People around the world are in the midst of the most extreme public health emergency most of us have ever experienced. With restrictions on gatherings, closures of schools, restaurants, and bars, and states of emergency in Wisconsin and nationwide, Americans have had their freedom of movement deeply curtailed. Many people have used the word “unprecedented” to describe the swift and stringent governmental reaction to the spread of COVID-19. However, while advancements in modern healthcare have reduced the frequency and severity of infectious disease outbreaks, restrictive public health measures to combat infectious diseases are not all that novel. Indeed, many prior disease outbreaks gave rise to a collection of cases addressing the constitutionality of quarantine and isolation measures. This article addresses governmental options for implementing quarantine and isolation, as well as case law addressing the due-process principles those measures implicate.

The new coronavirus, named SARS-CoV-2, which causes the disease called COVID-19, was first detected in humans in China in December 2019. Since then, it has spread throughout much of the rest of the world, and the World Health Organization has declared COVID-19 a global pandemic.¹ Although much still is to be learned about COVID-19, experts say it is highly contagious and can cause severe illness and death.² Because there presently are no vaccines or therapeutics for COVID-19, and there might not be any for some time, public health officials have been working to stop the spread of COVID-19 primarily by disseminating health information and preventing contagious people from having contact with others. Isolation and quarantine have been used for centuries because they provide quick action during a public health emergency.³

Legal Framework – Wisconsin Law

Governor Tony Evers declared a public health emergency due to COVID-19 in Wisconsin on March 12, 2020.⁴ Under Wisconsin law, the governor has the authority to issue an executive order declaring a public health emergency within Wisconsin and designate the Wisconsin Department of Health Services (DHS) to respond to it.⁵ The state of emergency may last no more than 60 days, unless extended by joint resolution of the Wisconsin Legislature, and can be revoked by either the governor or a joint resolution of the legislature.⁶ Local governing bodies have a similar ability to designate a public health emergency, and many have done so.⁷

The DHS has expansive powers and duties over public health issues, including “general supervision throughout the state of the health of citizens,” with the “power to execute what is reasonable and necessary for the prevention and suppression of disease.”⁸ If local health officials fail to enforce public health statutes or rules, the DHS can do so (and bill the local health department).⁹ During a public health emergency, the DHS and local health officers have an array of tools at their disposal, including:

• Setting up surveillance and inspection systems to detect diseases;¹⁰

• Closing public places and forbidding public gatherings;¹¹ and

• Requiring isolation of an infected person and quarantine of his or her contacts, as well as hiring quarantine guards.¹²

Failure of a person to comply with public health orders can lead to fines or imprisonment.¹³ Consistent with its broad statutory powers, the DHS has implemented many restrictions and regulations in response to COVID-19, including a stay-at-home order banning public and private gatherings of any number of people, among other restrictions, closing schools and many other facilities, and prohibiting on-site consumption at restaurants and bars.¹⁴

Wisconsin’s public health regulations say little about the procedure afforded to individuals subject to such public health measures, however. The DHS is authorized to direct that a person who is known or suspected to have a contagious disease be treated, tested, and potentially isolated.¹⁵ If the person does not follow the directive, health officials may petition a court for enforcement, but only if clear and convincing evidence supports their petition, the directive and evidence supporting it are put in writing, and the patient is given the opportunity to hire a lawyer.¹⁶ Health officials also must propose the least restrictive measure that would “serve to correct the situation and to protect the public’s health.”¹⁷

Public health officials in Wisconsin relied on these regulations in 2018 when a man was quarantined to his home in Waukesha County because of concerns he had been exposed to measles, another highly contagious disease. Despite a quarantine order, the man went to the gym and, as a result, he and his wife were charged with misdemeanors under Wis. Stat. section 252.25 for violating public health orders.¹⁸ Eventually, the man’s charge was reduced to disorderly conduct, and he pled guilty and was fined $1,464.50, with a penalty of 29 days in jail if the fine was not paid.¹⁹ His wife, who was charged for her role in driving him to the gym, was fined $330.50, with a penalty of 6 days in jail if she failed to pay.²⁰

