Justice Center Opposes Proposed CDC Detention

Comment of the Great Lakes Justice Center Opposing Proposed CDC Detention

The Great Lakes Justice Center files this comment in opposition to the CDC’s proposed rule authorizing the incarceration of healthy American citizens who have committed no crime.  Even in cases where no evidence of serious illness exists, the CDC’s proposal unconscionably authorizes detention, isolation, quarantine, and vaccination without consent.

Because the proposed rule infringes upon constitutionally protected individual liberty in the extreme, the CDC must not finalize it, and must seriously reconsider promulgating it at all:

• First, the proposed rule violates the Procedural Due Process Clause by requiring forced detention, quarantine, isolation, vaccination, and surveillance of free citizens; and
• Second, the proposed rule violates the Substantive Due Process Clause by requiring forced medical treatments and vaccination of free citizens.

The stated purpose of the proposed rule is to respond to outbreaks of the Ebola virus disease, the Middle East Respiratory Syndrome, and the “repeated outbreaks” of measles.  81 Fed. Reg. 54231.  There is little argument that confirmed cases of the Ebola virus disease require serious measures on the part of the CDC to prevent the spread of the disease.  The proposed rule, however, reaches far beyond this reasonable scope.

The proposed rule affects any person traveling into the United States or traveling from one state to another anywhere within the United States, and regulates all “communicable diseases,” (i.e., any illness that can be transmitted from one person to another either directly or indirectly).  42 C.F.R. 70.1, 71.1.  As the proposed rule states, the definition of “communicable diseases” is broad and left to the unilateral discretion of the President, in consultation with the Secretary of Health and Human Services and the Surgeon General.  81 Fed. Reg. 54233.  The proposed rule applies to a person merely suspected of having a “communicable disease” in a “precommunicable stage” or in a “communicable stage,” meaning that a citizen need not even be contagious for the proposed rule to apply.  81 Fed. Reg. 54233.

While the proposed rule includes serious communicable diseases, such as the Ebola virus, its enormous breadth also extends to quite common maladies, such as influenza, and less serious ailments, such as measles.  81 Fed. Reg. 54233.  Even more troubling, the proposed rule expands the CDC’s authority to quarantine a citizen when a non-medically trained person reports that the citizen “just appears unwell.”  81 Fed. Reg. 54240.  Other vague symptoms likewise trigger quarantine.  For example, if you have skin rash, difficulty breathing, persistent cough, confusion, bruising, or a stiff neck with fever, you face quarantine.  Id.  These vague symptoms, associated with common ailments like a cold, allergy, or upset stomach, should not provide governmental authorities with the power to invoke federal jurisdiction over a citizen.

Once the CDC suspects a citizen has a communicable disease, the proposed rule requires that the citizen enter into an “agreement” with the CDC.  Under this agreement the CDC may observe him/her and subject him/her to quarantine, isolation, medical examination, hospitalization, vaccination, and treatment.  81 Fed. Reg. 54238-54239.  The CDC, however, also declares in the proposed rule that “the individual’s consent shall not be considered as a prerequisite to the exercise of the CDC’s authority.”  81 Fed. Ref. 54253.  Meaning that whether the individual enters into an agreement or refuses the CDC’s forced quarantine, isolation, medical examination, vaccination, etc., the result is the same—the CDC forces its will over that of the citizen and his/her own body.  Furthermore, the proposed rule increases criminal penalties associated with not submitting to the CDC’s authority, while removing lesser penalties.  Failure of a citizen to blindly adhere to the CDC’s forced invasion of privacy by subjecting his/her own body to the jurisdiction of the CDC, results in criminal charges and significant time in a federal prison with potential fines over $100,000.  81 Fed. Reg. 54233-54234; 18 U.S.C. 3571.

1. The Proposed Rule’s 72-Hour Detention, Quarantine, Isolation, Vaccination, and Surveillance Provisions Violate Procedural Due Process Protected by the 5th Amendment.

While the government holds “the authority to quarantine and isolate individuals with dangerous and communicable diseases in order to protect the public’s health, they also have a duty to respect individual civil liberties.”[2]  The proposed rule fails to protect individual civil liberties.  It also is barred by the United States Constitution.

