Federal and State Isolation and Quarantine Authority

Federal and State Isolation and Quarantine Authority

Order Code RL31333
CRS Report for Congress
Received through the CRS Web
Federal and State
Isolation and
Quarantine Authority
Updated January 18, 2005
Angie A. Welborn
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Federal and State Isolation and Quarantine Authority
Summary
In the wake of recent terrorist attacks and increasing fears about the spread of
highly contagious diseases, such as severe acute respiratory syndrome (SARS),
federal, state and local governments have become increasingly aware of the need for
an effective public health response to such events. An effective response could
include the isolation of persons exposed to infectious biological agents released
during an attack or infected with a communicable disease, as well as the quarantine
of certain states, cities, or neighborhoods.
Currently, state and local governments have the primary authority to control the
spread of dangerous diseases within their jurisdiction, with the federal government’s
role limited to interstate and foreign quarantine. However, many states have
inadequate procedures in place for isolating individuals who are infected or believed
to be infected and quarantining areas that are or may be infected. Generally, the laws
currently in effect do not address the spread of disease resulting from a biological
attack, and for the most part only address specific diseases that were the cause of past
epidemics, not newly emerging diseases such as SARS. In light of recent events,
many states are reevaluating their public health emergency response plans and are
expected to enact more comprehensive regulations relating to isolation and
quarantine. Public health experts have developed a Model State Emergency Health
Powers Act to guide states as they reevaluate their emergency response plans.
This report provides an overview of federal and state quarantine laws as they
relate to the isolation or quarantine of individuals, as well as a discussion of the
relevant case law. The Model State Emergency Health Powers Act is also discussed.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Quarantine Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State Police Powers and Quarantine Authority . . . . . . . . . . . . . . . . . . . . . . . 3
Model State Emergency Health Powers Act . . . . . . . . . . . . . . . . . . . . . . . . . 5
Legal Challenges to State Quarantine Authority . . . . . . . . . . . . . . . . . . . . . . 7

Federal and State Isolation and Quarantine
Authority
Introduction
In the event of a biological attack or the introduction of a highly contagious
disease into a population, the public health system may respond by taking measures
to prevent those infected with or exposed to a disease or a disease-causing biological
agent from infecting others. The terms used to describe these measures generally
apply to distinct groups of persons, but are often used interchangeably. Isolation
typically refers to “the separation of a known infected person or animal from others
during the period of contagiousness in order to prevent the direct or indirect
conveyance of the infectious agent.”1 Quarantine refers to “the restriction of
movement of a healthy person who has been exposed to a communicable disease in
order to prevent contact with unexposed persons.”2 There are varying degrees of
quarantine and the authority to order quarantine or isolation is generally very broad.
First, both complete quarantine and isolation usually involve the confinement of
contagious individuals to their residences pursuant to orders from the state health
department. Health officials post a public notice forbidding anyone from
entering or exiting the dwelling. Alternatively, health authorities may confine
an infected person to either a hospital or a prison. Second, health authorities may
order a modified quarantine, which selectively restricts an individual from
participation in certain activities, e.g. jobs involving food preparation, school
attendance, or particularly hazardous activities. The quarantine power also
includes the authority to place a contagious individual under surveillance to
insure strict compliance with quarantine orders. Finally, the health department
may issue segregation orders which require the separation of an entire group of
people from the general population. Quarantine orders may extend to any
persons who come into contact with the infected individual.3
State health departments or health officials typically have primary quarantine
authority, though the federal government does have jurisdiction over interstate and
foreign quarantine. Both federal and state statutes and regulations will be discussed
infra.
1 See Edward A. Fallone, Preserving the Public Health: A Proposal to Quarantine
Recalcitrant AIDS Carriers, 68 B.U.L. Rev. 441, n24 (1988).
2 Id at n23.
3Id at 460 - 461.

