China waited weeks before reporting a novel coronavirus to the World Health Organization (WHO). The virus, now designated as SARS-CoV-2, “jumped” species from an animal to human in a Wuhan seafood market in early December, initiating the outbreak of Coronavirus Disease 2019 (COVID-19). But after a costly delay, China locked down Wuhan and wider Hubei Province, confining about 60 million people, the largest cordon sanitaire (a guarded area where no one can enter or leave) in human history. Its draconian measures were medieval, but garnered praise from WHO. In late February, the Joint WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) concluded the cordon sanitaire was effective, with Director-General Tedros Adhanom Ghebreyesus urging all countries to learn from the China model.

The Joint Mission presented no clear evidence as to why or how the measure was effective, but it speaks volumes on how much WHO has shifted from defending freedom of movement, trade, and travel, as well as human rights. Is protecting the public’s health soon to become the overriding utilitarian consideration going forward, without balancing major infringements on human rights?

While a mass cordon sanitaire seems ill-suited to modern Western democracies, just this week Italy locked down its northern region, including Milan and Venice, restricting movement of 16 million people (a quarter of its population). The Prime Minister urged Italians to comply, to reject “furbizia,” the Italian word for cunning disregard of bureaucratic rules.

Could the United States implement a mass quarantine? Could we wall off a major city like New York or Chicago or even a smaller city or town? I think quarantining a US city would be inconceivable, and Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Disease, agrees. But he cautions that, “anything is possible.”

A large-scale cordon sanitaire would face huge challenges: legal and constitutional, ethical, and logistical. From a public health perspective, there are strong reasons to believe such drastic action would backfire. I do foresee extensive quarantines and social distancing in the US, and I’ll evaluate their lawfulness and effectiveness.

Does The Federal Government Have The Power To Shut Down A Major City?

Under our federalist constitutional system, primary public health powers (“police powers”) reside with the states, not the national government. While we are currently witnessing the largest federal quarantine in modern history stemming from evacuations from Wuhan and cruise ships (the last federal quarantine was 50 years ago for a suspected case of smallpox), the federal government has very narrow quarantine powers. There are no broad national quarantine powers like those exercised in China and Italy; the US federal government can only act to prevent the spread of COVID-19 into the US or between states. States have the primary quarantine authority, so any compulsory order would be a state or local decision.

Could the federal government, or a state, ban travel to and from a particular state experiencing a major outbreak of COVID-19? The federal government has the sole power to regulate interstate commerce. Yet, the federal government has rarely, if ever, banned travel to, or from, a particular state. The last time the federal government even issued an advisory against travel to a state was during the Zika epidemic, when the CDC advised pregnant women not to travel to southern Florida. Similarly, while states can exercise public health powers within their borders, they do not have constitutional authority to regulate travel between the states.

Would A Mass Quarantine Be Lawful And Constitutional?

A large-scale cordon sanitaire hasn’t occurred in the US in the modern constitutional era. At the turn of the 20th century, a federal court in Jew Ho v. Williamson struck down a notoriously invidious cordon sanitaire. Local public health officials had quarantined an entire district of San Francisco, ostensibly to contain bubonic plague, but it operated exclusively against the Chinese community. The court said that health authorities acted with an “evil eye and an unequal hand.” As we confront discrimination in the midst of a coronavirus epidemic, Jew Ho serves as a reminder that coercion can become an instrument of prejudice and subjugation.

A mass cordon sanitaire would violate state public health statutes, as well as core constitutional safeguards. Courts certainly would uphold well-targeted isolation (individuals infected with SARS-CoV-2) or quarantine (individuals known to be exposed), but large-scale restrictions of liberty would be overbroad and disproportionate. Civil commitment of persons with mental illness is an apt model. The Supreme Court calls civil commitment a “massive curtailment of liberty,” requiring individualized risk assessments based on clear and convincing evidence. Quarantine for tuberculosis, as one court explained, “impinges on the right to ‘liberty, full and complete liberty,’ no less than involuntary commitment for being mentally ill.” States must also demonstrate no less restrictive alternative exists and guarantee due process of law.

Mass quarantines are too blunt a tool, sweeping up many people who pose no risk to the public. Even under a declared public health emergency, it is hard to envisage the courts upholding such a far-reaching restriction of liberty.

