Seized By Fear: The Ebola Quarantine (Update x2)

There were three options for how nurse Kaci Hickox would be received when she flew into Newark, New Jersey, Airport on her way back from West Africa after treating Ebola patients:

1. There would be a party for her for being so brave and self-sacrificing to help those in terrible need at grave personal risk.

2. She would get off the plane, go home, check the mail and telephone messages, maybe order some take-out, and get some well-deserved rest.

3.  She would subject to hostile interrogation, seized and incarcerated, because Ebola.

Via Josh Blackman, the ACLU has taken up Kaci Hickox’ cause, to free her from the quarantine imposed by New Jersey Gov. Chris Christie lest Ebola spread across the Garden State, quieting oil refineries and chemical dumps.  Hickox is asymptomatic, which distinguishes her from the old school quarantines that were a staple of American border entry the last couple of centuries.

It’s not a life sentence, but 21 days of quarantine.  To some who aren’t Kaci Hickox, this doesn’t appear to be too much of a burden to be sure, absolutely certain, that she won’t introduce Ebola to Jersey.  After all, it could happen.  And Ebola is a terrible, deadly, largely untreatable disease.  Aren’t you afraid of it?

Fear sells.  Fear grips politicians by the throat and whispers in their ear, “use me, use me.”  Whether it’s fear of Ebola, fear of terrorists or fear of crime.  It’s the perfect offset of the one against the many, because all those people who rationalize that anything is better than taking any chance whatsoever see no real issue in someone else suffering for their safety.

We’re weird that way.  Americans want to think of ourselves as a principled lot, loving all our patriotic platitudes and all, but there’s that part of us that sees nothing wrong with one of our own taking one for the team.  As long as it’s some other American.

So the ACLU, that nefarious organization that cares nothing for our children’s safety, is going to put the shore at risk:

“She is fine. She is not sick,” [Hickox attorney Steven] Hyman said. Photos they released showed her in hospital garb peering through a plastic window of the tented-off area.

After a doctor back from West Africa was diagnosed with the virus last week, Christie and New York Gov. Andrew Cuomo ordered quarantines for all returning medical workers who had treated Ebola patients. On Sunday, Christie defended the actions but federal officials and health experts criticized such policies as counterproductive.

“We believe that the medical experts should be directing these policies, not the politicians,” [Norman] Siegel said.

Bioethicist Arthur Caplan tries to take the mystery out of mindless fear, starting with the fact that Ebola doesn’t spread by magic and that we have some actual scientific knowledge about this sort of stuff.

They are not infectious. The only way to get Ebola is to have someone vomit on you, bleed on you, share spit with you, have sex with you or get fecal matter on you when they have a high viral load.

The problem with information is that it’s too easily countered by speculation.  But what if Hickox, now asymptomatic, develops Ebola, and doesn’t realize it until she vomits all over a baby?  Sure, she’s fine now, but everybody is fine until they’re not fine.  And then what are you going to say to the parents of that baby who will die a brutal Ebola death because of your being a baby hater?

Somehow, we were sold on a world without risk, without any possibility of anything going wrong, without harm.  The irony is that we apply this worldview haphazardly, conveniently, as we willingly ignore the babies who will die in a fiery car crash every day because it can’t be prevented — hey, accidents happen — and we need our cars to get to work and Red Mango.

The relative assessment of risk, whether of disease, or random harm, or the relatively tepid hurt feelings, requires a great deal of serious thought if we’re going to make rational decisions about what is worthy of fear and what is just, well, too ridiculously remote to be concerned about.  We can’t lie awake each night over every possible thing that can harm us.

We call people whose feelings are hurt, and yet lived to tell about it, survivors.  No, no, no, these are not survivors. Survivors are people who had cancer and lived. Survivors are people who had Ebola and lived. Survivors are people who survive something that stood a good chance of taking their lives.  So on the one side of the equation, we look to the degree of harm we face, whether it’s death or loss of self-esteem.

On the other hand, we consider the likelihood of harm happening.  Getting killed in a car crash is far more likely than getting struck by lightning, which is far more likely than getting Ebola in New Jersey.  For those inclined toward hysteria, it’s true that risk has not been reduced to absolute zero.  Or as they like to say, “no child should have to DIE from Ebola. None. Ever.”  Who wants to argue the opposite?

The problem with putting the power to imprison, whether called quarantine, civil commitment or any other cool name, in the hands of politicians during a climate of fear is that every incentive exists to support such actions.  The locals are afraid.  Hysteria is in the air. Their government is protecting them from the unseen enemy, making them safe. And most importantly, the price is paid by someone else.

If this rationalization sounds oddly familiar, perhaps it’s because Ebola hysteria is just the latest use of fear as motivator for the public to loosen its grip on civil rights “just to be safe.”  After all, we can never be too safe.

Update:  At Volokh Conspiracy, Eugene Kontorovich argues that the ACLU suit will fail:

Under the basic Mathews v. Eldridge balancing test for these kind of deprivations of liberty, the gravity of the of government’s interest and adequacy of pre-deprivation process are key factors. The long incubation period and deadly effects all counsel for allowing a deprivation of liberty without any showing of illness. Locking a patient up after they develop a fever simply does not substitute for doing so in advance.

