Kaci Hickcox Threatens To Sue Maine Authorities Over Ebola Quarantine Order

We may have our first legal challenge to an Ebola quarantine order by tomorrow

Ebola Virus And Caduceus

Kaci Hickox, the Doctors Without Broders nurse who became the first person impacted by the quarantine imposed by New York and New Jersey last week and who was held at a hospital in Newark before being allowed to go home, is threatening to sue Maine health authorities if they continue to enforce a mandatory quarantine order against her:

The nurse who was quarantined after returning from treating Ebola patients in West Africa has given the State of Maine until Thursday to let her move freely, setting up what could be a test case of whether state quarantines are legal.

The nurse, Kaci Hickox, 33, who was confined first by New Jersey when she came back to the United States and then by Maine, did a blitz on morning television challenging her confinement by Maine officials.

“I remain really concerned by these mandatory quarantine policies,” Ms. Hickox told ABC News via Skype from Maine on Wednesday morning. “I think we are only adding to stigmatization that again is not based on science or evidence.”

If the state does not lift her quarantine order by Thursday morning, she said, “I will go to court to attain my freedom.”

On the “Today” show on NBC, Ms. Hickox said, “I am not going to sit around and be bullied by politicians and forced to stay in my home when I am not a risk to the American public.”

aine’s governor, Paul R. LePage, said Wednesday that he was working with state health officials “to seek legal authority to enforce the quarantine.”

“We hoped that the health care worker would voluntarily comply with these protocols, but this individual has stated publicly she will not abide by the protocols,” Mr. LePage said in a statement. “We are very concerned about her safety and health and that of the community. We are exploring all of our options for protecting the health and well-being of the health care worker, anyone who comes in contact with her.”

State law gives the governor authority to confine individuals if there is “an actual or threatened epidemic or public health threat.” In 2007, Maine used the law to confine a homeless man who had drug-resistant tuberculosis, according to state health reports.

The governor has posted the Maine State Police outside the residence in Fort Kent where Ms. Hickox is staying, his statement said, “for both her protection and the health of the community.”

Officials at the federal Centers for Disease Control have criticized mandatory quarantines, saying self-monitoring for symptoms is sufficient. Ms. Hickox said she had been monitoring her health by taking her temperature twice a day.

In a statement Wednesday, the organization with which Ms. Hickox worked in West Africa, Doctors without Borders, said it “strongly disagrees with blanket forced quarantine for health care workers returning from Ebola affected countries.” It said, “Such a measure is not based upon established medical science.”

One of Ms. Hickox’s lawyers, Steve Hyman, told ABC News he did not believe the state had legal authority to confine his client. “The standard is,” he said, “does Kaci have an infection disease or agent? Does she harbor an infection? The answer is no.”

He said: “There is no medical science that says she should be quarantined. None.”

Norman Siegel, a prominent civil rights lawyer who also representing Ms. Hickox, said on the “Today” show that they would take legal action if Maine officials went to court to enforce a quarantine. He said the state had no justification to do so.

Once the quarantine policy was announced in the wake of the discovery that a New York City doctor who had been in the Ebola hot zone had come down with the disease, and had traveled in parts of the city before he had any symptoms that would be considered warning signs of the illness, it was perhaps inevitable that there would be a legal clash between state and local authorities and a person impacted by a mandatory quarantine order. And given that she has been outspoken about her confinement from the beginning, it’s not surprising that Hickcox would be taking this position. However, while the law in this area is unclear, it strikes me that any lawsuit she files is likely to fail for reasons that may not have much with what the law is or should be.