The Fifth Amendment of the U.S. Constitution states, “No person should be deprived of life, liberty, or property without due process of law.”  U.S. Const. amend. V.  Here, no process of law or exercise of police power should be asserted to mandatorily seize and detain free individuals without an actual or threatened epidemic, leading to a national or interstate traveling emergency—words noticeably absent from the proposed rule.

Instead of rationally addressing a true public health emergency, the proposed rule emotionally responds to a measles “outbreak” involving Disneyland in California, referred to as “a large U.S. tourist destination.”  81 Fed. Red. 54236.  A review of the CDC’s own data reflects that in 2014, the United States only saw 644 cases of measles (approximately .0002% of the population).[3]  In 2015, the year of the so-called Disneyland outbreak, the United States experienced a significant drop in the total number of measles cases, recording only 189 cases (approximately .00005% of the population).[4]

Moreover, the forced vaccination of measles under the proposed rule will do nothing to prevent the spread measles.  Prior to licensing the measles vaccine in the 1960s, the United States reduced the death rate of childhood infection to 0.2 deaths per populations of 100,000 persons.  The introduction of the measles vaccine (known as the MMR vaccine) did nothing to improve those statistics.  Indeed, the spread of the disease remained stagnant over the last fifty years.[5]  Thus, the existence of measles does not require the federal government to declare a national public health emergency. Nor does it provide a legal excuse to strip individuals of their civil liberties as directed under the proposed rule.

The proposed rule disingenuously claims to protect due process.  81 Fed. Reg. 54237.  Below is a non-exhaustive list of why it does not:

• The federal government may only isolate or quarantine individuals with dangerous and communicable disease, and must only do so while fulfilling the government’s duty to respect the individual’s civil liberties.
• The federal government may not treat an ill person like a jailed inmate who is accused of crimes.^.[6]
• The federal government must only quarantine individuals who actually came into contact with a dangerous communicable disease or have a dangerous communicable disease, and not on the basis of an untrained person noticing the presence of vague symptoms such as a slight fever, a rash, or other ordinary signs of feeling unwell.[7]
• The federal government may detain and quarantine an individual only after proving that governmental action is justified because 1) the individual poses an actual threat to the public; 2) the detention is reasonable and effective; 3) the detention fully comports with the due process and equal protection; 4) the individual is provided with safe and comfortable conditions where his/her freedom is restricted no more than necessary; and 5) the individual is reasonably compensated for any loss of income.[8]
• Procedural due process requires that the federal government provide quarantined or isolated individuals with adequate notice, the right to counsel, a hearing, an appeal, and the right to refuse certain medical treatments and vaccinations.[9]
• Due process also requires that vaccine-endangered individuals and individuals who hold conscientious and sincerely held religious objections to certain vaccinations may opt-out.[10]
• Due process requires that the federal government not unconstitutionally invade the privacy of its citizens through electronic surveillance without consent and without a warrant.[11]

The proposed rule requires that an individual suspected of having a communicable disease who is conditionally released from detention, must relinquish his/her constitutionally protected right to privacy.  81 Fed. Reg. 54239.  The proposed rule allows the federal government to monitor all of the individual’s electronic and internet-based communications and activities for an indeterminate period of time.  The proposed rule allows for the federal government access to the individual’s “electronic mail, SMS texts, video conference or webcam technologies, integrated voice-response systems, entry of information into a web-based forum, wearable tracking technologies, and other mechanisms or technologies as determined by the Director or supervising health authority.”  81 Fed. Reg. 54239.  Such surveillance measures are draconian in the extreme.  An individual healthy enough not to be quarantined should be able to communicate with others without the federal government tracking his/her every word or act.  If the federal government is concerned about the person’s whereabouts, the government could follow the location of the individual without these extreme measures.  Certainly there are less restrictive and less draconian means to effectuate the same ends, while still protecting a scintilla of the citizen’s rights.

The lack of procedural due process described in the proposed rule is unconstitutional and displays an utter disregard for the personal liberties and freedoms to which all Americans are entitled.  As the ACLU warned:

the notion that we need to ‘trade liberty for security’ is misguided and dangerous. Public health concerns cannot be addressed with law enforcement or national security tools. If we allow the fear associated with a potential outbreak to justify the suspension of liberties in the name of public health, we risk not only undermining our fundamental rights, but alienating the very communities and individuals that are in need of help and thereby fomenting the spread of disease.[12]

The proposed rule aggrandizes the power of the federal executive branch, calls for the increased exercise of heavy-handed police power, and fails to protect the rights of individuals.

