Maine’s Governor Brags About His ‘Robust Authority’ to Quarantine Healthy, Ebola-Negative Nurses

Yesterday Maine’s governor, Paul LePage,
said he would “seek legal authority to enforce the
quarantine” of Kaci Hickox, the nurse who returned to the United
States on Friday after treating Ebola patients in Sierra Leone. But
he did not specify which “legal authority” he had in mind.
Meanwhile, LePage dispatched state troopers to Hickox’s home in
Fort Kent to keep an eye on her. Today they tagged along as Hickox
took a
bike ride with her boyfriend, brazenly defying LePage’s
admittedly extralegal demand that she remain confined to her home
until mid-November, even though she is neither sick nor contagious.
LePage said he was willing to allow the occasional bike ride or
jog, as long as Hickox does not come anywhere near other people,
but she rejected that gracious concession. So LePage, having
already announced his intent to force Hickox’s compliance with his
arbitrary, scientifically unfounded dictates, again
vowed to do so, but he was still pretty vague about how that
would work:

The Governor will exercise the full extent of his authority
allowable by law. Maine statutes provide robust authority to the
State to use legal measures to address threats to public
health.

Public health provisions contained at Title 22 of Maine’s
Revised Statutes govern how the State may proceed to control
diseases. There are multiple options provided in law. Specifics of
the process or steps being taken by the State at this time may not
be discussed publicly due to the confidentially requirements in
law.

According to LePage, Title 22 provides “multiple options” for
him to enforce his will, but he is not going to tell us which one
he plans to use. Let’s
have a look and see which provisions might be relevant.

Under
Section 812, the state can obtain an “order for treatment or
such other order as may direct the least restrictive measures
necessary to effectively protect the public health.” A court is
supposed to issue such an order only if it finds, “based upon clear
and convincing evidence,” that “a public health threat exists.” But
since Hickox is asymptomatic and incapable of transmitting Ebola,
she does not currently pose a public health threat, and forcibly
confining her to her home does not seem like “the least restrictive
measure” to address the possibility that she will pose such a
threat in the future, given the alternative of daily temperature
monitoring. As The New England Journal of
Medicine notes,
“fever precedes the contagious stage.”

What else might LePage try? Under
Section 810, the state can obtain a court order giving it
“temporary emergency custody” of someone if it can show by clear
and convincing evidence that such an order is required “to avoid a
clear and immediate public health threat.” But if Hickox does not
pose a public health threat, she cannot pose a “clear and
immediate” public health threat.

Under
Section 820, the state can bypass the need for a court order.
The Department of Health and Human Services can unilaterally “take
a person into custody and order prescribed care,” which
includes “isolation” or “quarantine,” but only if:

(a) The department has reasonable cause to believe that the
person has been exposed to or is at significant medical risk of
transmitting a communicable disease that poses a serious and
imminent risk to public health and safety;

(b) There are no less restrictive alternatives available to
protect the public health and safety; and

(c) The delay involved in securing a court order would pose an
imminent risk to the person or a significant medical risk of
transmission of the disease.

Hickox may have been “exposed to” Ebola in Africa, but she is
not “at significant medical risk” of transmitting it, and the
threat she poses is neither “serious” nor “imminent.” Nor does her
situation meet the other two criteria. Finally, this provision
applies only in the event of “an extreme public health emergency,”

defined as “the occurrence or imminent threat of widespread
exposure to a highly infectious or toxic agent that poses an
imminent threat of substantial harm to the population of the
State.” Although LePage has the
authority to declare such an emergency, doing so would require
a dramatic distortion of reality.

Someone who is forcibly isolated under Section 820 has a right
to judicial review “as soon as reasonably possible but not later
than 48 hours after the person is subject to prescribed care.” To
prevail at the hearing, the state ‘”must prove by clear and
convincing evidence” that conditions (a) and (b) have been met.

In short, LePage does indeed have “robust authority” to deal
with serious and imminent threats to public health. The difficulty
lies in proving that Hickox qualifies as one of those and that home
confinement is the least restrictive way of addressing whatever
risk she may pose in the future.