Blog No. 49. Ebola in the United States: From Crisis to Calm.

Last week, as the Ebola virus still raged in three countries in Africa, a psychological “Ebola Fever” continued to sweep America. Now a decision by a single judge in a state court in Maine has appeared to break the fever. The decision, by Judge Charles LaVerdiere, was brief but carefully reasoned. It paid due respect to the risk posed by nurse Kaci Hickox: the “potential severe harm posed by this devastating disease.” Nevertheless, the decision lifted her quarantine in favor of the more modest restrictions found in Guidelines issued earlier that week by the Center for Disease Control. The Governor of Maine, Paul LePage, called the decision “unfortunate,” but quickly decided against an appeal.

It is often argued that courts in the United States play too large a role in the shaping and resolution of public issues. With deferential nods to Brown v. Board of Education (which was once controversial but has not been for a long time), critics from both left and right have criticized the courts, and particularly the Supreme Court for overstepping the bounds of the judicial role and “legislating from the bench” in its interpretations of the Constitution. For critics on the right the poster children are Roe v. Wade and the decision of the Court striking down the Defense of Marriage Act. And the left has been equally offended by decisions of the Court in Citizens United, and in striking down a section of the Voting Rights Act. Fortunately, the decision by Judge LaVerdiere in Mayhew v. Hickox was largely immune to such criticism. Although Nurse Hickox’s constitutional rights lurked in the background, the decision was based solely on the facts and an application of the pertinent Maine statute. Nevertheless, it promises to have a significant impact, extending well beyond the borders of Maine, remarkable for the ruling of a single judge. While the statutes in other states will differ in some respects, the decision in Mayhew v. Hickox will certainly be influential. In addition, its common sense analysis may already have taken effect. On October 31, four days after the issuance of the CDC Guidelines, The New York Times published a story headlined, “Alarmed by Ebola, Public Isn’t Calmed by ‘Experts Say.’” The Times explained that:

Polls show the overwhelming majority of Americans favor quarantine in cases like that of Kaci Hickox, the nurse who was held against her will in a Newark hospital on the orders of one governor and has fended off the efforts of another governor to sharply restrict her movements. Some prominent conservative commentators dismiss the assurances of scientists, Obama administration officials and the news media as unreliable, elitist blather.

After Judge LaVerdiere’s decision was issued later that same day, however, it was duly reported, but met with a stunning silence in terms of media commentary. The widespread, if tacit, acceptance of the decision will almost certainly be reflected in public opinion and in future polls, if indeed, anyone bothers to conduct any. Thus, Judge LaVerdiere may have accomplished what the CDC and the Obama Administration (and its “Ebola Czar,” Ron Klain) had been unable to do—articulate a clear and convincing basis for imposing prudent but limited restraints. The non-binding CDC Guidelines had not been issued until October 27, three days after Governors Christie and Cuomo had announced quarantine policies, and it was not immediately clear how closely they would be followed by states.

Given the apparent importance of the decision in Mayhew, it merits a brief discussion. The   decision, slightly more than three pages long, presents a useful summary of the relevant facts about Ebola. The decision can be found here, and can be read in conjunction with the CDC Guidelines, found here.

The applicable Maine statute authorizes a court to make “such orders as it deems necessary to protect other individuals from the dangers of infection pending a public hearing on a petition for a public health order.” In determining what order might be necessary Judge LaVerdiere looked to the CDC Guidelines. Under the Guidelines, Nurse Hickox is a person considered to have “some risk” (as distinguished from high, low, or no risk) of contracting Ebola. That is, she had served in a country “with widespread Ebola virus transmission” and had had “direct contact while using appropriate PPE [Personal Protective Equipment] with a person with Ebola while the person was symptomatic.” For such persons, the Guidelines called for Direct Active Monitoring:

For direct active monitoring, a public health authority directly observes the individual at least once daily to review symptom status and monitor temperature; a second follow-up per day may be conducted by telephone in lieu of a second direct observation. Direct active monitoring should include discussion of plans to work, travel, take public conveyances, or be present in congregate locations. Depending on the nature and duration of these activities, they may be permitted if the individual has been consistent with direct active monitoring (including recording and reporting of a second temperature reading each day), has a normal temperature and no symptoms whatsoever and can ensure uninterrupted direct active monitoring by a public health authority.

In requiring Direct Active Monitoring, Judge LaVerdiere paid fitting tribute to Nurse Hickox’s service in treating Ebola patients:

[W]e would not be here today unless [Hickox] generously, kindly and with compassion lent her skills to aid, comfort and care for individuals stricken with a terrible disease. We need to remember as we go through this matter that we owe her and all professionals who give of themselves in this way a debt of gratitude.

The Judge did not add restrictions beyond Direct Active Monitoring. He did, however, caution Nurse Hickox of the need to be mindful of, and sensitive to, not only the physical risk of the disease, but also of the alarm that it had created in the mind of the public. He embodied wise counsel in the form of a stern admonition:

[Nurse Hickox] should understand that 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. The Court is fully aware that people are acting out of fear and that this fear is not entirely rational. However, whether the fear is rational or not, it is present and it is real. [Nurse Hickox’s ] actions at this point, as a healthcare professional, need to demonstrate her full understanding of human nature and the real fear that exists. She should guide herself accordingly.

For her part, Hickox quickly made it clear that she had taken the Court’s counsel to heart, stating on Meet the Press that she would not go into town or into public places during the 21-day incubation period that will end Nov. 10: “I understand that the community has been through a lot in the past week, and I apologize to them for that,” she said. “I have had a few friends come visit me in my home, and that’s absolutely fantastic.”

While there is no “cure” for Ebola, treatment may allow its victims to recover. Similarly, Judge LaVerdiere’s decision was not a cure for the fears of the public but it was sound treatment that may allow such fears to abate. Nothing, of course, is final or certain, and it is no time for complacency with respect to the dread disease. If new cases of Ebola in the United States should arise, the psychological fever will return, but in the meantime, there is reason to hope that the worst is over.