Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future
Volume 80, No. 1, Spring 2007
By Felice Batlan [PDF]

When the World Trade Center Twin Towers fell in 2001, the United States entered a period of what seems like perpetual crisis–a country increasingly threatened from within and outside its borders. In the aftermath of 9/11, Arab Americans, as well as other foreign nationals, worried about their immigration status and the potential violence they might face and feared that they would be painted as enemies of the United States. In law enforcement initiatives following the attacks, Arab American men were jailed, often for significant periods of time, on charges that were at best specious. Likewise, enemy combatants in Guantánamo Bay have essentially been quarantined, cut off from the political body, so that their potential ideas and actions cannot harm those within the United States. Such preemptive imprisonments are intended to contain any threat to the well-being of the United States. We might understand such detentions as political quarantines. It was of course in the wake of 9/11 that Congress created the Department of Homeland Security (“DHS”). As its name implies, DHS’s mission is to secure the delineated domestic space of the nation from dangers both internal and external.

In many ways the threat of terrorism from an unseen enemy, the fear and sense of crisis that it engenders, and the use of preventative quarantines are not new. Throughout the course of the nineteenth and twentieth centuries, the United States faced multiple epidemics of deadly diseases. In the face of such epidemics, and often in moments of panic, governments instituted significant quarantines. As in the case of the so-called war against terror, public officials understood quarantines as crucial to protecting the literal well-being of the nation. Such quarantines most harshly affected those who stood on the margins of society, often poor immigrants and nonwhites. Further, as one court insightfully recognized:

The claim of “disease” in a domestic setting has the same kind of power as the claim of “national security” in matters relating to foreign policy. Both claims are very powerful arguments for executive action. Both claims are among those least likely to be questioned by any other branch of government and therefore subject to abuse.

Terrorism and deadly epidemics raise the difficult questions of how we respond as a nation to fear, how much liberty we are willing to sacrifice for an abstract concept of the general welfare of the nation, and who we are willing to designate as experts. They also provoke the questions of precisely whose liberty is at stake and how we define those who will be included or excluded from the community that deserves protection.

The White House Homeland Security Council (“HSC”) recently released a quite remarkable document, the National Strategy for Pandemic Influenza: Implementation Plan (“Plan”). The Plan addresses what would happen in the event of an outbreak of avian flu or another pandemic in the United States. Like threats of terrorism, an avian flu pandemic is imagined as a foreign invader, lodging itself among the population and threatening the domestic peace and security of the United States. The Plan creates the overall and unsettling sense that, like the next terrorist strike, a pandemic outbreak is only a matter of time. Again, a looming pandemic reminds us of the permeable nature of our national borders and the perceived dangers that lurk beyond them. HSC itself draws the similarities between a response to a pandemic and a response to terrorist threats.

The Plan is not comforting. Some current models predict that avian flu could lead to the deaths of between 200,000 and 2,000,000 people in the United States. Absentee rates of up to forty percent of the work force could cause the disintegration of the nation’s infrastructure, threatening the ability to supply and access critical goods and services and crippling the economy. At least for some, “the avian influenza outbreaks have provoked fears of an influenza pandemic reminiscent of the great plagues in world history.” The Plan addresses the possibility of a variety of different types of quarantines, significant domestic travel restrictions, and the closure of U.S. borders. President Bush has endorsed the use of the military to maintain quarantines. As George Annas wrote in October 2005:

[W]e have moved quickly in the past month, at least metaphorically, from the global war on terror to a proposed war on hurricanes, to a proposed war on bird flu.

Of all these proposals, the use of the military to attempt to contain a flu pandemic on US soil is the most dangerous.

In addition to the Plan, significant new rules are pending (“Proposed Rules”), which would provide the Centers for Disease Control (“CDC”) with substantial new powers regarding the federal government’s response to the outbreak of certain communicable illnesses, including the power to quarantine those potentially exposed to such diseases. A new form of detention, labeled “provisional quarantine,” would permit CDC health officials to quarantine those potentially exposed to a disease for up to three business days without a hearing. Other provisions in the Proposed Rules raise equally difficult issues involving civil rights and civil liberties.

Quarantine as a response to a threatened pandemic appears imminently reasonable and justified. It is a method of protecting a community, however community is defined, at the expense of a smaller number of people. Yet, the medical and public health community is divided over the efficacy of large scale quarantines. Most troubling is that quarantines give the government extraordinary powers to detain individuals with little oversight. Furthermore, the local, state, and federal governments each have overlapping jurisdiction for quarantines, thereby creating the potential for legal conflicts, confusion, chaos, and inefficient bureaucracies in which individuals in need of aid become trapped and others are not actually protected from infection.

