Maine Ruling Is a Rebuke to Governors’ Ebola Fear Mongering

Last Thursday, Maine Gov. Paul
LePage
bragged about his “robust authority” to keep Kaci Hickox from
leaving her home in Fort Kent. The next day, a judge
said that authority is not up to the task, since Hickox, a
nurse who returned to the United States on October 24 after
treating Ebola patients in Sierra Leone, is not sick or contagious
and therefore does not currently pose a threat to the general
public.

“The State has not met its burden at this time to prove by clear
and convincing evidence that limiting Respondent’s movements to the
degree requested is ‘necessary to protect other individuals from
the dangers of infection,'”
wrote Maine District Court Judge Charles C. LaVerdiere.
“According to the information presented to the court, Respondent
currently does not show any symptoms of Ebola and is therefore not
infectious.” Rather than forcible isolation, LaVerdiere ordered
“direct active monitoring” aimed at detecting the onset of symptoms
should Hickox become ill. He noted that Hickox was already
cooperating with such monitoring.

Although Hickox does not pose a public health threat, LaVerdiere
said she should be aware that other people might mistakenly think
she does. “The Court is fully aware of the misconceptions,
misinformation, bad science and bad information being spread from
shore to shore in our country with respect to Ebola,” he wrote.
“The Court is fully aware that people are acting out of fear and
that this fear is not entirely rational.” The people acting based
on this irrational fear, of course, include LePage, New Jersey Gov.
Chris Christie, and New York Gov. Andrew Cuomo, whose
21-day quarantine policies for asymptomatic health care workers
returning from Africa are medically unjustified but perhaps
politically astute in light of the widespread fears noted by
LaVerdiere. To me, LePage, who is up for re-election tomorrow,
comes across as a bully and a demagogue when he insists that Hickox
be confined for no good reason, even while portraying her as
unreasonable. But
polling suggests that most people agree with LePage’s
“abundance of caution,” which attaches zero weight to liberty.

“As Governor,” LePage said in a
statement after LaVerdiere’s decision, “I have done everything
I can to protect the health and safety of Mainers. The judge has
eased restrictions with this ruling and I believe it is
unfortunate. However, the State will abide by law.” Campaigning on
Friday, LePage criticized Hickox while stoking the irrational fears
mentioned by LaVerdiere. “We don’t know what we don’t know about
Ebola,” LePage
said. “I don’t trust her. And I don’t trust that we know enough
about this disease to be so callous.”

Yet as LaVerdiere noted, the state’s own testimony showed that
LePage’s insistence on a quarantine was unjustified. In an
affidavit, Shiela Pinette, director of Maine’s Center for Disease
Control and Prevention, observed that “Ebola Virus Disease is
spread through direct contact with the blood, sweat, vomit, feces
and other body fluids of a symptomatic person.” She also noted that
“individuals infected with Ebola Virus Disease who are not showing
symptoms are not yet infectious.” And as The New England
Journal of Medicine notes,
“fever precedes the contagious stage.”

By successfully resisting LePage’s unreasonable demands, Hickox
may help undermine similar policies in other states. Judges
weighing coercive public health interventions generally are

supposed to require “clear and convincing evidence” that the
target poses a threat and that it cannot be addressed by less
restrictive measures. LaVerdiere’s order shows that a judge who
takes those tests seriously cannot approve the panicky overreaction
endorsed by LePage, Christie, and Cuomo.