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Federal Quarantine Authority
Under the Public Health Service Act, the Secretary of Health and Human
Services has 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.”4 While providing the Secretary with broad authority to
promulgate regulations “as in his judgement may be necessary,” the law places
limitations on the Secretary’s authority to enact regulations providing for the
“apprehension, detention, or conditional release of individuals.”5 Such apprehension,
detention, or conditional release may be authorized for the purpose of “preventing the
introduction, transmission, or spread of such communicable diseases as may be
specified from time to time in Executive orders of the President upon the
recommendation of the Secretary, in consultation with the Surgeon General.”6
Generally, regulations authorizing the apprehension, detention, examination, or
conditional release of individuals are applicable only to individuals coming into a
State or possession from a foreign country or a possession.7 However, the regulations
may provide for the apprehension and examination of “any individual reasonably
believed to be infected with a communicable disease in a qualifying stage8 and (A)
to be moving or about to move from a State to another State; or (B) to be a probable
source of infection to individuals who, while infected with such disease in a
qualifying stage, will be moving from a State to another State.”9 If found to be
infected, such individuals may be detained for such time and in such manner as may
be reasonably necessary.10 During times of war, the authority to apprehend and
examine individuals extends to any individual “reasonably believed (1) to be infected
with such disease [as specified in an Executive order of the President] and (2) to be
a probable source of infection to members of the armed forces of the United States”
or to individuals engaged in the production or transportation of supplies for the
armed forces.11
442 U.S.C. 264. Originally, the statute conferred this authority on the Surgeon General;
however, pursuant to Reorganization Plan No. 3 of 1966, all statutory powers and functions
of the Surgeon General were transferred to the Secretary.
542 U.S.C. 264.
642 U.S.C. 264(b). On April 4, 2003, the President issued Executive Order 13295 revising
the list of communicable diseases subject to quarantine under federal law. The new list
includes cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral
hemorrhagic fevers, and severe acute respiratory syndrome (SARS).
742 U.S.C. 264(c).
8“Qualifying stage” means that such disease (A) is in a communicable stage; or (B) is in a
precommunicable state, if the disease would likely cause a public health emergency if
transmitted to other individuals. 42 U.S.C. 264(d)(2).
942 U.S.C. 264(d).
10Id.
1142 U.S.C. 266.

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Regulations promulgated pursuant to the Public Health Service Act addressing
interstate quarantine primarily restrict travel for persons infected with a
communicable disease.12 Following a transfer of authority from the Secretary of
Health and Human Services to the Director of the Centers for Disease Control and
Prevention (CDC) in 2000, the Director of the CDC is authorized to take measures
as may be necessary to prevent the spread of a communicable disease from one state
or possession to any other state or possession if he or she determines that measures
taken by local health authorities are inadequate to prevent the spread of the disease.13
In an effort to prevent the spread of diseases between states, the regulations prohibit
infected persons from traveling from one state to another state without a permit from
the health officer of the state, possession, or locality of destination, if such permit is
required under the law applicable to the place of destination.14 Additional
requirements apply to persons who are in the “communicable period of cholera,
plague, smallpox, typhus or yellow fever, or who having been exposed to any such
disease, is in the incubation period thereof.”15
State Police Powers and Quarantine Authority
The preservation of the public health has historically been the responsibility of
state and local governments.16 While the federal government has the authority to
authorize quarantine under certain circumstances, the primary authority exists at the
state level as an exercise of the state’s police power.17 The Supreme Court alluded
to a state’s authority to enact quarantine laws in 1824, Gibbons v. Ogden.18 In
Gibbons, the Court noted that while quarantine laws may affect commerce, they are,
by nature, health laws, and thus under the authority of state and local governments.
Courts have noted that the duty to insure that the public health is preserved is
inherent to the police power of a state and cannot be surrendered.19
While every state has acknowledged the authority to pass and enforce quarantine
laws, these laws vary widely by state. Generally, quarantine is authorized through
public health orders, though some states may require a court order before an
12The regulations apply to the apprehension, detention, or conditional release of individuals
for the purpose of preventing the introduction, transmission, or spread of the diseases listed
in Executive Order 13295. See note 6 supra. 42 CFR 70.6.
1342 CFR 70.2. Effective September 15, 2000, the Department of Health and Human
Services transferred authority for interstate quarantine to the Centers for Disease Control
and Prevention, with the Food and Drug Administration retaining authority over animals and
other products that may transmit or spread communicable diseases. 65 FR 49906, August
16, 2000.
1442 CFR 70.3.
1542 CFR 70.5.
16 People ex rel. Barmore v. Robertson, 134 N.E. 815, 817 (Ill.1922).
17Federal quarantine law does not supersede state law unless state law conflicts with an
exercise of federal authority as discussed supra. 42 U.S.C. 264(e).
1822 U.S. 1, 25 (1824).
19134 N.E. at 817.