Legal Framework – Federal Law

While the states traditionally have been in charge of regulating public health matters as a core police power, federal law has expanded to address public health matters extending beyond or across state borders. The federal government has increased its public health authority over time so that it also may step in during certain public health emergencies.²¹ The federal government has its own statutes addressing public health emergencies, mostly promulgated under the Commerce Clause because public health matters can cross state lines and affect interstate commerce.²²

Provisions within the Public Health Service Act (PHSA) relating to communicable diseases allow the federal government, acting through the Centers for Disease Control and Prevention (CDC), to prevent the spread of disease from foreign countries into the United States, or from one state to another.²³ Under the PHSA, the CDC can make regulations for “the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage” if they are “moving or about to move from a State to another State” or are “a probable source of infection to individuals who … will be moving” between states.²⁴ A “qualifying stage” includes not just contagious diseases, but diseases “in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.”²⁵ Regulations also specify that the CDC can intervene when local public health control measures are inadequate, including by implementing isolation or quarantine.²⁶

These PHSA quarantine and isolation provisions apply only to diseases specified in a series of executive orders. Those diseases include Ebola, tuberculosis, plague, and smallpox. Since 2003, in the wake of the SARS outbreak, SARS has also been on the list of specified diseases. The language in that subsection includes “[s]evere acute respiratory syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled.”²⁷ This language may be broad enough to encompass COVID-19, an acute respiratory disease caused by the SARS-CoV-2 virus.

President Donald Trump declared a national emergency concerning COVID-19 on March 13, 2020.²⁸ He also issued guidelines aimed at slowing the spread of the disease but has otherwise largely left the public health response in the hands of the individual states.²⁹

Constitutional Constraints

Effective public health strategies in combating disease can raise constitutional issues. People forced into quarantine or isolation might object to interference with their physical liberty. People forced to accept testing, treatment, or prevention methods might object to an interference with their right to control their own medical decisions. People might face restrictions on their religious freedom or right of assembly. And people’s privacy rights might be impinged by public health officials sharing their personal information.

Though constitutional issues abound, the remainder of this article focuses on the due-process considerations relating to the most likely governmental intrusions on personal liberty relating to the COVID-19 outbreak: isolation and quarantine.

Public Health Case Law

The leading case on a state’s power to respond to a public health crisis was decided by the U.S. Supreme Court more than 100 years ago. In Jacobson v. Massachusetts,³⁰ the Court affirmed the constitutionality of a state statute authorizing local health boards to require residents to be vaccinated against smallpox or pay a five-dollar fine.

Although challenged in part on due-process grounds, this case arose before the Court’s development of the now-familiar due-process considerations of tiers of scrutiny and tailoring. In fact, the phrase “due process” appears only once in the decision. Instead, the Court discussed the defendant’s “liberty” rights and stated that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”³¹

The Court intermittently emphasized the necessity of the state public health regulation, as well as the utilitarian aspect of rules protecting the many at the expense of the few, but seemed to ultimately rely on a basic police power of the state to regulate public health as the basis for its decision.³² Thus, while the Jacobson decision shows the high level of deference courts may give to the actions of states faced with public health crises, it does not set forth a clear framework for today’s courts or government officials.

Most of the relatively few cases analyzing the constitutional limits on quarantines to combat contagious disease uphold significantly restrictive measures to protect public health. In the first half of the 20th century, a boat filled with healthy people could be kept from landing in a quarantined city.³³ A woman with leprosy who admittedly was not dangerous and only slightly contagious could be confined to her home and eventually forced to move outside city limits.³⁴ A potentially lifelong quarantine of a typhoid carrier was overturned only because the regulation had been enacted by an individual rather than the authorized board.³⁵ Individuals with tuberculous could be confined to sanitariums until cured.³⁶ A woman traveling, without proof of vaccination, from an area of Stockholm, Sweden, that previously had been smallpox infected was quarantined for 14 days, even though evidence showed there had been no cases of smallpox in Stockholm while she was there.³⁷ As the U.S. Supreme Court has stated, “the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of the inhabitants … is beyond question.”³⁸

Under Wisconsin law, the governor has the authority to issue an executive order declaring a public health emergency within Wisconsin and designate the Wisconsin Department of Health Services (DHS) to respond to it.

