Ebola, Quarantine, and Flawed CDC Policy

University of Miami Law School

Institutional Repository

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375

Ebola, Quarantine, and Flawed CDC Policy

Robert Gatter

The CDC’s Interim Guidance for Monitoring and Movements of

Persons with Potential Ebola Virus Exposure is deeply flawed

because it disregards the science of Ebola transmission. It

recommends that officials quarantine individuals exposed to the

virus but who do not have any symptoms of illness, ignoring the

fact that only those with Ebola symptoms can communicate the

virus to others. Consequently, any quarantine order based on the

Guidance is surely unconstitutional and illegal under most

states’ public health statutes—as exemplified by the State of

Maine’s failed petition to quarantine Nurse Kaci Hickox in

October 2014. This article examines the Guidance and events

surrounding its creation to explore why the CDC issued

quarantine recommendations that lack scientific foundation. It

also catalogues the costs of doing so, concluding that the

Guidance undermines rather than serves population health.

NTRODUCTION ..................................................................................... 376

THE CDC’S GUIDANCE ..................................................................... 379

THE SCIENCE OF EBOLA TRANSMISSION .......................................... 382

THE LAW .......................................................................................... 385

THE GUIDANCE IN CONTEXT ............................................................ 389

1. Thomas Eric Duncan ................................................................. 390

2. Nurses Pham and Vinson ........................................................... 391

3. Dr. Craig Spencer and Nurse Kaci Hickox ............................... 393

4. Theoretical Risks of Transmission ............................................. 395

THE MANY COSTS OF ACCOMMODATING FEAR IN PUBLIC

HEALTH POLICY ............................................................................ 396

Professor of Law and Co-Director, Center for Health Law Studies, Saint Louis

University School of Law and Professor of Health Management and Policy, Saint Louis

University College for Public Health and Social Justice. Special thanks to Srishti Miglani,

faculty fellow extraordinaire, for her assistance.

376 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

My approach is to figure out what works, get it done and

base it all on data.

Tom Frieden, MD, M.P.H.

Director, CDC

INTRODUCTION

Remember Kaci Hickox? She is the nurse who volunteered to treat

Ebola patients in a disease-stricken West African nation, and then

dominated the news when she fought against efforts by two states to

quarantine

her after she returned home symptom-free.

You might remember how she stood up to New Jersey Governor

Chris Christie, who had mandated the quarantine of everyone who

treated Ebola patients, even those who could not transmit Ebola to others

because they did not have any symptoms of the disease.

Christie applied

this mandate to Hickox when she returned to the U.S. through Newark

Liberty International Airport.

When New Jersey’s policy was criticized

on the grounds that it ignored the science of Ebola transmission, Christie

claimed he was acting “out of an abundance of caution.”

Hickox,

sounding more like a seasoned politico than a nurse, quipped that the

governor seemed to be acting “out of an abundance of politics.”

Almost certainly, you would recognize two famous photos of her.

One is a quarantine-selfie taken from a tent erected in a parking lot of the

Newark hospital where she was being held against her will.

In the

Throughout this article, I use the word “quarantine” to include both the complete

separation of one exposed to Ebola from those who have not been exposed (e.g., the kind

of quarantine imposed by New Jersey on Kaci Hickox) and the near-complete separation

of one exposed to Ebola from those who have not been exposed, which allows the person

exposed to be with others so long as she is not within three feet of any non-exposed

person (e.g., the kind of quarantine that Maine sought to impose on Kaci Hickox).

Leslie Savan, Nurse Kaci Hickox Takes on Bully Governors Christie, Cuomo and

LePage, T

HE NATION (Oct. 29, 2014, 4:58 PM), http://www.thenation.com/blog/186681/

nurse-kaci-hickox-takes-bully-governors-christie-cuomo-and-lepage#.

Anemona Hartocollis & Emma G. Fitzsimmons, Tested Negative, Nurse Criticizes

Her Quarantine, N.Y.

TIMES, Oct. 26, 2014, at A1.

Susan Cornwall, Maine Nurse Sees Ebola Quarantines as ‘Abundance of Politics’,

REUTERS (Nov. 2, 2014, 2:14 PM), http://www.reuters.com/article/2014/11/02/us-health-

ebola-usa-idUSKBN0IM0PR20141102.

Id.

See Frank Rosario & Joe Tacopino, Ebola Nurse’s Quarantine Hell, N.Y. POST (Oct.

27, 2014, 1:27 AM), available at http://nypost.com/2014/10/27/ebola-nurse-gets-prison-

treatment-in-quarantine-hell/.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 377

photo, Hickox is wearing a patient’s gown, and we see that the Spartan

shelter behind her is a makeshift hospital room.

The second photo was

taken a week or so later after Nurse Hickox had returned to her home in

Fort Kent, Maine. In it, she is riding a bike in front of her house,

indicating that she would not quarantine herself voluntarily despite a

request by Maine health officials that she do so for another two weeks

until the incubation period for the Ebola virus expired.

You might even remember that, following this defiant bike ride, the

State of Maine petitioned a court for a quarantine order against Hickox.

The Court rejected the petition as unnecessary to safeguard the public’s

health because Hickox was symptom-free, and only those with Ebola

symptoms pose a risk of transmission.

Unnoticed or forgotten during this time was the Interim U.S.

Guidance for Monitoring and Movement of Persons with Potential Ebola

Virus Exposure (the “Guidance”).

It is authored by the Centers for

Disease Control and Prevention (“CDC”), the most authoritative public

health agency in the country, if not the world. The CDC released the

Guidance publically on October 29, 2014,

the day before the State of

Maine filed its petition for a quarantine order.

The Guidance recommends that state and local health agencies

monitor and effectively quarantine even asymptomatic individuals, who,

like Hickox, were exposed directly to the Ebola virus while in countries

where the disease is widespread and while wearing appropriate

protective equipment.

Maine’s health officials and lawyers attached the Guidance to the

State’s petition.

The petition correctly assessed that the Guidance

placed Nurse Hickox in the category of having “some risk” of becoming

See id.

Nurse Defies Ebola Quarantine in Maine, Rides Bike, CBS NEWS (Oct. 30, 2014,

1:52 PM), http://www.cbsnews.com/news/ebola-nurse-kaci-hickox-defies-quarantine-in-

maine-goes-on-bike-ride/.

See Verified Petition for Public Health Order, Mayhew v. Hickox, No. 2014-36 (Me.

Dist. Ct. Oct. 30, 2014) [hereinafter Petition], http://courts.maine.gov/news_reference/

high_profile/hickox.shtml.

Order Pending Hearing at 3, Mayhew v. Hickox, No. 2014-36 (Me. Dist. Ct. Oct.

31, 2014) [hereinafter Order Pending Hearing], http://courts.maine.gov/news_reference/

high_profile/hickox.shtml.

See CDC, INTERIM U.S. GUIDANCE FOR MONITORING AND MOVEMENT OF PERSONS

WITH

POTENTIAL EBOLA VIRUS EXPOSURE (Dec. 24, 2014) [hereinafter GUIDANCE]. The

Guidance has been updated and amended by CDC since its initial publication.

See id.

See Petition, supra note 9.

See GUIDANCE, supra note 11, at 9 (referencing table addressing “some risk”

category and “asymptomatic” clinical criteria).

See Petition, supra note 9, Exhibit A.

378 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

ill with Ebola herself,

and it sought an order that was based nearly

word-for-word on the relevant recommendations of the Guidance.

