early
mismanagement of the case of Thomas Eric Duncan, a Liberian man who traveled to Dallas unknowingly
carrying Ebola, as well as the subsequent infection of the two nurses that had taken care of him, set off
a national panic and a chain of events that led to unnecessary quarantines. This led to the loss of some
credibility for the CDC, and an opening for politicians and others to attempt to reshape federal policy on
Ebola in ways that catered to fear and ignored sound evidence.
Duncan was treated at Texas Presbyterian
Hospital in Dallas with guidance from the
CDC, which provides technical assistance
to state and local health departments and
public and private health care facilities
regarding the control of infectious
diseases such as Ebola. While the CDC
had assured the public that U.S. hospitals
were well prepared to contain Ebola, Texas
Presbyterian Hospital, at least, was not. It
lacked clear protocols and management,
and staff did not know how to safely and
45 Michael Muskal, Four Ebola Quotes That May Come Back to Haunt CDC’s Thomas Frieden, L.A. Times, Oct. 16, 2014, http://www.
latimes.com/nation/nationnow/la-na-four-ebola-quotes-haunt-frieden-20141016-story.html.
III. The Federal Response to Ebola
Jan
2014
Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan
2015
Feb Mar Apr May
20%
0%
40%
60%
80%
100%
Figure 3: Interest in Ebola as measured by Google Trends analysis.
FEAR, POLITICS, AND EBOLA
21ACLU • GHJP
properly care for an Ebola patient. Staff nurses Nina Pham and Amber Vinson cared for Duncan in the
later stages of his illness when his viral load must have been extremely high—but hospital management
allegedly did not facilitate staff training for the proper use of personal protective equipment.
46
Nurses who
worked at the hospital reported “gloves with no wrist tape, flimsy gowns that did not cover their necks, and
no surgical booties.”
47
Although the CDC did send infectious disease specialists to the hospital after Duncan
was diagnosed, as CDC Director Frieden himself later acknowledged, they should have sent “a more robust
hospital infection control team and been more hands-on.”
48
The CDC should have transferred Duncan to a
specialized Ebola treatment center, where appropriately trained and equipped staff would have been able to
provide for his care. “I wish we put teams… on the ground when the first patient was diagnosed,” Frieden
said.
49
Further problems followed the infection of the two nurses at Texas Presbyterian Hospital. One of the nurses
was allowed to board two commercial flights despite having reported a low-grade fever after her recent
direct contact with Duncan. After she was diagnosed with Ebola, the CDC was left scrambling to track down
the 130 passengers who had flown with her. A program was put in place to monitor each passenger, but
fortunately, due to the vanishingly small chance of transmission from a person with only early symptoms,
no further infections occurred.
50
Overall, Duncan’s case and the infection of the two nurses eroded confidence in the agency, and also fueled
Ebola hysteria in the American public.
CDC’s initial stumbles allow political interference with the
shaping of federal policy
In the end, the CDC developed a new plan to send a rapid response team “within hours” to any health care
facility with a confirmed Ebola case.
51
Unfortunately, a number of politicians latched on to these missteps,
engaging in hysterical grandstanding based on a variety of agendas other than public health.
52
Members
of Congress called for travel bans against all travelers returning from West Africa,
53
and debate emerged
46 National Nurses United, Statement by RN’s at Texas Health Presbyterian Hospital as provided to National Nurses United (Oct. 15, 2014),
http://www.nationalnursesunited.org/blog/entry/statement-by-registered-nurses-at-texas-health-presbyterian-hospital-in-dal/.
47 Geoffrey Mohan et al., Nurses At Dallas Hospital Describe Poor Safety Measures With Ebola Victim, L.A. Times (October 14, 2014),
http://www.latimes.com/nation/la-na-ebola-dallas-20141014-story.html.
48 Geoffry Mohan, Nurses at Dallas Hospital Describe Poor Safety Measures with Ebola Victim, L.A. Times, Oct. 14, 2014,
http://www.latimes.com/nation/la-na-ebola-dallas-20141014-story.html#page=1.
49 Ilene MacDonald, CDC Outlines New Ebola Protocol With Rapid Response Teams, Fierce Healthcare (Oct. 15, 2014),
http://www.fiercehealthcare.com/story/cdc-outlines-new-ebola-protocol-rapid-response-teams/2014-10-15.
50 See supra note 18.
51 Laura Smith-Spark, Laura Perez Maestro & Alexander Felton, Ebola Cases Could Soar to 10,000 a Week, CNN (Oct. 15, 2014), http://www.
cnn.com/2014/10/14/world/europe/ebola-outbreak/; CDC, Infection Prevention and Control Recommendations for Hospitalized Patients Under
Investigation (PUIs) for Ebola Virus Disease (EVD) in U.S. Hospitals, http://www.cdc.gov/vhf/ebola/healthcare-us/hospitals/infection-control.
html (last visited Aug. 5, 2015); Jim McKay, Ebola Response Provides Key Lessons for Risk Communications, Emergency Management (Jan. 13, 2015)
http://www.emergencymgmt.com/health/Ebola-Response-Provides-Lessons-Risk-Communications.html.
52 Gregg Gonsalves, Stop Playing Cowboy on Ebola, Foreign Policy, Oct. 28, 2014, http://foreignpolicy.com/2014/10/28/stop-playing-
cowboy-on-ebola/.
53 Mark Berman and Lenny Bernstein, Congress Presses for Ebola Travel Ban, Wash. Post., Oct. 16, 2014, http://www.washingtonpost.com/
national/health-science/congress-presses-for-ebola-travel-ban/2014/10/16/61a71172-5579-11e4-892e-602188e70e9c_story.html.
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over the rules for screening and monitoring returning health care volunteers who had direct contact with
Ebola patients. Some politicians called for drastic steps, including a ban on all travel from Ebola-endemic
countries, which would have significantly hurt efforts to get American health care workers to West Africa to
respond to the crisis. “It needs to be solved in Africa, but until then, we should not be letting these people
in, period,” declared Rep. Fred Upton, a Republican from
Michigan.
54
There were even calls to close the U.S.-Mexico
border, though Mexico has never had a case of Ebola.
55
As national hysteria about Ebola reached a fever pitch, a
new imported infection in New York City set off another
chain reaction. When Dr. Craig Spencer was diagnosed on
October 23,
56
the CDC already had an established set of
recommendations for asymptomatic returning travelers: active self-monitoring and reporting for 21 days.
57
But in the wake of the hysteria set off by the Duncan case, Dr. Spencer’s case set off a national debate over
whether the CDC guidelines were strict enough.
The revision of CDC guidelines
Although scientific experts and medical relief organizations adamantly opposed quarantine measures, many
politicians and much of the American public supported quarantines out of “an abundance of caution.” In
October, the state of New Jersey quarantined Kaci Hickox, a nurse returning from work in Sierra Leone with
MSF. Hickox was held in a tent outside University Hospital in Newark for three days before being allowed
to return to her home state of Maine under an in-home quarantine. That lasted four days until a judge,
following a law that gave Hickox the right to a hearing, properly deemed the entire quarantine unnecessary.
58
Federal officials sought to contain national panic by issuing a revised set of guidelines on October 27, 2014.
59
There were three key differences between the CDC’s original guidelines and its revised recommendations:
1. New risk categories were established based on potential exposure to Ebola.
2. State and local health departments were encouraged to use active monitoring (remote health
reports from subjects) or direct-active monitoring (daily in-person visits) instead of self-
monitoring.
54 Michael McAuliff, Lawmakers Ignore Experts, Push for Ebola Travel Ban, Huff. Post (Oct. 16, 2014), http://www.hufngtonpost.
com/2014/10/16/congress-ebola_n_5997214.html.
55 Reena Flores and Marina Koren, These Politicians Want to Close the U.S.-Mexico Border Because of Ebola, National Journal (Oct. 9,
2014), http://www.nationaljournal.com/congress/these-politicians-want-to-close-the-u-s-mexico-border-because-of-ebola-20141009.
56 Shimon Prokupecz and Catherine E. Shoichet, New York Doctor Now Ebola Free, Will Be Released from Hospital, CNN (Nov. 10, 2014),
http://www.cnn.com/2014/11/10/health/new-york-doctor-craig-spencer-ebola-free/.
57 Sydney Lupkin, New Jersey, New York, Illinois, Toughen Ebola Quarantine Rules After Doctor Case, ABC News (Oct. 24, 2014), http://
abcnews.go.com/Health/york-doctor-ebola quarantine/story?id=26431431.
58 A P, Maine Judge Frees Kaci Hickox from Quarantine, US News (Oct. 31, 2014), http://www.usnews.com/news/articles/2014/10/31/maine-
judge-frees-kaci-hickox-from-quarantine.
