Order Code RL34144
Extensively Drug-Resistant Tuberculosis (XDR-
TB): Emerging Public Health Threats and
Quarantine and Isolation
August 28, 2007
Kathleen S. Swendiman
Nancy Lee Jones
Legislative Attorneys
American Law Division
Extensively Drug-Resistant Tuberculosis (XDR-TB):
Emerging Public Health Threats and Quarantine and
Isolation
Summary
The international saga of Andrew Speaker, a traveler thought to have XDR-TB,
a drug-resistant form of tuberculosis, placed a spotlight on existing mechanisms to
contain contagious disease threats and raised numerous legal and public health issues.
This report presents the factual situation presented by Andrew Speaker; briefly
addresses the existing law relating to quarantine and isolation, with an emphasis on
the interaction of state and federal laws and international agreements; and examines
the relationship of quarantine and isolation to civil rights protections. It will be
updated as necessary.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Quarantine and Isolation Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
International Health Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Civil Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Constitutional Rights to Due Process and Equal Protection . . . . . . . . . . . . 10
Federal Nondiscrimination Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Extensively Drug-Resistant Tuberculosis
(XDR-TB): Emerging Public Health Threats
and Quarantine and Isolation
“Infectious diseases are not a thing of the past.... We need to continually adapt
our prevention and response capabilities in an era of increasing threat and
globalization.”1
Introduction
The international saga of Andrew Speaker, a traveler thought to have XDR-TB,
an extensively drug-resistant form of tuberculosis, placed a spotlight on existing
mechanisms to contain contagious disease threats and raised numerous legal and
public health issues. This report presents the factual situation presented by Andrew
Speaker, existing law relating to quarantine and isolation, including state and federal
laws and international agreements, and the relationship of quarantine and isolation
to civil rights protections.
Background
Tuberculosis (TB) is a bacterial infection which usually attacks the lungs but
can also damage other parts of the body. It is spread when an infected person coughs,
sneezes, sings, or talks and another person breathes in the bacteria.2 The risk of
becoming infected depends on various factors including the extent of the disease in
the person with TB, the duration of the exposure, and ventilation. For example, when
an infected individual travels on an airplane, the risk to other passengers is increased
by proximity to the infected person, and the time spent on board.3 The World Health
Organization (WHO) has stated that one in three people in the world is infected with
dormant TB bacteria. Generally, these individuals become ill only when the bacteria
become active, often as a result of lowered immunity, such as when an individual has
AIDS. Generally, TB is treatable with antibiotics, but antibiotic resistance has been
1 Impact of One Tuberculosis Patient on International Public Health Before the Subcomm.
on Labor, Health and Human Services, Education, and Related Agencies of the S. Comm.
on Appropriations, 110th Cong., 1st Sess. (June 6, 2007), (statement of Julie L. Gerberding,
MD, MPH, Director, Centers for Disease Control and Prevention).
2 [http://www.nlm.nih.gov/medlineplus/tuberculosis.html]
3 Centers for Disease Control and Prevention (CDC), “Extensively Drug-Resistant
Tuberculosis (XDR-TB),” [http://www.cdc.gov/tb/pubs/tbfactsheets/xdrtb.htm].
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increasing as a result of the misuse or mismanagement of the medication.4 Multi-
drug resistant TB (MDR-TB) is resistant to two of the most effective antibiotics.
Extensively drug resistant TB (XDR-TB) is a type of MDR-TB which is resistant not
only to the first line antibiotics, but also to other second line drugs. XDR-TB is a
serious condition because the treatment options are limited and successful treatment
is not always possible.5 In 2006 WHO issued a global alert about XDR-TB6 which
has been described as underscoring “the harsh reality that XDR-TB has the potential
to transform a once treatable infection into an infectious disease as deadly, if not
more so, than TB at the beginning of the 20th century.”7
On May 12, 2007, Andrew Speaker, a man with tuberculosis, flew from Atlanta,
Georgia, to Europe, where he was married in Greece, and then traveled to Italy.
While Mr. Speaker was in Europe, the Centers for Disease Control and Prevention
(CDC) completed testing showing that he was infected with XDR-TB. At that point,
CDC attempted to reach the patient in Europe, and to prevent his use of public
transportation, such as passenger aviation, for his return to the United States.8
Fearing he would not be able to return to the United States for treatment, Mr.
Speaker, without CDC’s knowledge, flew to Canada and entered the United States
by car on May 24.9
Although CDC had alerted U.S. Customs and Border Protection (CBP) in the
Department of Homeland Security to the possibility that Mr. Speaker was en route
4 World Health Organization, “XDR-TB: Extensively Drug-Resistant Tuberculosis,”
[http://www.who.int/tb/xdr/en/index.html].
5 Centers for Disease Control and Prevention (CDC), “Extensively Drug-Resistant
Tuberculosis (XDR-TB),” [http://www.cdc.gov/tb/pubs/tbfactsheets/xdrtb.htm]. The CDC
noted that “[s]ome TB control programs have shown that cure is possible for an estimated
30% of affected people.”
