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Mulling the allure and peril of State Power amid COVID-19

Last updated on March 23, 2020

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March 16, 2020 by Michael Schulson

As public health officials around the world continue to confront the rapid outbreak of the coronavirus illness known as Covid-19, quarantines and other restrictions on personal movement have become a key tool of containment. China had aggressively quarantined some 50 million people in Hubei province since late January — at the time the largest “cordon sanitaire,” as such quarantines of mass geographic areas are known, in history — before starting to ease movement restrictions last week. Italian leaders have upped the ante, putting the entire country of 60 million people on indefinite lockdown, with police limiting travel between towns and cities.

For its part, the U.S. has enforced quarantines for individuals entering the country who are known to have been exposed to the virus officially dubbed SARS-CoV-2. President Donald J. Trump has also declared a national state of emergency, and effectively banned foreign nationals from entering the U.S. from most of Europe, as well as China, and Iran. Meanwhile, a cascading list of states and municipalities across the U.S. have begun shuttering schools, universities, bars, restaurants, sporting events, church services, and other large gatherings of people — and encouraging Americans to limit interpersonal contact and, if possible, to simply stay at home.

One question that continues to percolate among an increasingly nervous American populace, however, is whether more widespread and aggressive state actions — forcing the infected to self-isolate, requiring exposed people to self-quarantine whether they want to or not, and even instituting cordons sanitaires — could happen here, or whether they even should.

In some ways, the answer is academic: While the federal government does have the authority to control the movements of people into and out of the U.S., as well as across state lines, the power to limit movement or take other coercive actions against individuals or groups of citizens living in a particular area generally resides with state and municipal authorities. And while some local and state officials have begun ratcheting up actions against infected individuals who ignore recommendations to stay home — police officers in Kentucky, for example, have been stationed outside the home of a recalcitrant individual with Covid-19 — individual citizens, for the most part, remain free to move about at their discretion. New York’s Gov. Andrew Cuomo, for example, set up a “containment area” around the city of New Rochelle last week, but restrictions do not prevent residents from leaving the area if they choose.

Whether, where, and how more stringent containment efforts might emerge is difficult to say, and it seems certain that many Americans would defy — intentionally or inadvertently — even clear orders. More fundamentally, however, the mere notion of official edicts regarding individual behavior raises long-standing questions, still unsettled in the American public health sphere, around when, if ever, officials should resort to coercion in pursuit of a public health goal.

On the one hand, advocates for tough and restrictive measures can quickly point to China, where enforced quarantines seem to have slowed the spread of the novel coronavirus, as a possible example of how aggressive enforcement can save lives. But such measures, even if on the advice of scientists, also worry civil libertarians in the U.S., who say governments are apt to abuse such powers. Other experts suggest that aggressive and strict state action could actually hamper efforts to maintain public safety in the U.S.

“You can’t expect the public to trust you — you being the government — if you don’t trust the public,” said Wendy Mariner, a public health law scholar at Boston University, when asked about coercive public health interventions writ large. In times of public health emergencies, it may well be better, she and other experts suggest, for leaders to produce forthright, transparent, and clear public messages that lay out the science, explain the increasingly high stakes, and describe the virtues of individual changes in behavior — including social distancing, diligent hand-washing, and even self-quarantine.

“If your only tool is coercion, the public will probably get their backs up,” Mariner said. “At least a significant proportion of them.”

Americans have wrestled with these questions for more than a century. Indeed, a little-remembered, 115-year-old Supreme Court case offers perhaps the clearest justification of the extraordinary powers that government officials — at least at the state level — can wield in the face of a pandemic.

That case, Jacobson v. Massachusetts, involved a Lutheran pastor who refused to submit to smallpox vaccination. In 1902, as an outbreak of the fast-moving, deadly virus spread in Cambridge, Massachusetts, the city’s Board of Health passed an ordinance requiring its citizens to receive vaccinations. Henning Jacobson refused. The vaccine, he argued, was dangerous and ineffective. Plus, when he had received a smallpox inoculation as a child, he had experienced a bad reaction, and he feared the vaccine would hurt him again.

Jacobson had good reason to be afraid: Unlike the vaccines of today, which are nearly always safe, the smallpox vaccine often led to serious complications. But, on the whole, it did save lives, and too many people opting out of the vaccine could help spread the infection. Cambridge took him to court. Jacobson was tried before a jury, found guilty of a criminal offense, and fined $5 (around $150 today, adjusting for inflation). Jacobson appealed the case all the way to the Supreme Court, which upheld his conviction three years later.

“Jacobson held that the state can put you at significant risk to protect the public,” said Edward Richards, a public health law scholar at Louisiana State University, about the case. 

At issue in Jacobson v. Massachusetts was not just the question of vaccination, but also one of power: When can the community limit an individual’s liberty for the sake of the public good? How should scientists and other experts inform those policies? And how can democratic societies respond to the profound threat of highly virulent pathogens, while staying democratic?

The court found that states could compel things like vaccination under a broad category called “police power,” a kind of authority derived separately from the Constitution, and that can be enacted by legislatures in the interest of public safety. “There are manifold restraints to which every person is necessarily subject for the common good,” Justice John Marshall Harlan wrote for the majority. “On any other basis organized society could not exist with safety to its members.”

Those principles echo today in all sorts of public health decisions. “This was one of the first cases that said, okay, can the state’s police power limit the liberty of its own residents?” said Mariner. “The idea was, yes, it could, in times of a real emergency.”

Over the years, those powers have undoubtedly saved lives. Mass vaccination policies in the United States helped eradicate smallpox and suppress deadly diseases like measles and whooping cough. Swift, expansive quarantines during the Spanish Influenza pandemic of 1918 and 1919 probably allowed places like Gunnison, Colorado and St. Louis, Missouri to avoid the worst of the infection, which killed tens of millions of people worldwide.