As I said yesterday, the entire issue of what the state can do in response to the outbreak of a serious communicable disease, when and under what circumstances it can do anything, and whom it can act against. As I said, even though most of the law in this area is quite old and tends to pre-date recent developments in area like due process, it seems fairly clear that a Court would have no problem with a quarantine imposed against someone who is obviously contagious with a disease like Ebola. Things could be quite different, though, in the case of someone like Ms. Hickox who is not displaying any symptoms at all to date and is therefore not contagious according to all available medical science. Yes, it’s true that she could develop symptoms at any point in time, Dr. Craig Spencer for example was apparently okay up until his first registered a fever of 100.3° last Thursday afternoon, but it’s equally possible that she won’t develop any symptoms at all and it isn’t clear to me that, even under the most generous interpretation of the police power laws that allow for quarantines, such a person could or should be forced to quarantine themselves for any period of time.

Not surprisingly, there seems to be something of a negative reaction developing against Ms. Hickcox, especially among conservatives who are displaying an interesting level of trust in state authority, and disdain for personal liberty given their rhetoric on these topics over the years. Even beyond partisans, though, a new poll from from CBS News shows massive support for the type of quarantine that she is vowing to resist, so I’d suspect that most of the respondents who are okay with quarantines would be inclined to have a negative opinion of someone who says she doesn’t intend to abide by one. It’s also quite possible that, regardless of what the law is or, perhaps in this case its better to say ought to be since I’m not sure we’ve seen a case where the state is seeking to quarantine someone not because they are contagious but because there’s a chance they might become contagious in the future, that even a Federal District Court Judge might be disinclined to rule against the state on this issue. This is especially true given the fact that, by Friday, there will only be fourteen days left in the twenty-one day incubation period since Ms. Hickox arrived in the United States. That number is likely even lower since the proper day to begin measuring from would be the day she left west Africa. Given the limited nature of the time period during which she’d be confined at home, and indeed the fact that it would be at home rather than in a hospital or some other facility, a Judge could find that the state’s request is reasonable under the circumstances and allow the quarantine to continue. Assuming that she shows no symptoms and the quarantine is lifted, then any appeal of the Judge’s order would be moot so there really wouldn’t be any binding precedent set. If she continues to be subjected to quarantine after twenty-one days, obviously, the facts of the case would change significantly and a Court would likely rule in her favor. Under the facts presented, though, I’m inclined to think that a lawsuit against Maine health authorities over this issue would probably end up being a losing case for Hickcox, even though I think that legally, scientifically, and morally she is far more in the right than the government would be in such a case.

FILED UNDER: Health, Law and the Courts, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Assuming that she shows no symptoms and the quarantine is lifted, then any appeal of the Judge’s order would be moot so there really wouldn’t be any binding precedent set.

    No it wouldn’t. This would be an textbook case of the “Capable of repetition, yet evading review” exception to the mootness doctrine.

  2. @Stormy Dragon:

    Possibly, but the Court is just as likely to boot it as it is to accept an appeal in a case that is already over. More likely perhaps

  3. beth says:

    I saw an interview last night with an aid worker over in West Africa. She said there’s lots of foreign aid doctors/nurses/etc. that are looking forward to going home for the holidays. If we’re going to put some sort of national policy in place, we really should get it done before then. I hope this goes forward even though I suspect the court will err on the side of caution and uphold the quarantine, however ridiculous it is.

    What happens to all the lab workers handling Ebola doing testing and research? Should they be forced to be quarantined too?

  4. grumpy realist says:

    I think she would have a better chance of squawking about the conditions under which NJ held her, rather than the quarantine itself. The conditions for quarantine seem to have a narrowly defined class (health practioners who were working with Ebola-infected patients), and the period of time for quarantine is relatively short. Add to this the fact that there seems to be confusion as to a) how contagious Ebola is, b) the possible existence of asymptotic carriers, c) arguments among the specialists as to how people catch Ebola, and one can see why, in a balance of harms, a reasonable judge will probably throw in on the “no, you get quarantined” side.

    On the other hand, the nurse has a very good point: if Ebola is so friggin’ contagious, why aren’t we quarantining the doctors and nurses in the US who work on Ebola-infected patients? How far out do we extrapolate the degree of contagion?