6 World Health Organization, “Emergence of XDR-TB: WHO concern over extensive drug
resistant TB strains that are virtually untreatable”, [http://www.who.int/mediacentre/news/
notes/2006/np23/en/index.html]. WHO’s Global MDR-TB and XDR-TB Response Plan
2007-2008, launched on June 22, 2007, allocates $2.15 billion to contain drug-resistant
tuberculosis, with an emphasis on providing access to drugs in underserved countries.
[http://www.who.int/tb/xdr/global_response_plan/en/index.html].
7 Howard Markel, Lawrence O. Gostin, David P. Fidler, “Extensively Drug-Resistant
Tuberculosis: An Isolation Order, Public Health Powers, and a Global Crisis,” 298 JAMA
83 (July 4, 2007).
8 CDC has published a timeline of its actions at [http://www.cdc.gov/tb/XDRTB/
timeline.htm]. Certain matters have been the subject of disagreement between Mr. Speaker
and public health authorities at the local and federal levels, particularly those matters
relating to information, recommendations, or advisories provided to Mr. Speaker at various
times. It is not the intent of this report to resolve those matters of disagreement.
9 Testimony of Andrew Speaker before the Senate Committee on Appropriations,
Subcommittee on Labor, Health and Human Services, Education, and Related Agencies,
hearing regarding the tuberculosis travel incident, June 6, 2007, 110th Cong., 1st Sess.,
Washington, DC.
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to the United States, Mr. Speaker was not stopped at the border.10 Once in the United
States, Mr. Speaker contacted CDC, and voluntarily went to a hospital in New York
City. On May 25, CDC issued a federal order of provisional quarantine and medical
examination pursuant to Section 361 of the Public Health Service Act.11 (This was
the first such order since 1963.12) Mr. Speaker was then flown in a CDC aircraft to
an Atlanta hospital, and later to the National Jewish Medical and Research Center in
Denver, for treatment. On June 2, the federal order was rescinded when Denver
health officials assumed public health responsibility for Mr. Speaker’s case.
On July 3, doctors determined the Mr. Speaker had multi-drug resistant
tuberculosis (MDR-TB) rather than XDR-TB.13 On July 17, he had surgery to
remove diseased and damaged tissue in his lung.14 Mr. Speaker was released from
the National Jewish Medical and Research Center in Denver on July 26 after doctors
determined that he was no longer contagious and had no further detectible evidence
of infection. He is to continue antibiotic treatment for two years and is required to
10 Testimony of CBP Commissioner Ralph Basham before the House Committee on
Homeland Security, hearing regarding the XDR tuberculosis incident, June 6, 2007, 110th
Cong., 1st Sess., Washington, DC. Issues relating to ports of entry, including issues relating
to quarantine stations, are beyond the scope of this report. For a discussion of these issues
see Institute of Medicine, Quarantine Stations at Ports of Entry: Protecting the Public’s
Health (National Academies Press 2006).
11 CDC has released the text of the three orders issued for the detention of the XDR-TB
patient between May 25 and May 30, 2007, and the final order, issued June 2, 2007,
rescinding the earlier orders. The Order for Provisional Quarantine is at
[http://www2a.cdc.gov/phlp/docs/quarantine1.pdf]; the Order Pursuant to Public Health
Service Act Section 361 is at [http://www2a.cdc.gov/phlp/docs/quarantine2.pdf]; the
Revised Order Pursuant to Section 361 is at [http://www2a.cdc.gov/phlp/docs/
quarantine3.pdf]; and the Order Rescinding Movement Restrictions is at
[http://www2a.cdc.gov/phlp/docs/quarantine4.pdf].
12 See United States v. Shinnick, 219 F. Supp. 789 (1963), where the court upheld the Public
Health Service’s quarantine of an arriving passenger because she had been in Stockholm,
Sweden, a city declared by the World Health Organization to be a smallpox-infected area,
and she could not show proof of vaccination. CDC routinely uses its authority under the
Public Health Service Act to monitor passengers arriving in the United States for
communicable diseases, sometimes delaying incoming planes and interviewing passengers
for health reasons. [http://www.cdc.gov/ncidod/sars/quarantineqa.htm].
13 Lawrence K. Altman, “Traveler’s TB not as Severe as Officials Thought,”
[http://www.nytimes.com/2007/07/04/health/04tb.html?ex=1184990400&en=39a65f739
d333727&ei=5070]. Dr. Charles Daley, head of the infectious disease division at National
Jewish Medical Center was quoted stating: [t]his discrepancy among results happens all the
time in labs that do drug-resistance testing, including reference labs.” Id. Despite the change
in diagnosis, the CDC response has generally been supported by infectious-disease experts.
