Although there have been no confirmed cases of measles in Wisconsin since 2014,¹ as winter approaches and people return to close quarters (and with school in full swing), experts predict Wisconsin could join the growing list of states with reported measles cases in the midst of the largest measles outbreak since 1992 – well before the disease was declared eliminated in the United States in 2000.²

Public health officials combatting an outbreak of a contagious disease such as measles primarily have two types of mechanisms available in response: 1) vaccination and treatment, and 2) isolation or quarantine. Restrictive public health measures are not as rare or antiquated as some people may think.

In fact, a man was quarantined to his home in Waukesha County i​n April 2018 because of concerns about measles exposure. His story made headlines after he left his home despite the quarantine order and went to a gym, resulting in him (and his wife) being charged with misdemeanors under Wis. Stat. section 252.25 for violating public health orders.³ Eventually, the man’s charge was reduced to disorderly conduct, and he pleaded guilty and was fined $1,464.50, with a penalty of 29 days in jail if the fine was not paid.⁴ His wife, who was charged for her role in driving him to the gym, was fined $330.50, with a penalty of six days in jail if she failed to pay.⁵

Because of the need to act swiftly to protect the public, individuals’ constitutional rights may not be top of mind for government officials trying to prevent the spread of a contagious disease. This article gives a high-level overview of how courts may analyze the reactive public health mechanisms available to Wisconsin officials under the Due Process Clause of the U.S. Constitution.

Effective public health strategies in combating disease can raise constitutional issues. People forced into quarantine or isolation may object to interference with their physical liberty. People forced to accept testing, treatment, or prevention methods, such as vaccination, may object to an interference with their right to control their own medical decisions. People may face restrictions on their religious freedom or their speech. And people may have their privacy rights impinged by public health officials sharing their personal information.

Though constitutional issues abound, this article focuses on the due process considerations relating to governmental intrusions on personal liberty caused by quarantine, isolation, and forced universal immunization.

Public Health Case Law

The leading case on a state’s power to respond to a public health crisis was decided by the U.S. Supreme Court more than 100 years ago. In Jacobson v. Massachusetts,⁶ the Court affirmed the constitutionality of a state statute authorizing local health boards to require residents to be vaccinated against smallpox or pay a five-dollar fine.

Although challenged in part on due process grounds, this case arose before the now-familiar due process considerations of tiers of scrutiny and tailoring. In fact, the phrase “due process” appears only once in the decision. Instead, the Court discussed the defendant’s “liberty” rights and stated that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”⁷

The Court intermittently emphasized the necessity of the state public health regulation, as well as the utilitarian aspect of rules protecting the many at the expense of the few, but seemed to ultimately rely on a basic police power of the state to regulate public health as the basis for its decision.⁸ Thus, while the Jacobson decision shows the high level of deference courts may give to the actions of states faced with public health crises, it does not set forth a clear framework for today’s courts or governmental officials.

Most of the relatively few cases analyzing the constitutional limits on quarantines to combat contagious disease uphold significantly restrictive measures, such as keeping a boat from landing in a quarantined city and forcing a tuberculosis patient to live outside city limits.⁹ As the Supreme Court has stated, “the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of the inhabitants … is beyond question.”¹⁰ But many of the cases analyzing constitutional challenges to public health measures predate modern civil liberties jurisprudence.

Even when public health measures are challenged in courts, constitutional issues are not always raised or even discussed. In 2007, the Wisconsin Supreme Court upheld the isolation and confinement of a woman diagnosed with tuberculosis.¹¹ The woman failed to show up for appointments to receive tuberculosis treatment, and after various issues with her compliance with a Milwaukee Health Department isolation order and treatment plan, the circuit court ordered her to be confined in the Milwaukee County Criminal Justice Facility for an indefinite period, with review after six months, under Wis. Stat. section 252.07.¹²

Considering only the question of whether the circuit court was statutorily required to choose a less oppressive confinement location than a jail, the Wisconsin Supreme Court found no erroneous exercise of discretion.¹³ However, the court instructed that the location for confinement must be “a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement.”¹⁴

While the Wisconsin Supreme Court did not address constitutional issues, the Wisconsin Court of Appeals previously had rejected an argument that the Constitution entitled the woman to stay in a hospital instead of a jail, stating “this country has long recognized that the Constitution does not bar enforced quarantine.”¹⁵ The court of appeals mentioned in a footnote that the lack of developed constitutional arguments by the woman in her appellate brief could be attributed to the accelerated nature of the appeal.¹⁶ Logically, the need for speedy adjudication of restrictive public health measures could hinder many litigants who otherwise may have grounds to bring constitutional challenges to public health orders.

Despite the high level of deference courts typically show to public health decisions, courts frequently have imposed limits, even if those limits are not always framed as constitutional requirements. For example, courts suggest that a public health regulation must meet some threshold of necessity based on scientific evidence.¹⁷ Additionally, though pleasant conditions are not typically required, individuals subject to public health orders must be given adequate care and treatment.¹⁸

Though pleasant conditions are not typically required, individuals subject to public health orders must be given adequate care and treatment.