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individual is detained.20 For example, in Louisiana, the state health officer is not
authorized to “confine any person in any institution unless directed or authorized to
do so by the judge of the parish in which the person is located.”21 Diseases subject
to quarantine may be defined by statute, with some statutes addressing only a single
disease, or the state health department may be granted the authority to decide which
diseases are communicable and therefore subject to quarantine.22 States also employ
different methods for determining when the quarantine or isolation period shall end.
Generally, “release is accomplished when a determination is made that the person is
no longer a threat to the public health, or no longer infectious.”23
One common characteristic of most state quarantine laws is their “overall
antiquity,” with many statutes being between forty and one hundred years old.24 The
more antiquated laws “often do not reflect contemporary scientific understandings
of disease, [or] current treatments of choice.”25 State laws were often enacted with
a focus on a particular disease, such as tuberculosis or typhoid fever, leading to
inconsistent approaches in addressing other diseases.26
Despite the inconsistencies and perceived problems with such laws, state
legislatures have not been forced to reevaluate their quarantine and isolation laws due
to a decline in infectious diseases and advances in medicine.27 However, in light of
recent threats, many states have begun to reconsider their emergency response
systems, including the state’s authority to quarantine.28 A review of quarantine
authority was also listed as priority for state governments in the President’s 2002
National Strategy for Homeland Security.29
20Paula Mindes, Note, Tuberculosis Quarantine: A Review of Legal Issues in Ohio and
Other States, 10 J.L. & Health 403, 409 (1995).
21La. R. S. 40:17(A). Exceptions are provided for certain diseases, including smallpox,
cholera, yellow fever, bubonic plague, and tuberculosis.
2210 J.L. & Health at 409. See e.g., Md. Code Ann. 18-324, which addresses only quarantine
in tuberculosis cases.
23Id. at 410.
24Lawrence O. Gostin, et. al., The Law and the Public’s Health: A Study of Infectious
Disease Law in the United States, 99 Colum. L. Rev. 59, 102 (1999).
25Id. at 106.
26Id.
2710 J.L. & Health at 413, citing Wendy E. Parmet, AIDS and Quarantine: The Revival of
an Archaic Doctrine, 14 Hofstra L. Rev. 53, 54-55 (1985).
28States Weighing Laws to Fight Bioterrorism, by Justin Gillis, Washington Post, November
19, 2001, p. A01. See section infra on the Model State Emergency Health Powers Act.
29Office of Homeland Security, National Strategy for Homeland Security, June 2002.
[http://www.whitehouse.gov/homeland/book/nat_strat_hls.pdf].

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Model State Emergency Health Powers Act
The Model State Emergency Health Powers Act was drafted by The Center for
Law and the Public’s Health at Georgetown and Johns Hopkins Universities.30 The
Model Act seeks to “grant public health powers to state and local public health
authorities to ensure a strong, effective, and timely planning, prevention, and
response mechanisms to public health emergencies (including bioterrorism) while
also respecting individual rights.”31 It is important to note that this is intended to be
a model for states to use in evaluating their emergency response plans, and passage
of the Model Act in its entirety is not required. Many states will likely use parts of
the Model Act, but tailor their statutes and regulations to respond to unique or novel
situations that may arise in their jurisdiction.32
The Model Act provides a comprehensive framework for state emergency health
powers, including statutory authority for isolation33 and quarantine.34 Section 604 of
the model act authorizes the isolation or quarantine of an individual or groups of
individuals during a public health emergency.35 The Model encourages the public
health authority to adhere to specific conditions and principles when exercising
isolation or quarantine authority. These conditions and principles include insuring
that the measures taken are the least restrictive means necessary to prevent the spread
of the disease; monitoring the condition of isolated and quarantined individuals; and
providing for the immediate release of individuals when they no longer pose a
substantial risk of transmitting the disease to others.36 The Model Act provides that
a failure to obey the rules and orders concerning isolation and quarantine shall be
treated as a misdemeanor.37
3 0 A c o p y o f t h e M o d e l A c t c a n b e f o u n d a t
[http://www.publichealthlaw.net/Resources/Modellaws.htm].
31Id.
32See discussion of recently enacted state laws supra.
33For the purposes of the Model Act, isolation is defined as “the physical separation and
confinement of an individual or groups of individuals who are infected or reasonably
believed to be infected with a contagious or possibly contagious disease from non-isolated
individuals, to prevent or limit the transmission of the disease to non-isolated individuals.”
34Quarantine is defined as “the physical separation and confinement of an individual or
groups of individuals, who are or may have been exposed to a contagious or possibly
contagious disease and who do not show signs or symptoms of a contagious disease, from
non-quarantined individuals, to prevent or limit the transmission of the disease to non-
quarantined individuals.”
35 A public health emergency is defined to include “an occurrence or imminent threat of an
illness or health condition” that is believed to be caused by bioterrorism or the appearance
of a novel or previously controlled or eradicated infectious agent or biological toxin, and
poses a high probability of a large number of deaths, a large number of serious or long-term
disabilities, or a significant risk of substantial future harm to a large number or people.
36For a complete list of the conditions and principles, see Section 604(b) of the Model Act.
37Section 604(c).