So how could a court reject Maine’s petition? After all, it was based

not only on the recommendation of the State’s chief health officer, but

also on the express recommendations of the nation’s leading public

health agency. How can a state judge, without any public health

expertise, rule that a quarantine order grounded squarely on the

recommendations of the CDC was not necessary to protect the public

against the spread of Ebola?

The answer is as shocking as it is simple. The recommendations in

the CDC’s Guidance lack a basis in the science of Ebola transmission.

Nobody can transmit Ebola to another person unless and until symptoms

of the disease appear.

The CDC, itself, says so. According to the

agency’s educational materials for the public, an individual “can only get

Ebola from [t]ouching the blood or body fluids of a person who is sick

with or has died from Ebola.”

So, even if we knew that an individual

was infected with Ebola, that person would not pose any risk of

transmission to anyone until after the virus had incubated fully and after

the person began experiencing symptoms of the illness. Given this fact,

quarantining someone who, like Hickox, does not display any symptoms

of illness does not serve a public health purpose; instead, it unnecessarily

separates from others a person who poses no health risk to the

community, no matter how likely it is that such a person develops

symptoms in the future.

Accordingly, the Guidance’s recommendation to severely restrict an

asymptomatic person’s contact with others is irrational because it

contradicts the science. The CDC’s recommended restrictions, as applied

to Nurse Hickox, so clearly lacked a foundation in the scientific facts

about Ebola transmission that the Maine court had no choice but to

disregard the CDC’s Guidance, and thus reject that portion of the State’s

petition.

The real question is why the CDC included these recommendations

in the Guidance in the first place. It is unfathomable that the CDC’s

experts were not aware that the agency’s recommended public health

actions lacked a basis in the science of Ebola transmission. There must

Id. ¶¶ 25-27.

Compare id. ¶ 35 with GUIDANCE, supra note 11, at 9 (showing recommended

“public health action” for “asymptomatic” individuals in the “some risk” category).

See Facts about Ebola in the U.S., CDC, http://www.cdc.gov/vhf/ebola/pdf/

infographic.pdf (last visited Mar. 15, 2015); see also Review of Human-to-Human

Transmission of Ebola Virus, CDC, http://www.cdc.gov/vhf/ebola/transmission/human-

transmission.html (last visited Mar. 16, 2015).

See CDC, Facts about Ebola in the U.S., supra note 18.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 379

be some other explanation, such as political pressure to stop the rising

tide of fear, or perhaps the CDC silently suspected that this strain of the

virus was more easily transmissible than earlier strains with which

experts had experience.

This article argues that, regardless of its reasons, the CDC may have

fundamentally damaged its credibility, and that of health officials

everywhere, by issuing recommendations in its Guidance that are

unsupported by science. The price of doing so is the erosion of public

health authority, which, ultimately, erodes population health.

A. THE CDC’S GUIDANCE

The real protagonists of this story are not Nurse Hickox or Governor

Christie. Rather, they are the CDC and its Ebola Guidance. The

Guidance creates a matrix of recommendations

for public health

officials about whether to monitor or restrict the movements of

individuals exposed to the Ebola virus and, if so, to what degree.

The

matrix first divides individuals into four categories based on the

likelihood that they will become sick with Ebola—high risk, some risk,

low risk, and no identifiable risk.

Again, these categories refer to the

risk that the individual will become sick with Ebola, not the far more

relevant risk that an individual will infect someone else. In other words,

the matrix is flawed from the outset because it is based on the risk of

illness, and not on the risk of transmission.

The Guidance further sub-divides each of these risk categories based

on whether an individual has symptoms of illness or is asymptomatic.

Thus, the Guidance creates eight categories and eight corresponding sets

of recommendations with respect to monitoring or restricting the

movements of individuals. For example, there are recommendations for

those who are deemed to be at “high risk” for becoming sick with Ebola

and who also have certain clinical symptoms; another set for those who

are deemed to be at “high risk” for becoming sick with Ebola but who

are asymptomatic; another set for those who are deemed to be at “some

The Guidance is exactly that—guidance. It is a recommendation or a statement of

policy that is issued by the CDC, as a federal agency. As such, it is exempt from even

informal, notice-and-comment rule-making procedures. See 5 U.S.C. § 553(b) (2014).

Consequently, the Guidance does not have the force of law. See e.g., Prof’ls and Patients

for Customized Care v. Shalala, 56 F.3d 592 (5

Cir. 1995).

See GUIDANCE, supra note 11.

Id. at 9-12.

Id.

380 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

risk” and have certain clinical symptoms; and still another for those who

are deemed to be at “some risk,” but who are symptom-free, and so on.

The monitoring recommendations that correspond with each

category range from no monitoring to active monitoring (where public

health authorities regularly inquire about the individual’s temperature

and other clinical symptoms) to direct active monitoring (where public

health officials directly observe the individual and determine what, if

any, clinical symptoms exist).

The Guidance recommends direct active

monitoring for all asymptomatic individuals in the “high risk” and “some

risk” categories.

“High risk” individuals include those who have had

direct contact with the blood or bodily fluids of someone sick with

Ebola, those who have lived with a person sick with Ebola, and those

who have handled the body of someone who died from Ebola.

Those

with “some risk” of contracting Ebola include individuals who, while in

countries where Ebola is widespread, have had direct contact with

someone sick with Ebola while wearing personal protective equipment,

as well as those who have had prolonged contact with a person sick with

Ebola in the patient’s home, in a health care facility, or in a community

setting.

The Guidance recommends only active monitoring for

asymptomatic individuals in the “low risk” category, which includes

those who have been in a country with widespread Ebola within the past

twenty-one days, but who had no known exposures; those who have had

brief direct contact (e.g., shaking hands) with a person with Ebola, while

the person was in the early stage of the disease; those who have had brief

proximity (e.g., briefly being in the same room) with a person with

Ebola, while the person was symptomatic; those who come into direct

contact with a person sick with Ebola, while wearing personal protective

equipment while in countries without widespread Ebola; and those who

have traveled on an aircraft with a person with Ebola, while the person

was symptomatic.

Finally, no monitoring at all is recommended for

those who have had no known exposure and are experiencing no

symptoms of any illness.

Id.

See id. at 2 (distinguishing active and direct active monitoring).

Id. at 9.

Id.

Id. at 10.

Id. at 11 (recommending, as an exception, direct active monitoring for individuals

who have traveled on an aircraft and sat within three feet of someone who was

symptomatic with Ebola).

Id. at 12. Of course, monitoring recommendations only apply to those who are

asymptomatic because the purpose of monitoring is to determine if and when a person

without symptoms of Ebola becomes symptomatic for the disease. Once a person has

Ebola symptoms, monitoring gives way to isolation and treatment.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 381

Central to this story, however, are recommendations in the Guidance

for restricting the movements of asymptomatic individuals in the “high

risk” and “some risk” categories, which are so substantial that they

closely resemble a complete quarantine.

They include:

• [E]xclusion from long-distance commercial

conveyances (aircraft, ship, train, bus) or local public

conveyances (e.g., bus, subway);

• Exclusion from public places (e.g., shopping

centers, movie theaters), and congregate gatherings;

• Exclusion from workplaces for the duration of a

public health order, unless approved by the state or local

health department (telework is permitted);

• Non-congregate public activities while

maintaining a 3-foot distance from others may be

permitted (e.g., jogging in a park); . . .

• Any travel will be coordinated with public

health authorities to ensure uninterrupted direct active

monitoring;

• Federal public health travel restrictions (Do Not

Board) may be implemented based on an assessment of

the particular circumstance . . . .

No movement restrictions are recommended under the Guidance for

either the “low risk” or “no risk” categories.

