Ebola Screening Measures Rest on Federal Law

Temperature checks of passengers arriving from three West African countries experiencing the Ebola outbreak, along with other screening measures, will begin Saturday at New York’s John F. Kennedy International Airport and expand over the next week to four other major American airports.

The measures may seem intrusive but are legally permissible because of the government’s broad authority in matters of public health and border control, experts say.

“It’s really not different in kind to security screenings you have to go through at the airport,” said Michael Dorf, a Cornell University constitutional law professor. “If somebody doesn’t like being screened for weapons and they sue, they’re going to lose.”

The Centers for Disease Control and Prevention cite as legal authority the Commerce Clause of the Constitution, under which the government regulates trade with foreign countries. The 1944 Public Health Service Act also allows the federal government to take action to prevent communicable diseases such as Ebola from spreading into the country and between states.

“One can argue whether the Obama administration waited too long, but I think it would be irresponsible for the administration not to use its legal authority to protect the health of the public,” said Peter Jacobson, a University of Michigan professor of health law and policy. “Otherwise, why bother?”

Beyond the airport precautions, the government has wide-ranging authority to order people into isolation or quarantine when necessary, as happened with several individuals who shared an apartment in Texas with Thomas Eric Duncan, the only person to die from the disease in the U.S.

The Constitution affords state governments “inspection” powers, and a significant 1824 U.S. Supreme Court opinion, Gibbons v. Ogden, specifically references state authority to enact quarantine laws. In addition, states have public health codes that grant authority to issue quarantine or isolation orders, though specifics vary, and governors typically have the ability to declare a public health emergency in the event of, for instance, a bioterrorism attack, Jacobson said.

The CDC has said it issues a few isolation orders a year — which separates sick people from those who aren’t ill — and usually for individuals arriving from other countries with infectious tuberculosis. A federal quarantine, which separates people exposed to a communicable disease but who aren’t showing symptoms, is very rarely used.

“There’s very little in the way of strong limits” against issuing the orders, except for the advice and best judgment of government public health experts, said Wendy Mariner, a Boston University health law professor.

“When we’re thinking of these issues, we use them as a prevention measure of last resort,” Mariner said. “And that’s because they would only be useful in a situation where there is a very dreadful disease that is very easily transmitted and for which we have no vaccine or treatment.”

A U.S. citizen who presents a heightened risk of disease upon arrival in the United States has a legal right to re-enter the country and be safely quarantined, said Lawrence Gostin, a public health law expert at Georgetown University. That same guarantee would not apply to non-U.S. citizens, but as a practical matter, giving them immediate care might be safer than turning them away and putting them on a plane back home.

Still, there’s no question that the airport screening taps into a broader debate about balancing the government’s authority to protect public health against the obligation to uphold civil liberties — especially if the measures were made more intrusive, such as drawing blood. Those issues do surface occasionally in the courts, as in a U.S. Supreme Court decision last year that said police usually must try to obtain a search warrant before ordering blood tests for drunken-driving suspects.

Jacobson, at the University of Michigan, said that though he believed the screening measures were justified, it was imperative that U.S. citizens maintain the right to challenge quarantine or isolation orders in court.

“You need to assume that regardless of the ability to challenge, the courts are going to defer to the public health experts,” Jacobson said. “If CDC experts testify that an individual is infected with Ebola. … I can’t imagine a court overturning a CDC quarantine or isolation.”

Plus, he added, “It’d be hard to see taking someone’s temperature as particularly intrusive if it is — as is certainly the case with Ebola — part of treating the disease.”

_____

Follow Eric Tucker on Twitter at http://www.twitter.com/etuckerAP