59 CDC, Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure (May 13, 2015), http://www.
cdc.gov/vhf/ebola/exposure/monitoring-and-movement-of-persons-with-exposure.html.
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3. Stricter protocols were defined for asymptomatic individuals deemed to pose “some risk” of
carrying Ebola, including those who had direct contact with patients in West Africa using
personal protective equipment.
The risk categories in the revised guidelines were based on exposure level and risk of having contracted
Ebola. The risk categories were defined as follows:
High Risk – individuals who have had direct, unprotected exposure to an Ebola
patient, their blood, or bodily fluids.
Some Risk – individuals who have had direct contact with known Ebola patients
while using appropriate protective measures, or direct patient care in other settings
in countries with Ebola outbreaks.
Low Risk – individuals who have been in a country with widespread transmission
within 21 days and had no known Ebola exposures.
No Identifiable Risk – individuals who had contact with a person asymptomatic
for Ebola.
The new guidelines also stratified people into categories based on whether they were asymptomatic or
symptomatic. By integrating risk and presence of symptoms, the guidelines created eight categories, each with
a set of recommended protocols. The guidelines recommended direct active monitoring for people in the
High Risk and Some Risk categories, and active monitoring for people in the Low Risk category. They further
recommended that all individuals with symptoms be immediately isolated, consistent with scientific consensus.
In no case—in either the High Risk, Some Risk, or Low Risk categories—did the guidelines recommend
quarantines, even for asymptomatic health care workers. While the revised guidelines recommended
restrictions on the congregate public activities of individuals in the High Risk category, not a single returning
health care worker has been publicly identified as having been deemed High Risk (which requires accidental
exposure such as a needle stick, or having treated patients without protective gear). Most were labeled as
Some Risk—and for asymptomatic travelers in that category, the CDC suggested that local officials have
discretion to impose movement restrictions, but only if individual circumstances warranted them. In other
words, the CDC’s revised guidelines did not contemplate the quarantine of asymptomatic health care
workers, and contemplated movement restrictions for them only in narrow circumstances.
The revision of the CDC guidelines was an interagency process that received input from the NIH and the
Department of Health and Human Services (HHS), as well as the White House.
60
The revision was a “team
effort,” Dr. Fauci, who took part in the deliberative process, told us. According to The New York Times,
60 Interview with Dr. Anthony Fauci, Director of National Institute of Allergy and Infectious Diseases (NIAID), Bethesda, MD (April 3, 2015).
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the process reached as high as President Obama, who was reportedly briefed on, and had input into, the
formulation of the guidelines.
61
The revised CDC guidelines were an attempt to standardize the patchwork of inconsistent state Ebola
policies. In reality, however, the guidelines did not facilitate any greater clarity or coherence in Ebola
policies throughout the country. A key element of the revised guidelines was their flexibility with respect
to restrictions on the movements of asymptomatic individuals in the Some Risk category. To be sure, the
guidelines discouraged such restrictions except in narrow circumstances, but their imprecision gave cover
to states that nonetheless imposed harsh public movement restrictions on many returning field workers—
doctors, nurses, and others who, under the initial guidelines, had been required only to actively self-monitor
their temperature and report the results to public health officials.
There was no scientific reason to require more, and the initial guidelines were sound public health policy. As
we have seen, quarantines—and indeed even movement restrictions in the case of Ebola—are unnecessary for
asymptomatic individuals: such individuals cannot transmit the disease even if they are infected, so long as they
can safely isolate themselves if symptoms arise. In fact, all Ebola cases in the United States occurred before the
new guidelines were released, and none of those cases spread in community settings. Movement restrictions
might be justified for subjects who refuse to self-monitor and report or who decide to travel to places far from
a health care facility that could isolate them should they come down with symptoms. In every other case, the
original CDC guidance was the most reasonable approach for dealing with Ebola in the United States.
The revision of the CDC guidelines, however, was not fully under the control of the CDC. Politics played
a significant role. Federal officials were charged with designing scientifically sound protocols that were
sensitive to public anxieties of Ebola transmission. “The guidelines were tempered by the worst fears of the
American public,” said Dr. Nicole Lurie, Assistant Secretary for Preparedness and Response at HHS, who
was involved in the revisions. The CDC and other federal scientific officials effectively had to negotiate with
politicians calling for harsh measures for political reasons, or who were driven by fear and unconvinced by
the reassurances of scientists. Certain members of Congress and officials within the Obama administration—
according to an official interviewed for this report—pushed for blanket quarantines of all returning visitors
from West Africa and travel bans to the region. The drafting of the CDC guidelines was “intertwined with
election season,” as the official bluntly told us.
The CDC was placed in an extraordinarily difficult position in crafting the new guidelines. The intense
political pressure, however, does not change the fact that the revised guidelines lacked scientific justification.
Political pressures pushed the CDC to give the states guidance inconsistent with the science of Ebola
transmission. This decision had profound implications for returning volunteers and visitors from West
Africa and ultimately for public health efforts at the federal, state, and local levels.
61 Helene Cooper et al., Seeking Unity, U.S. Revises Ebola Monitoring Rules, N.Y. Times, Oct. 27, 2014, http://www.nytimes.com/2014/10/28/
nyregion/ebola-us.html.
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States respond to and fuel hysteria with overly restrictive
quarantine policies
As the CDC and federal government scrambled to respond to a loss of confidence in their ability to handle the
epidemic in the wake of four Ebola cases in the United States, many governors decided to take matters into
their own hands and craft policies that rejected the scientific evidence of Ebola transmission and responded
to public fears directly. Governors from across the political spectrum responded to the hysteria with policies
far more restrictive than the CDC’s guidelines. Calling those guidelines “a moving target,” Governor Chris
Christie of New Jersey instituted a mandatory 21-day quarantine policy for all returning health care workers.
62
Governor Malloy of Connecticut announced the most
restrictive policy in the nation, directly contrasting his
actions to the CDC’s guidelines. “I believe we must go
above and beyond what the CDC is recommending,”
he declared.
63
Although most state public health
departments lack expertise in Ebola epidemiology and
management, several governors nonetheless explicitly
challenged the expertise of the CDC and its leadership.
Governor Christie claimed that the CDC “eventually
will come around to our point of view on this.”
64
Starting with Texas and Ohio in the aftermath of the cases there, states began imposing excessively restrictive
policies even on those with no real risk of Ebola infection:
•
Through quarantine orders and signed agreements, Texas in October quarantined 48
people in response to Duncan’s case and effectively quarantined over 100 more by severely
restricting their movement.
65
•
Soon, quarantines were extended to cover those who had no contact with Ebola victims. On
October 16, in the wake of a feared Ebola case in Connecticut, Governor Malloy announced
mandatory quarantines for all people traveling to the state from Liberia, Sierra Leone, and
62 Bill Chappell, Christie Defends Quarantine and Jabs at CDC Over Ebola, NPR, Oct. 26, 2014, http://www.npr.org/blogs/thetwo-
way/2014/10/26/359082611/christie-defends-quarantine-and-jabs-at-cdc-over-ebola.
63 CT.gov, Governor Dannel P. Malloy, http://www.ct.gov/despp/cwp/view.asp?Q=555086&A=4226 (last visited Aug. 14, 2015).
64 Chappell, supra note 58.
65 Manny Fernandez and Frances Robles, 3 Weeks of Isolation and Worry End for 43 People Declared Free of Ebola, N.Y. Times, Oct. 20, 2014,
http://www.nytimes.com/2014/10/21/us/texas-officials-clear-43-people-after-ebola-monitoring.html; Kevin Sack et al., For Those Caught in Ebola
Scare, a Life in Quarantine, The Boston Globe, Oct. 18, 2014, http://www.bostonglobe.com/news/nation/2014/10/18/for-those-caught-ebola-scare-
life-quarantine/HtJE2JxRhJYWlQ235NHTyJ/story.html.
IV. State Responses to Ebola
“In the end, the calculus is
simple, and we think the
governors have it wrong.”
—
Ebola and Quarantine
, New England
Journal of Medicine
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Guinea—whether or not they had a history of contact with any Ebola victims.
66
•
Shortly after Dr. Craig Spencer became ill, New York, New Jersey, and Illinois announced
strict policies for quarantining returning health care workers, with other states following
their lead shortly thereafter.
67
By December, nearly half the country (at least 23 states) had announced quarantine and movement restriction
policies that exceeded the CDC’s guidelines.
68
States with the most severe regulations were clustered in the
eastern United States.
69
In many, though not all, of those states, incumbent governors facing reelection
implemented the restrictive policies, increasing suspicion that they were politically motivated.
70
Policy as compared to CDC guidance
More restrictive
Equal
Less restrictive
Unclear if more, equal, or less restrictive
No policy found
D.C.
