Through the Quarantine Looking Glass: Drug-Resistant Tuberculosis and Public Health Governance,Law,and Ethics

Centers for Disease Control and Prevention, “Tuberculosis: General Information, July 2007,” available at <http://www.cdc.gov/tb/pubs/tbfactsheets/tb.htm> (last visited September 19, 2007); Centers for Disease Control, “Multi-Drug Resistant Tuberculosis (MDR-TB), July 2007,” available at <http://www.cdc.gov/tb/pubs/tbfactsheets/mdrtb.htm> (last visited September 19, 2007).

Centers for Disease Control and Prevention, “Extensively Drug-Resistant Tuberculosis (XDR-TB), July 2007,” available at <http://www.cdc.gov/tb/pubs/tbfactsheets/xdrtb.htm> (last visited September 19, 2007).

World Health Organization, “XDR-TB Update 2006: Message from the WHO Director of Stop TB, Dr. Mario Raviglione,” available at <http://www.who.int/tb/xdr/dir_stb_message_25sep06/en/index.html> (last visited September 19, 2007).

World Health Organization, “Emergence of XDR-TB,” available at <http://www.who.int/mediacentre/news/notes/2006/np23/en/index.html> (last visited September 19, 2007).

See, e.g., Singh J. A. Upshur R. Padayatchi N. , 'XDR-TB in South Africa: No Time for Denial or Complacency,” PLoS Medicine 4, no. 1 (2007): e50, available at <http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1779818> (last visited September 19, 2007).

World Health Organization, “WHO Guidance on Human Rights and Involuntary Detention for XDR-TB Control, Jan. 24, 2007,” available at <http://www.who.int/tb/xdr/involuntary_treatment/en/index.html> (last visited August 14, 2007) [hereinafter cited as WHO].

This description of the Speaker case is taken from a number of sources, including the Centers for Disease Control and Prevention, “Interim Timeline: Actions to Protect Public Health - Investigation of U.S. Traveler with XDR TB,” available at <http://www.cdc.gov/tb/XDRTB/timeline.htm> (last visited August 14, 2007) and Gerberding J. L. Director, Centers for Disease Control and Prevention, Recent Case of Extensively Drug Resistant TB: CDC's Public Health Response, Testimony before the Committee on Appropriations Subcommittee on Labor, Health and Human Services, and Education, U.S. Senate , June 6, 2007, available at <http://www.cdc.gov/washington/testimony/6-06-07_XDR_TB_testimony.html> (last visited September 19, 2007).

See, e.g., Mullet C. F. , “A Century of English Quarantine, 1709–1825,” Bulletin of the History of Medicine 23, no. 6 (1949): 527–45; Rosen G. , A History of Public Health (New York: MD Publications, 1958); Schepin O. P. Yermakov W. V. , eds., International Quarantine (Madison, CT: International Universities Press, 1991): At 125–58; Winslow C.-E. , The Conquest of Epidemic Disease: A Chapter in the History of Ideas (New York: Hafner, 1967).

Garrison F. H. , A History of Medicine , 4th ed. (Philadelphia: W. B. Saunders, 1928): At 60. There are many doctrines for avoiding contagion in the Five Books of Moses. For a useful description, see id., at 67–70; Winslow , supra note 8, at 79–82; Lieber E. , “Skin Diseases: Contagion and Sin in the Old Testament,” International Journal of Dermatology 33, no. 8 (1994): 593–95.

Hippocrates , Nature of Man (chap. 9), in Lloyd G. E. R. , ed., Hippocratic Writings (London: Penguin, 1978): At 266; Thucydides , The Peloponnesian Wars (New York: Penguin, 1978). Analysis of the concept of infection as understood by the ancient Greeks is offered by Temkin O. , “An Historical Analysis of the Concept of Infection,” in Temkin O. , The Double Face of Janus and Other Essays in the History of Medicine (Baltimore: Johns Hopkins University Press, 1977): At 456–71.

See Winslow , supra note 8, at 74.

Ford W. W. , “A Brief History of Quarantine,” Johns Hopkins Hospital Bulletin 25 (1914): 80–86; McNeill W. H. , Plagues and Peoples (Garden City, NY: Doubleday/Anchor, 1976): At 124–35.

Rothenberg G. E. , “The Austrian Sanitary Cordon and the Control of the Bubonic Plague: 1710–1871,” Journal of the History of Medicine and Allied Sciences 28, no. 1 (1973): 15–23.

Howard-Jones N. , “Origins of International Health Work,” British Medical Journal (May 6, 1950): 1032–37.

Fidler D. P. , International Law and Infectious Diseases (Oxford: Clarendon Press, 1999): At 35–42.

See Schepin Yermakov , supra note 8, at 9–27; Rothenberg , supra note 13; Howard-Jones N. , “The Scientific Background of the International Sanitary Conferences, 1851–1938,” WHO Chronicle 28 (1974): 229–47, 369–84, 414–26, 455–70, 495–508.

See Fidler , supra note 15, at 21–57.

Musto D. F. , “Quarantine and the Problem of AIDS,” Milbank Quarterly 64, Supplement 1 (1986): 97–117, at 98.

