- The Washington Times - Wednesday, October 29, 2014

Maine is on track to be the first state to see its quarantine laws put to the test since Ebola arrived on American shores, pitting broad state powers designed to protect public health against the liberties of health care workers who have an increasingly vocal ally in President Obama.

Legal scholars said it may be difficult to reconcile the two, and the best option for Kaci Hickox, the 33-year-old nurse who threatened to sue her home state of Maine on Wednesday for her home confinement if it hadn’t ended by Thursday morning, may be to challenge the conditions of her quarantine instead of the order itself.

Maine officials said late Wednesday they planned to file a court order to get Ms. Hickox, to stay at home for the rest of the 21-day incubation for Ebola, morphing her quarantine from voluntary to mandatory and setting up a potential confrontation by morning.

Mr. Obama hailed health care workers like Ms. Hickox who traveled to West Africa to treat ebola patients as “heroes” Wednesday, yet governors around the country are not taking any chances with the deadly virus that has killed nearly 5,000 abroad, exposed cracks in U.S. preparedness in Dallas and sparked mass fear in America’s largest city.

Led by New York and New Jersey, they have imposed quarantines or strict monitoring policies for people who enter their states after working with infected patients abroad.

“It would be another thing if scientists were saying there is no risk, but that is not the case. The only question is what steps to take,” said Eugene Kontorovich, a law professor at Northwestern University.

Generally, state health laws and American jurisprudence allow local officials to take the lead in responding to infectious diseases within their borders, according to the Congressional Research Service, a nonpartisan advisory group that reviewed quarantine rules this month amid rising Ebola fears.

In fact, the Supreme Court has said it is “well settled” that states can impose quarantines to prevent the spread of diseases unless Congress steps in. States typically impose quarantines through public health orders, although some require officials to justify their actions before a judge.

The federal government is responsible for containing the virus from coming into the country or transmitting from state to state. And while the feds can step in for states ill-equipped to halt the disease, congressional researchers said state officials generally take the lead under their policing powers.

But states do not have carte blanche to keep people in their homes, legal scholars said, and Maine must “individualize” its request to Ms. Hickox, who has shown no symptoms since she registered a fever at Newark Liberty International Airport.

“You can’t just do it based on a generalized class of people. I think the state really needs to calibrate that,” said Lawrence O. Gostin, professor of global health law at Georgetown University.

Congressional researchers pointed to a case from more than a century ago, in which a federal appeals court invalidated a quarantine that pertained to Chinese residents only and was “unreasonable, unjust and oppressive” and constituted discrimination under the Constitution.

One problem with state quarantine laws is that they are often antiquated and anywhere from 40 to 100 years old, so they may not comport with modern medicine, CRS noted.

The White House declined to wade into the Maine fight, but Mr. Obama clearly signaled he does not want states to burden health workers returning from West Africa.

“We need to call them what they are, which is American heroes. And they deserve to be treated with dignity and respect,” he said Wednesday.

Ms. Hickox, who has traded barbs with New Jersey Gov. Chris Christie, on Wednesday called Maine’s protocols unjust and said she would go to the courts if the governor does not relent by Thursday morning.

Maine Gov. Paul LePage commended Ms. Hickox but lamented her decision not to follow state and federal protocols. Later Wednesday, TV stations showed a state police car stationed outside her home.

The governor’s office said it is exploring all of its options “for protecting the health and well-being of the health care worker, anyone who comes in contact with her, the Fort Kent community and all of Maine.”

Experts said states tend to come out on top in these battles, so Ms. Hickox may want to refine her approach.

“Given that courts almost invariably uphold quarantines, especially with such deadly diseases, her best argument would be to challenge the conditions of her quarantine, not the fact of it,” Mr. Kontorovich said. “That is, she could argue the state must provide more comfortable facilities, or perhaps compensate her for lost wages.”

This is not Ms. Hickox’s first tango with a straight-talking governor. Earlier this week, she rebuked Mr. Christie for confining her in a hospital tent after presenting a fever upon arrival in Newark. She said the reading was faulty, and she was released to Maine after a 24-hour period in which she was symptom-free.

Now she may be headed to court.

“I remain appalled by these home quarantine policies that have been forced upon me even though I am in perfectly good health and feeling strong and have been this entire time completely symptom-free,” she told NBC’s “Today” show. “I am thankful to be out of the tent in Newark, but I found myself in yet another prison, just in a different environment.”

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