WASHINGTON — Six counties in the San Francisco metro area made headlines when they announced Monday they were ordering all their residents to “shelter in place” in response to the novel coronavirus.

The sweeping proclamation is the most striking example to date of state and local governments in the United States taking sweeping action to halt the spread of the novel coronavirus and to limit the impact of the disease it causes, Covid-19. While the Bay Area is the first region in the U.S. to issue such an order, a number of states have mandated school and business closures and vastly curtailed nearly all major events.

Stricter lockdowns could follow in other states and localities. The federal government, too, is at least considering the idea. The Trump administration on Monday stopped short of any new requirements or restrictions, but nonetheless urged all Americans not to travel and to limit gatherings to fewer than 10 people.

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Asked whether he’d impose domestic travel restrictions on Monday, President Trump said they are “certainly something that we talk about everyday. We haven’t made that decision.”

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San Francisco’s order follows similar “lockdowns” in China and Italy, where the outbreaks began earlier and have so far been more severe. In San Francisco, at least, there are important exceptions: Residents will still be permitted to travel to buy food, see a doctor, and help care for family. Visitors to the region will be permitted to go home, too. Residents can even take part in outdoor activities, like walking or hiking, so long as they keep at least 6 feet of distance between themselves and others.

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STAT took a closer look at what these policies are, what they do for the spread of disease, who has the power to issue them, and whether experts consider them constitutional or ethical.

What’s happening in the U.S. right now? Are we under a quarantine?

Officially, the definition of “quarantine” is very specific: It’s the seclusion of a person potentially exposed to a disease for a period of time to see if they become infected. A person under quarantine typically stays in one place to avoid nearly all contact with the outside world. When such a quarantine is ordered by the government, it’s illegal to violate them: Breaking a federal quarantine is punishable by a fine or imprisonment, according to the Centers for Disease Control and Prevention. An individual found violating a federal quarantine order could face a fine of up to $100,000, a year in jail, or both, according to a report from the Congressional Research Service.

Many states also have their own punishments for violating quarantine, though they vary widely.

But many people talk about “quarantines” more broadly — referring to the city-wide lockdowns that force people to stay in their homes and cut off all travel to and from an impacted area. Legal experts often call this strategy of locking down an entire region “cordon sanitaire” — a term that dates back roughly 200 years when a French duke deployed troops along the Spanish border to contain the spread of infectious disease.

The correct term for what is going on in many places in America is social distancing — though the six counties in San Francisco test the limits of that term.

In most places right now, social distancing is suggested or recommended — Trump administration officials, for example, urged people across the country not to attend gatherings of more than 10 people. Other localities have looser recommendations: The governor of Utah, for example, has recommended banning gatherings of more than 100 people.

In some places, social distancing is mandatory. Massachusetts Gov. Charlie Baker banned gatherings of more than 25 people and forced restaurants to close to diners. (They can still serve takeout.) It’s not immediately clear what penalties anyone violating the order would face.

The governors of Connecticut, New York, and New Jersey announced on Monday they were limiting gatherings to 50 people and also mandated restaurants close, except for takeout. Laws governing quarantine in these three states are also vague on potential penalties, or even whether the same penalties would apply in these cases. Connecticut’s law states that anyone found violating a quarantine order can be fined up to $1,000 or imprisoned for up to a year. New Jersey’s law is comically antiquated: It says anyone found violating a quarantine order “shall be liable to a penalty of not less than ten nor more than one hundred dollars for each offense.”

Why encourage social distancing? Why do a lockdown?

Social distancing is seen as the most effective way to slow the infection rate for Covid-19 here in the United States. Public health experts have emphasized that efforts to flatten the curve — or to spread the rate of new infections out over time — will help ensure that America’s health care system is not rapidly overwhelmed with new Covid-19 infections.

Public health officials, however, are much less sure about the impact of a lockdown. Lockdowns by other countries, namely China, were quickly panned by public health experts as ineffective and unethical. Since those early days, however, top public health officials, including the head of the World Health Organization, have praised that same lockdown for helping to slow the spread of the disease.

Other public health experts insist, however, that lockdowns push people toward evasion, and that social distancing measures only work when governments have the public’s trust.

