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The Role of Law Concerning
Historic and Modern Uses of
Quarantine and Isolation
September 10, 2008
James G. Hodge, Jr., J.D., LL.M.
Associate Professor, Johns Hopkins Bloomberg School of Public Health;
Executive Director, Centers for Law & the Public’s Health:
A Collaborative at Johns Hopkins and Georgetown Universities
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Principal Objectives
• Historic Role of Law
• Legal Distinction Between Quarantine
and Isolation
• Modern Quarantine and Isolation
Laws and Policies
• Routine
• Emergency
• Balancing Individual and Communal
Interests
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Historic Role of Law
• The use of quarantine as a public health
measure extends to biblical times
• Quarantine has been practiced in the
U.S. since colonial times
• Early American quarantine laws, based
on European models, date to 1647
(Boston), 1663 (NYC), and 1701 (MA).
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Historic Role of Law
• Early American laws focused on the use
of quarantine in multiple settings to
separate persons suspected of, or known
to be, carrying disease from others.
• Many existing state/local public health
laws authorizing quarantine or isolation,
fail to offer significant guidance for their
use.
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New Jersey Law on “Quarantine”
•
Diseases Generally: To prevent the spread of disease affecting
humans, the Department of Health . . . . shall . . . (d) Maintain and
enforce proper and sufficient quarantine, wherever deemed necessary.
N.J. Stat. Ann. § 26:4-2 (2007).
• Venereal Diseases: Quarantine for venereal disease . . . includes
restriction of the actions, behavior and movements of a person or
confinement to a defined place and area. N.J. Stat. Ann. § 26:4-36
(2007).
• Vessels: A permit shall not be granted until after the vessel, and
every person . . . on it, has been examined, cleansed, ventilated, and
purified, and a quarantine period has been observed. N.J. Stat. Ann. §
26:4-102 (2007).
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New Jersey Law on “Quarantine”
• Prisoners: Each board . . . shall have power, in case of the existence of
any contagious/infectious disease, to establish such quarantine
regulations as deemed necessary and provide for the isolation of inmates.
N.J. Stat. Ann. § 30:4-8 (2007).
• Migrant Camps. The person in charge of a migrant camp shall cooperate and assist in the enforcement of any quarantine or isolation
measures imposed by any public authority. N.J. Stat. Ann. § 34:9A-13
(2007).
• Prayer-healing believers: Any person who . . . subscribes to the art of
healing by prayer . . . which are opposed to medical treatment, shall not
be required to submit to medical treatment [without informed consent].
They shall, however, be subject to regulations with reference to
quarantine and isolation in case of contagious or infectious diseases . . . .
N.J. Stat. Ann. § 30:4A-12 (2007).
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Legal Distinction Between
Quarantine and Isolation
Though used often interchangeably
in practice and law, quarantine and
isolation have distinct legal
meanings.
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Legal Meaning of Quarantine
• “Quarantine” - the physical separation and
confinement of an individual or groups of
individuals, who are or may have been
exposed to a contagious or possibly
contagious disease and who do not show
signs or symptoms of a contagious disease,
from non-quarantined individuals, to prevent
or limit the transmission of the disease to
non-quarantined individuals.
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Legal Meaning of Isolation
• “Isolation” - the physical separation
and confinement of an individual or
groups of individuals who are infected
or reasonably believed to be infected
with a contagious or possibly
contagious disease from non-isolated
individuals, to prevent or limit the
transmission of the disease to nonisolated individuals.
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Modern Quarantine and Isolation
Laws and Policies
• Routine – regular use of quarantine
or isolation powers at various levels of
government
• Emergency – exceptional use of
quarantine or isolation powers during
declared states of emergency
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Routine Uses of Quarantine/Isolation
Authority
Federal
State/Tribal
Local
Specific
General
Diseases – Communic
e.g., TB,
-able
Measles
Disease
Threats
Specific
General
Diseases – Communic
e.g., TB,
-able
Measles
Disease
Threats
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Specific
Diseases –
e.g., TB,
Cholera
Diphtheria
Yellow
Fever
General
Communic
-able
Disease
Threats
Routine Uses of Quarantine/Isolation
Authority
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Routine Uses of Quarantine/Isolation
Authority - Federal
42 U.S.C. 264 - Public Health Services Act
(a) DHHS Secretary can regulate as “necessary to prevent the
introduction, transmission, and spread of communicable diseases’’
from foreign countries and across states.
(b) Authorizes the ‘‘apprehension, detention, or conditional release’’ of
individuals to prevent the spread of communicable diseases as
specified in Executive Orders of the President.
(c) Provides the basis for foreign quarantine of persons.
