Ebola Goes to Court 

Nurse Kaci Hickox just walked out on her quarantine. Will Maine succeed in forcing her back inside?

Paul LePage, Governor of Maine in New York, September 2011.
For first half of this week, Kaci Hickox was voluntarily isolated in Maine at the request of Gov. Paul LePage (above). 

Photo by Diane Bondareff/NBC/NBCU Photo Bank via Getty Images

Kaci Hickox has left the building. The Doctors Without Borders nurse ended her “voluntary” home quarantine on Thursday morning, leaving her Maine home for a bike ride with her boyfriend. Hickox’s daylight pedaling comes after a week in which she was ensnared in a tangled web of state Ebola regulations. After landing in New Jersey last Friday, she spent last weekend quarantined against her will in a Newark hospital on the orders of Gov. Chris Christie, then the first half of this week voluntarily isolated in Maine at the request of Gov. Paul LePage. “I’m not willing to stand here and let my civil rights be violated when it’s not science-based,” Hickox told reporters on Wednesday evening, making it clear that she wouldn’t abide the state’s request that she self-quarantine for the remainder of the virus’ 21-day incubation period. Now, Hickox has lived up to her promise.

Unlike most states, Maine doesn’t allow its public health department to quarantine first and ask questions later. State police are keeping tabs on Hickox, but there’s not a lot they can do without a court order allowing them to either take the nurse into custody or forcibly return her to her home. An order allowing for her temporary detention prior to (and likely during) a court hearing could come down as soon as today.

Everyone I spoke to for this story believes that a hearing will happen, perhaps as soon as early next week, though it’s at this point unclear whether the case would be heard in Maine district or superior court. That hearing would look at the question of whether the state can legally quarantine Hickox as a result of the time she spent treating Ebola patients in Sierra Leone earlier this month. To put it another way: Does Hickox pose enough of a public health risk to justify her loss of freedom? That legal fight will serve as a proxy—and could set a legal precedent—for the national debate over just how far the United States should go to contain a deadly virus that has ravaged West Africa but has so far claimed only one life on U.S. soil.

It’s no secret what side scientists are on in that debate. The public health community has been vocal about its opposition to mandatory quarantines for medical workers who are not showing symptoms of an Ebola infection. Not only could such bans deter American medical professionals from volunteering to go where they’re desperately needed, experts say such measures are also unlikely to do any good in the first place. Ebola is highly infectious but not highly contagious. It takes only a small amount of contact with the virus to become infected, but the only way for that infection to be transmitted is via the bodily fluids of someone who is sick. That’s why experts say there is no need to quarantine nurses and doctors who have been exposed. Even if they have been infected, they’ll have a chance to self-diagnose and get themselves to a hospital before they become contagious.

Hickox’s lawyers have made it clear that will be at the heart of their case. “Our position is very simple: There’s no justification for the state of Maine to quarantine her,” her lawyer Norman Siegel told the Associated Press on Wednesday. “She has no symptoms, and therefore she’s not contagious. And she’s not at a risk to the public or the health and welfare of people in the state of Maine.”

Scientists, however, don’t have the last word in the court of law. “The judge will need to weigh the probability of infection, however small, versus the magnitude of harm an outbreak could cause,” says Margaret Foster Riley, a professor of law at the University of Virginia.

Maine officials will likely make the case that other officials have gone above and beyond the active monitoring the federal government has deemed sufficient for all but the highest-risk individuals. Maine can point to New York and New Jersey, which were the first two states to implement mandatory quarantines, and it can also look abroad, where the Pentagon has approved what looks an awful lot like a 21-day government-ordered quarantine for U.S. soldiers returning from Ebola relief missions (even if it’s far from an apples-to-apples comparison). “They’ll have to convince the judge that there are plenty of other reasonable people taking similar measures,” Riley says.

Historically, courts have tended to side with the quarantiner over the quarantinee. But the modern case history is dominated by cases involving tuberculosis, which—unlike Ebola—is highly contagious and easily spread. Still, the TB cases are relevant precedents here, because many of them were less about the current state of the individual being quarantined than their willingness to follow doctor’s orders. “It was more of a predictive question: What are the chances that they become non-compliant and then spread the disease?” says Wendy Parmet, the director of Northeastern University’s Program on Health Policy and Law. “It would be remarkable for the state to argue that the scientific consensus is erroneous. Instead, they’ll most likely need to argue that without the quarantine you can never know what the person might do—whether they’ll follow the medical recommendations or not.”

The courts have tended to side with the state when it comes to TB, particularly when an individual had been non-compliant in the past, or when he is homeless or mentally ill. But Hickox’s case is obviously different. “Unless her outspoken political stance is held against her,” says Parmet, “we don’t have a reason to believe that she’s unable or unwilling to take her temperature two times a day.” Likewise, Hickox’s legal team could point to the fact that all three health professionals who developed Ebola symptoms while in the United States were quick to alert authorities.

One other area of law the court could consider is the involuntary commitment of the mentally ill—but that too appears likely to be something of a dead end for the state. “The recent trend there, really for the past 50 years, has been in favor of individual liberty,” says Riley.

Given the lack of case history, it is very, very difficult to predict whether Hickox or the state would prevail. One factor that may override all other considerations is that local judges are typically hesitant to overrule local officials in the heat of the moment on matters of public safety. “The science is pretty clear, but we need to understand the atmosphere in which this is unfolding,” says Parmet. “It’s a lot easier for them to look at it afterward and say this was a mistake.”

A decision by the Maine court won’t end the national debate. It would, however, give momentum to the winning side. If a judge were to decide that Maine doesn’t have the legal authority to quarantine Hickox, medical workers who face similar restrictions in the future will be that much more likely to challenge those measures in court. Likewise, if the court sides with the state, those workers might be less likely to fight. “The only prediction I can make now,” says Parmet,” is that there will be a lot more litigation and a lot more chaos in the weeks to come.”