“Our historical experience with mandatory quarantines and mass quarantines and cordons is just not good, it’s not effective,” said Crystal Watson, a senior scholar at the Center for Health Security at Johns Hopkins University, before the news of the Bay Area lockdown. “I do not see the need for it.”

What does lockdown look like in Italy and in China?

Other countries, like Italy and China, have mandated widespread lockdowns of whole cities, which not only prevent citizens from attending public gatherings, but also keep citizens from leaving the city, and even their homes.

China was the first country to implement such a lockdown in response to the novel coronavirus.

On Jan. 22, Chinese officials announced they were locking down the city of Wuhan, then the center of the coronavirus outbreak. All residents of Wuhan were ordered to stay in their homes and all transit within and out of the city was shut down. Within hours, photos emerged, showing a city of more than 11 million virtually deserted.

Restrictions only increased from there: Residents of Wuhan now are subject to temperature checks by police and forced isolation of sick residents in the region’s makeshift hospitals.

It’s not immediately clear what punishments those who violate the quarantine order face, although a top government official has been quoted saying anyone caught hiding their disease will be “forever nailed to history’s pillar of shame.” There have also been press reports of arrests.

Italy first announced a lockdown of “hot zones” in the country’s north on March 8. Under the decree, all businesses, with the exception of grocery stores and pharmacies, were ordered closed. Residents of the cities were banned from travel within and out of the city without a permit, though there have been press reports that permits are widely available online. Violation of the order is punishable by up to three months in jail, according to the New York Times.

The travel restrictions appeared to be the most jarring for Italians: The news prompted swarms of Italians to flee on the last trains and buses leaving the region.

The county’s prime minister, Giuseppe Conte, extended that lockdown order to the entire country last week. Nearly all businesses across the country are now shuttered and nearly all travel outside one’s home must be justified.

Beginning midday today, France will also be on a widespread lockdown for the next 15 days. France’s President Emmanuel Macron, who announced the restrictions late Monday, only said that violators of the order will be punished.

Could that happen in the U.S.? If so, would local, state, or federal officials issue the decision?

America’s system of responding to public health emergencies is notoriously fragmented, and decisions on whether to implement social distancing or quarantine measures are split between federal, state and roughly 2,800 local public health departments.

There’s hardly any standardization: 27% of states delegate this power solely to state authorities, 18% of states provide some power to local governments, and the remaining 55% delegate the powers to some combination of both, according to a recent study in the Journal of Public Health Management and Practice.

There are a few exceptions, however. When travelers come in from abroad, the decision for an individual quarantine rests solely with the federal government. There’s also debate among legal scholars as to whether the federal government has the power to step in and overrule state and local governments’ quarantine decisions, if need be.

Already there’s been calls for the federal government to do just that.

“The variation from one location to another could … make an epidemic worse as each state makes its own rules, looks out for its own interests, and relies on its own resources,” wrote Polly Price, a professor of law and global health at Emory University in a recent op-ed, where she called for the CDC to step in and set a national quarantine policy.

Is what the U.S. is doing constitutional?

Mandatory social distancing measures are constitutional, according to multiple constitutional scholars STAT spoke to. But large-scale lockdown policies may not be, they said. But U.S. courts are not used to dealing with these sorts of cases, and no one truly knows how a judge might rule.

“The good news [is] there are a number of cases on public health needs, the constitution, and the so-called state ‘police power.’ The bad news is they are quite old, mostly turn of the 20th century, and a huge amount of constitutional law has changed since then. As a result there is a lot that is vague and uncertain in this area,” said Glenn Cohen, the faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School.

Lawrence Gostin, the faculty director of Georgetown University’s O’Neill Institute for National and Global Health Law, argued that America’s complicated federalist system might be the best check on any attempt to institute a mass quarantine or lockdown.

Neither federal nor state governments have clear authority, he argued, to restrict travel between states, thus making it difficult to justify any sort of domestic travel restriction in court.

Cohen predicted that in most cases the government would be required to show any quarantine order advances a “compelling government interest” and then prove that the government action was narrowly tailored to meet that goal. That’s where orders might get caught up in court: If quarantines or lockdowns are seen by judges as unnecessarily broad, they could be struck down.

