A Maine Judge Finds an Ebola Quarantine Compromise

Maine Judge Charles C. LaVerdiere gave nurse Kaci Hickox an OK, with restraints, to go wherever she pleases, handing state officials a partial defeat Friday in their bid to restrict her movements as a precaution against Ebola. Chief Judge LaVerdiere ruled that Hickox must continue daily monitoring but said there's no need to isolate her or restrict her movements because she's not showing symptoms of Ebola. The ruling instructs Hickox to submit to daily health monitoring, coordinate her travel with public health authorities, and notify officials if she develops any symptoms of the deadly virus. The Judge warned Hickox : "The court is fully aware that people are acting out of fear and that this fear is not entirely rational." But, he wrote that the fear is nonetheless "present and it is real." He called on Hickox to respect this reality and "guide herself accordingly." The order by Judge LaVerdiere eased his earlier, temporary ruling that ordered Hickox to stay in Fort Kent, avoid public places and remain more than three feet away from other people. Judge La Verdiere said that the state had failed to make its case for an outright quarantine. He quoted from an affidavit by the director of the Maine CDC that emphasized that a person without Ebola symptoms cannot spread the disease. and will remain in effect until there is a hearing on the state's bid for an outright quarantine for Hickox, who recently treated Ebola patients in West Africa. ~~~~~ Hickox described as a "good compromise" the judge's ruling that rejected state efforts to quarantine the nurse in her home but does require her to submit to daily monitoring for the Ebola virus. Hickox said : "I am very satisfied with the decision. The three points that he is still recommending that I abide by are the three points that I believe are part of this good compromise that we can make." Maine had sought a quarantine through November 10, which would mark the end of the 21-day incubation period for Ebola. Hickox said her "thoughts, prayers and gratitude" remain with those who are still battling Ebola in West Africa, where Hickox treated Ebola patients in Sierra Leone. ~~~~~ Governor Paul LePage said that despite the state's best efforts, Hickox had refused to cooperate. The Governor said he had done everything he could to protect Mainers : "The judge has eased restrictions with this ruling and I believe it is unfortunate. However, the state will abide by the law," LePage said. After the decision, a state trooper car that had been parked in front of her home to movements left, and she and her boyfriend stepped outside to thank the judge. She has contended that confinement at her home in northern Maine violated her rights. She twice violated the state's voluntary quarantine by going outside her home - once to go on a bike ride and once to talk to the media and shake a reporter's hand. When asked if the state would request a hearing on the judge's ruling, a spokesman for the Governor said he didn't yet know. "She has broken every promise she has made so far, so I can't trust her. And I don't trust that we know enough about this disease to be so callous. ~~~~~ In his ruling, the judge took the unusual opportunity to thank Hickox for her service in Africa : "We would not be here today unless (Hickox) generously, kindly and with compassion, lent her skills to aid, comfort and care for individuals stricken with the terrible disease. We need to remember as we go through this matter that we owe her and all professions who give of themselves in this way a debt of gratitude." The judge also acknowledged the gravity of restricting someone's constitutional rights without solid science to back it up. "I am well 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. ~~~~~ Hickox, 33, stepped into the media glare when she returned from Sierra Leone to become subject to a mandatory quarantine in New Jersey. After being released from a hospital there, she returned to this small town, where she was placed under what Maine authorities called a voluntary quarantine. In a court filing, the Director of the Maine Center for Disease Control and Prevention had already backed away from the state's original request for an in-home quarantine and called for restrictions that fall in line with federal guidelines. In the filing, Maine CDC Director, Dr. Sheila Pinette, had said she would seek a public health order for mandatory direct active monitoring and restrictions on movement as soon as possible and until the end of the incubation period ... to protect the public health and safety." ~~~~~ Under Maine law, there has to be an “actual or threatened epidemic” to impose a quarantine. Paul Millus, a civil rights attorney who is not representing Hickox, told The Washington Post the state could have a hard time proving that, since Hickox hasn’t shown symptoms. “Moreover, it is not quite clear that they would be able, medically speaking, to produce clear and convincing evidence that would require Ms. Hickox to be quarantined,” he said. Hickox’s lawyer, Norman Siegel, told the Bangor Daily News : “The conditions that the state of Maine is now requiring Kaci to comply with are unconstitutional and illegal and there is no justification for the state of Maine to infringe on her liberty.” Siegel previously described New Jersey’s policy, which is similar to Maine’s, as “overly broad." Lawrence Gostin, a Georgetown University professor who heads the O’Neill Institute for National and Global Health Law, told the Wall Street Journal that this is the first time he can recall the government imposing a quarantine on a class of people - doctors exposed to Ebola - rather than on a case-by-case basis depending on symptoms. “That pushes the envelope more than I’ve seen it in my lifetime,” he said. “We are basically depriving individuals of liberty for 21 days just because they have traveled from a particular part of the world. That seems to me wrong legally and ethically and is against science.” If a court agrees Maine is depriving Hickox of her liberty in violation of the Constitution, it could strike the state’s quarantine law down for being too broad. However, some legal experts are skeptical this argument will succeed. Writing for the Volokh Conspiracy, Eugene Kontorovich pointed out that courts most often defer to state health officials in public health emergencies. Quarantines are rare and there are few relevant cases. But Kontorovich claims the few cases on the books don’t bode well for Hickox : “A brief review of the cases suggests it is extremely difficult to challenge such an action without a clear showing of medical unreasonableness, or discriminatory application. Indeed, I found no cases in which a quarantine has been lifted on due process grounds (though there have been some successful challenges to conditions of quarantine).” In addition, he noted modern quarantine cases dealt with tuberculosis or small pox, both diseases less deadly than Ebola, which could be another point in the state's favor. ~~~~~ Dear readers, it is clear that, putting aside his personal opinions about those treating Ebola patients in West Africa, Judge LaVerdiere was trying in his ruling to impose the compromise that Hickox and Maine couldn't reach on their own. He left Maine's quzrantine law intact. He imposed limits on Hickox's freedom of movement and made her monitoring subject to his judicial oversight. He recignized thzt oublic fear over a new disease should be respected but balanced that with Hickox's right to as much personal freedom as possible in the novel circumstance. What is more puzzling is Judge LeVerdiere's - and everyone else from President Obama on down - use of the phrase 'based on science.' Normally, courts rely on science when it is settled. The science surrounding Ebola -- its origin, transmissibility mechanisms, incubation period, infectious state indications -- are not at all settled. So, we are witnessing the White House, CDC, and now the first judge, treat the little we actually know - and extrapolate from the little we know - as a settled set of scientific facts. Nothing could be farther from the truth. Seat-of-the-pants science is a dis-service to America and the world.