As of this writing I have heard of ten positive tests in Indiana for COVID-19. The ten were all outside the Calumet Region, but it is inevitable that Region dwellers will become afflicted. The cautious among us are already avoiding crowds. I would not attend an indoor sporting event with 15,000 or so others in a confined space. In fact, I might not be able to find a large indoor sporting event now that professional leagues have begun suspending competition. I certainly would not step onto a cruise ship. I would fly commercially only out of absolute necessity. I see that the Lake Circuit Court has wisely adopted a policy to accommodate “remote” appearances at non-evidentiary hearings. The Lake Superior Court should follow suit. All courts that employ the “cattle call” scheduling of dozens of cases at the same time and lack the common courtesy to end that arrogant practice should end it now out of rational concern for the health risk of an overcrowded court room or waiting area.
But what about quarantine? I keep hearing of quarantine (voluntary or not) and isolation. Is there a difference? I have a faint childhood recollection of Indianapolis neighbors being quarantined in their home for measles or the mumps and a sign to that effect on the neighbors’ front door. Since then I have made no memories of quarantined human beings in the state of Indiana.
I searched Indiana appellate decisions back to 1933 for the word “quarantine” and found no case involving the actual quarantine of a human being due to some communicable disease.¹ Indiana must have quarantined many for diseases like tuberculosis, but I found no history of that in the post-1932 record of appellate decisions. I assumed that there had to be an Indiana statute on medical quarantines of human beings. My instinct was right. IC 16-41-9-1.5 is a very lengthy statutory section dealing with the medical quarantine or isolation of people. All of the cited Chapter 9 has to do with protection of the public from communicable diseases, with topics such as immunization, the exclusion of sick kids from school, and the release from prison of “carriers.”
The cited Section 1.5 authorizes a “public health authority”² to intervene when it has “reason to believe” that an individual has been infected with or simply exposed to a dangerous communicable disease and when the person is likely to spread his infection if not restrained. The public health agency may petition the circuit or superior court for an order of quarantine or isolation “Quarantine” is defined to mean physical separation (including confinement or restricted movement); “isolation” has a nearly identical meaning according to the definitions at IC 16-18-2-194.5 and 302.6.
Section 1.5 gives due deference to due process in such court proceedings while recognizing that a very contagious person may not be allowed to spread his affliction in court. The public health authority may (on proper evidence) seek an emergency quarantine order. In “exigent” circumstances the public health authority may issue its own immediate (but temporary) order imposing quarantine pending a court hearing. At first and second glance, Section 1.5 seems to parallel the procedure for “mental” commitments.
There is also legislation on the federal side. In title 10 of the United States Code one can find § 884 containing quarantine provisions applicable to the military. In title 25 of the United States Code one can find § 198 authorizing the Secretary of the Interior to make rules respecting quarantine on Indian reservations. The federal statute of general applicability is 42 U.S.C. § 264 authorizing regulations from the Surgeon General for the apprehension, detention, and examination of persons “reasonably believed to be infected.”
I heard discussion (I think on PBS) of SCOTUS precedent affirming involuntary quarantine of contagious persons. My research led me to Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. Of Health, 186 U.S. 380 (1902). In that matter a slightly divided (7/2) SCOTUS upheld Louisiana law respecting the quarantine of a locality to keep the residents inside and all others outside. Constitutional challenges to the Louisiana law presented arguments from the commerce clause, due process, and equal protection. Critics of the decision cited Louisiana’s interference with international commerce through the Port of New Orleans.
Let’s ignore the extreme similarity of statutory definitions and say that “quarantine” detention may be away from one’s home while “isolation” detention amounts to house arrest. Where do we put the ill quarantined people? How do we care for them? What if huge numbers die in detention? Clearly, isolation at one’s home is preferable to the alternative of a toxic, quarantine facility. Still, house arrest entails enforcement challenges.
What about a “self-quarantine” on medical advice alone (without government coercion)? Far too many of us lack the discipline to make the self-quarantine approach effective on a large scale. When inconvenience or sacrifice comes into play, entitled Americans will leave home to shop for groceries, to work, or to take a daughter to the father/daughter dance at school despite the odds of spreading the contagion to many, many others who will become ill and possibly succumb to the disease.
On an institutional level, there is an emerging sense of responsibility pertaining to protection from this highly contagious disease. On an individual level there is less optimism in the CLB. If you are on a crowded elevator, how many coughing individuals does it take to spread a virus? . . . Only one. So long as there is “one in every crowd” voluntary individual restraint will not be enough.
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¹ It seems that the prevailing medical quarantine in Indiana involves hogs or other livestock.
² The statutory definition at IC 16-18-2-298.5 includes the state health commissioner and the local health officer.
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