So far, constitutional experts aren’t all together concerned, however, with most of the social distancing measures being rolled out in the U.S. In fact, the issues raised by social distancing aren’t as novel as they may seem.

“Health departments have broad powers to close facilities that pose a danger like a food source or restaurant that’s contaminated or unsanitary conditions. Same principle applies,” wrote Gostin in an email before the Bay Area announcement.

The Bay Area announcement, however, is already raising alarm bells for legal scholars.

“I think the [San Francisco] order will be challenged in court,” Gostin wrote in an email following the announcement. “I also don’t see how it will be possible to enforce such a sweeping order.”

 

Is what the U.S. doing ethical?

For the time being, yes.

In fact, STAT couldn’t find one bioethicist that believed wide-scale social distancing, even when it becomes mandatory, is unethical in and of itself.

In fact, ethicists argued it would be unethical not to implement such procedures. One of America’s top bioethicists, Zeke Emanuel, for example, penned an open letter this weekend urging states and local governments around the county to limit gatherings to 50 people and institute even stricter limitations for gatherings of at-risk populations.

While these social distancing measures are unprecedented in modern times, ethicists emphasized that they have been thinking about these scenarios for decades, and have developed frameworks to deal with hard questions surrounding isolation and quarantine.

“We’ve always worried about this scenario where canceling and closing things at this level would occur, but I don’t think that eventuality changes the fundamentals that we have been talking about,” said Dr. Ross Upshur, a professor at the University of Toronto’s Dalla Lana Faculty of Public Health, who helped pen a number of ethical guidelines related to quarantine and social distancing for the World Health Organization.

Ethicists are concerned about certain elements of the response to Covid-19 but not the issues you may expect. They’re not worried about the tactic of social distancing itself, they’re worried about the impact it’ll have on certain vulnerable populations, like low-wage workers.

“The implications of some of these public health measures are so wildly different for people who are differently situated in the United States that the social distancing [decision] is not our only decision,” said Nancy Kass, the deputy director for public health in the Berman Institute of Bioethics at Johns Hopkins University. “It’s our first one, and then there’s a very different set of ethical dominos that follow from that.”

Kass named a number of ethical considerations she’s concerned about, like making sure there’s adequate income replacement for workers unable to earn a living, making sure grocery stores stay open and accessible, and even making sure people have access to the creature comforts that make social distancing bearable.

“People laugh at me when I say they better have a really good plan at Netflix, but I really mean it,” Kass said, adding that access to Netflix is “absolutely” an ethical consideration.

It’s not immediately clear, however, how ethicists will respond to the news of the Bay Area lockdowns — especially given their widespread concerns with similar efforts in China and Italy.

Correction: An earlier version of this story incorrectly identified Polly Price, the professor of law and global health at Emory University. 

  • Cyber bullying is rampant here. Be kind. Know our facts.

    As a masters prepared nurse, 8 weeks out from graduation, I fear that there is a great likelihood I may not see some of my family members again, even my grown children because this is an airborne, rapidly evolved, spreading like wildfire, lethal virus. It is non discriminatory.

    Just because a large percentage of people are probable to recover (80%), think of the approximately 1.4 BILLION people who won’t if this goes its full course. Stay at home as best as you can. I implore you. The vulnerable people in this world are depending on you. I am depending on you.

  • This shelter-in-place title is a poorly – disguised uphemism for an indefinite, indiscriminate, and inhane mass incarceration of innocent & healthy people. Such an egregious affront to our human rights is completely unconstitutional. Millions of American heroes died to rid Europe of the scourge of Nazi Germany. I can only imagine them turning over in their graves to see such tyranny being replicated on American soil. Just to clarify-I am not advocating a free-for-all approach where people can callously ignore their social responsibilities to those less fortunate. I am-however-demanding that we not punitize healthy people for the sin of wanting to breathe fresh air, without carrying a tape measure with them,wherever they go, lest they mistakenly stray out of their six feet of movement. The thought that I can be arrested for not conforming to this obsessive-compulsive abuse of power, chills me to the core. We the people, must raise our collective voices and demand an end to this insanity, less it becomes mainstream & spread to the rest of our country!!