American Samoa
Guam
Northern Mariana Islands
Puerto Rico
U.S. Virgin Islands
Figure 4: The CDC’s first map of states exceeding their Ebola movement and quarantine guidelines, produced on December 18,
2014.
71
Many of the quarantines were not implemented through official orders, but by coercing individuals to accept
“voluntary” quarantines. New Hampshire authorities, for instance, praised two individuals for agreeing to
voluntarily quarantine themselves upon their return from West Africa while pointing out that they had the
authority to get law enforcement involved if they did not.
72
Many “voluntary” quarantines were based on
implied threats to individuals’ livelihoods, reputations, and families. In October, two people who were asked to
66 See supra note 59.
67 Mark Berman, New York, New Jersey and Illinois to Quarantine Medical Workers Returning from West Africa, Wash. Post, Oct. 24, 2014,
http://www.washingtonpost.com/news/post-nation/wp/2014/10/24/new-york-new-jersey-to-quarantine-medical-workers-returning-from-west-
africa/.
68 CDC, Interim Table of State: Ebola Screening and Monitoring Policies for Asymptomatic Individuals, http://www.cdc.gov/phlp/docs/interim-
ebolascreening.pdf (last visited Aug. 4, 2015). Compiled by CDC’s Office for State, Tribal, Local, and Territorial Support, Public Health Law
Program & Office of the Associate Director for Policy. The updated table is available at http://www.cdc.gov/phlp/docs/interim-ebolascreening.pdf.
This version was accessed December 30, 2014 and is no longer publicly available. We include Connecticut in addition to the 21 states and District
of Columbia listed by the CDC.
69 Ibid.
70 Sam Baker And Sophie Novack, Is Your State Quarantining Ebola Doctors? National Journal, October 30, 2014, available at: http://www.
nationaljournal.com/health-care/is-your-state-quarantining-ebola-doctors-20141030.
71 See supra note 55.
72 Heather Hamel, NH Says State Can Enforce Ebola Quarantine if Necessary, WMUR 9 ABC (Oct. 30, 2014), http://www.wmur.com/health/nh-
says-state-can-enforce-ebola-quarantine-if-necessary/29441594.
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voluntarily quarantine themselves, Dr. Nancy Snyderman and Kaci Hickox, refused to comply with voluntary
quarantines and went out in public, with Dr. Snyderman riding in a car to get take-out food and Ms. Hickox
going for a bike ride with her boyfriend. Both were then subjected to official quarantine orders and intense
media scrutiny, and both eventually left their jobs, with Ms. Hickox later moving across the country.
73
Indeed, returning health care workers we interviewed often felt as though they had no choice but to accept
“voluntary” quarantines, leaving them with no legal recourse and states with no legal obligations to the
health care workers or accountability to the public. In one illustrative case, Dr. Colin Buck, a physician from
Stanford University, received official written communication that “failure to comply with [home] quarantine
is punishable by six months in jail.” However, the San Mateo County Department of Public Health, which
was managing Dr. Buck at the time, claimed in comments to the press that he was voluntarily quarantining
himself. He received professional scorn for supposedly agreeing to quarantine himself and felt the reports of
his “voluntary” quarantine would harm recruitment of doctors to West Africa as it misrepresented the risk
of Ebola infection.
The threat of quarantine led some people to avoid traveling to certain states—or to the United States at all.
Some people were kept from their families for three weeks while waiting in Europe or across the country.
And meetings between scientific and medical experts aimed at ending the epidemic were also affected. The
Louisiana Department of Public Health warned anyone who had recently been to Liberia, Sierra Leone, or
Guinea not to attend the annual meeting of the American Society for Tropical Medicine and Hygiene in
New Orleans in November 2014.
74
That kept 30 frontline Ebola experts away from the meeting, thwarting an
important opportunity to exchange knowledge and information critical to responding to the West African
epidemic.
The quarantines imposed on health care workers only intensified the fear that led policymakers to embrace
quarantine policies in the first place. “There’s no one I care about not infecting with Ebola more than my
four-year-old daughter,” says Dr. Noah Rosenberg, who spent two months treating Ebola patients in West
Africa. “I was 100 percent comfortable being in close contact with her, but I didn’t want to test that with
friends. The fact that you’re under quarantine with the Department of Health makes it difficult to tell them,
‘No, it’s okay.’ That was probably the most difficult part.” Public policy validated mass hysteria.
States secretive on numbers of people quarantined
While governors were often quite public in announcing quarantine policies, states have since been secretive
over the implementation and impact of these policies. This secrecy is pervasive; there is little information
publicly available on what happened in nearly all of the 23 states that exceeded the CDC’s guidelines. In
some cases, not even the policies are entirely clear; at least five states that the CDC did not identify as
73 Lindsey Brever, Nancy Snyderman Resigns from NBC News, Months After Breaking Voluntary Quarantine, Wash. Post, Mar. 12, 2015, http://
www.washingtonpost.com/news/morning-mix/wp/2015/03/12/nancy-snyderman-resigns-from-nbc-news-months-after-breaking-voluntary-
ebola-quarantine/; NBC News, Kaci Hickox, Nurse in Ebola Quarantine Standoff, Goes for a Bike Ride (Oct. 30, 2014), http://www.nbcnews.com/
storyline/ebola-virus-outbreak/kaci-hickox-nurse-ebola-quarantine-standoff-goes-bike-ride-n237421.
74 Brooke Borel, Louisiana Travel Ban Kept 30 Ebola Experts From Annual Meeting, Popular Science (Nov. 5, 2014), http://www.popsci.com/
blog-network/our-modern-plagues/louisiana-travel-ban-kept-30-ebola-experts-annual-meeting.
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exceeding the guidelines likely did.
75
Nor is there publicly available data on the number of individuals who
were quarantined or otherwise restricted in their movements on their return from affected countries. This
in itself is troubling—states and local authorities effectively imprisoned an unknown number of people in
their homes for weeks at a time, and have never been required to account for the extent of these practices or
their justifications.
We sought this data from federal officials and the
states. In particular, we submitted surveys to the
Departments of Public Health in all 50 states with
basic questions about whether they have policies
that exceed CDC guidelines and how many
people in their jurisdictions have been subject
to quarantine or movement restriction. Only six
states responded, including two, Connecticut and
Missouri, which indicated they had exceeded CDC
guidelines but had not previously been identified
by the CDC as having done so.
76
The other
states that responded did not indicate that they
exceeded CDC guidelines. Connecticut reported
quarantining nine people, and Missouri reported
restricting the movement of 10 others, although
we know of at least one additional person in
Connecticut who was unofficially quarantined in
a hotel room for two days.
Public health and legal experts as well as journalists have also struggled to obtain concrete data on how state
laws have affected individuals. Some concerned parties, like the ACLU of New Jersey and the Yale Global
Health Justice Partnership, have resorted to freedom of information requests, and even these formal appeals
for transparency have been met with resistance.
Unable to obtain figures from state officials, we sought to build a picture by reviewing publicly available
accounts. A review of media accounts
of the impact of states’ Ebola policies raises even more cause for
concern. Although only a few quarantine and movement restriction cases gathered significant public
attention, states actually implemented many more.
75 Two states not on the CDC list disclosed to us that they had exceeded federal guidelines: Connecticut and Missouri. We also found press
reports indicating that Vermont, Minnesota, and North Carolina each quarantined at least one individual, though in Minnesota’s case it was hard
to determine whether or not the individuals voluntarily quarantined themselves or were coerced.
Vermont: Laura Krantz, Rutland Man Released After 21-Day Ebola Quarantine, VTdigger.org (Nov. 17, 2014), http://vtdigger.org/2014/11/17/
rutland-man-released-21-day-ebola-quarantine/.
Minnesota: Steve Tellier, Minnesota Health Care Workers to Join Ebola Fight, 5 Eyewitness News (Nov. 18, 2014), http://kstp.com/article/stories/
s3624200.shtml.
North Carolina: Colleen Jenkins, North Carolina Isolates U.S. Doctor for Ebola Watch After Liberia Trip, Reuters, Nov. 10, 2014, http://www.reuters.
com/article/2014/11/10/us-health-ebola-usa-quarantine-idUSKCN0IU1UZ20141110.
76 Specically, they responded “Yes” to the question, “Are there or has there ever been Ebola quarantine and movement restriction policies in
your state that are more restrictive than the CDC guidance?”
States and local authorities
effectively imprisoned an
unknown number of people
in their homes for weeks at
a time, and have never been
required to account for the
extent of these practices or
their justifications.
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•
According to our review, 18 states implemented at least 40 formal quarantines and 233 de
facto quarantines, in which formal orders were not issued but individuals nonetheless went
into quarantine or had their movements severely restricted due to official pressure.
