It was nearly 100 years ago that an influenza pandemic led to sweeping quarantines in American cities

By BENJAMIN WEISER and J. DAVID GOODMANOCT. 26, 2014

    It was nearly 100 years ago that an influenza pandemic led to sweeping quarantines in American cities, and it was more than two decades ago that patients in New York were forced into isolation after an outbreak of tuberculosis.

    In modern America, public health actions of such gravity are remarkably rare. So the decisions by New York and New Jersey on Friday to quarantine some travelers returning from the Ebola zone in West Africa have taken public officials into unfamiliar legal and medical territory.

    From public health advocates and civil liberties lawyers has come sharp criticism, and the first person to be detained under the new protocol, a nurse who was quarantined in New Jersey upon returning from Sierra Leone, lashed out on Sunday at Gov. Chris Christie as her lawyer said he would mount a legal challenge to her confinement.

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    But on Sunday night, barely two days after his joint announcement with Mr. Christie, Gov. Andrew M. Cuomo of New York announced his state would not go as far as New Jersey has.

    The nurse, Kaci Hickox, gave a critical interview to CNN on Sunday. Later, in an email to The New York Times, she wrote, “My human rights have been violated, and we must react in order to ensure that other health care workers do not endure such injustice.”

    Donna E. Lieberman, the executive director of the New York Civil Liberties Union, said the most restrictive protocols are far too broad.

    “The current order is sweeping in individuals who are asymptomatic and who may never develop symptoms,” Ms. Lieberman said. “I think there is a serious question as to whether the governor has the authority to impose the broad quarantine that he has imposed,” she added.

    The quarantine by New Jersey of medical workers returning from Ebola-afflicted areas of West Africa is virtually without precedent in the modern history of the nation, public health and legal experts said on Sunday.

    “This is, I think, pushing the envelope quite a bit and is highly counterproductive,” Lawrence O. Gostin, a professor of global health law at Georgetown University, said. “I can’t think of a situation where any jurisdiction in the United States in modern times has simply quarantined a whole class of people.”

    In a new era of mass travel and global pandemics, public health officials have seen the utility of quarantines to rein in outbreaks that appear to be spiraling out of control. But the approach, experts said, is an extreme one.

    “It doesn’t seem like we’re to that stage yet,” Steven D. Gravely said, a lawyer who helped Virginia rewrite its laws on quarantine to make it easier for the state to respond quickly to disease outbreaks. Instead, he said, “there’s so much anxiety right now, that’s become the problem.”

    Government officials, he added, need to explain “why are you doing this, what do you hope to accomplish. Because otherwise people read into it things that are not there.”

    The power to impose quarantines derives from the general police power granted to states in the Constitution. But over the last century, state and federal authorities have moved away from broadly quarantining categories of people, said Mr. Gostin, adding that one would have to reach back to the influenza pandemic of 1918 to begin to find the sort of blanket approach being employed in response to Ebola in New Jersey.

    General quarantines, seen as having only limited effectiveness even when employed against the flu a century ago, fell out of favor as antibiotics and other treatments were developed to more directly address the contagious without affecting those who might have been exposed but display no sickness.

    At the height of the AIDS epidemic, quarantines were supported in some quarters, but no such measures were ever adopted. Similarly, there were no quarantines in the United States during recent pandemics of H1N1 or SARS.

    The last time patients in New York City were forced into isolation came with the outbreak of multidrug-resistant tuberculosis in the early 1990s, said Wendy E. Parmet, professor of health policy and law at Northeastern University School of Law. In those cases, officials targeted those recalcitrant patients who refused to take their medications, she said, rather than every person who tested positive, and even that practice faced court challenges. The approach resulted in the less restrictive “directly observed therapy,” in which patients were forced to take medications in front of officials, she said.

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