    • It’s not like we’ll be lockdown forever i myself will enjoy the paid vacation from work thank you very much mr.president

    • You dumb or something? Comparing actions to prevent a global pandemic from getting worse to Nazi controlled Germany seems a little intense don’t you think?
      Clearly you are not a medical professional so you have literally no idea how this works or what a virus like this is capable of. Heck us medical professionals are still learning more about this virus daily. It is obivous you are not looking at the picture as a whole, you are only considering the legal aspect, which is fine but there is a much bigger issue at hand.
      The whole point of a lockdown is not to punish people or impede their rights, it’s to keep people safe. As of now this is not a virus that will kill us all, but the issue we will face will be in several months for now when our healthcare system becomes so overwhelmed that people will die because there will just be no supplies to help them. But if we can flatten that curve now then the hit on our healthcare system will be much lower and less harmful to the public. Seriously if we do not act now, it will bite us in the butt in several months.

    • Wow I’m glad to hear someone finally say it… I’m amazed at how many people would gladly surrender their and their neighbors rights and freedoms for some temporary safety. People just got so soft recently.

  • It’s interesting to me to see these comments. We are not even into this pandemic (barely touching the tip of the iceberg yet) and already some people are showing their authentic selves. When this is all over the United States will be humbled. Including those of you ”throwing parties” and taunting specific government officials to ”come and get you” as if you were children. We have never faced something like this in our lifetimes and possibly ever. Certainly not in the past 100 years of entitlement and most of us truly do not understand Constitutional law or how the military works. However, if the Military is called into enact martial law. You will. I served in the military for 10 years and we swear to protect the United States from threats Foreign AND Domestic. I encourage everyone to think about the latter word. If the US is not able to stop community community spread due to the unethical and irresponsible actions of others. Those others will be traced and make no mistake you will be placed in quarantine with or without your consent. It has happened to one man (that we know of) already in CA. Meanwhile, while people are whining about constitutional rights and having parties people are losing jobs, school children that rely on school for meals and warmth are losing that, and people that rely on meals on wheels and other services that the community provides have no access to these programs. Yet, all I see on these comments is whining, and self-centered”me, me, me” approaches. Truly pathetic – the lot of you.

    • Swine Flu?
      Regular Flu?
      RSV?

      Each one of these kill more yearly in the US alone than this new virus has killed worldwide. Never faced something like this? So far, this is nothing new. Even in Italy, with an overwhelmed healthcare system that is contributing to a death rate of 7%, is below the threshold of SARS and MERS, and the infection rate seems to be tapering off, thankfully.

      I don’t understand the people that seem to be hoping this kills millions… I hope it doesn’t. Wash your hands.

  • I wish that you had addressed specific Constitutional issues in your article instead of echoing the opinions of mouthpieces of the legal, medical and government officials. The hysteria that has been created in this crisis is beyond surreal. The effects of Corona on the world population are still insignificantly small compared to that of influenza which claims 18000 Americans every year.
    So why is it that we so readily give up our right to free assembly or our right of association, both which are aggregiously abrregated by the San Francisco decision. What would be the reaction to a private party at someone’s home (right of assembly, free association)? What if a church population decides by faith to continue services through this time (right of assembly, freedom of religion)? Christian churches are admonished by Scripture to not “forsake the fellowship of the Brethren”. While your article is important for many reasons, it is in the end esoteric to the more fundamental issues of Constitutionality and freedom. As always, fear is a great way to abridge the fundamental truth that freedom by definition must carry risk. Freedom demands that the people govern themselves and that the government support that governing. Right now the roles are reversed.

  • It is amazing how the acceptance of quarantine procedures can greatly change over several rather quiet years and a different pathogen. During the 2014 Ebola outbreak, personal civil right concerns superseded general public health in the execution of quarantines for a much more dangerous pathogen on a smaller scale. In 2020, the public has been more willing to accept them, especially if they wish to obtain air travel back to the United States or exit a cruise ship. With a perceived larger threat from a pandemic, it has been a different response to learn future lessons from.