See Lawrence K. Altman, “Experts Mostly Back Way U.S. Reacted in TB Case,”
[http://www.nytimes.com/2007/07/05/us/05tb.html?ex=1185076800&en=0c68daff1c1b4
fc5&ei=5070].
14 Lawrence K. Altman,” TB Patient Has Surgery to Remove Part of Lung,”
[http://www.nytimes.com/2007/07/18/health/18tb.html?_r=1&n=Top%2fReference%2fT
imes%20Topics%2fPeople%2fS%2fSpeaker%2c%20Andrew&oref=slogin].
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check in with local health authorities five days a week and have his treatment directly
observed by health care workers.15
Federal Quarantine and Isolation Authority
Although the terms are often used interchangeably, quarantine and isolation are
two distinct concepts.16 Quarantine typically refers to the “(s)eparation of individuals
who have been exposed to an infection but are not yet ill from others who have not
been exposed to the transmissible infection.”17 Isolation refers to the “(s)eparation
of infected individuals from those who are not infected.”18 Primary quarantine
authority typically resides with state health departments and health officials;
however, the federal government has jurisdiction over interstate and border
quarantine.
Federal quarantine and isolation authority may be found in Section 361 of the
Public Health Service Act, 42 U.S.C. § 264, wherein Congress has given the
Secretary of Health and Human Services (HHS) the authority to make and enforce
regulations necessary “to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or possessions, or from
one State or possession into any other State or possession.”19 While also providing
the Secretary with broad authority to apprehend, detain, or conditionally release a
person, the law limits the Secretary’s authority to the communicable diseases
published in an Executive Order of the President.20 Executive Order 13295 lists the
communicable diseases for which this quarantine authority may be exercised, and
specifically includes infectious tuberculosis.21 In 2000, the Secretary of HHS
transferred certain authorities, including interstate quarantine authority, to the
15 Dan Forsch, “Traveler with TB is Released After Treatment in Denver,”
[http://www.nytimes.com/2007/07/27/health/27tb.html?ex=1187409600&en=bddfee426
efef352&ei=5070]
16 For a detailed discussion of quarantine and isolation, see CRS Report RL33201, Federal
and State Quarantine and Isolation Authority, by Kathleen S. Swendiman and Jennifer K.
Elsea.
17 Homeland Security Council, National Strategy for Pandemic Influenza: Implementation
Plan 209 (GPO May 2006).
18 Id. at n. 207.
19 42 U.S.C. § 264(a). Violation of federal quarantine and isolation regulations is a criminal
misdemeanor, punishable by fine and/or imprisonment, 42 U.S.C. § 271.
20 42 U.S.C. § 264(b).
21 See also E.O. 13375, April, 2005, which amended E.O. 13295. [http://www.fas.org/irp/
offdocs/eo/eo-13295.htm] and [http://www.whitehouse.gov/news/releases/2005/04/
20050401-6.html]. The diseases listed are cholera, diphtheria, infectious tuberculosis,
plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndrome
(SARS), and influenza viruses which have the potential to cause a pandemic. Other new
threats would have to be added to E.O. 13295 in order to be “quarantinable diseases.”
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Director of the CDC.22 Both interstate and foreign quarantine measures are now
carried out by CDC’s Division of Global Migration and Quarantine.23
HHS also works closely with the Department of Homeland Security (DHS) and
its agencies. HHS and DHS signed a memorandum of understanding in 2005 that
sets forth specific cooperation mechanisms to implement their respective statutory
responsibilities for quarantine and other public health measures.24 DHS has three
agencies that may aid CDC in its enforcement of quarantine rules and regulations
pursuant to 42 U.S.C. § 268(b). They are U.S. Customs and Border Protection, U.S.
Immigration and Customs Enforcement, and the United States Coast Guard. In
addition to DHS, CDC may also rely on other federal law enforcement agencies and
state and local law enforcement agencies.
While the federal government has authority to authorize quarantine and isolation
under certain circumstances, it should be noted that the primary authority for
quarantine and isolation exists at the state level as an exercise of the state’s police
power. States conduct these activities in accordance with their particular laws and
policies. CDC acknowledges this deference to state authority as follows:
In general, CDC defers to the state and local health authorities in their primary
use of their own separate quarantine powers. Based upon long experience and
collaborative working relationships with our state and local partners, CDC
continues to anticipate the need to use this federal authority to quarantine an
exposed person only in rare situations, such as events at ports of entry or in
similar time-sensitive settings.25
The situation involving Andrew Speaker highlights a possible limitation of the
federal quarantine and isolation power in that the federal statute authorizing
quarantine authority does not directly address persons leaving the country. The law
is clear in its application to persons coming into the United States from a foreign
country or U.S. possession, and for persons moving from state to state. But the law
does not address preventing the movement of persons with communicable diseases
out of the country. Historically, quarantine has been used to keep people out of an
area and/or to contain them if they may be contagious, but as the case of Mr. Speaker
illustrates, in this age of global travel, public health authorities may have to deal with
the possibility of detaining a person to prevent the exportation of an infectious
disease.26
22 42 C.F.R. Part 70. Regulations regarding quarantine upon entry into the United States
from foreign countries are also administered by the CDC, see 42 C.F.R. Part 71.