Due Process Analysis of Public Health Measures

Under due process principles, states generally face two constraints when imposing restrictive public health measures: 1) whether an individual’s liberty interest can be infringed at all (substantive due process), and 2) what process is due before (or after) those interests can be restricted (procedural due process).

Substantive Due Process. The U.S. Supreme Court has not yet considered what level of scrutiny should be used to analyze the constitutionality of a restraint on physical liberty in the context of quarantine or mandatory vaccination.

Vaccination is already required for enrollment in schools and daycare centers in Wisconsin, but the requirement is waived for anyone who objects “for reasons of health, religion, or personal conviction.”¹⁹ Courts considering challenges to similar laws without personal-conviction waivers have declined to find access to schooling a fundamental right and so have not applied strict scrutiny.²⁰ The U.S. Court of Appeals for the Second Circuit swiftly denied a substantive due process challenge to such a law, citing the Jacobson decision.²¹ As a result, if Wisconsin legislation to remove the personal-conviction exception to the vaccination requirement – most recently found in bills referred to committee²² – would become law, the change most likely would be found constitutional.

However, in the perhaps unlikely event that public health officials contemplated more drastic measures, such as true universal vaccinations (without exception, rather than as a condition for school enrollment or on penalty of a fine), the results are less clear. Even in Jacobson, the challenged law did not force vaccinations; rather, it simply imposed a five-dollar fine on those who refused.²³ The right to choose one’s own medical treatment may be a fundamental right triggering strict scrutiny in the context of mandatory public health orders.²⁴ On the other hand, universal vaccinations may be found analogous to the involuntary administration of antipsychotic drugs, which involves a “significant” liberty interest requiring heightened scrutiny²⁵ but not rising to the level of strict scrutiny.²⁶

Quarantine and isolation, too, may involve fundamental civil liberties triggering strict scrutiny. Indeed, the Supreme Court has recognized a “fundamental right of interstate movement.”²⁷ Thus, it is logical to assume that restricting a person’s liberty by quarantine or isolation would also be subject to heightened scrutiny of some form.

That is not to say these public health protection measures would be constitutionally invalid. Preventing the spread of infectious disease easily could qualify as a compelling governmental interest. In cases discussing public health measures, courts have repeatedly emphasized the importance of a government’s interest in protecting health.²⁸ The more difficult question is whether a particular public health measure is tailored narrowly enough to the government’s interest in preventing the spread of disease to survive judicial scrutiny, which can be highly dependent on the facts of each case.

Two factors courts may find relevant when considering this issue are drawn from prior cases: 1) whether the public health measure is necessary under the circumstances, and 2) whether the conditions to which the individual is subjected are adequate.²⁹ Other considerations may include questions of the effectiveness and proportionality of the public health measure and whether harm to the individual is avoided or minimized.³⁰

Applying these considerations, the constitutionality of a public health measure would depend on a variety of facts. Among the likely facts a court would consider is the nature of the disease, including how contagious and dangerous it is. The more contagious or deadly the disease, the more compelling the government’s interest in taking swift restrictive action to address it. Courts also would likely consider the scope and nature of the measure used to combat the disease, taking into account the breadth and restrictiveness of the limitation and the conditions imposed.

Wisconsin’s public health laws provide some limitations to guide the actions of public health officials, but compliance with those statutes may not avoid a substantive due process challenge. For example, Wisconsin’s isolation and quarantine statute builds in an exception allowing immediate family members and clergy to be in contact with the restricted person³¹ and requires a non-physician local health officer to consult a physician when needed.³² Yet even the Department of Health Services regulations leave much discretion to public health officials to ensure their orders are narrow enough to be constitutionally sound.³³

Wisconsin’s public health regulations say little about the procedure afforded to individuals subject to public health measures.

Procedural Due Process. The minimum procedures required to ensure a public health response is compliant with procedural due process are a bit more uncertain. Because quarantine and isolation necessarily involve confinement of an individual, fairly robust procedures may be required, even if after the confinement begins. But Wisconsin’s public health regulations say little about the procedure afforded to individuals subject to public health measures.

The Department of Health Services is authorized to order that a person who is known or suspected to have a contagious disease be treated, tested, and potentially isolated.³⁴ If the person does not follow the order, a DHS official may petition a court for enforcement but only if the DHS official has clear and convincing evidence to support the petition, puts the directive and supporting evidence in writing, and gives the patient the opportunity to hire a lawyer.³⁵ The DHS official must also propose the least restrictive measure that would “serve to correct the situation and to protect the public’s health.”³⁶ This likely would include consideration of the supporting medical evidence, among other things. While these procedures serve as important guidelines, they may not be sufficient to ensure compliance with procedural due process.