  5. al-Ameda says:

    @Doug Mataconis:

    Possibly, but the Court is just as likely to boot it as it is to accept an appeal in a case that is already over. More likely perhaps

    Won’t it be considered moot by the time it comes up for review by the Court? It seems very unlikely to me that this case will ever be taken up. The larger issue (state v federal authority) may not sufficiently interest the Court.

  6. @Doug Mataconis:

    Southern Pacific Terminal Co. v. ICC:

    The case is not moot where interests of a public character are asserted by the Government under conditions that may be immediately repeated, merely because the particular order involved has expired… The rule that this court will only determine actual controversies, and will dismiss if events have transpired pending appeal which render it impossible to grant the appellant effectual relief does not apply to an appeal involving [a government] order .. merely because that order has expired. Such orders are usually continuing and capable of repetition, and their consideration, and the determination of the right of the Government and the carriers to redress, should not be defeated on account of the shortness of their term.

    Roe v. Wade:

    The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid.

  7. Rafer Janders says:

    Not surprisingly, there seems to be something of a negative reaction developing against Ms. Hickcox, especially among conservatives who are displaying an interesting level of trust in state authority, and disdain for personal liberty given their rhetoric on these topics over the years.

    You didn’t think they actually believed any of that stuff, did you?

  8. Rafer,

    I believe I’ve made fairly clear over the years that I don’t

  9. al Ameda,

    Yes, that is basically my point. There’s enough time left for a District Court Judge to rule on a TRO request at most, and, maybe an appeal of that Order to the First Circuit, but that’s about it. After the 21 days, the case would be moot assuming she remains asymptomatic and the quarantine is lifted.

  10. Eric Florack says:

    and where, I ask, does the funding for such a lawsuit come from?
    That link I posted yesterday, exposing her as a political oppperative/pawn would seem the logical answer. Science? Never had a chance with Democrats around.

  11. PD Shaw says:

    I’m finding the issues very vague at this time as it seems that Maine has asked her to voluntarily isolate herself, and not been clear about what they would do if she did not voluntarily comply. Her statement that she will go to court unless the restriction is lifted appears to be intended to create a case or controversy by forcing the state to do something. Still, she might be tossed by the court because their is nothing yet to adjudicate, perhaps ripeness. The government makes demands on people all of the time, and they are not necessarily reviewable until government action becomes more definitive. There was, however, a SCOTUS case within the last couple of years that limited the EPA’s ability to evade review in this way, but its not clear how far those concepts extend.

    OTOH, she could take such steps as to provoke her arrest, and help prove the case against her — she is noncompliant.

  12. al-Ameda says:

    @Eric Florack:

    Science? Never had a chance with Democrats around.

    Except for the fact that Republicans are the anti-science party, you would have made a valid point.

  13. anjin-san says:

    @ Eric Florack:

    Look, you have made yourself clear. An all-powerful state should be able to deprive citizens of their freedom at a governors whim when you are scared.

    We get it.

  14. grumpy realist says:

    Florack isn’t the only one panicking.

    Good grief. This is getting to the point of ridiculousness.

  15. Jenos Idanian #13 says:

    Kaci Hickox, the Doctors Without Broders nurse

    Wrong. Hickox was/is an employee of the CDC, who was assigned to work with Doctors Without Borders. But her CDC connections are vanishing from the online world.

    And Dr. Craig Spencer, New York’s Ebola patient, initially lied to authorities about his travels around the city — until they pulled his credit and Metro card records and asked him to reconsider.

  16. Rafer Janders says:

    Kaci Hickox, the Doctors Without Broders nurse

    Doctors Without Broders, working tirelessly to rid the world of mindless Broderist faux-centrism….

  17. Jenos Idanian #13 says:

    @Rafer Janders: Hey, cut a Broder some slack…

  18. Eric Florack says:

    @anjin-san:
    so, politics, not science.
    as I said.
    Got it.

    @Jenos Idanian #13: exactly.

  19. Eric Florack says:

    @anjin-san:
    so, politics, not science.
    as I said.
    Got it.

    @Jenos Idanian #13: exactly.