•
In addition, we found stories of some individuals undergoing quarantine based on
community pressure, even when they traveled to an African country without an Ebola
outbreak or merely lived in the same home as someone who had traveled to West Africa but
was not symptomatic. While the states were not directly responsible for these, public health
officials did little to alleviate the scientific misunderstandings behind community pressure
for unnecessary “voluntary” quarantines.
•
At least 20 children in Connecticut, Texas, and Illinois were banned from school for
traveling in West Africa or having even slight exposure risk to a domestic Ebola case. The
Milford, Connecticut, school system banned a 7-year-old girl from elementary school
despite the fact she had only traveled to Nigeria after it had been declared Ebola-free by
the WHO. She was only allowed to return after her parents sued the state.
77
Ohio closed an
entire elementary school for a week while Iowa pressured a child into staying home from
school for three weeks. Children in other states including New Hampshire, New York, and
Delaware reported facing stigma at school from Ebola associations, real or imagined.
78
•
This count of affected individuals is almost certainly an underestimate, perhaps by a very
large margin. Multiple sources, whose accounts were not reported in the media, told us
about additional quarantines. In general, most of our reports come from the period between
September and early November 2014 when the media was focused on Ebola, and therefore
may exclude many people subject to quarantine after media attention waned.
The pervasive secrecy around the quarantine policies strongly suggests that the full scope of the quarantine
and movement restriction policies will never come to light. Without a complete accounting of the number
of compulsory or de facto quarantines and movement restriction orders, it is impossible to understand the
true scope of the problem or to begin to provide some measure of redress to the hundreds of individuals
who were effectively imprisoned without due process or scientific basis.
West African community members were subject to considerable
stigma due to fear of Ebola
West African immigrant communities have been particularly affected by the public hysteria fomented by the
response of many states to Ebola. For example, in response to parents’ fears in Iowa and Connecticut, public
health officials consulted by school districts allowed those school districts to exclude students from schools
after trips to African countries without Ebola outbreaks, reinforcing the belief that anyone associated with
77 Ariel Kramer, Girl, 7, Barred from a Connecticut School Over Ebola Concerns Goes Back to Class, N.Y. Times, Oct. 31, 2014, http://www.
nytimes.com/2014/11/01/nyregion/connecticut-girl-returns-to-school-after-being-barred-amid-ebola-fears.html.
78 KCCI Des Moines, Iowa Student Will Self-Isolate After Trip to Africa (Oct. 24, 2014), http://www.kcci.com/news/iowa-student-will-selfisolate-
after-trip-to-africa/29314088; Elizabeth Hagan, “My Name is Not Ebola”: African Children Bullied at School (Oct. 27, 2014), http://nypost.
com/2014/10/27/my-name-is-not-ebola-african-children-bullied-at-school/.
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Africa represented a risk.
79
While the public health authorities did not officially back those actions, they
could have done more to publicly oppose them.
Even West African immigrants who had been in America for many years faced stigma in all spheres of their
day-to-day lives because of the perceived risk that they might be carrying Ebola. According to Reverend
Edwin Lloyd, the leader of a Liberian church in Maryland, people exhibited fear of West Africans if they
merely showed symptoms of the common cold.
“From refused handshakes to other congregations avoiding them, many in this [West African]community
feel ostracized at a time when their loved ones are suffering and dying in Africa,” Rev. Lloyd said. “Being
stigmatized increases the trauma that we experience as a people.”
80
Stigma was especially rife in states with large populations of West African immigrants, such as New York.
Two young brothers in the Bronx, who recently emigrated from Senegal, were beaten to the point of serious
injury while being called “Ebola.”
81
Akinde Kodjo, a woman from Ivory Coast living in New York, told us how
it felt being stigmatized for simply being African:
“On my way to the gym one day I walked past a middle school. I was talking to my husband on
the phone in French, and a group of students started yelling at me: “Ebola! Ebola!” Also, many
of my American friends stopped calling me once all this started with Ebola in the U.S. I called
one of my American friends several times, left her messages, but she never returned my calls! It
seems that, because I’m African, it means Ebola.”
79 WOWT News, Iowa Mission Family Agrees to Self-Quarantine (Oct. 23, 2014), http://www.wowt.com/home/headlines/Iowa-Mission-Family-
Agrees-to-Self-Quarantine-280254462.html; Amanda Cuda and John Burgeson, Milford Girl in Ebola Scare wants to Return to School, CT Post (Oct.
30, 2014), http://www.ctpost.com/local/article/Milford-girl-in-Ebola-scare-wants-to-return-to-5856494.php.
80 CBS News, Friends, Family of 1
st
U.S. Ebola Patient Reach Milestone (Oct. 19, 2015), http://www.cbsnews.com/news/ebola-outbreak-
friends-family-of-1st-u-s-patient-thomas-eric-duncan-reach-milestone/
.
81 Roseanne Colletti, African Boys Attacked at Bronx School, Called “Ebola”, NBC N.Y. (Oct. 28, 2014), http://www.nbcnewyork.com/news/
local/Senegal-Boys-Attacked-Bullying-IS-318-Tremont-NYC-280519232.html.
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T
he quarantine policies during the most recent Ebola epidemic only hindered the global effort to end
the epidemic in West Africa. In October 2014, World Bank President Jim Kim made a plea for more
volunteers to combat the epidemic in West Africa, warning that the shortage of local doctors and nurses
risked letting the epidemic spread out of control.
82
But the prospect of quarantine for returning health care
workers was a disincentive for many to heed Dr. Kim’s call. As Dr. Fauci of the NIH told ABC News, “The best
way to stop this epidemic and protect America is to stop it in Africa, and you can really help stopping it in
Africa if we have our people, our heroes, the health care workers, go there and help us to protect America.”
83
Exact numbers on how many were discouraged from volunteering by the quarantines are unavailable, but we
do know through direct conversations as well as data from international medical groups that the prospect of
being unnecessarily quarantined dissuaded many health care workers from volunteering to go to West Africa.
•
International Medical Corps saw nearly a 25% drop in recruitment from the United States
after quarantine restrictions were put in place.
•
International Rescue Committee officials were aware of a few cases of people choosing not
to volunteer due to the risk of quarantine, and also noticed that volunteers often expressed
concerns about the uncertain environment they would be returning home to.
84
•
MSF had the same experience, and experienced difficulty even in assigning short trips
because the additional time required for quarantine or restricted movements made it less
feasible for field workers to make themselves available.
85
•
Volunteers for Partners in Health expressed fear that, while they were away, the policies
would continue to worsen such that they would lose their jobs (due to being unable to come
back to work for such an extended period of time) or be kept from their children.
86
The stigma directed at returning health care workers, who were often vilified in the media, led some to
“voluntarily” accept unnecessary quarantines so as to shield their families from intense public scrutiny—
providing another disincentive for their peers to volunteer abroad. Furthermore, many would-be volunteers
simply could not take an additional three weeks of leave from their regular employment for 21-day
82 Ian Talley, World Bank Chief: Global Ebola Spread Without More Health Workers, Wall St. J., Oct. 24, 2014, http://www.wsj.com/articles/world-
bank-chief-global-ebola-spread-without-more-health-workers-1414168750.
83 Zach Carter, Top NIH Ebola Specialist Says Quarantines Will Jeopardize Americans, Huff. Post. (Oct. 28, 2014), http://www.hufngtonpost.
com/2014/10/26/ebola-quarantine_n_6049936.html.
84 Interview with Trish Henwood, International Rescue Committee (IRC), telephone interview (Feb. 25, 2015).
85 Email from Kate Mort, MSF, Sept. 3, 2015.
86 Interview with Sara Stulac, Partners in Health (PIH), telephone (Mar. 23, 2015).
V. State-based Quarantines Hurt the
Fight Against Ebola
FEAR, POLITICS, AND EBOLA
32ACLU • GHJP
quarantines on top of the time they were taking off to serve in the fight against Ebola itself. “I knew people
personally who were not able to go because of the potential impact on their family or their employers not
wanting to deal with the complications of scheduling,” says Dr. Patricia Henwood, an IRC volunteer. “This
was very, very common.” For instance, one expert performing biohazard assessments for MSF (important
for assessing knowledge, equipment, and techniques to prevent Ebola exposure to health care workers)
could not accommodate a lengthy quarantine period following a short tour in West Africa. Because of this,
the biohazard assessment was delayed, potentially putting many other staff and patients in West Africa at
greater risk and directly increasing the risk of new importations to the United States.