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The Model State Emergency Health Powers Act sets forth procedures for
isolation and quarantine under two different sets of circumstances. Section 605(a)
addresses procedures for temporary isolation and quarantine without notice if a
“delay in imposing the isolation or quarantine would significantly jeopardize the
public health authority’s ability to prevent or limit the transmission of a contagious
or possibly contagious disease to others.” The isolation or quarantine must be
ordered through a written directive specifying the identity of the individuals subject
to the order, the premises subject to the order, the date and time at which the isolation
or quarantine are to commence, the suspected contagious disease, and a copy of the
provisions set forth in the act relating to isolation and quarantine.38 The public health
authority is required to petition within ten days after issuing the directive for a court
order authorizing the continued isolation or quarantine if needed.39
Apart from the emergency procedures outlined above, the public health authority
may petition a court for an order authorizing the isolation or quarantine of an
individual or groups of individuals, with notice of the petition given to the
individuals or groups of individuals in question within twenty-four hours.40 The
public health authority’s petition must include the same information as required in
the emergency directive discussed above, in addition to “a statement of the basis
upon which isolation and quarantine is justified in compliance with this Article.”41
A hearing must be held within five days of the petition being filed, and the court
“shall grant the petition if, by a preponderance of the evidence, isolation or
quarantine is shown to be reasonably necessary to prevent or limit the transmission
of a contagious or possibly contagious disease to others.”42 An order authorizing
isolation or quarantine may not do so for a period exceeding thirty days, though the
public health authority may move to continue isolation or quarantine for additional
periods not exceeding thirty days.43
The Model Act provides procedures which allow individuals subject to isolation
or quarantine to challenge their detention and obtain release, and provide remedies
where established conditions were not met.44 Individuals subject to isolation or
quarantine would be appointed counsel if they are not otherwise represented in their
challenge.45
38Section 605(a)(2).
39Section 605(a)(4).
40Section 605(b).
41Section 605(b)(2).
42Section 605(b)(5).
43Section 605(b)(6).
44Section 605(c).
45Section 605(e).