    @al-Ameda: The Democrat actions in this matter make your statement out a lie.

  20. anjin-san says:

    @Eric Florack:

    Dude, you run a blog that’s technical level is about 2001. The only thing missing is blink tags.

    Hire a bright fifth grader to develop a real blog for you, then get back to me about science.

  21. James Pearce says:

    An informal poll of the guys at work* indicates that Americans believe anyone who has been within a square mile of a person infected with ebola should be immediately quarantined for 21 days or put in jail.

    Ebola jail, I guess.

    I haven’t quite lost confidence in the American people’s ability to be rational, but I’m getting close….

    (*We have CNN up on the screen all day, so these topics naturally come up.)

  22. Jenos Idanian #13 says:

    @anjin-san: Dude, you run a blog that’s technical level is about 2001. The only thing missing is blink tags.

    Hire a bright fifth grader to develop a real blog for you, then get back to me about science.

    What’s that, your 387th posting that contained nothing about the topic at hand, but just a personal attack? Or am I low-balling your ability to add nothing to the discussions?

  23. charles austin says:

    Mr. Mataconis, the “conservative support” you highlight has nothing to do with a sudden faith in the goodness or efficiency of government or any disdain for liberty. More along the lines of just one of the things “conservatives” believe the government is supposed to be doing, you know, protecting the borders and the general welfare, et al. Why you and others here keep pushing this idea that “conservatives” expecting the government to do certain things that are undeniably within their mandate is hypocritical with wanting a limited government with enumerated powers to stick to those things illustrates only how unserious you are becoming. The options are not limited to complete statism and anarchy. As someone once said, the US Constitution is not a suicide pact. Is it just pandering to the crowd or are you losing the ability to discern more finely than false dichotomies?

  24. Jenos Idanian #13 says:

    @charles austin: You’re making a good attempt, but you’re dealing with people who hear government referred to as “a necessary evil” and ignore the “necessary” part. Who think that any attempt to limit government is a cry for anarchy. Who think that whatever they think is Good is automatically in the Constitution, and everything they think is Bad is forbidden by it. (Or, at least, once you consider it a “living document” that can magically rewrite itself over time to confirm their prejudices and biases.) And most importantly, no one has the right to be wrong. If they think you’re wrong, then they need to bring the full power of the State down on you.

    That’s the mentality you’re dealing with here.

  25. wr says:

    @charles austin: Yes, we all know that conservatives believe that the proper function of government is to lock up anyone they’re scared of. We’ve seen that throughout history. Of course, this country was founded on the idea that this would be illegal — but most conservatives long for a 14th century feudal system anyway. Thanks for confirming that!

  26. bill says:

    since when is maine run by conservative republicans?! wtf?
    and australia is isolating themselves from the carriers- yes, the same australia that we’re always reminded of as being so ahead of us all due to their free medical /gun control laws……most of you never look beyond them to see they have pretty fascist immigration policies, but that’s all good i guess- when you cheery pick your factoids.

  27. Jenos Idanian #13 says:

    @wr: Yes, we all know that conservatives believe that the proper function of government is to lock up anyone they’re scared of. We’ve seen that throughout history.

    And the biggest example of that was President Franklin Delano Roosevelt and Japanese Americans.

  28. Tyrell says:

    Let’s suppose someone comes to the United States from one of the ebola countries and does not have symptons, but does not run temperature checks, then develops the disease and infects others. Can that person be sued ?
    I understand the objections to a required quarentine to every person entering, but it seems that self checking assumes that the person will actually do that, and will seek medical attention if they develop a fever. While most will do that, some one person may not. And how long after a temperature shows up do you have before you can infect someone ? Would it require an immediate response by getting to the hospital asap? That may not always be easy to do, especially trying to avoid contact with others.
    I would be inclined to have the opinion that most hospitals are not equipped and have personnel who are trained for this. I don’t think a regional hospital or urgent care facility would be the place to go.
    Am I seeing all the facts here or am I ovelooking something.
    I certainly understand this lady’s feelings here of being treated as if she was already infectious.