87
It was particularly ironic for dedicated health care workers, who had spent weeks or months in tents treating
Ebola patients and who were among the few people in the world expert at handling the disease’s risks, to be
confined by local health officials who had no experience whatsoever with Ebola. Trained Ebola responders
are actually the best-placed individuals to monitor their own symptoms—doing so is part of their daily work
in the field, a vital part of protecting not only themselves
but their co-workers.
It is well-known within the public health profession
that punitive approaches to stopping the spread of
communicable disease also threaten to spark evasive
and counterproductive behavior within populations.
Though we are unaware of anyone in the recent epidemic
who engaged in such behavior, the prospect of being
imprisoned for weeks in their homes or elsewhere may
tempt some to lie about or minimize their exposures,
fail to make themselves known to health authorities who
can monitor their health status, and generally discourage
cooperation that might help the authorities to fight a disease. Fortunately, most travelers with significant
exposure to Ebola in this outbreak were health care workers who had seen the terrible nature of the disease
firsthand and who had support networks and professional ethics that led them to accurately report their
risks. In other epidemics that affect a larger number of people or occur in countries with more travel to the
United States, this may not necessarily be the case, and overly draconian measures that lack legitimacy like
unwarranted quarantines could easily backfire and create more risk to public health.
The quarantines also undermined faith in public health institutions and their authority during public health
crises. “Mandatory quarantines unnecessarily affect public health credibility,” said Dr. Alfred DeMaria, Jr.,
the Massachusetts State Epidemiologist. “What actually happened obviously wasn’t being driven by science
and put public health in a difficult position.” Local, state, and federal public health officials must ensure
coordinated responses to and messaging around a disease—especially diseases that invoke intense fear such
as Ebola. And politicians must permit them to do so. Many states did rely on the CDC for guidance, but the
ones that did not fragmented the national response, particularly since pressure from politicians in those
states partially drove the CDC to modify their guidelines beyond what the science supported.
87 Interview with Marina Novack, Medecins Sans Frontieres (MSF), telephone (Mar. 9, 2015).
Trained Ebola
responders are actually
the best-placed
individuals to monitor
their own symptoms.
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While only a few cases of Ebola were identified in the United States, the precedent set by the rejection of
federal expertise and drastic departures from federal guidance on disease management and control, could
harm future responses to far greater public health threats.
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“T
he quarantine was an enormous source of stress, and not because I was worried about giving anyone
Ebola,” says Dr. Noah Rosenberg, a professor of emergency medicine at the Alpert Medical School of
Brown University in Providence, Rhode Island.
The Ebola quarantines were on Dr. Rosenberg’s mind well before he left for West Africa. Rhode Island adopted
the revised CDC guidelines in fall 2014, meaning that state officials could put movement restrictions on people
returning to the United States from West Africa. “One of my main concerns was how I was going to re-enter the
U.S.,” says Dr. Rosenberg. “I spent a lot of time thinking about it.”
Dr. Rosenberg spent two months treating Ebola patients in Liberia and Sierra Leone. In the midst of working in
an Ebola Treatment Unit and developing infection control measures, Dr. Rosenberg worried about how his family
would be treated when he got back home. Children of
health professionals returning from work on Ebola were
asked not to go to school, and children of West African
descent faced stigma and bullying from classmates.
Dr. Rosenberg was well aware of the potential fallout.
“I have a 4-year-old daughter,” he says. “What worried
me in particular, even if I quarantined myself at home,
was what the reaction would be for my daughter going
to preschool. Or for my wife living with me and going to her job. There’re a lot of horror stories out there.”
Like many of his colleagues, Dr. Rosenberg decided to wait out part of the 21-day quarantine period in Europe.
“I spent the first 10 days in Brussels, really just killing time,” says Dr. Rosenberg. “That was in order to return
during a week when my daughter was out of school. I could spend the last week of my quarantine at home with
her and I wouldn’t have to risk fallout from her going back to her school and other parents’ reactions.”
In Europe, Dr. Rosenberg was struck by the matter-of-fact response many Europeans had when he told them
about his work in West Africa. “I did not tell people upfront where I’d been, but I didn’t try to hide it,” he says.
“The official word there was you could come back and do whatever and it was safe. People didn’t seem overly
concerned about it.”
Back home in Rhode Island, it was difficult for Dr. Rosenberg to navigate the irrational fears of Ebola, especially
when official government policy validated those fears. “There’s no one I care about not infecting with Ebola more
than my daughter, and I’m 100% comfortable being in close contact with her,” says Dr. Rosenberg. “But you don’t
want to test that with friends. The fact that you’re under quarantine with the Department of Health, that you’re not
allowed to go to the grocery store, it’s difficult to tell them, ‘No, it’s ok.’ That was probably the most difficult part.”
Though he knew he could challenge his quarantine in court, Dr. Rosenberg decided to wait out the rest of his 21
days at home. “I didn’t feel like I had a free choice,” he says. “I felt like the consequences of trying to rebel against
the system were far greater than the costs of just following along. I felt fairly trapped.”
Dr. Noah Rosenberg
Testimonial
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I
n addition to all the other problems with the quarantines imposed in response to the panic surrounding
the 2014 Ebola outbreak, they violated the U.S. Constitution. States derive the legal authority to ensure
the public health from their general “police powers.”
88
Like all exercises of state authority, these powers are
subject to constitutional constraints.
89
Although there is little recent precedent on the constraints applicable
to quarantines, courts will likely permit states to impose quarantines and other restrictions on movement,
in combatting the spread of a disease, only if:
1. The state has a compelling interest in doing so.
2. The restrictions are the least restrictive measures available to prevent the spread of
disease.
3. The state affords affected individuals due process of law, including a timely hearing
before a neutral decisionmaker, appointed counsel if the individual cannot afford
one, and adequate notice explaining the basis for the restriction and the process for
challenging it.
4. The state confines the individuals, if at all, in humane conditions.
The quarantines imposed in 2014 violated these constitutional
restrictions. (Remember that, by definition, quarantine is the
confinement of individuals without any symptoms of disease;
nobody disputes that those who are actually sick with Ebola
need to be isolated.) Since, as explained above, quarantines of
individuals not presenting symptoms of Ebola are scientifically
unjustified, the states that imposed such quarantines violated
individual rights. They acted not out of public health
necessity, but largely in response to political pressure based on
unfounded public fear.
In the future, there may be outbreaks of disease that raise difficult questions about the balance between
88 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (“According to settled principles, the police power of a state must be held
to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public
safety.”).
89 See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887) (“There are, of necessity, limits beyond which legislation cannot rightfully go . . . . If,
therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial
relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby
give effect to the constitution.”).
VI. Ebola Quarantines Violated the
Constitution
States acted largely in
response to political
pressure based on
unfounded public fear.
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individual liberty and collective risk. This Ebola epidemic was not one of them. All of the scientific evidence
points in the same direction: Ebola quarantine policies for asymptomatic individuals are not justified because
quarantines of such individuals are not scientifically necessary except in extraordinary circumstances.
Particularly where politics and fear overwhelm rational decisionmaking, it is essential that courts serve their
traditional role as a check on abuse of power. In the 2014 Ebola outbreak, only one court had the opportunity
to evaluate the legality of an Ebola quarantine, and it found that it was clearly beyond the power of the state
to impose.
90
The court concluded that “people are acting out of fear and . . . this fear is not entirely rational.”
91
States violated individuals’ constitutional rights by imposing
quarantines and movement restrictions that were scientifically
unjustified when less restrictive alternatives were available
The Fourteenth Amendment to the U.S. Constitution provides that no state may “deprive any person of
life, liberty, or property without due process of law; nor deny to any person . . . the equal protection of the
laws.”
92
It is this provision that protects individuals against arbitrary or unreasonable state deprivations of
liberty. When a state deprives an individual of certain fundamental rights, the state must satisfy the highest
constitutional standard to justify its action. Under this standard, known as strict scrutiny, a state must show
that its action is narrowly tailored to serve a compelling governmental interest.
In response to Ebola, states interfered with constitutionally protected liberties by subjecting individuals to
quarantines or restrictions upon their movement. Those measures implicated at least three fundamental
rights: the right to be free from restraint,
93
the right to travel,
94
and the right to freely associate with other
individuals.
95
Moreover, some states indirectly imposed those same restrictions through coercion, by,
for example, threatening individuals with quarantine orders if they did not simply consent to limit their
movements.
Because state-imposed quarantines and restrictions on movement implicate fundamental rights, states must
show that they serve a compelling governmental interest and that they are narrowly tailored to that interest.
There is little question that preventing the spread of Ebola is a compelling governmental interest.
96
However,
quarantines and other restrictions on the movements of asymptomatic individuals are not narrowly
90 Hickox, No. 2014–36 at 2 (Me. Dist. Ct. Oct. 31, 2014).
91 Id. at 3.
92 U.S. Const. amend. XIV.
93 See, e.g., Jacobson, 197 U.S. at 26 (recognizing a liberty interest in being free from restraint while acknowledging limits on that liberty in
the name of public health).