    The article below discusses some legal questions and policy/exercise design considerations for quarantines and other enforcement actions.

    https://www.domesticpreparedness.com/commentary/relying-on-good-fortune-not-an-acceptable-preparedness-strategy/

  • You should correct article. First lock-down, shelter in place order was issued down in Puerto Rico, USA. We can’t go out since last Sunday. It’s island wide.

    • Hmm… So as I thought; there is no constitutional authorization to permit the government to take these actions, but there is similar precedent to build on.

      Basically like the EPA; the act to authorize their continued regulation of the environment was ruled constitutional, due to the precedent of them already regulating the environment.

      Both are effect preceding cause situations, acting without authority, granting themselves authority later on the basis that they’ve done it before.

  • The governments ability to lock down a Country only goes so far before it begins to infringe on the rights of the citizens. It comes down to the ethical convictions of the citizenry as to whether they decide to stay home and possibly protect the health of those that are more vulnerable. If everyone would stop looking to the government for a solution and do what they can to do their part we would be a lot further ahead. People need to stop for once and think about how their actions will effect others. I know this is a lot to ask of the entitlement generation. God forbid they can not get everything they want and not have to give an inch.

  • The US must implement full social distancing and lock-down ASAP, before our hospitals (already short of anything) get fully overwhelmed (as in Italy, and now Spain). If not, the death toll will fly up. To the ethics of such drastic measures : there must be compensation for the dire financial ramifications for all affected workers and business owners. Short term – to prevent that the sick or contagious still work and thereby force up the death rate for all. And long term – to start taking better care of vulnerable and sick citizens. There is lots of room for a better social structure in the “top of the world” big US of A.

    • Can you show me someplace in the Constitution that says that is legal? The Constitution is suppose to interpreted impeccably so that the broader themes of freedom are protected. We send soldiers to foreign lands to die to protect those freedoms enumerated in the Bill of Rights. At least four of them are violated in this ruling. Certainly no one is getting liberty and the pursuit of happiness out of this.

  • This is no time for wishy-washy frivolities about “ethics”. Without tempering the spread of a potent new virus, that is hyper-contagious before symptoms, the death rate goes up exponentially – needlessly. What the 6 counties in the SanFran bay area do is laudable. They are a shining example of where the rest of the US falls short. EVERYONE should buckle up, hunker down, simplify life – it is not that hard. The window for manageable health care for the illness caused by this virus is closing rapidly. The US government should mandate isolation NOW. Ditch the “ethics” crap – there is no room for that now.

    • Can you show me someplace in the Constitution that says that is legal? The Constitution is suppose to interpreted impeccably so that the broader themes of freedom are protected. We send soldiers to foreign lands to die to protect those freedoms enumerated in the Bill of Rights. At least four of them are violated in this ruling. Certainly no one is getting liberty and the pursuit of happiness out of this.

    • This is not about ethics. Ethically, you would hope that all citizenry would voluntarily choose on their own to self-isolate and practice good social distancing. The issue is the legality of a mandate.

      The Bill of Rights were supposed to be absolutely inviolate. That is, there was no risk of public conduct that wouldn’t be protected by them. We fight wars killing far more people than Corona to make sure of that. That is the inherent risk of freedom that no one seems to be addressing. It is not conspiracy theory to question the place where we abdicate our civil liberty for a infinitely small measure of medical protection. I’m sure that the simplicity of requesting self-quarantine would have the same effect. But freedom demands, as it does with smoking and drinking and any other risky behaviors, that it be unfettered. Liberty never sides with governmental control. The two phrases are antithetical.

      I will be returning to the Hudson Valley. I am planning several parties and have already received some RSVPs to them. They will be in the Midtown/Time Square areas. Many like minded people like me, are preparing to have fun and practice a little civil disobedience . Mr. Mayor… come and get me.

    • Robin Summerfield : you are a selfish idiot, willingly, knowingly, purposefully enabling the spread of a disease that no health system can handle if no attempts are seriously made to spread the event / flatten the curve. You are despicable. I hope you get the disease and “disappear” – as that is what you are openly and blatantly risking. Unbelievable, this stupid denial.

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