23 See CDC Division of Global Migration and Quarantine home page at
[http://www.cdc.gov/ncidod/dq/index.htm].
24 [http://www.dhs.gov/xnews/testimony/testimony_1181229544211.shtm].
25 Q&A on Executive Order 13295, available at [http://www.cdc.gov/ncidod/dq/
qa_influenza_amendment_to_eo_13295.htm].
26 CDC Director Julie Gerberding, in her opening statement in a hearing on Threat Posed
by Patient with Drug Resistant Tuberculosis, before the Senate Appropriations
Subcommittee on Labor, Health and Human Services, Education and Related Agencies,
(continued...)
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The CDC, on November 22, 2005, announced proposed changes to its
quarantine regulations.27 If adopted, these changes would constitute the first
significant revision of the regulations in Parts 70 and 71 in 25 years. The proposed
changes are an outgrowth of the CDC’s experience during the spread of Severe Acute
Respiratory Syndrome (SARS) in 2003, when the agency experienced difficulties
locating and contacting airline passengers who might have been exposed to SARS
during their travels. In announcing the proposed regulations, CDC Director Julie
Gerberding said, “[t]hese updated regulations are necessary to expedite and improve
CDC operations by facilitating contact tracing and prompting immediate medical
follow up of potentially infected passengers and their contacts.”28
The proposed regulations would expand reporting requirements for ill
passengers29 onboard flights and ships arriving from foreign countries. They would
also require airlines and ocean liners to maintain passenger and crew lists with
detailed contact information and to submit these lists electronically to CDC upon
request.30 The lists would be used to notify passengers of their suspected exposure
if a sick person were not identified until after the travelers had dispersed from an
arriving carrier. The proposed regulations address the due process rights of
passengers who might be subjected to quarantine after suspected exposure to disease;
the regulations also provide for an appeal process.
In her congressional testimony regarding XDR-TB and the situation involving
Andrew Speaker, CDC Director Dr. Julie Gerberding summarized CDC efforts to
control the spread of tuberculosis, particularly emerging drug-resistant TB threats:
To control TB, HHS/CDC and its partners must continue to apply fundamental
principles including: (1) State and local TB programs must be adequately
26 (...continued)
110th Cong., 1st Sess. (June 6, 2007), raised this issue: “We also think we need clarification
in the quarantine statute. It does not explicitly address exportation, meaning movement of
patients out of the country.... So we may be able to use [the] existing statute with a
clarification of intent, but we do need to identify what our responsibilities and authorities
are under the statute and make a decision about whether a change is needed.”
27 See 70 Fed. Reg. 71892 (November 30, 2005), [http://www.cdc.gov/ncidod/dq/nprm/].
These proposed regulations were available for a 60-day comment period, and later extended
for an additional 30 days, closing on March 1, 2006. See 71 Fed. Reg. 4544 (January 27,
2006). Proposed Section 70.20 and 71.23 of 42 C.F.R.
28 CDC Proposes Modernizing Control of Communicable Disease Regulation, USA,
Medical News Today, November 23, 2005, at [http://www.medicalnewstoday.com/
medicalnews.php?newsid=34042]. Since the SARS outbreak, the CDC has increased its
quarantine stations nationwide from 8 to 20. See [http://www.cdc.gov/ncidod/dq].
29 The definition of ill person would be expanded to include anyone who has a fever of at
least 100.4 degrees plus one of the following: severe bleeding; jaundice; or severe, persistent
cough accompanied by bloody sputum, or respiratory distress. (Section 70.1 of proposed
regulations.) It should be noted that Mr. Speaker apparently did not have any symptoms.
30 Id. The lists, in electronic format, would have to be kept for 60 days after arrival, and be
able to be submitted within 12 hours of a CDC request. The lists would include names,
contact information, and seat assignments.
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prepared to identify and treat TB patients so that further drug resistant cases can
be prevented; (2) TB training and consultation must be widely available so that
private health care providers recognize and promptly report tuberculosis to the
public health system; (3) State and local public health laboratories must be able
to efficiently perform and interpret drug susceptibility and genotyping results in
TB specimens; and (4) CDC and local health authorities must work
collaboratively to ensure that isolation and quarantine authorities are properly
and timely exercised in appropriate cases.31
International Health Regulations
In May 2005 the World Health Assembly adopted a revision of its 1969
International Health Regulations (IHR), giving a new mandate to WHO and member
states to increase their respective roles and responsibilities for the protection of
international public health.32 The IHR(1969) had focused on just three diseases
(cholera, plague, and yellow fever). In addition, compliance of State Parties33 with
the IHR(1969) was uneven, a result of, among other things, resource limitations in
poorer countries, and political factors, such as the reluctance to announce the
presence of a contagious disease within one’s borders and face economic and other
consequences.34
The IHR(2005), which entered into force in June 2007, have broadened the
scope of the 1969 regulations by addressing existing, new, and re-emergent diseases,
as well as emergencies caused by non-infectious disease agents. The IHR(2005)
require State Parties to notify WHO of all events that may constitute a “public health
emergency of international concern,” and to provide information regarding such
events.35 The IHR(2005) also include provisions regarding designated national points
of contact, definitions of core public health capacities, disease control measures such
as quarantine and border controls, and others. The IHR(2005) require WHO to
31 Recent Case of Extensively Drug Resistant TB: CDC’s Public Health Response: Statement
to the US House of Representatives Committee on Homeland Security, 110th Cong. 1st Sess.