  29. Jenos Idanian #13 says:

    Sometimes I think I might be the only one here who has read Randy Shilts’ And The Band Played On…

  30. grumpy realist says:

    @Jenos Idanian #13: What we’re simply saying is you can’t take away someone’s civil rights because some bedwetter screams and thinks that his right to feel secure trumps everything. We’ve got schools in Ohio in a tizzy because One Of Our Teachers Visited A City Where An Ebola Patient Was! We’ve got a school insisting that two children from Rwanda not attend school (look at a map, bozos. Rwanda hasn’t reported a single case of Ebola, by the way.

    At some point you’ve got to stop indulging people in their hysteria. Tell them that if they’re that scared, why don’t they isolate themselves?

  31. wr says:

    @bill: “since when is maine run by conservative republicans?! wtf?”

    I realize you take pride in knowing nothing about anything, but why don’t you google Paul le Page and the come back to carry on the conversation.

  32. Jenos Idanian #13 says:

    @grumpy realist: WTF? The rationale for the ObamaCare mandate was that “you might, at some point, pose a potential financial risk to society, so we’re going to make you do this.” But “please don’t risk exposing someone else to this disease for the next 21 days” is too much to ask of people who have been exposed to a deadly disease?

    And why has such an effort been made to conceal Hickox’ employment with the CDC, along with a move to make it look like she was working for MSF?

  33. C. Clavin says:

    So…they can’t quarantine her without a court order…and it appears no judge is going to sign a court order based solely on bed-wetters like the above…and the rest of the Republicans wusses.

  34. grumpy realist says:

    @Jenos Idanian #13: If you will reread my comments above you will notice that my estimation is that a judge would find the quarantine of Nurse Hickox to be warranted because it is concrete, well-defined, and has an end. I also understand why she may want to protest the “voluntary quarantine” they have been trying to impose on her, given that the exact same argument could be used against any medical doctor/nurse in the US who has been treating Ebola patients here–and we’re not going nuts over them, yet.

    So tell me, why shouldn’t we quarantine all people who have been exposed to Ebola patients, not just the ones returning from Africa?

    (And then we can quarantine those exposed to the people who have been quarantined…)

    How far should we go to assuage people’s fears, and why?

  35. SKI says:

    @grumpy realist: Add to this the fact that there seems to be confusion as to a) how contagious Ebola is, b) the possible existence of asymptotic carriers, c) arguments among the specialists as to how people catch Ebola

    Source? I’m unaware of any confusion among the experts (and I get multiple briefings a week on this at work).

  36. grumpy realist says:

    @SKI: I’m thinking of this article.

    and I thought I had seen a popular article which mentioned a small percentage of Ebola patients who didn’t develop a fever within X days of exposure. (This may not mean what the article seemed to interpret it as–it might simply have been their body immune systems were better fighting off the virus until later on after infection.)

    The question is–can we detect Ebola in someone before that person becomes “infectious”?

    As said, the best thing you can probably do is a)get your flu shot, and b) make sure you eat well and get enough sleep.

  37. grumpy realist says:

    Here’s an article plus links to the Lancet article about asymptotic Ebola

  38. grumpy realist says:
  39. mannning says:

    @grumpy realist:

    The Lancet article agrees with:

    Could Ebola go airborne? That’s the fear set off last week by a New York Times op-ed entitled “What We’re Afraid to Say about Ebola” from Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota. Although clinicians readily agree that the Ebola virus leaps from one person to the next via close contact with blood and other bodily fluids, Osterholm warned that the risk of airborne transmission is “real” and “until we consider it, the world will not be prepared to do what is necessary to end the epidemic.” (WAPO)

    So there are several experts that challenge current wisdom of how we handle Ebola, from possible asymptomatic people to the distinct possibility of mutation to airborne transmission. These two factors should change the game of isolation and quarantining completely, until more evidence has been obtained to guide the handling of suspected carriers. Considering these possibilities, what constitutes sufficient caution?