ANDREW McCARTHY: Ebola-Quarantine Objections Are Frivolous ****
http://www.nationalreview.com/article/391642/ebola-quarantine-objections-are-frivolous-andrew-c-mccarthy
There is no “stigma,” and comparisons to criminal imprisonment are absurd.
The first responsibility of the president of the United States is national security. In the absence of presidential leadership as Ebola makes inroads in our country, state officials such as New Jersey governor Chris Christie have stepped into the security breach, taking commonsense steps to protect their citizens from the deadly virus. One of those measures is to quarantine those who have been exposed to Ebola, including health-care professionals who have risked their own lives to fight the disease.
As a public-health precaution, it is entirely reasonable for states to impose a 21-day quarantine that (a) reflects the virus’s incubation period according to scientific research and (b) applies regardless of whether the exposed person is manifesting symptoms. The objections to quarantine, rooted in a skewed construction of the Constitution and the make-it-up-as-you-go-along corpus of international “human rights” law, are frivolous. Yet, they have gotten traction, for at least three reasons.
The first, of course, is the president. What an American president thinks is always a big deal, even if — especially if — it is nonsense. On Ebola as on much else, we deal with our citizen-of-the-world president’s apathy — if not antipathy — when it comes to American national interests. Once again, the responsibilities of his office are subordinated to Obama’s post-American ideological agenda, this time by expending our funds, deploying our troops, and gratuitously endangering our homeland to burnish his legacy as an international humanitarian.
A second reason is Kaci Hickox. She is the nurse and global-altruist-turned-domestic-diva who has very publicly opposed the efforts of New Jersey and, now, Maine to quarantine her after her return from working with Ebola patients in Sierra Leone. On Friday, she found a likeminded judge, Charles C. LaVerdiere, who blithely ordered the quarantine lifted over the objection of the state officials responsible for the security of Maine’s citizens. Third, there is legal commentary, particularly of the libertarian-hedonist stripe, that portrays quarantine confinement as if it were criminal prosecution.
The president, the official singularly responsible for the security of our homeland, should be defending quarantines — explaining why the potentially lethal threat posed by individuals entering our country from Ebola-stricken areas calls for them to shoulder reasonable burdens, like quarantine. This should be unremarkable. Our law, after all, has long made even American citizens subject to warrantless search and detention when attempting to cross our national border. And non-citizens are precluded from entering the United States if they are infectious-disease carriers — just as various flora and fauna that could cause disease are barred. National defense is a basic ingredient and natural right of sovereignty. Our law is thus designed to shield the public from epidemic every bit as much as from military attack.
Yet, in handling the Ebola incursion, Obama has not merely failed to direct a quarantine. As is the case with his non-enforcement of the immigration laws, he has obstructed the states in the exercise of their sovereign power to protect their citizens.
As is his Alinskyite wont, Obama is poisoning the public discussion by ascribing noxious motives to those who favor quarantine. His administration’s straw man of choice is the admonition that doctors and nurses who do the noble work of treating Ebola patients must not be “stigmatized.” But there is no true correlation between quarantine and stigma.
Imposing the inconvenience of isolation on people who have the potential to infect others reflects our humanity toward our fellow citizens. It is why when cold, flu, or other infectious illness takes hold, employees and parents, respectively, are told not to come to work or send sick children to school. When a person fearful that he is becoming ill waves off a handshake, a hug, or a kiss upon greeting a loved one, the natural response is gratitude for the person’s thoughtfulness, not revulsion over the person’s condition.
Plainly, there is no “stigma” attached to the sick or potentially infectious person. Moreover, just as there is nobility in treating the sick, so too is there nobility in protecting others from becoming sick. Going the extra mile to prevent more Ebola infections is, in fact, what people like Ms. Hickox do in West Africa. How strange that she regards extension of the same consideration to her fellow Americans as coercion rather than something she wants to do.
As has been noted over the past few days, the Defense Department has prudently imposed a 21-day quarantine on our heroic troops returning from the hot zones in West Africa. No one thinks of them as stigmatized. Furthermore, among our history’s most revered legends are astronauts who risk their lives to advance science by space travel. They are routinely subjected to quarantine when their journeys end. Indeed, Apollo 11 crew members were quarantined for, yes, 21 days upon returning from the moon. No one thought less of them for it. If anything, the opposite is true. There was the possibility that microbes they’d been exposed to in space could damage their health and, in turn, damage the health of others with whom they came in contact. To promote public health, they were isolated until it could confidently be said, in accordance with the best medical science, that they were beyond the point of falling ill or infecting others.
A quarantine does not diminish our gratitude for the heroic work done by the medical professionals who risk their lives treating Ebola patients, forfeiting the comforts of home for faraway, squalid places. Nor, for that matter, does it lessen our sympathy for the people who have contracted the disease, whether or not they took sensible measures to protect themselves.
So why the suggestion of “stigma”? Because the administration is composed not just of demagogues trying to shame their opposition, but of shrewd lawyers trying to shape the litigation terrain.
“Stigma” is a salient criminal-law concept. There is stigmatization in being accused or convicted of a crime; that is why defendants and convicts get enhanced rights to due process and judicial review. In turn, heightened burdens of proof are imposed on the state. Obama thus wants the courts, to which Ms. Hickox took her case, to look at protective quarantine in the Ebola context as if it were punitive incarceration in the criminal-prosecution context. Ms. Hickox, doing her star-turn in this overwrought drama, carried on as if at-home, non-intrusive, bike-ride-exempted confinement, during which her salary and considerable expenses would be covered by taxpayers, were analogous to being shackled in a supermax prison.