In 2007, the Wisconsin Supreme Court upheld the isolation and confinement of a woman diagnosed with tuberculosis.³⁹ The patient, Ms. Washington, failed to show up for appointments to receive tuberculosis treatment, and after various issues with her compliance with a city of Milwaukee Health Department isolation order and treatment plan, the circuit court ordered Washington to be confined in the Milwaukee County Criminal Justice Facility for an indefinite period, with review after six months, under Wis. Stat. section 252.07.⁴⁰ Considering only the question of whether the circuit court was statutorily required to choose a less oppressive confinement location than a jail, the court found no erroneous exercise of discretion.⁴¹ However, the court instructed that the location for confinement must be “a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement.”⁴²

Although the Wisconsin Supreme Court did not address constitutional issues, the Wisconsin Court of Appeals previously had rejected an argument that the constitution entitled Washington to stay in a hospital instead of a jail, stating “this country has long recognized that the Constitution does not bar enforced quarantine.”⁴³ Interestingly, the court of appeals mentioned in a footnote that the lack of developed constitutional arguments in Washington’s appellate brief was due to the accelerated nature of the appeal.⁴⁴ Logically, the need for speedy adjudication of restrictive public health measures could hinder many litigants who might otherwise have grounds to bring constitutional challenges to public health orders.

Despite the high level of deference courts typically show to public health decisions, courts frequently have imposed limits, even if those limits are not always framed as constitutional requirements. For example, courts suggest that a public health regulation must meet some threshold of necessity based on scientific evidence.⁴⁵ Additionally, though pleasant conditions are not typically required, individuals subject to public health orders must be given adequate care and treatment.⁴⁶

Due-Process Analysis of Public Health Measures

Under due-process principles, states generally face two constraints when imposing restrictive public health measures: 1) whether an individual’s liberty interest can be infringed at all (substantive due process), and 2) what process is due before (or after) those interests can be restricted (procedural due process).

Substantive Due Process. The U.S. Supreme Court has not yet considered what level of scrutiny should be used to analyze the constitutionality of a restraint on physical liberty in the context of isolation and quarantine. Quarantine and isolation affect fundamental civil liberties. The Court has recognized a “fundamental right of interstate movement.”⁴⁷ Thus, it is logical to assume that restricting a person’s liberty by quarantine or isolation would also be subject to heightened scrutiny of some form.

That is not to say such public health protection measures would be constitutionally invalid. Preventing the spread of infectious disease easily could qualify as a compelling governmental interest. In cases discussing public health measures, courts have repeatedly emphasized the importance of a government’s interest in protecting health.⁴⁸ The more difficult question is whether a particular public health measure is tailored narrowly enough to the government’s interest in preventing the spread of disease to survive judicial scrutiny, which can be highly dependent on the facts of each case.

Two factors courts may find relevant when considering this issue are drawn from case law: 1) whether the public health measure is necessary under the circumstances and 2) whether the conditions to which the individual is subjected are adequate.⁴⁹ Other considerations may include questions of the effectiveness and proportionality of the public health measure and whether harm to the individual is avoided or minimized.⁵⁰

Applying these considerations, the constitutionality of a public health measure would depend on a variety of facts. Among the likely facts a court would consider is the nature of the disease, including how contagious and dangerous it is. The more contagious or deadly the disease, the more compelling the government’s interest in taking swift restrictive action to address it. Courts also would likely consider the scope and nature of the measure used to combat the disease, taking into account the breadth and restrictiveness of the limitation and the conditions imposed. For example, courts have ruled that the conditions of confinement have to meet at least some minimal standards of decency.