Id., at 106.

Heymann D. L. , ed., Control of Communicable Diseases Manual, 18th ed. (Washington, D.C.: American Public Health Association, 2004): at 621.

Id., at 617–19.

Coker R. , “Just Coercion? Detention of Nonadherent Tuberculosis Patients,” Annals of the New York Academy of Science 953b, no. 1 (2001): 216–23.

Gostin L. O. , Public Health Law: Power, Duty, Restraint, 2nd ed. (New York/Berkeley: Milbank Memorial Fund and University of California Press, forthcoming 2008).

Gibbons v. Ogden , 22 U.S. 1, 25 (1824); Hennington v. Georgia, 163 U.S. 299 (1896).

National Conference of State Legislatures, Sexually Transmitted Diseases: A Policymaker's Guide and Summary of State Laws (Denver: National Conference of State Legislators, 1998): at 85–91.

Markel H. , When Germs Travel: Six Major Epidemics That Have Invaded American Since 1900 and the Fears They Unleashed (New York: Pantheon Books, 2005): At 13–46; Gostin L. O. , “Controlling the Resurgent Tuberculosis Epidemic: A Fifty State Survey of Tuberculosis Statutes and Proposals for Reform,” JAMA 269, no. 2 (1993): 256–61.

Gostin L. O. Burris S. Lazzarini Z. , “The Law and the Public's Health: A Study of Infectious Disease Law in the United States,” Columbia Law Review 99, no. 1 (1999): 59–118.

National Conference of State Legislatures, “Overview of State Public Health Preparedness,” January 28, 2002, available at <http://www.ncsl.org/programs/press/2002/snapshot.htm#quarantine> (last visited September 19, 2007).

Reich D. S. , “Modernizing Local Responses to Public Health Emergencies: Bioterrorism, Epidemics, and the Model State Emergency Health Powers Act,” Journal of Contemporary Health Law and Policy 19, no. 2 (2003): 379–414.

White House, National Strategy for Homeland Security , July 2002, available at <http://www.whitehouse.gov/homeland/book/nat_strat_hls.pdf> (last visited September 19, 2007).

42 U.S.C. §§ 264–272 (2005).

42 U.S.C. § 264 (2005).

Executive Order no. 13,295, Revised List of Quarantinable Communicable Diseases , April 4, 2003, available at <http://www.cdc.gov/ncidod/sars/executiveorder040403.htm> (last visited September 19, 2007); Executive Order: Amendment to Executive Order no. 13,295, Relating to Certain Influenza Viruses and Quarantinable Communicable Diseases , April 1, 2005, available at <http://www.whitehouse.gov/news/releases/2005/04/20050401–6.html> (last visited September 19, 2007).

42 U.S.C. §271 (2005); 28 U.S.C §1331 (2005).

O'Connor v. Donaldson , 422 U.S. 563, 580 (1975).

Greene v. Edwards , 263 S.E.2d 661 (W. Va.1980).

U.S. Constitution, art. I, § 10, cl. 2. See Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827); Cowles W. , “State Quarantine Laws and the Federal Constitution,” American Law Review 25, no. 1 (1891): 45–53.

See Gibbons, supra note 24, at 205.

Merritt D. J. , “The Constitutional Balance Between Health and Liberty,” Hastings Center Report 16, no. 6 (1986): S2–S10; Merritt D. J. , “Communicable Disease and Constitutional Law: Controlling AIDS,” New York University Law Review 61, no. 5 (1986): 739–99.

See Greene, supra note 36 (requiring the same due process for TB detention as for civil commitment for mental illness); In re Halko, 54 Cal. Rptr. 661 (Cal. Ct. App. 1966) (upholding detention for TB); Jones v. Czapkay, 6 Cal. Rptr. 182 (Cal. Ct. App. 1960) (refusing to find county health officials liable for secondary case of TB after initial case left quarantine); White v. Seattle Local Union No. 81, 337 P.2d 289 (Wash. 1959) (holding that union did not wrongfully remove officer who was confined for TB).

Jacobson v. Massachusetts , 197 U.S. 11 (1905).

Smith v. Emery , 42 N.Y. Supp. 258, 260 (1896) (“The mere possibility that persons may have been exposed to disease is not sufficient….They must have been exposed to it, and the conditions actually exist for a communication of the contagion.”); Arkansas v. Snow, 324 S.W.2d 532 (Ark. 1959) (holding that commitment for TB treatment requires a finding that the patient is a danger to the public health).

See, e.g., State v. Snow, 324 S.W.2d 532, 533 (Ark.1959) (officials have to provide evidence of active TB to justify involuntary commitment).

Kirk v. Wyman , 65 S.E. 387, 391 (S.C. 1909) (“even temporary isolation in [a pesthouse] would be a serious affliction”). Souvannarath v. Hadden, 116 Cal. Rptr. 2d 7 (Cal. Ct. App. 2002) (upholding state law forbidding detainment of noncompliant MDR-TB patient in a jail); Benton v. Reid, 231 F.2d 780 (D.C. Cir. 1956) (persons with infectious disease are not criminals and should not be detained in jails); but see Ex parte Martin, 188 P.2d 287 (Cal. 1948) (upholding quarantine in county jail despite the fact that it was overcrowded and had been condemned).