(June 6, 2007) (testimony of Julie Gerberding, MD, MPH, director of the CDC),
[http://www.hhs.gov/asl/testify/2007/06/t20070606a.html].
32 Fifty-eighth World Health Assembly, agenda item 13.1, Revision of the International
Health Regulations, May 23, 2005, at [http://www.who.int/csr/ihr/en/]. For a discussion of
these regulations, state sovereignty, and federalism issues see Eric Mack, “The World
Health Organization’s New International Health Regulations: Incursion on State Sovereignty
and Ill-Fated Response to Global Health Issues,” 7 CHI. J. INT’L L. 365 (2006).
33 “State Party” is the name for WHO member states that have agreed to be bound by the
IHR.
34 Baker, M.G. and Fidler, D.P., “Global Public Health Surveillance under New International
Health Regulations,” Emerging Infectious Diseases, vol. 12, no. 7, July 2006, at
[http://www.cdc.gov/ncidod/EID/vol12no07/05-1497.htm].
35 A “public health emergency of international concern” is defined as “an extraordinary
event which is determined, as provided in these Regulations: (i) to constitute a public health
risk to other States through the international spread of disease and (ii) to potentially require
a coordinated international response.” IHR (2005), Article 1.
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recommend, and State Parties to use, control measures that are no more restrictive
than necessary to achieve the desired level of health protection.
The IHR were agreed upon by a consensus process among the member states,
and represent a balance between sovereign rights and a commitment to work together
to prevent the international spread of disease. The IHR(2005) are binding on all
WHO member states as of June 15, 2007, except for those that have rejected the
regulations or submitted reservations.36 The United States accepted the IHR(2005)
with three reservations, including the reservation that it will implement the
IHR(2005) in line with U.S. principles of federalism.37 State Parties now have a two-
year period in which to assess the ability of existing national structures and resources
for meeting the core surveillance and response capacities requirements set out in the
regulations and to develop plans of action to ensure that these capacities are in place.
Within five years of the entry into force date, State Parties must complete
development of public health infrastructure that ensures full compliance with the
regulations.
According to the revised (2005) International Health Regulations, State Parties
are not to bar the entry of a conveyance for public health reasons, but are rather to
manage the public health threat through isolation, quarantine, disinfection, or other
such applicable methods.38 Article 43 of the IHR allows nations to implement
additional health measures in accordance with their relevant national law and
obligations under international law in response to specific health concerns. If a State
Party implements additional health measures significantly interfering with
international traffic, the public health rationale and relevant scientific information for
the measures must be provided to WHO. The WHO shall share the information with
State Parties and institute procedures to find a mutually acceptable solution.39
In 2006 WHO issued a document containing guidelines for tuberculosis and air
travel.40 WHO notes in the guidelines that TB and other airborne infectious diseases
can fall within the scope of the IHR(2005) in cases where public health risks present
a serious and direct danger to human health that may spread internationally. While
36 IHR(2005), Article 59.2.
37 HHS Secretary Michael Leavitt announced the acceptance of the IHR(2005) by the United
States on December 13, 2006. See News Release at [http://www.pandemicflu.gov/plan/
federal/index.html].
38 IHR, Article 28.1, “Ships and aircraft at points of entry.”
39 IHR, Article 43, “Additional Health Measures.” While the IHR(2005) do not include an
enforcement mechanism for State Parties that fail to comply with their provisions, the WHO
considers the potential consequences of non-compliance within the global community,
especially in economic terms, to be a powerful compliance tool. The IHR(2005) (Article
56) contain a dispute settlement mechanism to resolve conflicts which may arise among
State Parties when applying or interpreting the regulations, including options such as
negotiation, mediation, conciliation, or arbitration, or referral to the Director-General of
WHO, if agreed to by all the parties to the dispute.
40 World Health Organization, “Tuberculosis and Air Travel: Guidelines for Prevention and
Control” (2d ed. 2006), [http://www.who.int/tb/en/].