In short, the Guidance recommends that individuals in the “high

risk” and “some risk” categories be restricted from traveling, working,

going to public places, or otherwise coming within three feet of another

person. The only thing separating such a person from someone who is

“quarantined” appears to be that the “patient” may go for a walk or jog in

a location so isolated as to not risk coming within three feet of someone

else and may drive to that isolated jogging spot alone if public health

officials are notified of the plan. In essence, this is house-arrest with

limited solo-driving and solo-jogging privileges.

The Guidance distinguishes between controlling movement and quarantining

individuals by giving these actions separate definitions. See G

UIDANCE, supra note 11, at

3. Oddly, the Guidance defines “quarantine” and then never uses that term outside of the

definition section of the document.

GUIDANCE, supra note 11, at 9-10.

Id. at 11-12.

382 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

These are the restrictions that the State of Maine sought to impose on

Kaci Hickox based upon a straight-forward application of the

Guidance.

At the time, she fell into the “some risk” category because

she had come into direct contact with several people sick with Ebola

while she was in Sierra Leone (a country where Ebola was widespread),

and while she was wearing personal protective equipment.

Moreover,

at the time of Maine’s petition, Nurse Hickox did not have any

symptoms of Ebola, but she was still within the twenty-one day

incubation period of the virus.

Within the structure of the Guidance’s

matrix, she fell into the category for asymptomatic individuals who have

“some risk” of becoming sick with Ebola themselves. Correspondingly,

the Guidance recommended that she be subject to direct active

monitoring and that her movements be restricted such that she would not

come within three feet of another person for the remainder of the

incubation period.

As described next, the restrictions on movements for asymptomatic

individuals recommended by the Guidance do not have a basis in the

science of Ebola transmission. Accordingly, they violate a fundamental

principle of public health practice and public health law that actions

taken to protect population health be based in scientific fact.

B. THE SCIENCE OF EBOLA TRANSMISSION

Ebola is a hemorrhagic fever virus, which means that it infects and

overwhelms vascular cells, causing them to burst and bleed.

severely damaging the vascular system, the illness undermines the

body’s ability to regulate itself or mount an effective immune response,

resulting in multi-organ system failure and death.

Ebola is a

particularly lethal hemorrhagic fever, causing death in fifty to ninety

percent of those it infects.

See Petition, supra note 9, ¶ 35.

Id. ¶¶ 26-29.

Id. ¶ 26.

See Viral Hemorrhagic Fevers: Fact Sheet, CDC, http://www.cdc.gov/ncidod/dvrd/

spb/mnpages/dispages/Fact_Sheets/Viral_Hemorrhagic_Fevers_Fact_Sheet.pdf; Nat’l

Inst. of Health, Hemorrhagic Fevers, M

EDLINEPLUS, http://www.nlm.nih.gov/

medlineplus/hemorrhagicfevers.html (last visited Mar. 12, 2015); Ruth Tam, This is How

You Get Ebola, As Explained by Science, PBS

NEWSHOUR (Sept. 30, 2014, 8:24 PM),

http://www.pbs.org/newshour/updates/know-enemy/; Meghana H. Raykar et al., Ebola

Virus Disease, 3 P

HARMTECHMEDICA 493, 493 (July-Aug. 2014).

Raykar, supra note 37, at 493.

See id.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 383

The virus is not easily transmitted from one human to another.

Unlike an influenza or cold virus, it is not airborne,

meaning that it

does not “hang in the air” for long periods of time, and so it cannot be

breathed in by another person.

Instead, it is only spread as a result of

contact with the bodily fluids of one who is in the throes of the illness.

The CDC says that Ebola is transmitted:

through direct contact (through broken skin or mucous

membranes in, for example, the eyes, nose, or mouth)

with:

• blood or body fluids (including but not limited

to urine, saliva, sweat, feces, vomit, breast milk, and

semen) of a person who is sick with Ebola

• objects (like needles and syringes) that have

been contaminated with the virus

• infected fruit bats or primates (apes and

monkeys)

Ebola is not spread through the air, by water, or in

general, by food.

These limited routes of communication explain why those infected with

Ebola are health care workers who have cared for sick and dying Ebola

patients in hospitals, or family members and others who have cared for

sick and dying Ebola patients in their homes, or those who have prepared

for burial the bodies of deceased Ebola victims.

Meanwhile, individuals exposed to the Ebola virus, but who do not

yet have symptoms of the illness, have never transmitted the virus to

others. Since 1976, when Ebola was first discovered in humans, there

have been twenty-five reported outbreaks, including the 2014 epidemic,

See Ebola Transmission, CDC, http://www.cdc.gov/vhf/ebola/transmission/ (last

visited Mar. 12, 2015).

See What We Know about Transmission of the Ebola Virus Among Humans, WHO

(Oct. 6, 2014), http://www.who.int/mediacentre/news/ebola/06-october-2014/en/; Tom

Howell Jr., CDC Throws Cold Water on Talk of ‘Airborne’ Ebola Transmission, W

ASH.

TIMES (Dec. 1, 2014), available at http://www.washingtontimes.com/news/2014/dec/1/

cdc-dismisses-talk-airborne-ebola-transmission/. While there has been speculation about

the possibility that the current strain of Ebola circulating in West Africa could mutate so

as to become airborne, see e.g., Michael T. Osterholm, What We’re Afraid to Say About

Ebola, N.Y.

TIMES, Sept. 12, 2014, at A31, there is no evidence that the current strain is

airborne.

Ebola Transmission, supra note 40.

See id.; Tam, supra note 37, at 4.

384 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

which is the largest.

From those outbreaks there have been 16,242

confirmed cases of human Ebola infection,

and that number could be

closer to 25,000 once additional suspected and probable cases are

confirmed.

Not one of these cases has resulted from contact with a

person who did not have symptoms of the illness. Not one.

No wonder the CDC, in its public education materials, identifies

“[t]ouching the blood or body fluids of a person who is sick with or has

died from Ebola” as the “only” way to become infected with the virus.

An editorial in the New England Journal of Medicine, criticizing the

policy of quarantining health care workers who treat Ebola patients in

West Africa, put a finer point on the power of our experience with the

virus to explain how it is transmitted.

Health care professionals treating patients with this

illness have learned that transmission arises from contact

with bodily fluids of a person who is symptomatic—that

is, has a fever, vomiting, diarrhea, and malaise. 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.

Ebola can incubate inside the body of a person it infects for as long

as twenty-one days without the person experiencing even a fever,

let

alone the bleeding, vomiting, and diarrhea that poses a risk to others.

See A. Elisha & B. Adegboro, Ebola Virus Diseases, 15(3) AFR. J. CLN. & EXPER.

MICROBIO. 117, 117-118 (2014).

2,387 cases resulted from the first twenty-four outbreaks, which is just the sum of

the confirmed cases reported by WHO for those previous cases. See id. Another 13,855

confirmed cases have resulted from the current outbreak in three West African nations.

2014 Ebola Outbreak in West African—Case Counts, CDC (Mar. 12, 2015),

http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/case-counts.html [hereinafter

Case Counts]. The sum of the confirmed case counts from the 2014 outbreak and those

from the prior twenty-four outbreaks is 16,242.

See Case Counts, supra note 45 (reporting 22,525 suspected, probable and

confirmed cases).

See CDC, Facts about Ebola in the U.S., supra note 18.

Jeffrey M. Drazen et al., Ebola and Quarantine, 371 N. ENG. J. MED. 2029, 2029

(2014) (emphasis added).

Raykar et al., supra note 37, at 494 (Ebola incubation period is two to twenty-one

days).