Although the use of “enemy quarantines” such as Guantánamo Bay has attracted much attention and resulted in a burgeoning body of legal literature and court cases, the potential for large-scale medical quarantines has attracted the interest of few legal scholars or public intellectuals in the last decade. Little public discussion about the possibility of quarantines currently exists outside the public health community. In part, this is because there has not been a widespread medical quarantine in the United States for at least eighty years. As one scholar of public health writes about the United States, “Throughout the twentieth century, quarantine increasingly faded from use as a public health measure for disease control . . . its mere discussion by public health officials elicited suspicion.” An additional reason for such absence is that legal scholars seem ready to cede authority to medical experts who will supposedly exercise their power in a neutral, scientific, and objective manner. History, however, has demonstrated repeatedly that this has not always–or even usually–been the case. Rather, in the past, quarantines have been infused with issues of race, class, and gender, placing the greatest hardships on those who failed to conform to white middle-class norms of behavior. In the past, quarantine has been a form of stigma inflicted on those who are already stigmatized.

This Article closely examines two episodes of threatened epidemics that occurred in 1892 in New York City. Both of these potential epidemics, one involving typhus and the other cholera, resulted in the quarantine of thousands of people, the large majority of whom were poor immigrants, primarily Italians and Russian Jews. The Article explores the events surrounding these epidemics and the roles that local, state, and federal governments played. It also analyzes how the legal system ultimately failed to protect some of the most vulnerable people–those who were seen as having the capacity to pollute the country and the body politic. The Article then goes on to examine a number of other large-scale quarantines that occurred at the turn of the century and the often troubling jurisprudence that they produced.

An analysis of the 1892 threatened epidemics allows us to observe how powerful discourses of civilization, law, science, xenophobia, militarism, and the state’s police power intersected to produce a number of terrifying historical moments. Such epidemics were terrifying both for those quarantined as well as those who believed that a massive epidemic could kill thousands in the United States, as cholera was in fact doing in Europe. Using 1892 as a case study, this Article attempts to create a usable past. Part of what is so fascinating about the White House’s current Plan for a pandemic is how so much of the discourse is similar to that used by officials in 1892. Study of the 1892 epidemics and resulting quarantines is also important because they can be understood as two of the first modern epidemics occurring after the rudiments of germ theory were accepted and during a period of significant breakthroughs in public health. At the same time, a sophisticated bureaucratic and regulatory state was quickly developing with the capacity to observe, police, and regulate its citizens.

Although epidemics, and the medical and scientific response to them, might be imagined as standing outside issues of race, gender, and class, history shows how these issues play significant roles in defining, detecting, and responding to outbreaks of disease. In other words, disease and society’s response to crisis are anything but apolitical and are not independent from the cultures in which they are embedded. In the wake of Hurricane Katrina, we have once again learned the extraordinary force of race and class and how they can mark government response.

This Article proceeds as follows: Part II provides a brief history of quarantine, especially the long-standing conflict between state and federal government regarding jurisdiction over quarantine. Part III is a detailed account of two threatened epidemics that occurred in New York City in 1892 and the response of local, state, and federal officials. This Part looks closely at how immigrants were situated as sources of contagion and the ways in which a variety of laws allowed for the quarantine of thousands of healthy people in dangerous conditions without due process. Furthermore, conflicts between municipal, state, and the federal government over quarantine jurisdiction resulted in inordinate difficulties and served to create a sort of legal limbo for some of those quarantined.

Part IV provides a social and intellectual history of how quarantine law developed after 1892 and examines a number of large-scale quarantines that involved United States Pacific Rim Chinatowns. This Part illustrates that while most courts upheld quarantines, a minority of courts placed substantial limits on the state’s power to quarantine and even found affirmative duties on the part of the state to provide adequate care. Part V analyzes the federal government’s current plans regarding quarantine in connection with a potential outbreak of avian influenza. In doing so, it examines the HSC’s Plan and the Proposed Rules. This Part compares the problems with the Plan and the Proposed Rules to those that arose in earlier quarantines. It argues that future quarantines must take account of the ways in which quarantine powers have been abused and provide clear and concise rules to prevent such abuses from occurring in the future. The Conclusion offers crucial recommendations regarding the Proposed Rules and the role that law and the courts must play in the event of future quarantines. In sum, quarantines occurring as a response to avian flu or other new influenzas create an acute need to understand the history of quarantines and the difficult legal questions that they raise. There are, in fact, lessons to be learned from the past.

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