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TB is not listed in the IHR(2005) as a disease that would always be considered as a
potential public health emergency of international concern requiring notification to
WHO, it may be the subject of a potential international emergency under the
IHR(2005). The guidelines state that airline companies are expected to comply with
the IHR and the laws of the countries in which they operate. IHR requirements as
implemented by State Parties which may affect airlines include those relating to
detection and control of public health risks, such as information-sharing
requirements, notification of cases of illness, and medical examination or other health
measures for ill or possibly ill travelers. WHO guidelines also note that
confidentiality issues may arise when health authorities request the release of
passenger and crew lists, as well as when health authorities need to release the name
of a passenger with TB to an airline in order to confirm that the passenger was on a
particular flight or flights.
One of the difficulties raised by Mr. Speaker’s situation was the interaction of
the varying state, federal, and international laws, regulations, and authorities. The
Director of CDC, Dr. Julie Gerberding, observed that there were difficulties
determining how CDC was to use its assets and how the statements of principle in
the international health regulations were to be applied in a specific situation to
determine, for example, who should pay to move a patient, and who should care for
a patient in isolation or quarantine.41
Civil Rights
Introduction
The situation presented by Andrew Speaker raises a classic civil rights issue:
to what extent can an individual’s liberty be curtailed to advance the common good?
The U.S. Constitution and federal civil rights laws provide for individual due process
and equal protection rights as well as a right to privacy, but these rights are balanced
against the needs of the community. With the advance of medical treatments in
recent years, especially the use of antibiotics, the civil rights of the individual with
a contagious disease have been emphasized. However, classic public health
measures such as quarantine, isolation, and contact tracing are, nevertheless,
available in appropriate situations and, as new or resurgent diseases have become less
treatable, some of these classic public health measures have been increasingly used.
Therefore, the issue of how to balance these various interests in a modern culture
which is sensitive to issues of individual rights has become critical.42
41 CDC, “Update on CDC Investigation into People Potentially Exposed to Patient With
Extensively Drug Resistent TB,” (June 1, 2007) [http://www.cdc.gov/od/oc/media/
transcripts/2007/t070601.htm].
42 For a detailed discussion of constitutional issues relating to quarantine see Michelle A.
Daubert, “Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a
Continuum of Due Process Rights,” 54 BUFFALO L. REV. 1299 (Jan. 2007). For an analysis
of how to balance the sometimes competing interests of personal and economic liberties
with the public’s health and security see Lawrence O. Gostin, “When Terrorism Threatens
(continued...)
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Constitutional Rights to Due Process and Equal Protection
Constitutional rights to due process and equal protection may be implicated by
the imposition of a quarantine or isolation order.43 The Fifth and Fourteenth
Amendments prohibit governments at all levels from depriving individuals of any
constitutionally protected liberty interest without due process of law. What process
may be due under certain circumstances is generally determined by balancing the
individual’s interest at stake against the governmental interest served by the
restraints, determining whether the measures are reasonably calculated to achieve the
government’s aims,44 and deciding whether the least restrictive means have been
employed to further that interest.
In O’Connor v. Donaldson45 the Supreme Court examined the civil commitment
of an individual to a mental hospital and held that “a State cannot constitutionally
confine without more a nondangerous individual who is capable of surviving safely
in freedom by himself or with the help of willing and responsible family members
or friends.”46 Clearly an individual who is highly contagious with a serious illness
may be considered dangerous and thus subject to involuntary confinement if there is
42 (...continued)
Health: How Far are Limitations on Personal and Economic Liberties Justified?” 55 Fla.
Law Rev. 1105 (Dec. 2003).
43 It has been argued that the federal quarantine authority may not pass constitutional muster
since it does not specifically provide for a right to a fair hearing. See Howard Markel,
Lawrence O. Gostin, David P. Fidler, “Extensively Drug-Resistant Tuberculosis: An
Isolation Order, Public Health Powers, and a Global Crisis,” 298 JAMA 83,84 (July 4,
2007). It should be noted that the proposed CDC quarantine regulations contain detailed
due process procedures including a right to a hearing for full quarantine. 70 Fed. Reg.
71,892 (Nov. 30, 2005), [http://www.cdc.gov/ncidod/dq/nprm/]. However, these proposed
regulations have been strongly criticized for what commentators have described as
constitutional failings. These criticisms have highlighted the lack of independent judicial
review for individuals subject to quarantine, the broad discretion accorded to directors of
federal quarantine stations, the lack of hearings during provisional quarantine, and privacy
concerns. See e.g., Lawrence O. Gostin, Benjamin E. Berkman, and David P. Fidler,
Comments on Department of Health and Human Services, Control of Communicable
Diseases (Proposed Rule), 42 C.F.R. Parts 70 and 71 (November 30, 2005),
[http://www.publichealthlaw.net/Resources/BTlaw.htm]; The New England Coalition for
Law and Public Health, Comments on the Interstate and Foreign Quarantine Regulations
Proposed by the Centers for Disease Control and P r e v e n t i on,
[http://64.233.169.104/u/UMBaltimore?q=cache:fsSm0xxCULQJ:www.umaryland.edu/h
ealthsecurity/docs/New%2520England%2520Coalition%2520Comments%2520CDC%2
520revisions.pdf+%22new+england+coalition+for+law+and+public+health%22&hl=en
&ct=clnk&cd=1&gl=us&ie=UTF-8].