Drazen et al, supra note 48, at 2029 (“[W]e 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. This understanding is based on more

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 385

That is why a person infected with—but asymptomatic for—Ebola is not

infectious to others. In short, somewhere between 16,242 and 25,000

Ebola cases over nearly forty years reveal, without exception, that one

who is infected with the virus is not contagious until signs of sickness

appear.

Given these facts about Ebola transmission, the Guidance’s

recommendation that health officials prohibit a person who does not have

symptoms of the illness from coming within three feet of another person

for the twenty-one day incubation period of the virus is plainly irrational.

It guards against a form of transmission, the risk of which is so

infinitesimally small as to be unprecedented in the decades-long human

history of this virus. Moreover, in doing so, the Guidance ignores

conclusions that can be drawn reliably from thousands—even tens of

thousands—of cases.

It should come as no surprise then that the state court judge in Maine

summarily denied the petition seeking an order to quarantine Nurse

Hickox, which was based on the scientifically unfounded

recommendation in the CDC’s Guidance to separate from others

individuals who are not contagious. As the next section explains, any

public health official ordering the quarantine of an asymptomatic person

exposed to Ebola is almost surely violating state quarantine law and is

certainly violating the federal Constitution.

C. THE LAW

Every state, as a vestige of its original sovereignty, retains its police

power,

which authorizes states to protect the health, safety, and welfare

of its citizenry by, among other things, enacting quarantine laws.

fact, every state has enacted some form of quarantine law.

As a

condition of quarantining an individual, states’ laws typically require

than clinical observation: the sensitive blood polymerase-chain-reaction (PCR) test for

Ebola is often negative on the day when fever or other symptoms begin and only

becomes reliably positive 2 to 3 days after symptom onset.”).

See Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (“the police power [is] a

power which the State did not surrender when becoming a member of the Union under

the Constitution”).

See id. (explaining that the police power includes the authority of a state to regulate

for the purpose of protecting the public health and safety, and it includes the power to

enact quarantine laws).

See TRUST FOR AM. HEALTH, STATE QUARANTINE AND ISOLATION LAWS (2004),

http://healthyamericans.org/reports/bioterror04/Quarantine.pdf; see also M

ODEL STATE

EMERGENCY HEALTH POWERS ACT (2001), http://www.publichealthlaw.net/MSEHPA/

MSEHPA.pdf.

386 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

public health officials to obtain a court order authorizing such action.

Moreover, states’ laws commonly prohibit a court from issuing a

quarantine order unless the state puts forth evidence that the person who

would be subject to the order poses a health risk to the population and

that it is necessary to quarantine that person in order to protect the public

from this risk.

By recommending that state and local health officials quarantine

individuals exposed to Ebola but who show no signs of illness, the

Guidance is setting up health officials for failure under many states’

laws. As established above, a person exposed to Ebola who has no

symptoms of the disease cannot infect others with the virus, not even if

we somehow knew that the person was incubating the virus.

Consequently, asymptomatic individuals do not “pose a risk” of

spreading Ebola to others, and, therefore, it is not “necessary” to

quarantine those individuals in order to protect the public’s health.

Because the burden falls on the state to establish the existence of a “risk”

of contagion as well as the “necessity” of quarantine, health officials

simply cannot prevail when pursuing an order to quarantine an

asymptomatic person exposed to Ebola.

This is exactly why a judge in Maine denied the State’s petition to

quarantine Kaci Hickox. Under Maine law, a court may not issue a

quarantine order unless, “based upon clear and convincing evidence, the

court finds that a public health threat exists . . . ,” and, even then, the

court may order only “the least restrictive measures necessary to

effectively protect the public health.”

In Hickox’s case, health officials

admitted in the petition that “[i]ndividuals infected with Ebola Virus

Disease who are not showing symptoms are not yet infectious,”

and

that Nurse Hickox showed no symptoms.

Given Maine law and these

facts, the Court had no choice but to reject the portion of the petition

seeking to prohibit Nurse Hickox from coming within three feet of

anyone else for the remainder of the twenty-one day incubation period.

The judge wrote: “According to the information presented to the court,

Respondent [Hickox] currently does not show any symptoms of Ebola

See id.; see TRUST FOR AM. HEALTH, supra note 53, at 14. In some states, health

officials must obtain an initial temporary quarantine order from a court, which can be

obtained on an ex parte basis, e.g., M

E. REV. STAT. tit. 22, § 250-2 (2014), while in other

states, health officials may act initially on their own authority to quarantine an individual

temporarily so long as officials pursue a court order in support of the quarantine within a

short period of time, e.g., M

ODEL STATE EMERGENCY HEALTH POWERS ACT § 605.

MODEL STATE EMERGENCY HEALTH POWERS ACT § 605; TRUST FOR AM. HEALTH,

supra note 53.

ME. REV. STAT. tit. 22, § 812-1 (2014).

Petition, supra note 9, ¶ 14.

See id. ¶ 27.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 387

and is therefore not infectious.”

Consequently, the court held that “[t]he

State has not met its burden at this time to prove by clear and convincing

evidence that limiting Respondent’s movements to the degree requested

is ‘necessary to protect other individuals from the dangers of

infection’ . . . .”

Even if health officials or a court were to issue an order under a

state’s law prohibiting an asymptomatic individual from coming within

three feet of another person, it would almost certainly be set aside as

violating the Due Process Clause of the Fourteenth Amendment to the

federal Constitution. The clause provides that “[n]o State shall . . .

deprive any person of . . . liberty . . . without due process of law . . . .”

The Supreme Court of the United States has interpreted this language to

protect individuals from deprivations of liberty by a state where such

state action lacks sufficient substantive justification; the purpose is to

prevent governments from acting arbitrarily.

In particular, when state

action deprives someone of a “fundamental liberty interest,” the state

carries a burden to prove that its action is “narrowly tailored to serve a

compelling state interest.”

Fundamental liberty interests are those that

are “‘deeply rooted in this Nation’s history and tradition,’ . . . and

‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor

justice would exist if they were sacrificed,’”

and they include freedom

from physical restraint or confinement

for the purpose of protecting the

public’s health.

As applied here, there is no doubt that prohibiting an asymptomatic

individual from traveling, working, being in public places, or otherwise

coming within three feet of another person imposes a substantial physical

restraint on that individual to the point of constituting confinement. In

other words, such a prohibition deprives the individual of a fundamental

liberty interest. Thus, the state would be required to prove that such a

Order Pending Hearing, supra note 10, at 3.

Id.

U.S. CONST. amend. XIV.

See Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due process

is protection of the individual against arbitrary action of government.”).

Reno v. Flores, 507 U.S. 292, 301-02 (1993).

Washington v. Glucksberg, 521 U.S. 702, 703 (1997) (quoting Palko v. Connecticut,

302 U.S. 319, 325 (1937)).

See id. at 719; see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (addressing

claims of an insanity aquitee to be discharged from confinement, the Court said

“[f]reedom from bodily restraint has always been at the core of the liberty protected by

the Due Process Clause from arbitrary governmental action.”).

See e.g., Best v. St. Vincent Hosp., No. 03-0365, 2003 WL 21518829 (S.D.N.Y.

2003) (applying strict scrutiny to New York City’s action to isolate a tuberculosis patient

until he completed treatment), aff’d in part, vacated in part, remanded in part sub nom

Best v. Bellvue Hosp., 115 Fed. Appx. 459 (2d. Cir. 2004).

388 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

physical restraint is narrowly tailored to serve the state’s compelling

interest in protecting the public from the spread of Ebola. A quarantine

order is not “narrowly tailored” to the state’s interest if there exists a less

restrictive alternative that will also serve the state’s interest in preventing

the spread of an infectious disease.

