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Matthew T. Mangino: Civil rights versus stopping a deadly virus

Matthew T. Mangino
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The Daily Herald

The latest news about the coronavirus is sobering. Health officials in China’s Hubei province reported 14,840 new cases of coronavirus, most of them in Wuhan, the capital.

Province officials also said another 242 people had died, taking the total number of deaths in mainland China to 1,367 as of Feb. 13. These increases raise concerns about the true scale of the epidemic in China.

Coronavirus represents a group of viruses that can cause a range of symptoms including a runny nose, cough, sore throat and fever. Some are mild, such as the common cold, while others are more likely to lead to pneumonia.

The World Health Organization declared the outbreak a global public health emergency and the U.S. Secretary of Health and Human Services issued a similar warning for the U.S.

What are traditional public health measures available in the U.S. with the threat of a deadly outbreak? Isolation and quarantine are the methods by which public health officials stop the spread of disease.

According to the Department of Health and Humans Services, the president by executive order provides for the use of federal isolation and quarantine for communicable diseases, including cholera, diphtheria, tuberculosis, smallpox, yellow fever and Ebola among other potential pandemic diseases.

Isolation is used to separate ill people who have a communicable disease from those who are healthy. Quarantine is used to separate and restrict the movement of people who are well but may have been exposed to a communicable disease. This is ongoing with several cruise ships in Asia and other parts of the world.

Isolation and quarantine can have a significant impact on fundamental individual rights. The U.S. Constitution prohibits the federal government, as well as state governments, from depriving individuals of protected liberty rights.

Isolation and quarantine restrict the movement of people to help stop the spread of diseases. This means that an individual can be detained against his or her will for an extended period of time.

Quarantine and isolation are not new public health remedies. As far back as 1902 the U.S. Supreme Court recognized isolation and quarantine as legitimate public health techniques. Although, most patients normally have a right to refuse medical treatment, that right disappears when an infected or exposed person poses a significant risk to public health.

In addition to being medical functions, isolation and quarantine are also “police power” functions, derived from the right of the government to take action affecting individuals for the benefit of society. The authority for carrying out these functions has been delegated to the CDC. Pursuant to federal regulations, the CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying communicable diseases.

States also have police power functions to protect the health, safety and welfare of persons within their borders. All 50 states have laws to enforce the use of isolation and quarantine.

For instance, in Pennsylvania, the Disease Prevention and Control Law provides that the state or local health departments may, without court intervention, order an individual quarantined or isolated if the individual poses a significant threat to the health of the public and there are no lesser restrictive means.

In Arizona, the governor, along with the state director of the Department of Health Services, have expansive authority in a state of emergency involving infectious disease. However, there must be an urgent threat to public health to establish a quarantine or isolation without an order of court.

In fact, in many states the governor has the authority to order a “cordon sanitaire” which is the quarantining of an entire town or city. Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area where infected persons remain.

The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.