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Self-Isolation Orders Pit Civil Liberties Against Public Good In Coronavirus Pandemic

Kentucky Gov. Andy Beshear, seen last week, defended round-the-clock surveillance of a man who allegedly tested positive for coronavirus and wouldn't self-isolate.
Bruce Schreiner AP
Kentucky Gov. Andy Beshear, seen last week, defended round-the-clock surveillance of a man who allegedly tested positive for coronavirus and wouldn't self-isolate.

When local health officers issued simultaneous orders on March 16 for all residents of seven counties in the San Francisco Bay area to "shelter at their place of residence," Arnab Mukherjea thought it was "a bit draconian" for him as well as his wife and two young children. "Let's be honest, this is pain, but a little bit of pain right now may be worth it," said the California State University, East Bay professor of health sciences and resident of Contra Costa county, one of the jurisdictions affected by the stay-at-home edicts.

"If we do this correctly, it will indeed get us faster to those things that are highly prioritized in our day-to-day lives, particularly for those who are in vulnerable communities."But one of the nation's top quarantine experts says the San Francisco area orders are likely to be challenged in court and judges will have to balance individual civil liberties and constitutional rights against the need to protect public health."There's no question that if you've been exposed to the virus, but not showing currently symptoms, that there could be a quarantine order and that it could be enforced by law," says Georgetown University Law School's Lawrence Gostin, director of the O'Neill Institute for National and Global Health Law.

"But once you start getting into what might colloquially be called an en masse quarantine or a lockdown where government will actually aggressively enforce it, then you're getting into territory that implicates the most fundamental constitutional rights and the right to freedom of movement, the right to freedom of travel."There is likely to be little tolerance for those who assert such freedoms in the midst of a fear-inducing pandemic — especially when such persons have been found to be infectious.In Kentucky, sheriff's deputies last weekend surrounded the home of a 53-year-old man who refused to self-isolate after testing positive for the coranavirus."We're going to be out here 24/7 for two weeks," Nelson County Sheriff Ramon Pineiroa told The Kentucky Standard while standing outside the man's residence."It's a step I hoped I would never have to take," Gov. Andy Beshear said at a news conference shortly thereafter, "but we can't allow one person who we know has this virus to refuse to protect their neighbors."


Under Kentucky law, the state health and family services department is authorized to issue and enforce quarantines if it believes "that there is a probability that any infectious or contagious disease will invade this state."

Georgetown's Gostin says the case of the Kentucky man differs significantly from the San Francisco shelter-in-place orders.

"If you have a lawful quarantine order for somebody who is known to pose a risk to the public, it should be enforceable by law, by the civil penalty, criminal penalty or literally police presence and not allow you to leave your home. That's justified," says Gostin. "What isn't justified necessarily is to do that en masse, to have a complete lockdown."

Authorities have been ordering persons into isolation when they were suspected of carrying infectious diseases since at least the 14th century. Ships at that time approaching the Italian city of Venice from abroad were required to anchor offshore for 40 days; "quarantine" is derived from quaranta, the word for 40 in Italian.The coronavirus pandemic has also led to a kind of reverse quarantine, in which institutions with vulnerable residents such as nursing homes bar outside visitors — including family members — from entering to minimize the risk of infection. "Prior to this crisis, we had rarely seen these kinds of group orders imposed," says American University's Washington College of Law professor and leading quarantine expert Lindsay Wiley. "They don't raise the same level of constitutional concerns as mandatory orders applicable to everyone in an entire geographic area, including many who are unlikely to have yet been exposed."Even while he's on board with the Bay Area's 21-day shelter-in-place order, which allows people to leave their homes only for "essential" activities, public health professor Mukherjea worries the public's compliance could wane as the days go by."I think if the government is not transparent about what is happening with our local [conavirus] numbers in terms of case counts," says Mukherjea, "you may see that the average person says, 'my day-to-day life is affected so dramatically, but nothing good is happening, why bother?' " American University's Wiley says if compliance with orders confining people to their homes is not voluntary, there could be major problems."I'm certain that the health authorities behind this order are very much hoping not to enter a situation where there are mass arrests and people crowding the local jails," she says.The key for Georgetown's Gostin, who wrote the Model State Emergency Health Powers Act for the Centers for Disease Control and Prevention, is for authorities to strongly recommend self-isolation for large populations but not have to enforce it."The first thing we want in this coronavirus response is to keep our head — not to be disproportionate, not to be draconian, but to gain the public's trust," says Gostin. "And once you lose the public's trust, once you cross a line that the public thinks is too far, we will be on the losing side of this battle."

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