Where the government’s interest is

in protecting the public from becoming infected with Ebola by a person

who has been exposed to the virus but who does not have any symptoms

of illness, there are far less restrictive alternatives to a near-absolute

quarantine. An asymptomatic person is not infectious to others, so the

state’s interest is served by regularly monitoring to determine whether

and, if so, when the person develops symptoms of illness, which would

indicate that the individual had become infectious and must be isolated

from others.

Because the public’s health can be protected from the

spread of Ebola in the case of an asymptomatic person by court-ordered

monitoring, which is much less restrictive than a near-absolute

quarantine, a federal court would surely rule that quarantining an

asymptomatic person is not narrowly tailored to serve the state’s interest

in preventing the spread of this virus. Consequently, the order would be

set aside as unconstitutional.

In the end, both the science and the law quite clearly indicate just

how poorly conceived the movement restrictions recommended in the

Guidance really are. They cannot be justified by the science of Ebola

transmission, and so they cannot be enforced by law. The CDC has

highly skilled scientists who specialize in infectious diseases, and it has

many highly skilled lawyers. It is extraordinarily unlikely, then, that the

agency was not aware of the substantial shortcomings of the Guidance

See id. at *7-8 (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)) (“Even [when]

the governmental purpose [is] legitimate and substantial, that purpose cannot be pursued

by means that broadly stifle fundamental personal liberties when the end can be more

narrowly achieved. The breadth of legislative abridgment must be viewed in the light of

less drastic means for achieving the same basic purpose.”).

In making the determination that quarantine is not narrowly tailored to the state’s

interest in preventing the spread of Ebola, a federal court is likely to defer to the

judgments of health officials only if they are based on current medical knowledge

about (a) the nature of the risk (how the disease is transmitted), (b)

the duration of the risk (how long is the carrier infectious), (c) the

severity of the risk (what is the potential harm to third parties) and (d)

the probabilities the disease will be transmitted and will cause

varying degrees of harm.

Sch. Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 274 (1987). Although Arline

concerned a claim of disability discrimination under the Rehabilitation Act, the Court’s

logic about the standard of review it would apply to medical findings concerning the

transmission of contagious diseases is applicable in the realm of substantive due process.

See Scott Burris, Rationality Review and the Politics of Public Health, 34

VILL. L. REV.

933, 937-42 (1989).

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 389

when applied to asymptomatic individuals who have been exposed to

Ebola. What then explains the CDC’s decision to include in its Guidance

that those individuals be subject to such extreme restrictions on their

movements? That question is addressed in the next section.

D. THE GUIDANCE IN CONTEXT

The short and recent history of Ebola in America is one of mounting

fear and finger-pointing at the CDC. It began in September 2014, when

Thomas Eric Duncan, a Liberian visiting family in Dallas, Texas, was

diagnosed with Ebola.

It peaked a month later when a physician, Craig

Spencer, who had treated Ebola patients in West Africa was admitted to

a New York City hospital with the disease after having spent the

previous week out among New Yorkers eating in restaurants, bowling,

and riding the subway.

In between, two nurses contracted Ebola as a

result of caring for Duncan in a Dallas hospital, despite efforts to follow

CDC protocol.

Moreover, one of the nurses traveled on a commercial

flight while she had a low-grade fever indicating the onset of Ebola

symptoms, and the CDC did not prohibit her from doing so even after the

nurse notified the CDC of her fever.

Each of these events belied

statements from CDC Director Tom Frieden that the U.S. was prepared

to “stop Ebola in its tracks” when it entered the country.

Consequently,

the CDC and its director came under fire for its missteps and perceived

failure to protect Americans adequately.

The CDC issued its Guidance in the heat of these events and

criticism. Accordingly, we cannot fully appreciate the rationale for the

seemingly unscientific recommendations the Guidance makes without

analyzing them in this context. Doing so allows for an educated guess

that the CDC recommended the quarantine of non-infectious individuals

both because it could not rule out the theoretical possibility that an

asymptomatic person incubating Ebola could infect another person and,

more importantly, because the agency could not take the political

Sydney Lupkin, Ebola in America: Timeline of the Deadly Virus, ABC NEWS (Nov.

17, 2014, 11:01 AM), http://abcnews.go.com/Health/ebola-america-timeline/story?id=

26159719 [hereinafter Lupkin, Timeline].

Id.

Tom Frieden, Why U.S. Can Stop Ebola in its Tracks, CNN (Oct. 2, 2014, 5:43 PM),

http://www.cnn.com/2014/10/02/opinion/frieden-ebola-first-patient/.

See, e.g., Jennifer Haberkorn & Lauren French, CDC Director in Hot Zone at Ebola

Hill Hearing, POLITICO (Oct. 16, 2014, 8:20 PM), http://www.politico.com/story/2014/

10/hearing-will-have-public-health-officials-grilled-on-ebola-111943.html.

390 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

embarrassment of yet another mistake. All of this is described in greater

detail in this section, which proceeds chronologically through the key

events.

1. Thomas Eric Duncan

Thomas Eric Duncan arrived in the U.S. on September 20, 2014, to

reunite with and marry the mother of his 16-year-old son.

Shortly

before leaving Liberia, he had helped transport a sick, pregnant woman

to and from a local hospital.

At one point, he carried her from his car to

her house.

She died from Ebola the next morning, but it is unclear

whether Duncan understood what she had died from when he left for the

U.S. four days later.

He was screened by officials before boarding his

international flight.

At the time, his temperature was normal.

He also

reported, errantly, that he had not had any recent contact with an Ebola

victim.

On September 25, Duncan went to Texas Presbyterian Hospital in

Dallas, where he told a nurse that he had a fever and that he had recently

traveled to the U.S. from Liberia.

Based on this information alone, his

treating physician should have recognized the possibility of an Ebola

infection and isolated him. Instead, the physician at the hospital sent him

home with some antibiotics.

Duncan’s symptoms progressed, and he

returned to the hospital much sicker several days later.

He was then

admitted and isolated, and the diagnosis of Ebola was first made on

September 28.

On October 8, Duncan died.

When the news reported that Ebola had entered the U.S. and that the

country’s first Ebola patient was being treated in a Dallas hospital, Dr.

Tom Frieden held a press conference where he famously said, “We will

Anna Almendrala, What We Know About Thomas Eric Duncan, The First Ebola

Patient Diagnosed in the U.S., H

UFFINGTON POST (Oct. 14, 2014, 2:51 PM), http://www.

huffingtonpost.com/2014/10/06/thomas-eric-duncan-dallas-ebola-patient-

us_n_5942150.html.

Id.

Alana Horowitz et al., Thomas Eric Duncan Dead; Dallas Ebola Patient Had Been

Critically Ill, H

UFFINGTON POST (Oct. 8, 2014, 11:20 AM), http://www.huffingtonpost.

com/2014/10/08/thomas-eric-duncan-dead-ebola-dallas_n_5952502.html.

Almendrala, supra note 75.

Horowitz, supra note 84.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 391

stop it in its tracks, because we’ve got infection control in hospitals and

public health that tracks and isolates people if they get symptoms.”

events unfolded, however, it became apparent that infection control in

the hospital treating Duncan was not working as it should.

2. Nurses Pham and Vinson

Nina Pham and Amber Vinson are nurses at the hospital that treated

Thomas Eric Duncan.

Both cared for him while he was in the throes of

the illness, changing his sheets, washing him, and mopping his floors.

They each wore protective gear including gloves, suits, and masks, and

they used a buddy system both to put on and take off their equipment

each shift.

Neither can identify a time when they breached CDC

protocol for the use of personal protective equipment by health care

workers treating Ebola patients.