44 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905) (enforcement of public
health laws must have some “real or substantial relation to the protection of the public health
and the public safety”); Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900) (quarantine
of San Francisco district inhabited primarily by Chinese immigrants purportedly to control
the spread of bubonic plague was invalidated).
45 422 U.S. 563 (1975).
46 Id. at 576.
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no less restrictive alternative. The lesson of Donaldson is that such confinements
must be carefully examined in order to comport with the constitutional right to due
process. Donaldson also raises the issue of whether less restrictive programs are
required prior to the imposition of the more restrictive application of isolation or
quarantine. It could be argued that the least restrictive alternative must first be
applied or more restrictive alternatives will run afoul of constitutional requirements.47
The unequal treatment of certain socially disfavored groups with regard to
quarantine also raises equal protection issues. For example, in Wong Wai v.
Williamson48 a board of health resolution mandated Chinese residents to be
quarantined for bubonic plague unless they submitted to inoculation with a serum
with “the only justification offered for this discrimination ... a suggestion ... that this
particular race is more liable to the plague than any other.”49 The court struck the
resolution as a violation of the equal protection clause.50
Federal Nondiscrimination Laws
In addition to constitutional issues, discrimination against an individual with an
infectious disease may be covered by certain federal laws, notably the Americans
with Disabilities Act (ADA),51 Section 504 of the Rehabilitation Act,52 and the Air
47 See Wendy D. Parmet, “Legal Power and Legal Rights — Isolation and Quarantine in the
Case of Drug-Resistant Tuberculosis,” 357 NEW ENG. J. OF MEDICINE 433, 435 (Aug. 2,
2007). Professor Parmet argues that compulsory measures are not the most effective and
may prompt individuals who may be subject to them to evade authorities. “By ensuring that
coercion is used only when less restrictive alternatives will not work and with due regard
for the rights of those detained, the law can foster public trust, minimizing the need for
compulsion and laying the groundwork for the comprehensive and costly control programs
needed to prevent the spread of XDR tuberculosis and other contagious pathogens.” Id.
48 103 F. 1 (N.D. Cal. 1900).
49 Id. at 15.
50 One commentator observed that it is unlikely that such blatantly discriminatory actions
would occur today but noted that “studies of New York City’s use of isolation orders for
tuberculosis in the 1990s show that more than 90% of the people detained were non-white
and more than 60% were homeless.... Although these figures may reflect the democracy of
non-compliant patients with tuberculosis in New York City at that time, the fact that the
most potent public health tool was used primarily against marginalized, nonwhite persons
underscores the need for legal oversight — if only so that affected communities can be
assured of the absence of discrimination.” Wendy D. Parmet, “Legal Power and Legal
Rights — Isolation and Quarantine in the Case of Drug-Resistant Tuberculosis,” 357 NEW
ENG. J. OF MEDICINE 433, 434 (Aug. 2, 2007).
51 42 U.S.C. §§12101 et seq. For a more detailed discussion of the ADA generally see CRS
Report 98-921, The Americans with Disabilities Act (ADA): Statutory Language and Recent
Issues, by Nancy Lee Jones.
52 29 U.S.C. §794. For a more detailed discussion of Section 504 generally see CRS Report
RL34041, Section 504 of the Rehabilitation Act of 1973: Prohibiting Discrimination
Against Individuals with Disabilities in Programs or Activities Receiving Federal
Assistance, by Nancy Lee Jones.
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Carriers Access Act (ACAA).53 However, under these statutes, an individual with
a contagious disease does not have to be given access to a place of public
accommodation or employment if such access would place other individuals at a
significant risk.54
Although the language of Section 504 does not specifically discuss contagious
diseases, the Supreme Court dealt with discrimination issues in the context of
tuberculosis and Section 504 in School Board of Nassau County v. Arline.55 The
Court found that in most cases an individualized inquiry is necessary in order to
protect individuals with disabilities from “deprivation based on prejudice,
stereotypes, or unfounded fear, while giving appropriate weight to such legitimate
concerns of grantees as avoiding exposing others to significant health and safety
risks.”56 The Court adopted the test enunciated by the American Medical Association
(AMA) amicus brief and held that the factors which must be considered include
“findings of facts, based on reasonable medical judgments given the state of medical
knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the
duration of the risk (how long is the carrier infectious), (c) the severity of the risk
(what is the potential harm to third parties) and (d) the probabilities the disease will
be transmitted and will cause varying degrees of harm.” The Court also emphasized
that courts “normally should defer to the reasonable medical judgments of public
health officials.”57
The ADA provides nondiscrimination protections to individuals with contagious
diseases but balances this protection with requirements designed to protect the health
of other individuals. Title I of the ADA, which prohibits employment discrimination
against otherwise qualified individuals with disabilities, specifically states that “the
term ‘qualifications standards’ may include a requirement that an individual shall not
pose a direct threat to the health or safety of other individuals in the workplace.”58 In
addition, the Secretary of Health and Human Services (HHS) is required to publish,
and update, a list of infectious and communicable diseases that may be transmitted
through handling the food supply.59
53 42 U.S.C. §1374(c). For a more detailed discussion of the ACAA generally see CRS
Report RL34047, Overview of the Air Carrier Access Act, by Anna Henning.