1. Forced Detention, Quarantine, Isolation, Treatment, and Vaccination Without Consent of the Individual Violates the Substantive Due Process Clause of the 5th Amendment.

The U.S. Constitution protects not only procedural due process, but also substantive due process, as the federal government may not deprive a fundamental right, including the right of autonomy in one’s own body and the right to privacy.  The substantive due process protected by the 5th Amendment encompasses the right of a citizen to refuse unwanted medical interventions.  Indeed, “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”[13]  The Supreme Court counterbalances that truth with its interest in upholding public health by working to stop the epidemic spread of dangerous communicable diseases, as exhibited in its holding in Jacobson v. Massachusetts.  Jacobson, however, involved compelling facts, not present here, and actually dealt with a threat to the health and safety of a city in a state of emergency.  Jacobson is not blanket approval for forced medical treatment or unwanted vaccinations at the hands of the federal government.

Our jurisprudence recognizes that individuals have a fundamental right to autonomy in his/her own body and the fundamental right over his/her medical treatment.[14]    Since Jacobson, the Supreme Court expanded its recognition of this fundamental right, even holding that a woman has the “right” to end the life of a human being growing in her womb in the name of her autonomy and privacy.[15]  The fact that courts currently construe this right to mean that a woman may directly end another’s life for the sake of her bodily autonomy and privacy makes one ponder why a person would not have control over his/her own body to refuse certain medical treatments or vaccinations.

There is evidence that the use of pharmaceutical products, including vaccinations, carry substantial risks of injury, death, and failure.[16]  In the late 1980s, pharmaceutical companies successfully lobbied for the federal government to create an administrative court allowing pharmaceutical companies to escape all liability and money damages from injuries and deaths caused by vaccinations.[17]  In 2011, the Supreme Court characterized vaccinations as “unavoidably unsafe.”[18]  And, according to the federal government’s own records, the government has paid over $3.4 billion dollars in damages due to injuries and deaths caused by vaccinations.[19]  These cases exhibit sufficient grounds for individuals to choose to avoid vaccinations in an attempt to avoid serious risks of physical harm or death.  The choice should be theirs, not one forced upon them without consent.

Lastly, vaccinations directly implicate constitutionally protected parental rights and religious freedom concerns.  Many popular vaccinations, such as the measles, mumps, and rubella vaccinations, are grown on and contain aborted fetal cells.[20]  It would be a perverse interpretation of the law and the legal doctrine of bodily autonomy to conclude that the same woman who may legally choose to abort her preborn son or daughter, should be forced by the CDC to insert the human diploid cells of another woman’s aborted child into her body under the threat of criminal prosecution.  Conspicuously absent in the proposal empowering a regime to detain, isolate, quarantine, and vaccinate a citizen without consent, is the lack of any medical, conscientious, or religious exemption.  Also conspicuously absent is any consideration of a parent’s constitutional right to control the upbringing of their children in the area of medical decisions. Due process requires that the federal government not infringe upon parental rights.[21]

The CDC’s proposal, therefore, amounts to an abuse of power that violates constitutional rights and undermines good governance under the Rule of Law.

The CDC should discontinue all efforts to finalize this unconstitutional proposed rule.  The proposed rule violates a citizen’s constitutionally protected freedoms and individual liberties and opens the floodgates for error and abuse at the hands of governmental authorities.  For all the reasons discussed in this comment, we ask the CDC to rescind its proposed rule.

Respectfully submitted,

GREAT LAKES JUSTICE CENTER

Professor William Wagner, Distinguished Professor Emeritus

Erin Mersino, Senior Policy Counsel

[1] Before joining academia, Professor William Wagner served as a federal judge in the United States Courts, as an American diplomat and senior federal prosecutor in the United States government, and as a legal counsel in the United States Senate.  Professor Wagner currently holds the academic rank of Distinguished Professor Emeritus after a career teaching Ethics and Constitutional Law.

[2] Available at https://www.americanbar.org/publications/law_practice_today_home/law_practice_today

_archive/april11/protecting_civil_liberties_during_quarantine_and_isolation_in_public_health_emergencies.html (last visited Oct. 13, 2016).