At most, they noted that the hospital

did not initially have the head gear and positive-pressure suits used by

caretakers at Emory University.

Despite their best efforts to follow then-current CDC protocol, both

Nurse Pham and Nurse Vinson became infected with Ebola. Nurse Pham

was the first to develop a fever on October 11, and she went straight to

the hospital after notifying public health officials.

Nurse Vinson

entered the hospital three days later, also with a fever.

Each was later

transferred to other facilities more experienced in the care of Ebola

patients. Pham went to the National Institutes of Health in Maryland, and

Vinson went to Emory University Hospital.

Both were nursed through

their illnesses, survived, and were discharged.

The CDC was criticized intensely as soon as the nurses were

diagnosed with Ebola.

Dr. Frieden had assured America that hospitals

were prepared to prevent the spread of Ebola, and yet two nurses were

Mikayla Bouchard, CDC Head Frieden on Ebola in America: ‘We Will Stop It In Its

Tracks’, ABC

NEWS (Oct. 5, 2014, 2:18 PM), http://abcnews.go.com/Health/cdc-head-

frieden-ebola-america-stop-tracks/story?id=25975221.

How Did Dallas Nurses Catch Ebola?, BOS. GLOBE (Oct. 15, 2014), available at

http://www.bostonglobe.com/news/nation/2014/10/15/how-did-dallas-nurses-catch-

ebola/x8olat9b0m4dRKSyxkVtUM/story.html.

Id.; see also The Ebola Warriors, DALL. MORNING NEWS (Dec. 28, 2014), available

at http://res.dallasnews.com/interactives/texan-of-the-year-2014/.

DALL. MORNING NEWS, supra note 89.

BOS. GLOBE, supra note 88.

DALL. MORNING NEWS, supra note 89.

Id.

See id.

Haberkorn & French, supra note 74.

392 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

infected. Moreover, in what could be viewed as an admission that the

agency’s Ebola infection-control policies and procedures were

insufficient, the CDC issued a new protocol instructing health care

workers how to best protect themselves from infection when caring for

Ebola patients, which called for enhanced forms of personal protective

equipment.

To make matters worse, the CDC did not stop Nurse Vinson from

boarding a commercial flight even after she informed the agency that she

had a low-grade fever a day after Nurse Pham had been hospitalized with

then-suspected Ebola.

Later, CDC officials admitted that the agency

should have instructed Vinson not to board the plane when she reported a

slight fever.

100

As result of this blunder, the CDC contacted each of the

more than 130 passengers on that flight to determine which of them, if

any, required active monitoring.

101

All of this happened at a time when

health officials were already monitoring more than 100 other Americans

who had treated, lived with, or otherwise come into contact with Thomas

Eric Duncan or any other U.S. victim of Ebola.

102

At this point, Congress, if not the public, lost confidence in the

CDC’s ability to protect Americans. Some Republican legislators called

for Dr. Frieden’s resignation as Director of the CDC.

103

The Speaker of

the House urged the Obama Administration to restrict air travel to the

U.S. from the West African nations where Ebola was widespread.

104

One

Republican Senator announced that he would bypass the Administration

and introduce a bill to ban the issuance of visas to foreign nationals from

any of those West African nations.

105

Even Democrats were highly

Lisa Schnirring, CDC Unveils New PPE Guidance for Ebola, UNV. OF MINN. CRT.

FOR

INFECTIOUS DISEASE RESEARCH & POLICY (Oct. 20, 2014),

http://www.cidrap.umn.edu/news-perspective/2014/10/cdc-unveils-new-ppe-guidance-

ebola; CDC Tightened Guidance for U.S. Healthcare Workers on Personal Protective

Equipment for Ebola, CDC (Oct. 20, 2014), http://www.cdc.gov/media/releases/2014/

fs1020-ebola-personal-protective-equipment.html.

Haberkorn & French, supra note 74; see also Lupkin, Timeline, supra note 69.

100

Will Dunham, U.S. Lawmakers Blast Government’s Ebola Response, Urge Travel

Ban, R

EUTERS (Oct. 16, 2014, 7:33 PM), http://www.reuters.com/article/2014/10/16/us-

health-ebola-usa-idUSKCN0I517E20141016.

101

See Timothy Williams, Ebola-Infected Health Worker in Dallas Took a Flight on

Monday, N.Y.

TIMES (Oct. 15, 2014), available at http://www.nytimes.com/2014/10/16/

us/ebola-infected-dallas-health-worker-was-on-flight.html.

102

See id.

103

See Dunham, supra note 100.

104

Id.

105

Press Release, Office of U.S. Sen. Marco Rubio, Rubio Announces Legislation to

Impose Temporary Visa Ban on Ebola Affected Countries (Oct. 20, 2014), http://www.

rubio.senate.gov/public/index.cfm/2014/10/rubio-announces-legislation-to-impose-

temporary-visa-ban-on-ebola-affected-countries.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 393

critical. The ranking Democrat on a House subcommittee before which

Dr. Frieden testified said, “It would be an understatement to say that the

response to the first U.S.-based patient with Ebola has been mismanaged,

causing risk to scores of additional people.”

106

3. Dr. Craig Spencer and Nurse Kaci Hickox

Things went from bad to worse on October 23, 2014, when it was

reported that a physician, Craig Spencer, who had treated Ebola patients

in West Africa, was admitted to Bellevue Hospital in New York City

after reporting to health officials that he had developed a fever and

gastrointestinal symptoms.

107

Dr. Spencer had returned to his home in

New York from Guinea six days earlier.

108

During those six days, he had

not been monitored by health officials

109

; rather, he had been taking his

own temperature twice a day and watching for any sign of a fever, which

was consistent with the instructions he had been given by Doctors

Without Borders—the medical relief organization through which he had

volunteered to treat Ebola patients in Guinea.

110

Alarming to many, however, was that Dr. Spencer, while infected

with Ebola, had been out in public in New York City during those six

days before he experienced symptoms of the illness.

111

[H]e traveled to Manhattan’s Highline Park and a

popular restaurant called The Meatball Shop on

Tuesday. The next day, he took a 3-mile run along

Riverside Park and traveled on the subway to Brooklyn,

106

Dunham, supra note 100.

107

Lupkin, Timeline, supra note 69.

108

See id.

109

Dr. Spencer entered the country through JFK International Airport on Oct. 17, 2014,

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 [hereinafter Lupkin, States Toughen], which was

five days before CDC instituted a new policy of requiring that all travelers entering the

U.S from any West African nation where Ebola was widespread be monitored by public

health officials. See CDC Press Release, CDC Announces Active Post-Arrival

Monitoring for Travelers from Impacted Countries (Oct. 22, 2014), http://www.cdc.gov/

media/releases/2014/p1022-post-arrival-monitoring.html. Thus, Dr. Spencer was not

subject to this new policy having entered the country before it had been announced. This

change in policy occurred the day before Dr. Spencer experienced his first symptoms and

was admitted to the hospital with Ebola.

110

Lupkin, States Toughen, supra note 109.

111

Id.

394 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

where he went bowling. He was fatigued, but had no

fever, officials said.

112

On October 24, the day after Craig Spencer entered the hospital with

Ebola and in direct response to the public fear his story triggered, several

states took matters into their own hands. Rather than follow the CDC’s

lead of permitting travelers returning home from West Africa to go out in

public even if they had had contact with someone sick with Ebola, New

Jersey, New York, and Illinois instituted policies to quarantine all such

travelers—regardless of symptoms—until the twenty-one day incubation

period for Ebola had elapsed for each of them.