Are Mass Quarantines Ethical?

Under any ethical tradition, well-designed, evidence-based quarantines are permissible. Individuals have freedom of movement only until they pose a significant risk to others. If an individualized risk assessment finds a person has been exposed to SARS-CoV-2, it is ethical to keep that person separated from the public for the longest period of incubation (14 days). But liberty is too important to act on the basis of group determinations. That is, if SARS-Cov-2 were circulating among a large population, we would have scant evidence that all, or even most, individuals were a risk to the public. The better course is less restrictive measures such as screening and contact tracing, and social distancing such as temporary closures of crowded places, like schools, mass transit, and sporting, entertainment, and political gatherings.

Are Mass Quarantines Feasible And Socially Acceptable?

The United States has vastly different political and cultural values than China has. To achieve a mass cordon sanitaire China used draconian social control, armed police, and intrusive electronic surveillance. For example, using a smart-phone app, Chinese authorities tracked the people’s movements, and enforced a strict code of who could, and could not, travel. While Chinese citizens became fearful, even angry, their culture was to abide by government rules. In the US, states lack the means to implement a cordon sanitaire of a town or city. But even if they did have the means, the government would be hard pressed to gain social acceptance and compliance with draconian enforcement. Imagine the streets of New York or San Francisco patrolled by armed police and citizen informers, with electronic tracking of movement and conversations. This scenario is so contrary to American values and the rule of law that it is difficult to envisage government sealing off a city’s borders.

Would A Mass Quarantine Be An Effective Public Health Measure?

Even if we acknowledge that the lockdown of Hubei province modestly slowed spread to mainland China and internationally, would the same outcome occur in the US and at this stage of the epidemic? It is abundantly evident that SARS-CoV-2 spreads rapidly and efficiently when people are crowded together. We’ve seen amplifying events in congregate settings globally—hospitals, places of worship, prisons, cruise ships. If infected and uninfected populations were confined together in a congested city, it’s foreseeable they would cross-infect one another, generating fear, panic, and hardship. The first rule of public health is to gain the public’s trust. If draconian measures were on the table in the US, we could lose any semblance of public cooperation. People might flee, and we could drive the epidemic underground.

The US differs from China in another critical way. Even if inadequate, China undertook a mass mobilization to bring food, medicines, hospitals, and other essential resources to Wuhan residents. The US has no such plan, or surge capacity, to enable this kind of mass mobilization to meet essential human needs.

A Social Compact: What Do We Owe Individuals Under Quarantine?

If America is highly unlikely to undertake a large-scale cordon sanitaire, what kinds of quarantine would we expect? There will be many, maybe even millions, of people who self-quarantine in their homes. And while we call self-quarantines “voluntary,” individuals often have no choice but to cooperate; if they do not, the government could issue a compulsory order. There may also be “work quarantines” of the kind used in Ontario during SARS, where health workers could travel only between home and hospital. It’s even possible we might see a quarantine of a group. We’ve already seen such a quarantine of the Grand Princess Cruise Ship, and it is feasible we might see an apartment or dormitory under quarantine. Given the likelihood, we must plan to meet essential human needs. After all, it is foreseeable that in the coming weeks or months, we may see millions of Americans separated from their communities, sheltering at home, a residential facility, a hospital, or a make-shift quarantine center. What are our ethical responsibilities toward our fellow citizens?

I think of public health as a social compact. Individuals are separated for the common good, and government assures humane treatment. Under that compact, individuals who are sick or exposed would shelter in place for two weeks. For the well-off, it might not be a great sacrifice. They could telecommute and would have well-stocked cupboards and refrigerators. But the poor, uninsured, and working classes do not have such luxuries. We would need to provide wrap-around medical care for the vulnerable and sick pay for lower-income workers, and meet essential needs like medication, food, and water. I can imagine most Americans abiding by their part of the social bargain by sheltering in place. But will government uphold its part? As of now, we have no plan, no protocol, and few resources.

Epidemics have a way of bringing out the best and worst in society. Each of us should take care not to infect family, neighbors, and community. We will need to show kindness toward our neighbors who are elderly and vulnerable. But we also need to bring the best out in our political leaders. That begins with putting aside sharp political divides, while pulling together to ensure that all of society is well cared for. No one should be fearful, alone, or neglected.