Do quarantines violate due process?

Question

When quarantining someone, they have broken no law and have been given no chance of defending themselves before their peers, before having their liberty taken away. So how is it possible that quarantines are in line with the 5th and 14th amendments?

Answer 1

Due process elements similar to those in Greene are now in place in many states. The 1993 revision of New York City's TB control procedures included the right to counsel, appointment of counsel for indigents and judicial review of commitment. Proof of the need for detention was to be shown by clear and convincing evidence. In 1994 Washington State required its board of health to adopt due process standards for public health officers to use in case of involuntary detention, testing, treatment or isolation of TB patients. Public health authorities draw on civil commitment law in making recommendations for changes in TB law.

The Centers for Disease Control Recommendations of the Advisory Council for the Elimination of Tuberculosis (ACET) says:

[a]s in commitment proceedings under state mental health laws, any law under which a person may be examined, isolated, detained, committed and/or treated for TB must meet due process and equal protection requirements under state and federal statutes and constitutions. Also, all patients who are subject to these legal proceedings should be represented by legal counsel.

(source: http://academic.udayton.edu/health/syllabi/bioterrorism/6Quarantine/PHLaw02.htm, quoted from: Paula Mindes, Tuberculosis Quarantine: a Review of Legal Issues in Ohio and Other States , 10 Journal of Law and Health 403-418, 413-417, 424-426 (1995-96) (160 Footnotes))

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Also, from ABA publication "Protecting Civil Liberties During Quarantine and Isolation in Public Health Emergencies By Sarah Pope, JD, MA; Nisha Sherry, CPH; and Elizabeth Webster, JD":

State Authority to Quarantine or Isolate

In certain public health emergency situations, states have the authority to quarantine and isolate individuals in order to prevent the transmission of communicable and dangerous diseases and infections5. The Public Health Service (PHS) Act6, limited by Executive Order 13,2957, authorizes the Secretary of the Department of Health and Human Services (HHS) to declare a public health emergency and take appropriate responsive action to "prevent the introduction, transmission, or spread of communicable diseases8." In practice, however, states and local jurisdictions assume primary responsibility for instituting public health protective measures under their Tenth Amendment "police power9." This authority has been reaffirmed by the Supreme Court of the United States10 and further bolstered by the doctrine of parens patriae11 and state constitutions12. The authority, however, is not limitless; it is tempered by individual rights and civil liberties, guaranteed by the Due Process Clause of the Constitution.

They cite the following sources:

5 See U.S. Const. amend. X; See also Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) ("According to settled principles…the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.").

6 See 42 U.S.C.A. § 247d (West 2011) (also known as the Public Health Service (PHS) Act); See also Pub. L. No. 107-188, 116 Stat. (2002) (Section 319(a) involves the PHS Act); See also Gostin, Public Health Law, at 205-06 (citing Act of May 27, 1796, ch.31, I Stat. 474 (repealed 1799)) (Gostin discusses the history of federal quarantine regulation); See also Edwin Maxey, Federal Quarantine Law, 43 Am. L. Rev. 382, 383 (1909).

7 Executive Order 13,295 limits the diseases for which individuals may be quarantined to only those diseases included on its list. See Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (Apr. 4, 2003); See also Exec. Order No. 13,375, 70 Fed. Reg. 17,299 (Apr. 1, 2005) (amended Exec. Order No. 13,295 by adding "influenza caused by novel or reemergent influenza viruses that are causing, or have the potential to cause, a pandemic.").

8 See 42 U.S.C.A. § 264(a) (West 2011) (note that the Surgeon General, with the HHS Secretary's approval, is authorized to "make and enforce…regulations," including quarantine measures).

9 See U.S. Const. amend. X.Additionally, other organizations, including the Centers for Disease Control and Prevention (CDC), Department of Homeland Security (DHS), and others, have the ability to assist with the enforcement of quarantines intrastate and interstate, as well as at ports of entry to the United States. See Memorandum for the President, Office of the Attorney General, Summary of Legal Authorities for Use in Response to an Outbreak of Pandemic Influenza (Apr. 25, 2009), available at www.ncsl.org/Portals/1/Documents/health/attorneygeneral_flu.pdf (last visited Mar. 13, 2011); See also Swendiman, supra note 5, at 11.

10 See Jacobson, 197 U.S. at 25 (1905) (Constitutionally granted state police power have been used to protect the public's health since the 19th century in Jacobson v. Massachusetts, where the Supreme Court upheld the authority of states to pass compulsory vaccination laws.).

11 The doctrine of parens patriae regards the state as sovereign ("[T]he state in its capacity as provider of protection to those unable to care for themselves."). See Black's Law Dictionary (9th ed. 2009); See Heller v. Doe, 509 U.S. 312, 332 (1993) ("'[T]he state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable ... to care for themselves,' as well as 'authority under its police power to protect the community'….").

12 See, e.g., W. VA. Code Ann. § 16-3-1 (West 2011); Okla. Stat. Ann. tit. 63, § 1-502(a) (West 2010).