113

Governors Christie and

Cuomo defended their tough new policies, saying “[w]e are no longer

relying on C.D.C. standards” because a “voluntary Ebola quarantine is

not enough.”

114

Nurse Hickox landed at Newark Liberty International Airport the

very day after New Jersey instituted its new policy of mandatory

quarantine.

115

She became the first person subjected to mandatory

quarantine of travelers from an Ebola-ridden country.

116

It triggered a

stand-off between the Obama Administration, which rebuked states that

instituted mandatory quarantine for overreacting and potentially

undermining Ebola relief efforts, and the governors of those states, who

raised concerns that the federal government’s response to Ebola was

insufficient to protect the public’s health.

117

As described in the

introduction to this article, New Jersey officials released Hickox from

her quarantine two days later on October 27, after she agreed to travel by

private means directly to her home state of Maine, where, as we know,

she then fought the efforts of that state to quarantine her.

112

Id.

113

Id.

114

Marc Santora, First Patient Quarantined Under Strict New Policy Test Negative for

Ebola, N.Y. TIMES (Oct. 24, 2014), available at http://www.nytimes.com/2014/10/25/

nyregion/new-york-ebola-case-craig-spencer.html?&hp&action=click&pgtype=

Homepage&version=LedeSum&module=a-lede-package-region&region=top-news&WT.

nav=top-news.

115

Sam Frizell, First Ebola Worker Quarantined Under New Policy Tests Negative,

IME (Oct. 25, 2014), available at http://time.com/3538834/ebola-quarantine-new-york/.

116

Id.

117

See David Martosko, Chris Christie Insists He DIDN’T Do U-turn Under Pressure

From Obama After Ebola Nurse is Allowed to Leave New Jersey Hospital Quarantine

Test to Return to Maine, D

AILY MAIL (Oct. 25, 2014), available at http://www.dailymail.

co.uk/news/article-2808178/Obama-forces-Chris-Christie-U-turn-allow-Ebola-nurse-

leave-quarantine-tent.html (“‘Illinois has since adopted this policy, so has now the state

of Maryland.’ [Gov. Christie] said. ‘So I’m telling you guys this is going to become a

national policy eventually. Eventually the CDC will come around.’”).

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 395

4. Theoretical Risks of Transmission

During this same timeline, news outlets reported that scientists had

not ruled out the possibility that Ebola is transmissible through coughing

and sneezing.

118

Nor could they rule out the possibility that

asymptomatic individuals might shed some virus cells before developing

significant symptoms.

119

These reports were based on statements from

scientists that laboratory data had not eliminated the theoretical risk of

Ebola transmission through a cough or sneeze droplet or the theoretical

risk that an asymptomatic person with a non-zero viral load could

transmit Ebola to another person. Moreover, there is at least one

coincidence suggesting that the CDC felt compelled to account for these

statements about theoretical risks from scientists. The agency, at about

the same time that it issued its Guidance, also updated its web-based

FAQs concerning Ebola transmission via coughing or sneezing.

120

The

new version clarified that “[t]here is no evidence indicating that Ebola

virus is spread by coughing or sneezing,”

121

which is different from

saying definitively that the virus cannot be spread that way.

All of this together describes the context in which the CDC made its

recommendation in the Guidance to severely restrict the movements of

asymptomatic individuals like Nurse Hickox. The agency acted in the

midst of fear that, without mandatory quarantine, health care workers

incubating Ebola, like Craig Spencer, would be out in public and

somehow spread the virus. It acted in the midst of fear that Kaci Hickox

might be another Craig Spencer. Furthermore, it issued the Guidance at a

time when public attention was focusing on theoretical rather than actual

risks, and when confidence in the CDC was at a low point given the

mistakes and policy shifts it had made during the crisis.

Viewed from this perspective, it seems plausible that the CDC would

issue a policy to account for theoretical risks that science had yet to rule-

out, and not simply the known risks that science and field experience

confirmed as true. With its credibility substantially damaged by its

earlier blunders and mistaken predictions, the agency might have

118

David Willman, Some Ebola Experts Worry Virus May Spread More Easily Than

Assumed, L.A. TIMES (Oct. 7, 2014), available at http://www.latimes.com/nation/la-na-

ebola-questions-20141007-story.html#page=1; Jon Greenberg, George Will Says a

Sneeze or Cough Could Spread Ebola, P

OLITIFACT (Oct. 19, 2014),

http://www.politifact.com/punditfact/statements/2014/oct/19/george-will/george-will-

claims-sneeze-cough-spread-ebola/.

119

Willman, supra note 118.

120

Arthur Delaney, CDC Removed Info On Coughing and Sneezing from Ebola Q&A

(UPDATE), H

UFFINGTON POST (Oct. 30, 2014), http://www.huffingtonpost.com/2014/10/

30/cdc-ebola_n_6078072.html.

121

Id.

396 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

rationalized that it was necessary to accommodate public fear by

recommending severe “movement restrictions” for asymptomatic

individuals with at least “some risk” of developing Ebola. The CDC may

have convinced itself that this would prevent another embarrassment and

thereby preserve its ability to set policy throughout the crisis.

Of course, this is merely an educated guess based on information that

is publically available. Perhaps hardball politics was going on behind

closed doors, which has yet to come to light. In any case, the story of the

CDC’s Guidance, and of the events that preceded it, is a cautionary tale

of how even the most authoritative public health agency can go wrong

when it makes policy divorced from science. It demonstrates how expert

administrators with impeccable credentials and the best of intentions can

make public health policy that accommodates public fear at the expense

of science. The next and final section of this article examines the price

we pay when that happens.

E. THE MANY COSTS OF ACCOMMODATING FEAR IN PUBLIC

HEALTH POLICY

A fundamental principle of public health practice is that policy must

be grounded in science. It is embedded in Dr. Frieden’s practice,

described in the epigraph of this article, to “base it all on data.”

122

Regardless of the underlying reason (or rationalization), the CDC’s

recommendation in its Guidance that asymptomatic individuals exposed

to Ebola patients while in West Africa be prohibited from coming within

three feet of another person for the twenty-one day incubation period of

the virus breached this core principle. As demonstrated by almost forty

years of experience, encompassing twenty-five Ebola outbreaks, and

somewhere between 16,000 and 25,000 human cases, asymptomatic

individuals incubating Ebola do not pose a risk of transmission to

others.

123

Consequently, subjecting them to a near-absolute quarantine

does not serve a public health purpose. Instead, it accommodates and

exacerbates public fear, deprives some individuals of their right to move

about freely, and sets a dangerous example for ignoring science. Each of

these comes at a high cost, and some of those costs are apparent from our

recent experience with Ebola.

As others have noted, one cost of unnecessary restrictions on the

liberty of those who travel to West Africa to care for Ebola patients is

122

Jon Schuppe, CDC Chief Tom Frieden Confronts Ebola Crisis Cool and Collected,

NBC

NEWS (Aug. 10, 2014), http://www.nbcnews.com/storyline/ebola-virus-outbreak/

cdc-chief-tom-frieden-confronts-ebola-crisis-cool-collected-n175351.

123

See supra text accompanying notes 44–46.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 397

that such a policy discourages health care workers from volunteering to

provide such treatment.

124

The medical relief organization, Doctors

Without Borders, for which both Craig Spencer and Kaci Hickox

volunteered, reported in late October 2014 that it had already seen the

“chilling effect” that a threat of quarantine and similar restrictions were

having on its volunteers.

125

Anxiety and confusion among workers over

quarantine laws caused the organization to consider shortening stays in

West Africa so as to accommodate the twenty-one days a worker might

need to remain away from family and co-workers after returning

home.