94 See, e.g., Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (“This Court long ago recognized that the nature of our Federal Union and
our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land
uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”).
95 U.S. Const. amend. I; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984) (“Our decisions have referred to constitutionally
protected ‘freedom of association’ in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and
maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships
in safeguarding the individual freedom that is central to our constitutional scheme. . . . In another set of decisions, the Court has recognized a
right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of
grievances, and the exercise of religion.”).
96 See, e.g., Jacobson, 197 U.S. at 25 (noting that the Court “has distinctly recognized the authority of a state to enact quarantine laws and
health laws of every description.”) (internal quotation marks omitted).
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tailored to that interest, because there are a number of alternatives to quarantine that are equally effective
at preventing the spread of Ebola, but that do not involve as severe a deprivation of individual liberty.
97
In
other words, states may not fight Ebola “by means that broadly stifle fundamental personal liberties when
the end can be more narrowly achieved.”
98
Courts do give some deference to public health authorities when the authorities ground their actions in
scientific evidence.
99
But such deference is not absolute: courts will strike down a public health policy that
implicates fundamental rights where the “real or substantial relation” between the means and the ends is
absent.
100
Under that doctrine, courts have struck down scientifically unjustified public health measures,
including quarantines. For example, one court invalidated a quarantine of an entire district in San Francisco,
finding it “unreasonable, unjust, and oppressive.”
101
The court relied on the affidavit of a medical professional
who testified that the quarantine was “unscientific.”
102
The court recognized that the quarantine was, for that
reason, “not a reasonable regulation to accomplish the purposes sought.”
103
The Ebola quarantines and restrictions on movement similarly contravened sound scientific evidence. Many
alternatives to quarantine would not have involved as severe a deprivation of liberty, and yet would have
been equally effective in combatting the spread of the disease. These alternatives included self-monitoring,
active monitoring, direct monitoring, and perhaps certain narrow and specific movement restrictions.
104
Because asymptomatic individuals cannot transmit Ebola, any or all of these less-restrictive alternatives
would have prevented the spread of Ebola.
The one court to consider the legality of an Ebola quarantine of an asymptomatic individual did so under a
97 See, e.g. id. at 28 (“[A]n acknowledged power of a local community to protect itself against an epidemic threatening the safety of all
might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so
far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such
persons.”).
98 Shelton v. Tucker, 364 U.S. 479, 488 (1960); see also Covington v. Harris, 419 F.2d 617, 623 (D.C. Cir. 1969) (“A statute sanctioning such
a drastic curtailment of the rights of citizens must be narrowly, even grudgingly, construed in order to avoid deprivations of liberty without due
process of law.”) (internal quotation marks omitted).
99 See, e.g., Jacobson, 197 U.S. 11, 28 (1905) (noting that “the court would usurp the functions of another branch of government if it
adjudged, as matter of law, that the [smallpox vaccination] adopted under the sanction of the state, to protect the people at large was arbitrary, and
not justied by the necessities of the case.”).
100 See id. at 31 (“[I[f a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real
or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty
of the courts to so adjudge, and thereby give effect to the Constitution.”).
101 Jew Ho v. Williamson, 103 F. 10, 26 (C.C.N.D. Cal. 1900).
102 Id. at 21 (“[D]efendants have proceeded from erroneous theories to still more erroneous and unscientic practices and methods of dealing
with the same; for, instead of quarantining the supposedly infected rooms or houses in which said deceased persons lived and died, and the
persons who had been brought in contact with and been directly exposed to said disease, said defendants have quarantined, and are now
maintaining a quarantine over, a large area of territory, and indiscriminately conning therein between ten and twenty thousand people, thereby
exposing, and they are now exposing, to the infection of the said disease said large number of persons.”) (Quoting afdavit of Dr. J. I. Stephen).
103 Id. at 23 (“The court cannot but see the practical question that is presented to it as to the ineffectiveness of this method of quarantine against
such a disease as this. So, upon that ground, the court must hold that this quarantine is not a reasonable regulation to accomplish the purposes
sought.”). Although there are few recent cases squarely addressing these issues, recent lower-court cases arising in different legal contexts have
found that segregation of asymptomatic individuals for tuberculosis does not meet a requirement of employing the least restrictive means. See,
e.g., Jihad v. Wright, 929 F. Supp. 325, 330–32 (N.D. Ind. 1996) (holding that prison ofcials should not have removed an inmate at risk of
developing active tuberculosis to a medical isolation unit because a less restrictive alternative would have been periodic testing to determine if the
inmate became capable of infecting others); Jolly v. Coughlin, 76 F.3d 468, 479–80 (2d Cir. 1996) (nding that prisoner’s connement was not
least restrictive means of protecting inmates from tuberculosis where prisoner was not contagious and could be monitored for the development of
active tuberculosis).
104 See CDC, Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure (Dec. 24, 2014), http://
www.cdc.gov/vhf/ebola/exposure/monitoring-and-movement-of-persons-with-exposure.html.
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statute requiring the state to show by clear and convincing evidence that the quarantine was “necessary.”
105
The court came to the same conclusion as the public health consensus—and it did so at the height of the
national panic over Ebola. When Kaci Hickox, an asymptomatic health care worker in Maine, challenged her
quarantine order in court, that court held that the state had failed to prove that quarantine was necessary.
106
The court noted that it was “fully aware of the misconceptions, misinformation, bad science and bad
information being spread from shore to shore in our country with respect to Ebola.”
107
Instead of ordering a
quarantine as requested by the state, the court found that
Hickox need only comply with direct active monitoring, a
less-restrictive measure that would accomplish the state’s
public health goals.
108
Some have argued that quarantines are justified by the
possibility that returning health care workers will not
comply with public health measures even after they
begin to manifest symptoms of Ebola.
109
However, states
may not quarantine individuals on unsubstantiated
speculation that those individuals will be non-compliant.
In prior cases involving the isolation of individuals
with tuberculosis—which, unlike Ebola, is airborne and
thus highly contagious through casual contact—courts
required that the state make a particularized showing
specific to the individual in question that there was a “substantial likelihood” of non-compliance.
110
The
injustice of a generalized presumption of non-compliance is especially apparent in the context of the Ebola
quarantines, given that the quarantine orders were directed primarily at returning health care workers who
had demonstrated dedication to fighting this disease, had seen its terrible effects first-hand, and were well
acquainted, as few others are, with the precautionary measures necessary to prevent its spread. Many of
those health care workers had also previously volunteered in West Africa and so had already demonstrated
their willingness to comply with public health authorities’ orders.
States that quarantined asymptomatic individuals ignored the science of Ebola and imposed measures
that deprived individuals of their fundamental liberties. As a result, the Ebola quarantines, like those at
issue in the San Francisco case, were “unreasonable, unjust, and oppressive”
111
and, therefore, violated the
105 Several other states’ laws require that the government prove the need for a quarantine by “clear and convincing evidence.” See Alaska, AS
18.15.385 (2014); Illinois, 20 Ill. Comp. Stat. § 2305/2 (2015); Minnesota, Minn. Stat. § 144.4195 (2014).
106 Hickox, No. 2014–36 at 2.
107 Id. at 3.
108 Id. at 2.
109 See, e.g., Robert J. Vickers, Ebola Aid Workers Can’t Be Trusted, Seattle Times, Oct. 31, 2014, http://blogs.seattletimes.com/
opinionnw/2014/10/31/ebola-aid-workers-cant-be-trusted/.
110 City of New York v. Antoinette R., 630 N.Y.S.2d 1008, 1015 (N.Y. Sup. Ct. 1995) (holding, in the context of a quarantine of a TB patient
for allegedly not complying with treatment, “The prerequisite for an order is that there is a substantial likelihood, based on the person’s past or
present behavior, that the individual cannot be relied upon to participate in or complete an appropriate prescribed course of medication or, if
necessary, follow required contagion precautions for tuberculosis.”).
111 Jew Ho, 103 F. at 26.
Returning health care
workers were well
acquainted with the
precautionary measures
necessary to prevent the
spread of Ebola.
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Constitution.
112
Some states failed to safeguard individuals’ right to due process
When a state deprives an individual of a fundamental liberty interest, it has an affirmative duty under the
Due Process Clause of the Fourteenth Amendment to initiate a hearing before a neutral decision-maker at
which it justifies the deprivation.
113
That hearing must ordinarily take place before the deprivation occurs,
114
or, at the very least, promptly afterward.
115
Under the Maine public health emergency statute, for example, the state must initiate a hearing within 48
hours after quarantine begins.
