By Jennifer Bard
[Cross-post (with some updates) from Prawfsblawg.]
Law students have lots of things competing for their attention, but one topic I’ve found of general interest this fall is Ebola. Although the topic is obvious low-hanging fruit for those of us in the health law crowd, I’d suggest there’s plenty to keep Constitutional Law, Torts (information is coming out that the patient was sent home from the emergency room, even though he said he had been to Liberia and that his contacts are being monitored including five school children), Commercial Law, International Law, immigration, etc. going as well. An infectious disease like Ebola triggers concerns about shipping, air travel, and, of course, quarantine, search, and seizure.
Today’s news that a Texas hospital has diagnosed a patient already in the United States was inevitable-and provides an opportunity to throw a legal spotlight on the laws of quarantine and isolation. As a matter of Constitutional Law, the President of the United States can take any measure necessary to protect the nation’s security, remember President Bush’s plan to use the military to control pandemic flu (see an overview from the CRS or the plan itself), or interstate commerce, but only individual states have the power to take action addressing health issues that do not threaten the safety of the country as a whole. That’s because individual states, but not the federal government, retain “police power” to promote the health of their citizens even in the absence of a threat to others. Here’s a helpful article. This overview of emergency legal powers, specific to Ebola, comes from the Robert Wood Johnson foundation supported Network for Public Health. Here is some more general information comparing state and federal authority from the CDC and a great overview from the Congressional Research Service. While Ebola itself is low on the list of the scariest diseases we in the U.S. risk catching (here’s a list from for those who don’t have enough to worry about), it is interesting to see how quickly it happened given that estimates of only a few weeks ago were that the probability was no more than 25%. Here’s how Vox explained it using visuals. This is an on-going story-and should test the resources and skills of the Dallas County Health Department–and provide a live public health lesson to the country.
