The possibility of Ebola breakouts in major American cities raises difficult questions of public health, public safety, and civil liberties. So it is no great surprise that states' efforts to quarantine persons exposed to the decision would be met with threats of federal lawsuits. More interesting, however, is the appearance of one particular organization as a critic of the quarantine: the American Civil Liberties Union.
Specifically, the ACLU's New Jersey chapter has challenged Governor Christie to justify the state's quarantine, arguing that "coercive measures like mandatory quarantine of people exhibiting no symptoms of Ebola and when not medically necessary raise serious constitutional concerns about the state abusing its powers."
The ACLU's criticism might seem unremarkable, if one thinks of the ACLU as an organization dedicated to defending civil liberties. But the ACLU is no such thing, its brand name notwithstanding. It recently endorsed the states' power to impose extreme constraints -- even forcible medical treatment -- in order to protect public health and safety. The ACLU made such arguments in its brief before the Supreme Court, defending Obamacare's individual mandate.
Specifically, the ACLU and other organizations argued that the government's power to prevent serious health threats trumps individual liberty:
Notably, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court repudiated the assertion that a compulsory small pox vaccination was “hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Id. at 26. Observing “the fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state," id. (internal quotation marks omitted), the Court upheld the law on the grounds that it promoted public health and safety, id. at 31.
The ACLU's citations to Jacobson included the Court's sweeping rejection of individual liberty:
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
And in the Court's closing remarks, cited by the ACLU's brief, the Court concluded that compulsory smallpox vaccinations were a suitable response to the public health threat:
Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries whose authorities have dealt with the disease of smallpox.
Thus, while government efforts to stifle the spread of Ebola should be scrutinized, temporary quarantines for those exposed to infected persons seems well within reasonable bounds so far -- and, to borrow a line from the Supreme Court 1905 decision cited by the ACLU, such a response seems perfectly "consistent with the experience of ... other countries whose authorities have dealt with the disease of smallpox."
Indeed, temporary quarantines fall far short of mandatory vaccinations that the ACLU endorsed in its argument in defending Obamacare.