Why Ebola Quarantines Will Grow Larger -- And More Troubling

The critical reckoning over forced quarantines is still to come.
Consider this scenario.
Sometime in January or February – as the Ebola epidemic explodes out of West Africa – we’ll start experiencing larger, more frequent outbreaks in American cities. With the flu as a background to confound suspected cases of Ebola, public health departments will be hard pressed to “track and trace” all of the potential “contacts” when perhaps dozens of Ebola cases pop up in their cities.
Unable to pinpoint who might have come in close contact with Ebola, and be at risk of contracting the virus, they will reach for their most absolute tool – forced quarantine – as a way to mitigate threat amidst uncertainty. The number of people who will be placed into forced quarantines could easily number in the hundreds.

If this scenario sounds far fetched, take a closer look at the accelerating epidemic in West Africa. If the rate of spread doesn’t start to subside soon (there are some encouraging signs of deceleration in Liberia, but spread is accelerating in Guinea and Sierra Leone) it’s just a matter of time before Ebola breaks out to a region with closer connections to the U.S. — like Latin America. Once it goes to such a market, and becomes epidemic, the U.S. would be importing far more than the sporadic case.
This begs the question, how will state and federal governments exercise their authority to quarantine people in such a scenario. As we have seen from recent events, that legal power is sweeping, intrusive, poorly defined, and absolute.
Under current law, the federal government is responsible for quarantining individuals traveling from outside the U.S. or between states, while state governments have quarantine authority over people traveling within state boundaries.
Federal and state governments must have a factual basis to support a quarantine. There must be a plausible reason to believe that a person placed in quarantine was exposed to a suspect pathogen, or might be incubating the disease. But it’s left mostly up to the government to develop that basis. And it needn’t be a high bar.
The quarantine also needs to be discriminating. The government can’t quarantine an entire city, for example. But the government could quarantine an entire plane if it was believed that an airborne pathogen was released inside; or an entire classroom of children if one child might have exposed others to a virus.
The Bush Administration attempted to set out more parameters around how quarantine would be used in a public health emergency such as a bioterrorist act, by issuing a new regulation interpreting the decades-old legal authority. But in trying to spell out some general parameters, the Bush-era rule also exposed just how absolute and intrusive the underlying legal authority is. It spooked civil libertarians.