116
This statute was at issue in Kaci Hickox’s case, during which the state sought
an order permitting quarantine to continue and Ms. Hickox obtained her ruling that she need only comply
with direct active monitoring.
117
This provision of the Maine statute was the means by which Maine sought
to afford Ms. Hickox her right to due process, and to ensure that the public health restrictions imposed upon
her were scientifically justified.
No other state that instituted a
quarantine appears to have complied
with this requirement of due process.
The other states imposed quarantines
without hearings, and placed the
burden on individuals to challenge
their own quarantines.
118
Due process
generally requires the opposite—that, at
a minimum, the state initiate a hearing
before a neutral decisionmaker who is
112 This result would hold no matter the evidentiary standard that a court applied, because the scientic consensus against blanket quarantines
or movement restrictions for asymptomatic individuals is overwhelming. Nevertheless, the Constitution would require states to meet a demanding
evidentiary standard—the “clear and convincing evidence” standard, which is the highest in the civil context—to justify such serious deprivations
of liberty. Although no court has addressed this question in the context of Ebola restrictions, the Supreme Court has addressed it in the closely
analogous context of civil commitment. See Addington v. Texas, 441 U.S. 418, 425 (1979) (holding that states must meet the intermediate burden
of proof, “clear and convincing evidence,” when civilly committing an individual with mental illness). The same standard would apply before
states could effectively imprison asymptomatic individuals in their homes.
113 See, e.g., Mathews v. Eldridge, 429 U.S. 319, 333 (1976) (“The ‘right to be heard before being condemned to suffer grievous loss of any
kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’” (quoting Joint Anti-
Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring))).
114 See, e.g., Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (holding that the state must provide a pre-termination evidentiary hearing when
it terminates a welfare recipient’s benets because termination “may deprive an eligible recipient of the very means by which to live while he
waits.”).
115 See, e.g., Mathews, 429 U.S. at 349 (“All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the
capacities and circumstances of those who are to be heard,’ to insure that they are given a meaningful opportunity to present their case.” (quoting
Goldberg v. Kelly, 397 U.S. 254, 268–269 (1970))); Nat’l Council of Resistance of Iran v. Dep’t of State (NCRI), 251 F.3d 192, 205 (D.C. Cir.
2001) (“[[B]efore the government can constitutionally deprive a person of the protected liberty or property interest, it must afford him notice and
hearing.”).
116 Me. Rev. Stat. tit. 22 § 820 (2005) (“A hearing must be held before a judge of the District Court, a justice of the Superior Court or a justice
of the Supreme Judicial Court as soon as reasonably possible but not later than 48 hours after the person is subject to prescribed care to determine
whether the person must remain subject to prescribed care.”).
117 Hickox, No. 2014-36 at 3.
118 See, e.g., CT Gen Stat § 19a–131b (2013).
States imposed quarantines
without hearings, and placed
the burden on individuals to
challenge their own quarantines.
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independent of the agency that is seeking to impose the quarantine.
The constitutional requirement that a state initiate a quarantine hearing has the salutary effect of increasing
transparency. In Maine, there is now a publicly available record of the state’s asserted justifications for
quarantine. Moreover, even if the record of Ms. Hickox’s hearing had been sealed, the very fact that the
sealed record existed would still aid the public in determining the number of people who were quarantined
by the state, which is currently impossible to determine. In all states other than Maine, by contrast, there is
no publicly available record of the number of people quarantined, let alone of the states’ alleged justifications
for quarantine.
The Due Process Clause also requires that states afford individuals notice of the basis for the deprivation
of their liberty.
119
This bedrock requirement ensures that individuals can meaningfully challenge the state’s
actions.
120
But a number of states failed to provide constitutionally adequate notice in their implementation
of Ebola quarantines. For example, after returning from West Africa, one asymptomatic individual, Laura
Skrip, a doctoral student in epidemiology at Yale, was told over the phone that she was under a quarantine
order and could not leave her home. After she reported to public health authorities that she had never
received official notice informing her of her due process rights, they finally delivered notice to her home a
full five days after the start of her quarantine. As a result, Skrip remained without written notice of the basis
for her quarantine (and any potential procedures to challenge it) for one-fourth of her time in quarantine.
121
Our interviews with other individuals who were quarantined suggest that this example is representative of
a larger trend in which states provided individuals with no adequate notice and no opportunity to be heard
before a neutral decisionmaker when instituting Ebola quarantines.
Additionally, some states appear to have deliberately circumvented due process requirements by coercing
individuals into signing “voluntary” quarantine agreements.
Lastly, states have not provided—but should consider providing—the assistance of counsel for those who
are indigent to challenge the validity of a quarantine. Although courts have not ruled on whether the right
to counsel is constitutionally required when a person is quarantined for public health reasons, the nature of
119 See, e.g., Addington v. Texas, 441 U.S. 418, 425 (1979), (“[C]ivil commitment for any purpose constitutes a signicant deprivation of liberty
that requires due process protection.”); O’Connor v. Donaldson, 422 U.S. 563, 580 (1975) (Burger, concurring) (“There can be no doubt that
involuntary commitment to a mental hospital, like involuntary connement of an individual for any reason, is a deprivation of liberty which the
State cannot accomplish without due process of law.”).
120 Vitek v. Jones, 445 U.S. 480, 495–96 (1980); see also id. at 492 (“Were an ordinary citizen to be subjected involuntarily to these
consequences, it is undeniable that protected liberty interests would be unconstitutionally infringed absent compliance with the procedures
required by the Due Process Clause.”); Addington, 441 U.S. 418; O’Connor, 422 U.S. 563.
121 Notice that is constitutionally adequate is that which “ensure[s] that the opportunity for a hearing is meaningful.” See City of West Covina
v. Perkins, 525 U.S. 234, 240 (1999). Thus, while a state is not required to provide notice of procedures that are publicly delineated in statutes
and case law, it must give adequate notice of the availability of administrative procedures that are not publicly known, as well as any factual
information necessary to invoke those procedures. See Perkins, 525 U.S. at 242–44; see also Memphis Light, Gas & Water Div. v. Craft, 436 U.S.
1, 13–14 (1978). The contents of the notice required will thus vary state to state.
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the liberty interest at stake suggests that providing counsel is required to ensure fairness and due process.
122
Some states quarantined individuals under inhumane conditions
that violated constitutional standards
When the state civilly confines an individual, it takes on an affirmative duty to provide basic services and
care because the restriction on liberty renders the individual incapable of providing for him or herself.
123
How this constitutional obligation applies in the context of home quarantines is, at best, a complicated
question. But at a minimum, when the state quarantines individuals in their homes, it must ensure that they
have access to the necessities of life, including food, medical care, and conditions of “reasonable safety.”
124
There is reason to believe that a number of states
imposed quarantines without ensuring access to
basic services and care. For example, the State of
Texas quarantined the partner and family members
of Ebola patient Thomas Eric Duncan in apparently
unsafe conditions.
125
After Duncan was taken to
the hospital, the state for several days confined
Duncan’s partner Louise Troh, her thirteen-year-old
son, and two nephews in the Texas apartment that
Duncan had inhabited during his illness, including
during a period when he had GI symptoms and
may have been infectious.
126
Duncan’s sweat-stained
sheets remained in the apartment because authorities would not allow Troh to dispose of them.
127
When a
biohazard cleaning service arrived to help decontaminate the apartment, authorities turned the service away
122 In determining whether appointed counsel is required in civil proceedings, the Supreme Court has considered “the nature of the private
interest that will be affected,” “the comparative risk of an erroneous deprivation of that interest with and without additional or substitute
procedural safeguards,” and any “asymmetry of representation.” Turner v. Rogers, 131 S. Ct. 2507, 2510–2518 (2011) (internal quotation
marks omitted). In the context of Ebola quarantines, those factors all favor the provision of counsel to individuals who cannot afford counsel on
their own. Indeed, many states already recognize a right to state-appointed counsel in the context of civil commitment, and should extend that
recognition to the quarantine context. See e.g., Treatise on Health Care Law § 20.04 (containing information on many states’ civil commitment
counsel requirements. See, for example, its description of South Carolina’s law: “Before the hearing, two court-appointed examiners must
determine whether involuntary treatment is required and if so, the court must appoint counsel for that respondent and hold a full hearing within
15 days of the respondent’s initial admission.”); see also Christyne E. Ferris, The Search for Due Process in Civil Commitment Hearings: How
Procedural Realities Have Altered Substantive Standards, 61 Vand. L. Rev. 959, 961–68 (2008) (“[A]lmost all states mandate assistance of
counsel as a basic due process requirement of civil commitment hearings . . . Most states also grant the right to counsel, who will be appointed if
the respondent is indigent.”).