The South Carolina Supreme Court agreed with lower courts that the manner of isolation, confining a “refined” woman to a hospital without comfort and next to the town dump, was unnecessary to prevent the spread of her mildly contagious, nondangerous leprosy. The court ruled the woman instead could be confined to her home until a cottage was prepared outside city limits. (“[E]ven temporary isolation in such a place would be a serious affliction and peril to an elderly lady, enfeebled by disease, and accustomed to the comforts of life.”). However, the court indicated that less comfortable conditions could be imposed if they were necessary.⁵¹

Wisconsin’s public health laws provide some limits to guide the actions of public health officials, but compliance with those statutes might not avert a substantive-due-process challenge. For instance, Wisconsin’s isolation and quarantine statute contains an exception allowing immediate family members and clergy to be in contact with the restricted person⁵² and requires a local health officer who is not a physician to consult a physician when needed.⁵³ Yet DHS regulations leave much discretion to public health officials to ensure their orders are narrow enough to be constitutionally sound.⁵⁴

Consistent with its broad statutory powers, the DHS has implemented many restrictions and regulations in response to COVID-19, including banning gatherings of more than 10 people, closing schools, and prohibiting on-site consumption at restaurants and bars.

Procedural Due Process. The minimum procedures required to ensure a public health response is compliant with procedural due process are a bit more uncertain. Because quarantine and isolation necessarily involve confinement of an individual, somewhat robust procedures may be required, even if after the confinement begins. But Wisconsin’s public health regulations say little about the procedure afforded to individuals subject to public health measures.

The DHS is authorized to order that a person who is known or suspected to have a contagious disease be treated, tested, and potentially isolated.⁵⁵ If the person does not follow the order, the health official may petition a court for enforcement, but only if the health official has clear and convincing evidence to support the petition, puts the directive and supporting evidence in writing, and gives the patient the opportunity to hire a lawyer.⁵⁶ The health official must also propose the least restrictive measure that would “serve to correct the situation and to protect the public’s health.”⁵⁷ This likely would include consideration of the supporting medical evidence, among other things. While these procedures serve as important guidelines, they may not be sufficient to ensure compliance with procedural due process.

For example, a West Virginia court analyzed the procedural-due-process rights of an individual quarantined for tuberculous.⁵⁸ The court analogized quarantine to the confinement of mentally ill individuals and concluded that the same procedural protections are required for each.⁵⁹ The court concluded that the statute providing for confinement of tuberculosis patients did not afford procedural due process because it did not adequately provide for legal counsel for the patient, the right to confront and present witnesses, or confinement only upon clear and convincing evidence.⁶⁰

Conclusion

A prompt and effective public health response is vital to protecting the population during a public health emergency, but the constitutional protections afforded the public also must be considered. After all, it is when the individual rights of some may be at odds with the interests of the majority that our constitutional protections can be most important. Balancing these two interests can be difficult. U.S. federal and state courts likely soon will have occasion to consider the constitutionality of governmental measures used to combat COVID-19. Indeed, three New Hampshire residents have already filed a suit challenging COVID-19-related quarantine requirements imposed there.⁶¹ The course this pandemic will take remains unknown, and the public health response is ever evolving. Only time (and additional guidance from courts) will tell whether U.S. leaders adequately balance their actions and powers to respond to this new public health threat with the protection of constitutional rights.

Endnotes

¹ See generally World Health Organization.

² Public health and other governmental agencies have been disseminating substantial amounts of information to the public about SARS-CoV-2 and COVID-19. See the accompanying sidebar.

³ See generally Eugenia Tognotti, Lessons from the History of Quarantine, from Plague to Influenza A, 19 Emerging Infectious Diseases 254 (Feb. 2013).

⁴ 2020 Exec. Order No. 72 (Wis. Office of the Governor March 12, 2020).

⁵ Wis. Stat. § 323.10.

⁶ Id.

⁷ Wis. Stat. § 323.11.

⁸ Wis. Stat. § 250.04(1); see also Wis. Stat. § 252.19.

⁹ Wis. Stat. § 250.04(2)(b).

¹⁰ Wis. Stat. § 252.02(1).

¹¹ Wis. Stat. § 252.02(3).

¹² Wis. Stat. § 252.06.

¹³ See Wis. Stat. §§ 252.06(4), 252.25.

¹⁴ See Wis. Dep’t of Health Servs., Emergency Order #8 (March 20, 2020).

¹⁵ Wis. Admin. Code § DHS 145.06(4).

¹⁶ Wis. Admin. Code § DHS 145.06(5).

¹⁷ Id.

¹⁸ Criminal complaint, State v. Murawski, No. 2019-CM-436 (Waukesha Cty. March 1, 2019).