[3] Available at http://www.cdc.gov/measles/cases-outbreaks.html (last visited Oct. 13, 2016).

[4] Id.

[5] Available at http://www.cdc.gov/vaccines/pubs/pinkbook/meas.html (last visited Oct. 13, 2016); see also http://www.nvic.org/nvic-vaccine-news/september-2016/cdc-wants-to-expand-power-to-eliminate-measles.aspx (last visited Oct. 13, 2016).

[6] Available at http://www.acluaz.org/sites/default/files/documents/DANIELS%20Complaint.pdf (last visited Oct. 13, 2016); but see http://archive.azcentral.com/news/articles/0324daniels0324-ON.html (last visited Oct. 13, 2016).  See also Benton v. Reid, 231 F.2d 780 (D.C. Cir. 1956).

[7] See, e.g., Smith v. Emery, 42 N.Y. Supp. 258, 260 (1896) (“The mere possibility that persons may have been exposed to disease is not sufficient . . . . They must have been exposed to it, and the conditions actually exist for a communication of the contagion.”).

[8] See, e.g., Wendy E. Parmet, Legal Rights and Communicable Disease: AIDS, the Police Power, and Individual Liberty, 14 J. HEALTH POL. POL’Y & L. 741, 751 (1989); Sheldon Gelman, The Biological Alteration Cases, 36 WM. & MARY L. REV. 1203, 1207 n.22 (1995); Jacobson v. Massachusetts, 197 U.S. 11, 28-39 (1905).

[9] See, e.g., Greene v. Edwards, 263 S.E.2d 661, 662 (W. Va.1980); Ex parte Hardcastle, 208 S.W. 531, 531 (Tex. Crim. App. 1919).

[10] Jacobson, 197 U.S. at 39 (noting that the Plaintiff was a “fit person” for the smallpox vaccine and requiring a person who would be harmed to be vaccination would be “cruel and inhuman in the last degree.”); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (protecting free exercise of religion over public health concerns); Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. (requiring strict scrutiny review when the federal regulation infringes upon religious freedom).

[11] Olmstead v. United States, 277 U.S. 438 (1928).

[12] Available at https://www.aclu.org/sites/default/files/pdfs/privacy/pemic_report.pdf (last visited 10/13/16).

[13] Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990); Schloendorff v. Soc’y of the N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914) (Cardozo, J.) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body”).

[14] Zablocki v. Redhall, 434 U.S. 374, 389 (1978) (holding that governmental action interferes with the exercise of a fundamental right, the government must should that its regulation supports a sufficiently important state interest and is closely tailored to effectuate only those interests).

[15]  Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); see also Skinner v. Oklahoma, 316 U.S. 535 (1942); Griswold v. Connecticut, 381 U.S. 479 (1965); see also Scott Burris, Rationality Review and the Politics of Public Health, 34 VILL. L. REV. 933, 966, 937–38, 938 & n.11, 966–67 (1989).

[16] Available at http://www.nvic.org/nvic-vaccine-news/june-2016/defending-religious-exemption-to-vaccination.aspx (last visited Oct. 13, 2016).

[17] Available at http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (last visited Oct. 13, 2016).

[18] Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068 (2011).

[19] Available at http://www.hrsa.gov/vaccinecompensation/data/index.html (last visited Oct. 13, 2016).

[20] Available at https://cogforlife.org/2015/09/09/new-aborted-fetal-cell-line-emerges-for-vaccine-production/ (last visited Oct. 13, 2016); https://rtl.org/prolife_issues/LifeNotes/VaccinesAbortion_FetalTissue.html (last visited Oct. 13, 2016); http://www.abort73.com/abortion_facts/vaccines_and_abortion/ (last visited Oct. 13, 2016); see also http://www.immunize.org/concerns/vaticandocument.htm (last visited Oct. 13, 2016) (representatives of the Vatican stating that “there is a grave responsibility to use alternative vaccines [not grown on human fetal cells] and to make a conscientious objection with regard to those which have moral problems.”).

[21] William Wagner, God, Government, and Parental Rights, in VACCINE EPIDEMIC (Louise Kuo Habakus and Mary Holland eds., 2011).