123 See, e.g., DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989) (“[W]hen the State takes a person into its
custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety
and general well-being.”); Youngberg v. Romeo, 457 U.S. 307, 317 (1982) (“When a person is institutionalized—and wholly dependent on the
State . . . a duty to provide certain services and care does exist.”)
124 Youngberg, supra, at 324 (“[T]he State concedes a duty to provide adequate food, shelter, clothing, and medical care. These are the
essentials of the care that the State must provide. The State also has the unquestioned duty to provide reasonable safety for all residents and
personnel within the institution.”).
125 Gregg Botelhi and Michael Martinez, Frustrated Women Quarantined With Sheets, Towels Soiled by Ebola Patient, CNN (Oct. 3, 2014,
4:40 AM), http://www.cnn.com/2014/10/02/us/texas-woman-quarantine-ebola-thomas-duncan/.
126 Id.
127 Id.
When the state quarantines
individuals in their homes,
it must ensure that
they have access to the
necessities of life.
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because it lacked the necessary permit to transport hazardous waste on Texas highways.
128
Because Ebola
can be transmitted through contact with surfaces that were exposed to an infected individual’s bodily fluids,
Troh and her family members were needlessly placed at risk. In subjecting Troh and her family members to
that risk, the State of Texas appears to have violated its obligation to ensure “reasonable care and safety.”
129
A related question is whether states must provide job protection when imposing Ebola quarantines or
movement restrictions on individuals. Although there is no clear legal precedent requiring states to protect
individuals against adverse employment action, the imposition of a quarantine in the name of public health
imposes a civic obligation similar to jury duty. To the extent that returning health care workers might face job
loss or other adverse consequences from being subject to an Ebola quarantine, states should enact policies
to protect against such consequences and to protect public health by lowering incentives not to comply. To
accomplish the same end, some states, such as New York, have said that they would compensate workers for
lost wages.
130
128 Id.
129 Youngberg, 457 U.S. at 324.
130 Matt Flegenheimer, Michael D. Shear and Michael Barbaro, Under Pressure, Cuoma Says Ebola Quarantines Can Be Spent at Home, N.Y.
Times, Oct. 26, 2014, http://www.nytimes.com/2014/10/27/nyregion/ebola-quarantine.html.
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VIII. Recommendations
G
overnment authorities at all levels must ensure that the public health polices they implement to
address infectious diseases are based on scientific evidence and public health necessity, rather than
political expediency. Any other approach is likely to be ineffective in protecting the public and to
violate constitutional rights. These recommendations aim to ensure that any restrictions on individuals in
the name of combating infectious diseases comport with scientific evidence, comply with constitutional
requirements, and protect civil liberties, while also ensuring that government authorities can effectively
address public-health concerns.
The domestic response, particularly at the state level, to the Ebola epidemic in West Africa provides a
good lesson in how not to manage a public health crisis, real or perceived. We therefore recommend that,
at a minimum, the following principles be followed in any future infectious disease outbreaks, actual or
threatened:
1. Do not quarantine or restrict the movement of asymptomatic
individuals who present no real risk of transmission.
Such quarantines are unnecessary, unwise, and unlawful. Ebola provides a case in point. Public health
experts overwhelmingly agree that quarantines of asymptomatic individuals are scientifically unjustified
and counter-productive, in that they hinder efforts to control Ebola transmission. Furthermore, given the
important liberty interests at stake—including an individual’s ability to work, travel, and carry out daily
activities—unjustified quarantines and movement restrictions are unconstitutional. The CDC should
update its guidelines on Ebola to make clear that quarantines of, or movement restrictions on, asymptomatic
individuals are unjustified.
2. Employ the least restrictive alternatives available to stem
transmission of infection.
Public health authorities have a wide array of tools available to control disease transmission short of
quarantine. In the case of Ebola, these tools include self-monitoring, active monitoring, and direct active
monitoring. In any individual person’s case, public health authorities should implement interventions that
are scientifically justified for the level of risk posed by that individual and least restrictive of their liberty.
In the case of asymptomatic, compliant individuals who fall into the CDC’s Some Risk category for Ebola,
for example, it is sufficient to require active or direct active monitoring for the 21-day period following
potential Ebola exposure.
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3. Provide robust procedural protections.
Given the serious liberty interests at stake whenever a government authority imposes movement restrictions
or quarantine, it must provide robust procedural protections to enable individuals to contest those
restrictions. Public health authorities must ensure that (1) each individual has timely and adequate notice of
the restrictions the state seeks to impose; (2) each individual is given a hearing before a neutral decisionmaker,
at which he or she can present evidence against the restrictions, with the assistance of counsel; (3) any such
hearing take place before the restrictions are imposed, or, if time does not permit, as soon as possible after
the restrictions are imposed; and 4) each individual be informed of, and permitted, a right to appeal the
decision to a judicial body if the initial hearing was not before a court.
4. Increase Transparency.
Public health authorities must be transparent about the policies and procedures they have for determining
when to implement movement restrictions or quarantines in the name of controlling the transmission of
disease. Public health authorities should make these policies explicit and public, and should include both
the substantive criteria and the procedures they will follow in determining individual restrictions. It is also
essential to ensure that public health officials do in fact apply the written policies, and that each individual
subject to a movement restriction or quarantine is given a written decision explaining the reasons for it, with
reference to those policies. Finally, there should be a public record of the implementation of quarantine or
other interventions used to control the spread of a disease. The fact that there is no public information on
the number of people subject to quarantine or other movement restrictions in the United States during the
Ebola scare is unacceptable.
5. Ensure humane conditions of confinement.
In those cases where a quarantine is scientifically and constitutionally justified, public health authorities
must ensure that individuals are provided with adequate conditions of confinement, which include ensuring
access to food, medical care, mental health support, and other necessities of life.
6. Protect privacy.
Public health authorities should avoid unnecessarily infringing on the privacy of individuals who have
potentially been exposed to transmissible diseases, especially given the potential for stigmatization in
communities and workplaces. For example, states should not affirmatively post signs or notices outside the
homes of individuals who have been subject to public health-related restrictions. Officials should be trained
in appropriate ways to protect privacy.
7. Provide income and job protections.
A quarantine is not a punishment, but a burden placed on behalf of society on people who, through no
fault of their own, are potential disease victims. States should ensure that their laws prohibit adverse action
by employers against employees unable to perform their ordinary job duties due to a quarantine or to
restrictions on movement, and should provide reasonable compensation to the individual for lost income
or other damages caused by the restriction.
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This report was written by Alexander Abdo, Esha Bhandari, and Jay Stanley from the ACLU; Samantha
Batman, Ryan Boyko, and Erinma Kalu from the Yale School of Public Health; Gregg Gonsalves, Amy
Kapczynski, Emma Roth, and Rose Carmen Goldberg from Yale Law School; and David J.X. Gonzalez from
the Yale School of Forestry and Environmental Studies. It was edited by Gregg Gonsalves and Jay Stanley.
The authors would also like to thank those who spoke to us for the report, gave us advice and feedback on
various drafts, and otherwise supported the project:
Ali Miller, Global Health Justice Partnership, Yale Law School/Yale School of Public Health
Daniel Bausch, Tulane University
Jessica Bender
Colin Buck, Stanford University
Scott Burris, Temple University School of Law
Jamie Childs, Yale School of Public Health
Jason Cone, Doctors Without Borders/Médecins Sans Frontières USA
Alfred DeMaria, Jr., Massachusetts State Department of Health
Emmanuel D’Harcourt, International Rescue Committee
Michael Dorf, Cornell Law School
Amanda Durante, New Haven Health Department
Anthony Fauci, National Institute of Allergy and Infectious Diseases
Shelley Geballe, Yale School of Public Health
Sally Girvin, International Rescue Committee
Jim Hadler, Yale School of Public Health
Kaci Hickox
Unni Karunakara, Jackson Institute for Global Affairs, Yale University
Talya Lockman-Fine
IX. Acknowledgements
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Nicole Lurie, Assistant Secretary for Preparedness and Response, US Department of Health and
Human Services
Cynthia Maltbie, Partners in Health
Deane Marchbein, Doctors Without Borders/Médecins Sans Frontières USA
Dorothy Morgos, Doctors Without Borders/Médecins Sans Frontières USA
Kate Mort, Doctors Without Borders/Médecins Sans Frontières USA
Marina Novack, Doctors Without Borders/Médecins Sans Frontières USA
Cameron Nutt, Partners in Health
Katie Owers, Yale School of Public Health
Wendy Parmet, Northeastern University School of Law
Vincent Racaniello, College of Physicians and Surgeons, Columbia University
Noah Rosenberg, Albert School of Medicine, Brown University
Laura Skrip, Yale School of Public Health
Sarah Stulac, Partners in Health