“What civil libertarians will argue is that things like police presence and national guard presence is unnecessary, because if you explain to people adequately the need for measures to protect the public health, they will voluntarily act in the best interest of the community,” said James Colgrove, a professor of sociomedical sciences at Columbia University’s Mailman School of Public Health.

Whether that’s true, Colgrove continued, is something we can actually watch play out. “We’re seeing that the answer is sometimes yes, and sometimes not,” he said, citing the recent case of an employee of Dartmouth-Hitchcock Medical Center in Lebanon, New Hampshire who, despite a suspected case of Covid-19, disobeyed medical recommendations and attended a party, potentially exposing dozens of people to the virus.

But wide-ranging public health powers have also been abused. Quarantines in the United States have sometimes targeted marginalized immigrant communities, putting a scientific gloss on straightforward racial profiling. In an important case decided in 1900, Jew Ho v. Williamson, a federal court ruled that a quarantine in San Francisco that singled out the city’s Chinese community had violated the equal protections clause of the 14th Amendment.

More recently, after the Ebola outbreak of 2014 and 2015, civil liberties advocates complained that the federal government had needlessly detained health care workers returning from Africa, putting them in isolation without evidence that they were actually at high risk of spreading the virus.

Those kinds of high-profile detentions can be politically popular, reassuring a nervous public that political leaders are taking action, and some scholars and advocates are worried that the coronavirus pandemic could lead to similar excesses. “The misuse of public health power for political gain is not unheard of,” Richards said. “More rational administrations than this one have made political decisions over public health decisions.”

Jay Stanley, a senior policy analyst at the American Civil Liberties Union who helped write a report criticizing the Ebola detainments, agreed. “We are concerned that politics will trump science here,” he said, adding that “an approach that treats [the issue] as a public health matter and not as a law enforcement or national security matter” will be “better aligned with our values” and more effective at containing the spread of the virus.

Overseas, human rights advocates in China have expressed concerns that the government’s extensive coronavirus surveillance will be kept in place even after the virus subsides, further limiting civil liberties in the country.

And Jacobson v. Massachusetts itself offers a stark warning about the excesses of some public health policies. The decision was cited as a precedent in Buck v. Bell, the infamous 1927 decision that upheld a Virginia eugenics law permitting the forced sterilization of people thought to have intellectual disabilities.  “Society can prevent those who are manifestly unfit from continuing their kind,” Justice Oliver Wendell Holmes wrote in a brief and chilling decision in that case. “The principle that sustains compulsory vaccination,” he continued, citing Jacobson, “is broad enough to cover cutting the fallopian tubes.”

For many people, these kinds of stories, while sobering, will not deter calls for rapid, restrictive steps in the face of a pandemic. Already, some global health leaders have lauded the measures China put in place to stop the outbreak. The World Health Organization, in a report published last month, described China’s response as “the most ambitious, agile, and aggressive disease containment effort in history,” while also praising “the deep commitment of the Chinese people to collective action in the face of this common threat.”

Complicating the situation, it may simply be difficult to know at this point whether restrictive measures like a cordon sanitaire will actually be effective in all places and situations. “I think there is virtually no empirical evidence, in the sense of rigorous evaluative data on anything of this scale,” Ross Upshur, an epidemiologist at the Dalla Lana School of Public Health at the University of Toronto, wrote in an email to Undark. “Most of the uses of cordon sanitaire like this were in the pre-epidemiological era. The only data we have is the WHO China report.”

Such measures, Upshur wrote, are certainly “symbolically effective.” And community commitment to restrictions may vary from place to place. In one study, Upshur and colleagues asked Canadians whether violating a quarantine order was most comparable to parking in a no-parking zone, speeding, assault, or manslaughter. Half of them said manslaughter. “I know when I presented these results in the U.S. my American colleagues were of the view that things would be much different.”

The U.S. legal system would also present significant obstacles to certain restrictions and some experts have questioned whether a cordon sanitaire, like that in China or Italy, would even be feasible. In an essay at Health Affairs published last week, the influential Georgetown University health law scholar Lawrence Gostin laid out a thorough case for why locking down entire regions would be extremely difficult.

That kind of measure, he argued, could trample some constitutional protections, make it difficult to get essential supplies to large populations, and inspire fear in ways that actually make it harder to track and respond to the pandemic. “The first rule of public health is to gain the public’s trust,” Gostin wrote. “If draconian measures were on the table in the U.S., we could lose any semblance of public cooperation.”

Still, milder coercive policies may be tempting for political leaders. On Wednesday night, President Trump announced his administration would be limiting travel to the United States from most of Europe, drawing derision from some experts. The President followed that move Thursday by suggesting to reporters that the government may consider imposing domestic travel restrictions. That could raise issues in the courts, said Lindsay Wiley, the director of the Health Law and Policy Program at American University’s Washington College of Law, in an email to Undark. Before turning to restrictions, Wiley wrote, “the government usually has to try voluntary or very limited measures first.”

“To move from a situation where there have been no voluntary health advisories against travel to any particular locations within the U.S. to any kind of mandatory restriction on domestic travel would be utterly unprecedented and constitutionally problematic,” she added.

Instead, many experts continue to recommend finding ways to enlist the public’s help in stopping the spread of the virus through straightforward, accurate, and evidence-based messages. Mariner, for example, has urged policymakers to enact measures that will make it easier for people to seek care and voluntarily stay home when needed.

She also pointed out that, unlike a century ago when Jacobson was decided, people today often resist public health measures, not because they have reason to be afraid of them, but because of failures of trust, support, and communication: “It’s more a question of public trust in the credibility of official information that is at stake here.”

This article was originally published on Undark. Read the original article.

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