By Kevin Andrew Chambers
Shortly after Thomas Eric Duncan – the first person diagnosed with Ebola in the United States – succumbed to the disease, a New York doctor recently back from West Africa began to show symptoms of what later was confirmed to be Ebola. Because a symptomatic carrier is a contagious one, the doctor’s use of mass transit and visits to restaurants and other public spaces jolted the public and triggered harried reaction from state officials. While the protocols varied by state, they each called for the involuntary quarantine of potential carriers of the virus.
The case of Kaci Hickox, the nurse who spent a month fighting the scourge in West Africa, put these protocols to the test. After presenting with a low-grade fever, Ms. Hickox was taken into custody and isolated in a New Jersey hospital. Images of Ms. Hickox trapped inside a plastic tent triggered vocal opposition to her involuntary confinement and prompted the governor of that state to relent and agree to discharge Ms. Hickox, then showing no symptoms, to her home state of Maine.
The saga continued when officials in Maine imposed a less restrictive quarantine and ordered Ms. Hickox to remain in her home for 21 days. She made clear that she would not honor the quarantine and vowed to litigate what she viewed an unreasonable abridgement of her liberty. Likening the quarantine to incarceration, critics derided the nurse’s treatment as an unnecessary reaction driven by fear, not science. Ultimately, a Maine judge refused to enforce the quarantine with a court order.
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Maine makes a somewhat poor venue for a test case, given its independent, libertarian character and sparse population. (Fort Kent, where Hickox lives is home to only 4,000.) The judicial response in a state less hostile to government intervention and in which public contact would be virtually unavoidable may well be different. The result may also be different where the subject, unlike Ms. Hickox, continues to display symptoms.
The analogy of quarantine to incarceration may strike some as hyperbole. But the comparison is quite apt. It faithfully tracks the definition of the word: the state of being confined. It also provides the conceptual framework for analyzing the need for and consequences of forced confinement. Incarceration aspires to four ends: protection of society (incapacitation), punishment of the subject (retribution), restoration of the subject (rehabilitation), and conveyance of a message to potential offenders (deterrence).
Incapacitation through isolation lies at the heart of any quarantine. Retribution and rehabilitation are inapplicable in this non-criminal context. The remaining concept – deterrence – is quite relevant, not as a purpose, but as an unintended consequence. Critics of quarantine argue that the confinement of returning health workers serves this last prong of incarceration too well, by discouraging their colleagues from traveling to face the enemy “over there.” This argument has merit. Doctors Without Borders already has complained that the threat of quarantine has impacted the organization’s ability to recruit doctors to face the threat.
It is well understood that even a right as fundamental as personal liberty may be trumped in service to a vital governmental interest such as securing the public health. Future judges may rule that an individual’s liberty interest is outweighed by society’s interest in thwarting an epidemic. But government officials tasked with quickly responding to a potential medical emergency cannot wait for the issue wend its way through the courts. Moreover, focus on the legal implications obscures the true issue. Even if quarantine is adjudged lawful, its lawfulness does not eliminate the deterrent effect of involuntary confinement.
Significant financial compensation for quarantined health care workers returning from Ebola hot zones is worth consideration. The reflexive unease that springs from the notion of a government that purchases license to violate its citizen’s rights is understandable. It may be lessened somewhat by the support the concept finds in the Takings Clause of United States Constitution, which obligates the government to provide “just compensation” when it seizes a citizen’s property to meet a legitimate societal end. The classic example is the assertion of eminent domain to seize land to build a railroad or highway.
The analogue is imperfect, however. Property rights and liberty are not equivalents. Personal liberty holds a sacred place in the American consciousness. The American Revolution found purchase in the declaration that all men possess the inalienable rights of “life, liberty, and the pursuit of happiness.” The right to property was eventually enshrined in the Constitution via the Bill of Rights, subject to the possibility of governmental taking. Furthermore, the Takings Clause exists to make an individual whole through restitution, not to provide incentives (or eliminate disincentives) for individual behavior. Once the government has established its right to expropriate property, the property holder cannot negotiate or demand a price for his acquiescence. The Takings Clause merely ensures that when the government acts in society’s interest, the cost of the action to the individual (i.e., the fair market value of the seized property) is borne by society.
A quarantine-compensation model that too closely mirrors the Takings Clause fails because it limits compensation to the lost wages of the quarantined nurse or doctor. But restoring a nurse or doctor to the financial position they would have been in but for the quarantine does little to encourage them – many of whom are unpaid volunteers not motivated by salary – to endure the indignities of forced confinement. To persuade these doctors and nurses to provide specialized services despite a stressful, frustrating, and inevitable quarantine upon their return, the incentive must be far more appealing. What, then, is the appropriate amount?
Precision is not required. It is enough to recognize that the appropriate amount – that which eliminates the “quarantine deterrent” – lies within a range. The top of that range is the cost incurred when society reacts, albeit irrationally, to the unrestricted return of medical professionals from Ebola-stricken nations. Employees may stay home from work and keep their children home from school. Significant time and talent will be wasted in hospitals as doctors tend to patients racked with fear that their coughs or sore throats are signs of the disease. Government entities will expend substantial resources to educate and calm a frantic public. The bottom end of the range is the paltry sum payable under a Takings Clause-model, constituting lost wages but little more.
Regardless of the exact figure, appropriate compensation will fall well short of the societal costs avoided by quarantine, but yet be several multiples of the individual cost to the quarantined healthcare worker. Ultimately, the payment represents an expression by the government to heroic healthcare workers. That statement must acknowledge the societal value of quarantine, not merely the individual’s cost. What quarantine compensation says is not, “Sorry for what we did to you,” but rather, “Thank you, for what you’ve done for us.”
Kevin Andrew Chambers is a former federal prosecutor and certified public accountant now practicing white-collar criminal defense in Washington, DC. He holds degrees from Yale Law School and from the State University of New York at Albany, where he studied English and Accounting.