126

Imposing additional burdens on individuals who would otherwise

fight the spread of Ebola at its source is not only unfair to health care

workers volunteering their services at great personal risk, but it also

increases the risk that the disease spreads. Like a wildfire, an infectious

disease will spread if not contained.

127

Thus, the best way to protect the

population of the U.S. against Ebola is to contain it and stop it in West

Africa. That, of course, requires willing volunteer health care workers to

travel abroad to take up the fight.

Additionally, when the CDC accommodates public fear by

recommending a near-absolute quarantine of health care workers

returning from West Africa, it creates cover for others to do the same.

The Secretary of Defense, at the request of the Joint Chiefs of Staff,

announced a policy in late October to quarantine all military personnel

for twenty-one days when they return from service in any of the three

West African nations where Ebola was widespread.

128

This tremendous

waste of financial and military resources was designed to comfort

military personnel and their families against the fear that somehow an

asymptomatic soldier might infect a loved one with Ebola back home.

129

Once the precedent is set for accommodating irrational public fear

over the transmission of Ebola from asymptomatic individuals, it is

124

Drazen, supra note 48, at 2029.

125

Jonathan Allen, U.S. Quarantines ‘Chilling’ Ebola Fight in West Africa: MSF,

EUTERS (Oct. 30, 2014), http://www.reuters.com/article/2014/10/31/us-health-ebola-

usa-msf-idUSKBN0IJ2PR20141031.

126

Id.

127

Dan Roberts, CDC Director Warns Ebola like ‘Forest Fire’ as Congress Readies for

Hearing, G

UARDIAN (Oct. 16, 2014), available at http://www.theguardian.com/world/

2014/oct/16/ebola-congress-hearing-cdc-director.

128

Barbara Starr, Hagel Announces Mandatory Ebola Quarantine, CNN (Oct. 29,

2014), http://www.cnn.com/2014/10/29/politics/military-ebola-quarantine/.

129

See Dan Lamothe, Military Begins First Quarantine-Like Monitoring in U.S. for

Ebola Mission Troops, W

ASH. POST (Nov. 13, 2014), available at http://www.

washingtonpost.com/news/checkpoint/wp/2014/11/13/military-begins-first-quarantine-

like-monitoring-in-u-s-for-ebola-mission-troops/.

398 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 23:375

difficult to contain. It imposes a social, if not a legal, obligation on health

care workers to quarantine themselves rather than risk being perceived as

irresponsible.

130

Likewise, it puts political pressure on state politicians to

out-do each other in the name of soothing public fear and comforting

their constituents. As one newspaper headline put it, “Is Your State

Quarantining Ebola Doctors?”

131

The accompanying article stated that

“[s]everal governors in tough reelection fights are rejecting CDC’s Ebola

Guidelines in favor of more draconian rules.”

132

Discrimination against those associated with Ebola is an even uglier

cost to accommodating irrational public fear about transmission of the

disease. Here are just a few examples of Ebola discrimination in the U.S.

Officials in several states excluded teachers and students from

classrooms merely because they or someone they live with traveled to

West Africa.

133

Health care workers who had treated Ebola patients in

Atlanta, New York, and Dallas lost moonlighting jobs, were denied

service in local businesses, and had their children turned away from day

care for fear that they posed a danger.

134

School-aged brothers from

Senegal, living in the U.S., were beaten by classmates yelling “Ebola.”

135

Certainly, there would be cases of discrimination regardless of whether

the CDC accommodated public fear through its Guidance, but we must

130

See Rebecca Martinez & Eric Hodge, North Carolina Doctor in Voluntary

Quarantine After Returning from Liberia Aid Mission, WUNC (Jan 7, 2015), http://wunc.

org/post/north-carolina-doctor-voluntary-quarantine-after-returning-liberian-aid-mission?

utm_source=Facebook&utm_medium=Social&utm_campaign=FBWUNC4651.

131

Sam Baker & Sophie Novack, Is Your State Quarantining Ebola Doctors?, NAT.

JOURNAL (Oct. 30, 2014), http://www.nationaljournal.com/health-care/is-your-state-

quarantining-ebola-doctors-20141030.

132

Id.

133

See, e.g., Connecticut School Lifts Ban on Girl Barred Over Ebola Fears, REUTERS

(Oct. 30, 2014), http://www.reuters.com/article/2014/10/31/us-health-ebola-usa-school-

idUSKBN0IK01P20141031); see Aimee Jones, Newton High School Teacher Removed

From School Until She is Medically Cleared for Ebola, N

EWTON CITIZEN (Oct. 29, 2014),

available at http://www.newtoncitizen.com/news/2014/oct/29/newton-high-school-

teacher-removed-from-school/); see also Amanda Terkel, Oklahoma Teacher Will Have

To Quarantine Herself After Trip to Ebola-Free Rwanda, H

UFFINGTON POST (Oct. 28,

2014), http://www.huffingtonpost.com/2014/10/28/ebola-rwanda-oklahoma-teacher_n_

6062726.html); see also Allison Ross, Teacher Leaves Catholic School Amid Ebola

Fears, C

OURIER-JOURNAL (Nov. 4, 2014), available at http://www.courier-journal.com/

story/news/education/2014/11/03/louisville-catholic-teacher-resigns-amidst-ebola-fears/

18417299/.

134

Anemona Hartocollis & Nate Schweber, Bellevue Employees Face Ebola at Work,

and Stigma of It Everywhere, N.Y. TIMES (Oct. 29, 2014), available at http://www.

nytimes.com/2014/10/30/nyregion/bellevue-workers-worn-out-from-treating-ebola-

patient-face-stigma-outside-hospital.html?_r=4.

135

Elizabeth Barber, 2 Kids from Senegal Were Beaten Up in NYC by Classmates

Yelling ‘Ebola’, TIME (Oct. 28, 2014), available at http://time.com/3542955/senegal-

kids-brothers-assaulted-ebola-bronx-tremont-school-new-york-city-pabe-amadou-drame/.

2015] EBOLA, QUARANTINE, AND FLAWED CDC POLICY 399

assume that cases of discrimination increase significantly when the

nation’s leading public health authority suggests that there is reason to

fear that we might catch Ebola even from those who do not appear to be

sick.

Finally, when the CDC, through the Guidance, ignores the facts

about Ebola transmission, it erodes confidence in science, which makes

the work of protecting the public’s health all the more difficult. Consider

the latest measles outbreak in the U.S. From January 1 through April 3,

2015, there were 159 cases of measles spanning eighteen states and the

District of Columbia.

136

The recent resurgence of measles in the U.S. is

often blamed on parents who ignore the scientific facts about the risks

and benefits of the measles vaccine.

137

How can the CDC or any public

health agency blatantly ignore the science of Ebola transmission, and

then urge American parents to set aside their unfounded fear and trust the

science behind the measles vaccine?

In the face of both widespread fear over Ebola in the U.S. and the

CDC’s damaged credibility following several early mistakes, it might

have been a near impossible task for the agency to fend-off its critics and

hold public health policy accountable strictly to the science of Ebola

transmission. But that is the fight the CDC should have taken up. Instead,

by issuing its deeply flawed Guidance, the agency ignored its bedrock

responsibility and, as a result, undermined the public’s health.

136

Measles Cases and Outbreaks, CDC (Mar. 30, 2015), http://www.cdc.gov/measles/

cases-outbreaks.html.

137

See, e.g., Jennifer Shih, Why Worry About the Measles Outbreak?, CNN (Aug. 7,

2014), http://www.cnn.com/2014/08/07/opinion/shih-measles-vaccine/.