¹⁹ State v. Murawski, No. 2019-CM-436 (Waukesha Cty.).

²⁰ State v. Bennett, No. 2019-CM-435 (Waukesha Cty.).

²¹ See Arjun K. Jaikumar, Note, Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine Laws After NFIB v. Sebelius, 114 Colum. L. Rev. 677, 684-96 (2014).

²² Id. (noting this stated basis of authority, but arguing recent Commerce Clause jurisprudence calls into question federal authority to implement quarantines).

²³ 42 U.S.C. § 264(a). The PHSA is codified at 42 U.S.C. §§ 201-239l-3.

²⁴ 42 U.S.C. § 264(d)(1).

²⁵ 42 U.S.C. § 264(d)(2).

²⁶ 42 C.F.R. §§ 70.2, 70.6.

²⁷ Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (Apr. 9, 2003), as amended by Exec. Order No. 13,375, 70 Fed Reg. 17,299 (Apr. 1, 2005), and Exec. Order No. 13674, 79 Fed Reg. 45,671 (July 31, 2014).

²⁸ Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020).

²⁹ 15 Days to Slow the Spread.

³⁰ Jacobson v. Massachusetts, 197 U.S. 11(1905).

³¹ Id. at 13, 26.

³² Id. at 26, 28, 29, 31.

³³ Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U.S. 380 (1902).

³⁴ Kirk v. Wyman, 65 S.E. 387 (S.C. 1909).

³⁵ Illinois ex rel. Barmore v. Robertson, 134 N.E. 815 (Ill. 1922).

³⁶ Moore v. Draper, 57 So. 2d 648 (Fla. 1952).

³⁷ United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (S.D.N.Y. 1963).

³⁸ Compagnie Francaise, 186 U.S. at 387.

³⁹ Milwaukee v. Washington (In re Washington), 2007 WI 104, 304 Wis. 2d 98, 735 N.W.2d 111.

⁴⁰ Id. ¶¶ 6-22.

⁴¹ Id. ¶¶ 69-70.

⁴² Id. ¶ 69.

⁴⁴ Milwaukee v. Washington (In re Washington), 2006 WI App 99, ¶ 13, 292 Wis. 2d 258, 716 N.W.2d 176.

⁴⁴ Id. ¶ 13 n.3.

⁴⁵ See, e.g., Kirk, 65 S.E. at 389-90 (allowing “reasonably necessary” regulations that are “reasonably appropriate to the end in view”); Barmore, 134 N.E. at 819 (“A person cannot be quarantined upon mere suspicion that he may have a contagious and infectious disease, but the health authorities must have reliable information….”) (citation omitted); Arkansas v. Snow, 324 S.W.2d 532, 534 (Ark. 1959) (affirming lower court findings that there was insufficient evidence in the record of a diagnosis of tuberculosis to justify isolating an individual).

⁴⁶ E.g., In re Washington, 2007 WI 104, ¶ 69, 304 Wis. 2d 98; Kirk, 65 S.E. at 391.

⁴⁷ Shapiro v. Thompson, 394 U.S. 618, 638 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 670 (1974).

⁴⁸ See, e.g., Jacobson, 197 U.S. at 25-26; Barmore, 134 N.E. at 817, 819.

⁴⁹ See, e.g., Kirk, 65 S.E. at 387.

⁵⁰ See, e.g., Lawrence O. Gostin, Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Am. J. Pub. Health 576 (2005).

⁵¹ Kirk, 65 S.E. at 387.

⁵² Wis. Stat. § 252.06(4)(a).

⁵³ Wis. Stat. § 252.06(3).

⁵⁴ See generally Wis. Admin. Code ch. DHS 145.

⁵⁵ Wis. Admin. Code § DHS 145.06(4).

⁵⁶ Wis. Admin. Code § DHS 145.06(5).

⁵⁷ Id.

⁵⁸ Greene v. Edwards, 263 S.E.2d 661 (W. Va. 1980).

⁵⁹ Id. at 663.

⁶⁰ Id. at 662.

⁶¹ Holly Ramer, Lawsuit Challenges New Hampshire Ban on Large Gatherings Due to Coronavirus, CBS Boston, March 19, 2020.

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