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Ebola screening measures rest on US federal law

October 10, 2014

WASHINGTON (AP) — The U.S. government’s authority to screen airline passengers for Ebola and order them quarantined if necessary is far-reaching and rooted in the Constitution and federal law, public health experts say.

Temperature checks of passengers arriving from three West African countries experiencing the Ebola outbreak will begin Saturday at New York’s John F. Kennedy International Airport and will expand over the next week to four other major American airports.

The measures may seem intrusive but are legally permissible because of the government’s broad authority in matters of public health and border control, experts say.

“It’s really not different in kind to security screenings you have to go through at the airport,” said Michael Dorf, a Cornell University constitutional law professor. “If somebody doesn’t like being screened for weapons and they sue, they’re going to lose.”

The Centers for Disease Control and Prevention cite as legal authority the Commerce Clause of the Constitution, under which the government regulates trade with foreign countries. The 1944 Public Health Service Act also allows the federal government to take action to prevent communicable diseases, which include viral hemorrhagic fevers such as Ebola, from spreading into the country.

Beyond the airport precautions, the government has wide-ranging authority to order people into isolation or quarantine when necessary, as happened with some relatives of Thomas Eric Duncan of Liberia, the only person to die from the disease in the U.S.

A U.S. citizen who presents a heightened risk of disease upon arrival in the United States has a legal right to re-enter the country and be safely quarantined, said Lawrence Gostin, a public health law expert at Georgetown University. That same guarantee would not apply to non-U.S. citizens, but as a practical matter, giving them immediate care might be safer than turning them away and putting them on a plane back home.

Gostin said this was the first time he was aware of that the United States has done fever monitoring of this sort, though it has been done in other countries.

The CDC has said it issues a few isolation orders a year — which separates sick people from those who aren’t ill — and usually for individuals arriving from other countries with infectious tuberculosis. A federal quarantine, which separates people exposed to a communicable disease but who aren’t showing symptoms, is very rarely used.

“There’s very little in the way of strong limits” against issuing the orders, except for the advice and best judgment of government public health experts, said Wendy Mariner, a Boston University health law professor, who said she was unconvinced about the effectiveness of the screening protocols given the potential for false positives.

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