When attorney David Soley agreed to represent nurse Kaci Hickox—who had returned to her Maine home from treating Ebola patients in Sierra Leone in 2014 to be faced with the threat of a forced quarantine—some of his coworkers complained about his taking on the case.
That’s the way it was with the Ebola epidemic, Soley says: lots of misinformation and irrational fear about potential exposure to the deadly virus, not just in Maine, but across the country.
Hickox, 33, a volunteer nurse with Doctors Without Borders, had been stopped at Newark Liberty International Airport when she returned to the United States on October 24, 2014. She was quarantined in a tent outside a New Jersey hospital for three days, even though she had no symptoms of Ebola. New Jersey agreed to let her go home to Fort Kent, Maine, a small logging town near the Canadian border. But when Chris Christie, then governor of New Jersey, gave a heads-up to Paul LePage, the governor of Maine, her home state prepared to arrest her and force her into quarantine as well. That’s when Soley got a call from Hickox’s New Jersey lawyer asking him to represent her.
It was a case that confirmed Soley’s worst fears about public health panics, while also reinforcing his faith in the judicial system, which ultimately blocked the mandatory quarantine.
“We’ve had 24 outbreaks of Ebola internationally since 1976. We know a lot about Ebola, and that there are warning signs—high fevers, sweats, headaches. Kaci had none of those,” Soley says.
“But a lot of people were very scared, and some people, including politicians and public officials, played on those fears. A lot of noise and fear was being fanned for political reasons,” he recalls. “In the end, the judge sided with Kaci, and justice triumphed. It was a balancing of Kaci’s rights and the need to protect public health. Ultimately, science did prevail.”
Soley will discuss his experience defending Hickox and the lessons he took away from the case when he delivers the annual School of Public Health Cathy Shine Lecture tomorrow on the Medical Campus. His talk, Maine v. Kaci Hickox: Public Health Protection or Ebola Panic? is free and open to the public.
The lecture, sponsored by the SPH health law, policy and management department, is endowed by the family of the late Cathy Shine in recognition of the work of George Annas, a William Fairfield Warren Distinguished Professor and an SPH, School of Medicine, and School of Law professor. Shine, an advocate for human rights, died in 1992 from a severe asthma attack. Annas wrote about Shine’s experience of being restrained against her will at a Boston hospital recovering from an asthma attack and her subsequent avoidance of hospitals, and the importance of respecting patients’ rights in a much-cited article in the New England Journal of Medicine.
An experienced trial lawyer and partner in the law firm Bernstein Shur, Soley has taken on numerous Constitutional challenges to state and federal governments. He and Hickox were thrust into the international spotlight after she contested the right of New Jersey and of Maine to force her into quarantine.
Hickox agreed to twice-a-day testing by the state for the 21-day Ebola incubation period, but believed she should not be forced to stay in isolation when she had no symptoms. She argued that mandatory quarantines would discourage other medical workers from going to West Africa to help countries grappling with Ebola.
The showdown between Hickox and LePage came as LePage was in a tight reelection battle—one that Soley says injected politics into an already complex debate about the competing demands of public health, individual rights, science, and the Constitution.
The rights of health workers, once they return home, are governed by public health laws passed by various states. During the most recent Ebola outbreak, which killed more than 11,300 people, the federal Centers for Disease Control and Prevention (CDC) recommended symptom monitoring of doctors and nurses returning from West Africa, but stopped short of requiring any type of quarantine. But states have the power to exceed CDC guidelines, and New Jersey, Maine, and some other states chose to exercise that option.
Soley says that while he is proud to have won the case, the public’s response to health outbreaks remains a concern. He notes that travel to some South American and Caribbean countries has fallen off in recent months because of the Zika virus, even though health warnings are focused on pregnant women.
“We know there will be more outbreaks coming, and I think there is a need to find effective ways to deal with these fears and misconceptions, especially in a political climate,” he says.
He spoke to BU Today about his experiences.
BU Today: When did you get involved in the Hickox case?
Soley: When Kaci returned to the United States, she landed in New Jersey and was held for three days. Her lawyers worked out a deal that she could go home to northern Maine. As far as she knew, her legal issues were all behind her. But when the governor of New Jersey alerted the governor of Maine, her lawyer called me. The Maine governor wanted to arrest her, but the state attorney general said no, you can’t do that, she has committed no crime and there’s no order of arrest. So instead, the state police followed her around, watched her, while the attorney general filed an action to arrest her. That’s the action I contested in court.
What legal provisions was Maine using to enforce the quarantine? Was the federal government involved?
The state has a statute that gives it the power to quarantine or arrest people who put public health at serious risk. And that is what the state was using here. To my knowledge, it was the first case in Maine using this quarantine law. Many states have a similar statute, giving them the right to quarantine or arrest people who pose a serious threat to public health.
The Maine CDC office, which reports to the governor, supported the quarantine. Its recommendations for Ebola workers were actually stricter than those for the US CDC and the World Health Organization. Interestingly, the former director of the Maine CDC didn’t support the state’s position, but the new director did.
Were you surprised by the reactions of Governor LePage and those residents who wanted Hickox arrested and quarantined?
Somewhat, yes. I have a lot of faith in my fellow citizens. However, I understand that Ebola is an incredibly dreaded disease, the death rate is high, the death is miserable, and people were scared. The governor was also in the midst of a tough reelection campaign. I wasn’t pleased by his reaction. Some people say his stance in the case is what led to his reelection: he was constantly on TV and in the media, talking about protecting public health.
The public health response was much better. Within hours of taking the case, I had calls from epidemiologists and infectious disease doctors stepping up to help. Those are good signs—there are rational people out there.
On the other side, Kaci’s boyfriend said many of his fellow nursing students at the University of Maine did not want him attending classes with them. He felt he couldn’t go to class. And once, when Kaci came to my town, Freeport, the town actually issued a press release saying her visit was not a cause for alarm.
I don’t think this kind of reaction was unique to Maine. When the news came out that the Liberian man with Ebola was at Texas Health Presbyterian Hospital, half the patients cleared out of the hospital. And there was a big outcry when Dr. Kent Brantley, who had Ebola, was admitted into Emory University Hospital in Atlanta. It was going on everywhere in America.
What does the case teach us about balancing the need for the public to feel safe and respecting the rights of our medical workers?
When the outbreak came, it wiped out a huge number of health workers in three countries. The WHO and Doctors Without Borders were calling volunteers to come to West Africa to help. Kaci answered that call. She really is a hero. Thanks to her and others, the outbreak was controlled.
We know that with Ebola, if you’ve been in contact with someone who has it, but you don’t develop symptoms within 21 days, you don’t have it. The virus is spread through direct contact with the bodily fluids of an infectious person—that is, someone who shows symptoms.
Kaci was willing to be quarantined if she had any symptoms. What she did not agree to was to be quarantined because of this hysteria.
I think the judge did a good balancing of Kaci’s rights and the need to protect public health. He did the right thing. He did understand that we were dealing with junk science, public fear, and hysteria.
What are the lessons here for public health?
The public health community has to be a voice of rationality. They need to be organized, and they need to be ready.
We need to sort out what’s rational and based on fact and convey that. We need an organized public health community that can stand up and temper the situation and tell people what’s real and not real.
David A. Soley will deliver the 2017 Cathy Shine Lecture, Maine v. Kaci Hickox: Public Health Protection or Ebola Panic? tomorrow, Wednesday, March 22, at 1 p.m. in the School of Medicine Instructional Building, Hiebert Lounge, 14th floor, 72 East Concord St. The lecture is free and open to the public.
Lisa Chedekel can be reached at firstname.lastname@example.org.