Youngberg v. Romeo , 457 U.S. 307, 315, 319, 324 (1982). See also City of Milwaukee v. Ruby Washington, Supreme Court of Wisconsin, 2007 WI 104, July 17, 2007, available at <http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=29744> (last visited September 19, 2007) (holding that Wisconsin law authorizes “confinement to a jail…provided the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented”).

Kairi A. , “ACLU Brings Suit Against Arizona for Quarantine of Tuberculosis Patient: Robert Daniels Reportedly Strip Searched Regularly and Denied Visits with Family,” June 1, 2007, available at <http://www.associatedcontent.com/article/265889/aclu_brings_suit_against_arizona_for.html> (last visited September 19, 2007).

Jew Ho v. Williamson , 103 F.10 (C.C.N.D. Cal. 1900).

Id., at 24.

Markovits D. , “Quarantines and Distributive Justice,” Journal of Law, Medicine & Ethics 33, no. 2 (2005): 323–44.

Dubler N. N. Bayer R. Landeshan S. , The Tuberculosis Revival: Individual Rights and Societal Obligations in a Time of AIDS (New York: United Hospital Fund, 1992).

Vitek v. Jones , 445 U.S. 480, 491 (1980).

See Greene, supra note 36, at 663.

See, e.g., Suzuki v. Yen, 617 F.2d 173, 178 (9th Cir. 1980).

See Souvannarath, supra note 44, at 11–12 (discussing California statute that requires a finding that a TB patient is both a danger to the public health and substantially unlikely to complete treatment before the patient can be confined for treatment); In re Halko, supra note 40, at 661 (holding that isolation of person with TB does not deprive a person of due process if the health officer has reasonable grounds to believe he is dangerous).

In re City of New York v. Doe , 614 N.Y.S.2d 8, 9 (App. Div. 1994). See also City of York v. Antoinette R., 630 N.Y.S.2d 1008 (N.Y. Sup. Ct. 1995) (upholding detention for TB treatment upon clear and convincing evidence that less restrictive means would not result in successful treatment).

Id. (In re City of New York), at 8; City of Milwaukee, supra note

The most developed expression of the right to less restrictive alternatives is in mental health cases. See, e.g., Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972).

See City of Milwaukee, supra note 45 (holding that it was appropriate for the courts to consider cost when determining the place of confinement); Gostin L. O. , “The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law, and Society,” Maryland Law Review 54, no. 1 (1995): 1–131.

Response to Public Comments Concerning Proposed Amendments to Section 11.47 of the Health Code 7, March 2, 1993.

See O'Connor , supra note 35, at 580 (Chief Justice Berger, concurring).

Washington v. Harper , 494 U.S. 210 (1990).

See, e.g., In re Ballay, 482 F. 2d 648, 563–66 (D.C. Cir. 1973).

Addington v. Texas , 441 U.S. 418. 426 (1979).

Id., at 425.

See Greene, supra note 36, at 661.

Department of Health and Human Services, Control of Communicable Diseases (Proposed Rule), 42 CFR Parts 70 and 71 (November 30, 2005).

“Case of X v. United Kingdom: Confinement of Persons of Unsound Mind in the United Kingdom,” in Berger V. , ed., Case Law of the European Court of Human Rights, Volume I: 1960–1987 (Dublin: Round Hall Press, 1989): at 167.

See, e.g., Schwartz J. , “Tangle of Conflicting Accounts in TB Patient's Odyssey,” New York Times, June 2, 2007, at A1.

See, e.g., City of Milwaukee, supra note 45 (affirming the compulsory isolation of TB patient who failed to follow treatment instructions).

42 U.S.C. §264 (2005).

Equal Employment Opportunity Commission v. Arabian American Oil Co. , 499 U.S. 244 (1991).

42 U.S.C. §264 (2005).

Committee on Measures to Enhance the Effectiveness of the CDC Quarantine Station Expansion Plan for U.S. Ports of Entry, Quarantine Stations at Ports of Entry: Protecting the Public's Health (Washington, D.C.: National Academies Press, 2006).

Id., at 2.

World Health Organization, Revision of the International Health Regulations, 58th World Health Assembly , May 23, 2005, available at <http://www.who.int/gb/ebwha/pdf_files/WHA58/WHA58_3-en.pdf> (last visited September 19, 2007).

See WHO, supra note 6.

See Gerberding , supra note 7, at 9.

World Health Organization, Global Task Force on XDR-TB, Update: February 2007 , at 5, available at <http://www.who.int/tb/xdr/globaltaskforce_update_feb07.pdf> (last visited September 19, 2007).

Quoted in Schwartz, supra note 67, at A1.

Quoted in id.

Associated Press, “Report: Chinese Officials Locate Taiwan Tuberculosis Patients Who Traveled to China,” China Post, July 28, 2007, available at <http://www.chinapost.com.tw/news/2007/07/28/116356/Report:-Chinese.htm> (last visited September 19, 2007).