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The Model Act has been challenged by groups asserting that model legislation
is unnecessary and that this particular legislation is “unjustifiably broad.”46 Others
have expressed concern that the Model Act “grants unprecedented and . . . .
unconstitutional power.”47 Courts will likely be asked to review any version of the
act passed by the states.
Legal Challenges to State Quarantine Authority
As noted above, the Supreme Court in Gibbons v. Ogden alluded to a state’s
authority to quarantine under the police powers. In 1902, the Court directly
addressed a state’s power to quarantine an entire geographic area in Compagnie
Francaise de Navigation a Vapeur v. Louisiana State Board of Health, where both
the law and its implementation were upheld as valid exercises of the state’s police
power.48 The petitioners in the case - a shipping company - challenged an
interpretation of a state statute that conferred upon the state Board of Health the
authority to exclude healthy persons, whether they came from without or within the
state, from a geographic area infested with a disease.49 The petitioner alleged that the
statute as interpreted interfered with interstate commerce, and thus was an
unconstitutional violation of the commerce clause. The Court rejected this argument,
holding that although the statute may have had an affect on commerce, it was not
unconstitutional.50
Courts have recognized an individual’s right to challenge his or her isolation or
quarantine by petitioning for writ of habeas corpus.51 While the primary function of
a writ of habeas corpus is to test the legality of the detention,52 petitioners often seek
a declaration that the statute under which they were quarantined is unconstitutional
or violative of due process. Due process is a concern, though courts are reluctant to
interfere with a state’s exercise of police powers with regard to public health matters
“except where the regulations adopted for the protection of the public health are
46Review of The Model State Emergency Health Powers Act, by Edward P. Richards, et. al.,
[http://www.plague.law.umkc.edu/blaw/bt/MSEHPA_review.htm].
47See “Quarantine Proposal Sparks Debate,” Legal Times, November 5, 2001.
48186 U.S. 380 (1902).
49186 U.S. at 384.
50Id at 387.
51Ex parte Hardcastle, 208 S.W. 531(Tex. Crim. App. 1919).
52Habeas corpus is “the name given to a variety of writs, having for their object to bring a
party before a court or judge. In common usage, and whenever these words are used alone,
they are usually understood to mean the habeas corpus ad subjiciendum.” Specifically,
habeas corpus ad subjiciendum is “a writ directed to the person detaining another, and
commanding him to produce the body of the prisoner, or person detained. This is the most
common form of habeas corpus writ, the purpose of which is to test the legality of the
detention or imprisonment; not whether his is guilty or innocent.” Black’s Law Dictionary,
6th Edition, 1990.

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arbitrary, oppressive and unreasonable.”53 The courts appear to give deference to the
determinations of state boards of health and generally uphold such detentions as valid
exercises of a state’s duty to preserve the public health and not violative of due
process. However, some courts have refused to uphold the quarantine of an
individual where the state is unable to meet its burden of proof concerning that
individual’s potential danger to others.54
In People ex rel. Barmore v. Robertson, the court refused to grant the petition
for writ of habeas corpus of a woman who ran a boarding house where a person
infected with typhoid fever had boarded.55 The woman was not herself infected with
the disease, but she was a carrier and had been quarantined in her home. She argued
that her quarantine was unwarranted because she was not “actually sick,” though the
court noted that “[i]t is not necessary that one be actually sick, as that term is usually
applied, in order that the health authorities have the right to restrain his liberties by
quarantine regulations.”56 In providing justification for quarantine under these
circumstances, the court explained that since disease germs are carried by human
beings, and as the purpose of an effective quarantine is to prevent the spread of the
disease to those who are not infected, anyone who carries the germs must be
isolated.57 The court found that in the case of a person infected with typhoid fever,
anyone who had come into contact with that person must be isolated in order to
prevent the spread of the disease to others.58
The Florida Supreme Court upheld a quarantine statute that was challenged on
due process grounds, denying the petitioners petition for writ of habeas corpus. In
Moore v. Draper, the court stated that, “[t]he constitutional guarantees of life, liberty
and property, of which a person cannot be deprived without due process of law, do
not limit the exercise of the police power of the State to preserve the public health
so long as that power is reasonably and fairly exercised and not abused.”59 In
addition to the due process claim, the petitioner had challenged the statute as
discriminatory against “all persons other than those of a certain religious faith and
belief.”60 The court rejected both arguments finding that the statute was a proper
exercise of the state’s police power and not violative of the petitioner’s constitutional
rights.
53People ex. rel. Barmore v. Robertson, 134 N.E. 815, 817 (citations omitted) (Ill.1922).
54See State v. Snow, 324 S.W.2d 532 (Ark. 1959).
55134 N.E. 815 (Ill.1922).
56Id at 819.
57Id at 819 - 820.
58Id at 820.
5957 So.2d 648, 650 (Fla. 1952), citing Varholy v. Sweat, 15 So.2d 267 (Fla.1943).
6057 So.2d at 648. The court’s opinion did not indicate the basis for petitioner’s claim
regarding religious discrimination and did not reprint the text of the statute. The statute in
question was later repealed.