When I explained the other day how the balancing test could be reduced to an argument over whether vanilla or chocolate was more delicious, some otherwise smart people couldn’t grasp the notion.  Indeed, others have argued that the courts are a valid proxy for public sentiment because they’ve so ordained themselves.

Kontorovich’s point is well taken; many, perhaps including judges, will “balance” public safety against individual civil rights and come out on the side of quarantine, both because we’ve made that choice in the past and because they prefer the former to the latter.  They prefer vanilla, and so vanilla it is, because they’re the judge and judges get to decide such things.

Update 2:  And Gov. Christie, with some federal urging, has backed off and released Kaci Hickox.  In politics, it sometimes pays to eat chocolate even if the Supreme Court rules vanillia is tastier.

14 comments on “Seized By Fear: The Ebola Quarantine (Update x2)

  1. Eric L. Mayer

    When I fly, I always ask for an upgrade to quarantine class. Once you get past the delousing, it’s really quite pleasant.

  2. Patrick Maupin

    I would opine that the inmates are running the asylum, but that would be a huge insult the the inmates, most of whom are perfectly capable of understanding that a nurse with the training to deal with Ebola (and with the guts to actually go and risk her life help to stamp out Ebola) is probably in the best position to determine whether she might have Ebola or not.

    Unlike the nurses in my home state of Texas. I would say that they are just now figuring out what hit them, but even that wouldn’t be quite fair. News coming out now is that the nurse who flew to Ohio realized she might be infected once she was in Ohio, and actually requested a private flight back — but was denied. Whether by serendipity or design, it worked out that leaving her booked on a public airline helped to fuel the fear-based agenda much better than quietly taking her back to Texas without exposing anybody else would have.

  3. Pingback: Ebola and the Failure of Lawyering – New York Personal Injury Law Blog

  4. rjh

    Missing from the discussion is the report that her blood test showed no presence of virus. The standard of treatment in African countries experienced with Ebola is that the blood test is conclusive. The test takes 1-2 days to get results. Avaiiability of this test introduces alternative levels of quarantine behavior.

    Also, there remains no evidence that a person is contagious until after they are symptomatic. (it’s important to understand the difference between infected and contagious. With Ebola the infectiousness increases as the symptoms increase. Most transmission involves vomit, bleeding, and similar symptoms. The patient is not shedding virus until after they are symptomatic.)

    A resource rich country can consider a limited quarantine that tracks a person closely with repeated monitoring for any symptoms, followed by a brief quarantine while awaiting the results of a blood test. This is a variation on the approach used in African countries when the outbreak is small. They isolate potential Ebola patients until the blood test results are available. This breaks down when the number of patients being monitored becomes large. As long as the illness is infrequent, it’s more effective, less expensive, and less likely to create public opposition.

    The notion of intermediate levels of quarantine is too complex for the panic stricken, but can be understood once the panic response is managed.

    1. SHG Post author

      While all worthwhile insight, this wasn’t a post about the technical aspects of Ebola, it’s detection and quarantine regimen. Rather, this was a post about how fear drives the evisceration of concern for other people’s civil rights. It’s the difference between a law blog and a science blog.

      1. rjh

        I see. This information becomes relevant to legal blogs when the discussion shifts from panic responses to reasonable ongoing quarantine law. That’s when scientific basis becomes a significant factor in balancing civil rights with public health. It is possible that there will need to be ongoing quarantine orders. I’ve found that lawyers like simple uniform bright line rules, which often conflict with the more complex dynamic decision tree rules that minimize the conflicts between civil rights and public health.

      2. Eric L. Mayer

        Frankly, I was a bit disappointed that you didn’t address the filamentous nature of ebola. It would also be helpful if you would cover the gene sequences among the various different ebolaviruses.

  5. Fubar

    From the secret policy handbook “Ebola and Civil Rights” issued to all New Jersey officials:

    1. We must do something.
    2. This is something.
    3. Therefore we must do this.

    This disease arrives transoceanic.
    Its scourge could be worse than Satanic!
    We don’t know Ebola
    From ships or Shinola —
    Run in circles, scream, shout! But don’t panic.

  6. Bob Mc

    I agree with what Kaci Hickox said in an Interview with CNN a day or so ago:
    “I just feel like fear is winning right now, and when fear wins, everyone loses.”

  7. lawrence kaplan

    Governor Cuomo stated that he was “erring on the side of caution.” The NBC program cited him as saying that he was “airing on the side of caution.” Airing, indeed. But it would have been even more accurate to write that he was “scaring on the side of caution.”

  8. FN

    They aren’t infectious until after they start having a fever. If I was potentially exposed to Ebolavirus and started to have a fever I sure as heck would get my ass to a hospital that specialized in infectious disease for supportive care. There is nowhere to run. This is just ignorant political crap, but they are the ones we entrust with the guns so what they dictate goes. I am quite certain medical personnel can take their own temps and report any potential issue (as the 2nd nurse with Ebola did only to be cleared to fly off to wherever by some ignorant government ass-hat) as well as abstain from unprotected sex for 3 weeks post exposure.

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