(d) Provides the basis for interstate quarantine of persons.
42 U.S.C. 243 - Federal government may assist and cooperate with
and aid State and local governments in enforcing quarantine and
other health-related regulations.
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State of Emergency
Once an emergency has
been declared, the legal
landscape changes.
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Emergency Declarations
How the legal landscape changes depends
on the type of emergency declared
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Multiple Levels of Emergency
Declarations
Federal “DHHS” public health emergency
Federal “Stafford Act” emergency
State/tribal public health emergency
State/tribal emergency or disaster
Local public health emergency
Local emergency or disaster
Depending on the emergency declaration, public
health powers to quarantine or isolate vary
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Emergency Declarations –
State Approaches
Before 9/11:
After 9/11:
Existing state legal
infrastructures
focused on general
emergency or
disaster responses
Reforms of emergency
laws in many states to
address “public health
emergencies”
“All hazards”
approach
Based in part on the
Center’s Model State
Emergency Health Powers
Act (MSEHPA)
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States That Define
“Public Health Emergency”
HI
WA
VT NH
AK
MT
ME
ND
MN
OR
ID
SD
WI
WY
CA
UT
AZ
PA
IA
NE
NV
IL
CO
KS
OK
NM
MO
KY
“Public health emergency”
or similar term defined in
state statutes as of April 2008
WV VA
NJ
DE
MD
DC
NC
TN
AR
SC
MS
TX
OH
IN
MA
RI
CT
NY
MI
AL
GA
LA
FL
PR - (Puerto Rico)
VI - (U.S. Virgin Islands)
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“Public Health Emergency”
Defined
• “Public health emergency”
An occurrence or imminent threat of an illness
or health condition that (1) is believed to be
caused by any of the following:
 Bioterrorism
 Natural disaster
 Appearance of a novel
or previously controlled
or eradicated infectious
agent or biological
toxin
 Chemical attack or
accidental release
 Nuclear attack or
accident; and
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“Public Health Emergency”
Defined
(2) poses a high probability of any of the
following harms occurring in a large number of
the affected population:
 Death
 Serious or long-term disability
 Widespread exposure to infectious or toxic
agent posing significant risk of substantial
future harm
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The Model State Emergency Health
Powers Act
Individuals are
bestowed special
protections and
entitlements
Government is
vested with
specific, expedited
powers to facilitate
emergency
responses including
the expedited use
of quarantine and
isolation
Hospital
privileging
requirements
may be
waived
Volunteer
responders
may be
protected from
civil liability
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Emergency Uses of Quarantine/Isolation
Authority - Federal
42 U.S.C. § 5121 et seq. - The Stafford Act
With a declaration of an emergency or disaster, DHS has extensive
rulemaking power including the power to quarantine or isolate
individuals.
42 U.S.C. 266 - Special quarantine powers in time of war
To protect the U.S. military in time of war against communicable
diseases, DHHS’ Secretary may provide for the apprehension and
examination of any individual reasonably believed to be (1) infected
with such disease and (2) a probable source of infection to
members of the armed forces or [civilian workers]. If such
individual is infected, he/she may be detained “for such time and in
such manner as may be reasonably necessary.”
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Balancing Individual and Communal
Interests
• Clearly government has the
power to quarantine or isolate to
protect the public’s health in dayto-day and emergency settings.
• How should individual interests
be balanced with communal
objectives?
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MSEHPA – Quarantine Perception
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MSEHPA – Quarantine Reality
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MSEHPA – Isolation Perception
Source: http://www.jamd.com/search?assettype=g&assetid
=56285488&text=quarantine+in+the+public+health+
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MSEHPA – Isolation Reality
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Constitutional Requisites of Q and I
• The subject must be actually infectious or
been exposed to infectious disease
• Safe and habitable conditions must be
provided
• Individuals must not be discriminated
against in the enforcement of Q and I
• Procedural due process protections must be
employed (e.g., notice, hearing, right to
counsel)
Source: Fidler, DP, Gostin, LO, Markel H. Through the quarantine looking glass: Drug-resistant TB and public
health governance, law, and ethics. JLME. 2007; Winter; 616-628.
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Reaching an Affirmative Balance MSEHPA
Individual Rights
Public Health
• Offer available treatment,
palliative care, and other
sustenance
• Protect the community
• Restrict personal freedoms
• Curtail individual choices
• Provide due process protections
• Setting boundaries on
specific activities
• Use least restrictive alternatives
• Offer means of communication
• Respect religious/philosophical beliefs
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In Conclusion
• Questions, comments, thoughts
• For more information, please
contact me or visit the Center’s
website at: www.publichealthlaw.net
• Thank you!
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