54 For a more detailed discussion of this issue in the ADA context see CRS Report
RS22219, The Americans with Disabilities Act (ADA) Coverage of Contagious Diseases,
by Nancy Lee Jones.
55 480 U.S. 273 (1987).
56 Id. at 287.
57 Id. at 288. These standards are incorporated into the regulations for the Air Carriers
Access Act at 14 C.F.R. §382.51.
58 42 U.S.C. §12113(b).
59 42 U.S.C. §12113(d). This provision was added in an amendment by Senator Hatch after
a long debate over the Chapman Amendment, which was not enacted. The Chapman
Amendment would have allowed employers in businesses involved in food handling to
exclude individuals with specific contagious diseases such as HIV infection. See 136 Cong.
(continued...)
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Similarly, Title III, which prohibits discrimination in public accommodations
and services operated by private entities, states the following:
Nothing in this title shall require an entity to permit an individual to participate
in or benefit from the goods, services, facilities, privileges, advantages and
accommodations of such entity where such individual poses a direct threat to the
health or safety of others. The term ‘direct threat’ means a significant risk to the
health or safety of others that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aids or services.60
Although Title II, which prohibits discrimination by state and local government
services, does not contain such specific language, it does require an individual to be
“qualified” and this is defined in part as meeting “the essential eligibility
requirements of the receipt of services or the participation in programs or
activities.”61 This language has been found by the Department of Justice to require
the same interpretation of direct threat as in Title III.62
Contagious diseases were discussed in the ADA’s legislative history. The Senate
report noted that the qualification standards permitted with regard to employment
under Title I may include a requirement that an individual with a currently contagious
disease or infection shall not pose a direct threat to the health or safety of other
individuals in the workplace and cited to School Board of Nassau County v. Arline,63
the Section 504 case discussed previously.64 Similarly, the House report of the
Committee on Education and Labor reiterated the reference to Arline and added
“[t]hus the term ‘direct threat’ is meant to connote the full standard set forth in the
Arline decision.”65
The Air Carriers Access Act (ACAA) prohibits discrimination by air carriers
against “otherwise qualified individual[s]” on the basis of disability.66 Enacted in
59 (...continued)
Rec. 10911 (1990).
60 42 U.S.C. §12182(3).
61 42 U.S.C. §12131(2).
62 28 C.F.R. Part 35, Appx A.
63 480 U.S. 273, 287, note 16 (1987).
64 S.Rept. 101-116, 101st Cong., 1st Sess. reprinted in Vol. I, Committee Print Serial No.
102-A Legislative History of Public Law 101-336 The Americans with Disabilities Act,
prepared for the House Committee on Education and Labor at 139 (Dec. 1990).
65 H.Rept. 101-485, 101st Cong., 2nd Sess., reprinted in Vol. I, Committee Print Serial No.
102-A Legislative History of Public Law 101-336 The Americans with Disabilities Act,
prepared for the House Committee on Education and Labor at 349 (Dec. 1990). See also 136
Cong. Rec. 10858 (1990).
66 49 U.S.C. §41705. For a more detailed discussion of the ACAA see CRS Report
RL34047, Overview of the Air Carrier Access Act, by Anna Henning.
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1986,67 prior to the ADA, the ACAA contains no statutory reference to
communicable diseases. However, the regulations, like the ADA and its regulations,
generally treat individuals with communicable diseases as falling within the
definition of “individual with a disability.”68 The regulations prohibit various actions
by carriers against individuals with communicable diseases. A carrier may not “(1)
refuse to provide transportation to the person, (2) require the person to provide a
medical certificate, or (3) impose on the person any condition, restriction, or
requirement not imposed on other passengers.”69 However, an exception applies
when an individual “poses a direct threat to the health or safety of others.”70 “Direct
threat” is defined as “a significant risk to the health or safety of others that cannot be
eliminated by a modification of policies, practices, or procedures, or by the provision
of auxiliary aids or services.”71
67 Air Carrier Access Act of 1986, 100 Stat. 1080 (1986) (current version at 49 U.S.C.
§41705).
68 See, e.g., 14 CFR §382.51(c) (referring to “qualified individual with a disability with a
communicable disease”).
69 14 CFR §382.51(a).
70 14 CFR §382.51(b)(1).
71 14 CFR §382.51(b)(2).