For example, a West Virginia court analyzed the procedural due process rights of an individual quarantined for tuberculous.³⁷ The court analogized quarantine to the confinement of mentally ill individuals and concluded that the same procedural protections are required for each.³⁸ The court concluded that the statute providing for confinement of tuberculosis patients did not afford procedural due process because it did not adequately provide for legal counsel for the patient, the right to confront and present witnesses, or confinement only upon clear and convincing evidence.³⁹

If courts were to consider a procedural due process challenge to forced immunization or treatment measures, the constitutional analysis would differ from analysis of quarantine in one key respect – there is little to no way to remedy an immunization later determined to be unlawful. While a quarantined person can be released, and our legal system can offer restitution as a way to redress wrongful detention, people treated or vaccinated against their wishes or religious beliefs may argue that a process and remedy provided after the fact would be so inadequate that only procedures in advance of the immunization would pass constitutional muster.

Conclusion

Although a prompt and effective public health response is vital to protecting the population during a public health emergency, the constitutional protections afforded the public also must be considered. After all, it is when the individual rights of some may be at odds with the interests of the majority that constitutional protections can be most important. Balancing these two interests can be difficult. If a measles outbreak finds its way to Wisconsin, state courts may soon have occasion to consider the constitutionality of the public health response.

Endnotes

¹ Wis. Dep’t of Health Servs., Measles: Protect Your Family by Getting Vaccinated (Oct. 7, 2019).

² Mark Johnson, 50,000 Unvaccinated Children Head to Wisconsin Schools as the U.S. Copes with Worst Measles Outbreak in 17 Years, Journal Sentinel, Sept. 3, 2019.

³ State v. Murawski, No. 2019-CM-436 (Waukesha Cty. Apr. 22, 2019).

⁴ Id.

⁵ State v. Bennett, No. 2019-CM-435 (Waukesha Cty. Apr. 22, 2019).

⁶ Jacobson v. Massachusetts, 197 U.S. 11 (1905).

⁷ Id. at 13, 26.

⁸ Id. at 26, 28, 29, 31.

⁹ See Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U.S. 380 (1902); Kirk v. Wyman, 65 S.E. 387 (S.C. 1909).

¹⁰ Compagnie Francaise, 186 U.S. at 387.

¹¹ City of Milwaukee v. Washington (In re Washington), 2007 WI 104, 304 Wis. 2d 98, 735 N.W.2d 111.

¹² Id. ¶¶ 6-22.

¹³ Id. ¶¶ 69-70.

¹⁴ Id. ¶ 69.

¹⁵ City of Milwaukee v. Washington (In re Washington), 2006 WI App 99, ¶ 13, 292 Wis. 2d 258, 716 N.W.2d 176.

¹⁶ Id. ¶ 13 n.3.

¹⁷ See, e.g., Kirk, 65 S.E. at 389-90 (allowing “reasonably necessary” regulations that are “reasonably appropriate to the end in view”); Illinois ex rel. Barmore v. Robertson, 134 N.E. 815, 819 (Ill. 1922) (“A person cannot be quarantined upon mere suspicion that he may have a contagious and infectious disease, but the health authorities must have reliable information….”) (citation omitted).

¹⁸ E.g., Washington, 2007 WI 104, ¶ 69, 304 Wis. 2d 98; Kirk, 65 S.E. at 391.

¹⁹ Wis. Stat. § 252.04(3).

²⁰ See Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 355-56 (4th Cir. 2011) (unpublished).

²¹ Phillips v. City of New York, 775 F.3d 538, 542-43 (2d Cir. 2015).

²² See Wis. State Legislature, Senate Bill 262; Wis. State Legislature, Assembly Bill 248.

²³ Jacobson, 197 U.S. at 12.

²⁴ See Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 269 (1990) (“[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” (quotation omitted)).

²⁵ Sell v. United States, 539 U.S. 166, 178-79 (2003).

²⁶ See, e.g., Riggins v. Nevada, 504 U.S. 127, 136 (1992).

²⁷ Shapiro v. Thompson, 394 U.S. 618, 638 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 670 (1974).

²⁸ See, e.g., Jacobson, 197 U.S. at 25-26; Barmore, 134 N.E. at 817, 819.

²⁹ See, e.g., Kirk, 65 S.E. at 387.

³⁰ See, e.g., Lawrence O. Gostin, Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Am. J. Pub. Health 576 (2005).

³¹ Wis. Stat. § 252.06(4)(a).

³² Wis. Stat. § 252.06(3).

³³ See generally Wis. Admin. Code ch. DHS 145.

³⁴ Wis. Admin. Code § DHS 145.06(4).

³⁵ Wis. Admin. Code § DHS 145.06(5).

³⁶ Id.

³⁷ Greene v. Edwards, 263 S.E.2d 661 (W. Va. 1980).

³⁸ Id. at 663.

³⁹ Id. at 662.

⁴⁰ Wis. Stat. § 252.02(1).

⁴¹ Wis. Stat. § 252.02(3).

⁴² Wis. Stat. § 252.041(1)(a).

⁴³ Wis. Stat. § 252.041(1)(b).

⁴⁴ Wis. Stat. § 252.06.

⁴⁵ See Wis. Stat. §§ 252.06(4), 252.25.