This false analogy to prosecution worked like a charm on Judge LaVerdiere. Libertarians have also seized on it, layering the due-process protections of criminal proceedings on the inapposite category of medical quarantine. It is thus speciously posited that Ms. Hickox’s quarantine is an unconstitutional violation of ex post facto and vagueness standards.
These, however, are criminal-law notice requirements: a person may not be convicted or given a sentence for some course of conduct unless the statute criminalizing the conduct in clear terms was on the books before the person acted. Ebola quarantine, to repeat, is not criminal prosecution, no matter how relentlessly administration officials seek to attach “stigma” to it. Ex post facto and vagueness principles are thus irrelevant. Instead, quarantine is a civil matter of public health and security. In that context, as explained by Northwestern constitutional-law professor Eugene Kontorovich at the Volokhi Conspiracy, judges balance the gravity of the government interest at stake against the significance of the infringement on individual liberty.
Here, government has no greater duty than safeguarding public health from an infectious-disease outbreak that could rapidly overwhelm the resources to deal with it. How rapidly? Though the administration has made extravagant claims about the health system’s capacity to address Ebola, there are in fact only four facilities nationwide that meet the CDC’s biocontainment standards for Ebola treatment. Combined, they have no more than 26 beds. (And that may actually overstate capacity: Officials have told ABC News that the system can handle a maximum of eleven Ebola patients at any given time.) Mind you, this assumes outbreaks of no other infectious diseases, like SARS. Let that sink in as you ponder that, not content with the challenges we already face, the administration is reportedly hatching reckless plans to import non-Americans for Ebola treatment.
As Professor Kontorovich elaborates, courts have repeatedly upheld medical quarantines in connection with infectious diseases such as smallpox and tuberculosis. He notes that in a case presenting facts more favorable to the complaining plaintiff than Ms. Hickox’s, a federal court upheld a two-week quarantine of a person who had visited an area infected with smallpox (a markedly less lethal disease than Ebola, and one about which more was known), even though (a) the plaintiff, like Hickox, was asymptomatic and (b) there was no proof that the plaintiff had been directly exposed to smallpox — as contrasted with Hickox’s certain and undisputed contact with Ebola patients. The ruling should come as no surprise — except perhaps to Judge LaVerdiere, who ignored it. When public safety and civic order are at stake, the judiciary routinely affirms significant infringements on liberty — everything from military conscription to mandatory vaccinations to jury duty.
Ms. Hickox protests that she is personally convinced that she poses no risk to others. No doubt Dr. Craig Spencer was similarly confident while he bowled in Brooklyn, dined out, and cruised the mass-transit lines right before testing positive for the virus. But one’s subjective convictions are beside the point. It is no defense to flouting vaccination regulations that one is confident his asymptomatic child will remain disease-free; nor would avoidance of the draft or jury service be excused by reasoning that a war effort or the court system can easily survive occasional evaders. For public-safety and civic-order measures to be effective, they must have clear, administrable strictures — even if those strictures seem arbitrary in individual cases. If every individual is a law unto himself, ordered liberty is a pipe dream.
Again taking the president’s cue, Ms. Hickox also insists that any quarantine is “not based on science” because, according to her, she is asymptomatic and therefore cannot communicate Ebola to others. This is specious, notwithstanding its apparent resonance with the courts of Maine. The 21-day parameter of the quarantine is patently guided by science, mirroring the virus’s incubation period. In truth, three weeks may be dangerously short. Initial Ebola symptoms can be subtle and may not show up until the tail end of the incubation window; if that happens, the onset of the subsequent “prodromal” stage, when the person becomes more clearly symptomatic, may not occur until some time within the next three weeks. It is thus quite possible that a 21-day quarantine will end before Ebola has been detected and right as the exposed person becomes most infectious. (To say nothing of the fact that Ebola can be transmitted sexually for up to seven weeks after an exposed man is ostensibly “cured.”)
The admirable desire to safeguard people from the ravages of Ebola is what drove Kaci Hickox to Sierra Leone. It is hypocritical to grouse about the purported unfairness of the failure to provide her with notice that the risks she took might result in a brief quarantine. What notice did she give to the community she is potentially imperiling? Did she consult her fellow citizens on whether they’d be comfortable with her return to the community after exposing herself to a lethal infectious disease? Did she advise them of her unilateral determination that her self-monitoring for symptoms and hoped-for good luck would adequately protect them? Judge LaVerdiere is banking on that good luck in betting that Ms. Hickox will not turn out to be Dr. Spencer, but how should the people of Maine feel about that roll of the dice?
The public has a first-tier interest in the community’s safety from infectious disease, which any responsible government must vindicate. With a virus like Ebola, which currently claims the lives of about two-thirds of its victims, quarantine is the commonsense way of handling potentially exposed persons. To be sure, the conditions of confinement should be reasonable — not unduly restrictive, while erring on the side of public safety. But let’s be clear: Quarantine carries no stigma. Reasonably brief, comfortable, publicly subsidized confinement in a home or hospital setting is not remotely akin to doing hard jail time.
The demagogues contending otherwise are ridiculous. We should not be reluctant to say so.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
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