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A Perspective on COVID-19, Part II (Quarantine: the Blunt Instrument) by Kevin Diehl

Updated: May 11, 2020

And so it continues. The Great Shut-in. How much longer? No one knows.

Last week I participated in a virtual surprise birthday party on Zoom, the computer app that has probably made a fortune during this quarantine. The person who put the party together managed to round up old friends from around the country and even other parts of the world. Many of us hadn’t seen one another in decades. It was a nice respite from the isolation, but two things struck me.

First, we could never have pulled this off but for the shutdown. Rather than everyone running around on a Tuesday night, going to dinner, taking kids to practices, working late or going to a movie – everyone was home. And that was the second thing that struck me – no matter where they lived in this country, or around the world, this was one massive shared experience unlike any we’ve ever seen before. Henceforth, it seems to me we’ll mark time in our own minds as “before the virus” and “after the virus.”

In my last blog I discussed the legal framework and processes that gave Governor Mike DeWine and Dr. Amy Acton the authority to close down much of Ohio’s economy. In that blog, I mentioned that I would take a closer look at the historical context for these powers, their intended rational use, and what exactly “quarantine” and “isolation” mean. Here is that closer look.

On March 9, Governor DeWine issued Executive Order 2020-01D, declaring a state of emergency in Ohio. The order stated: “I, Mike DeWine, Governor of the state of Ohio, by virtue of the authority vested in me by the Constitution, the laws of this state and in accordance with Section 5502.22 of the Ohio Revised Code, do hereby order…a state of emergency.”

Note that DeWine first says that he is acting “by virtue of the authority vested in me by the Constitution…” He’s referring to the Ohio Constitution, but he does not cite the specific section in the Constitution that gives him this authority. Presumably he is referring to Section 5 of Article III, which simply states, “The supreme executive power of this state shall be vested in the governor.”

That’s a pretty broad, implied power. It would appear to give the governor quite a bit of latitude to make some big decisions. And it doesn’t seem to include any role for the legislature. Indeed, the legislature has been a virtual bystander throughout this process.

He next mentions the “laws of this state,” and cites “Section 5502.22” of the Ohio Revised Code. Notice that here, he gets much more specific, citing the exact section of Ohio law from which he derives his enormous emergency powers. Section 5502.22 establishes within the department of public safety an emergency management agency “which shall be governed under rules adopted by the director of public safety...”

So we can look at it this way: The Ohio Constitution gives the governor broad executive powers, and state law gives him specific authority to enact those powers within the framework of the emergency management agency.

But it’s not just the governor who wields great power during a declared emergency. As I discussed in the prior blog, when an emergency declaration is issued, the Director of the Department of Health – who at this time is Dr. Amy Acton – is then vested with immense powers.

In particular, state law gives the health director “ultimate authority in matters of quarantine and isolation.” Meaning that once the emergency is declared, Dr. Acton seemingly has the power to roll up the sidewalks and turn out the lights as she sees fit in order to preserve “the life and health of the people” of Ohio.

The law that grants the public health director this power specifically mentions two things – quarantine and isolation. In the legal sense, what do these words mean?

The idea of imposing quarantine is actually very old. Even in the days before humans knew or understood anything about germs, our ancestors realized that being around people who were sniffling, coughing and generally unwell was not a good thing. Just for one example, we know that in biblical times lepers were confined to “colonies” to prevent the spread of leprosy.

The word quarantine derives from an old Venetian word “quaranta,” which means forty, as in forty days. If you recall your high school history, the worst epidemic ever was the Black Death, a viral infection that raged across Europe, Asia and parts of Africa in the 14th century. An estimated 75-200 million people died by that plague. While it’s tough to pin down the exact number, we know that it killed a higher proportion of the world’s population than any other event in recorded human history.

And, not surprisingly, the Black Death altered the course of human history. It also brought about changes in public policy. One of those changes was a restriction on travel. To that end, in the late 1400s, ships that arrived at the Italian port of Venice had to remain sequestered for 40 days – “quaranta” – before crews could go ashore.

Remarkably, in our modern-day battle against the Covid-19 virus, the first and biggest arrow we pulled from our quiver was the same one they did hundreds of years ago – quarantine.

So that’s the origin of the word, but what’s the legal definition of quarantine? In 2001, Dr. Joseph Barbera, of George Washington University, was the lead author for a paper written for the Journal of the American Medical Association (JAMA). The paper examined large-scale quarantines, their logistics and legal ramifications.

In the paper, Dr. Barbera wrote that one of the first challenges to address when discussing quarantines “is the lack of a precise definition of quarantine.”

The Oxford English Dictionary defines quarantine as a “period of isolation imposed on a person, animal or thing that might otherwise spread a contagious disease.” But in his paper, Dr. Barbera wrote that in the modern era, the term quarantine has been “used broadly and confusingly to include a variety of public health disease containment measures, including travel limitations, restrictions on public gatherings, and isolation of sick individuals to prevent disease spread.”

Dr. Barbera and the other authors of the paper believed it was “most appropriate to use quarantine to refer to compulsory physical separation, including restriction of movement, of populations or groups of healthy people who have been potentially exposed to a contagious disease, or to efforts to segregate these persons within specified geographic areas.”

Dr. Barbera also pointed out the difference between quarantine and isolation. “To avoid confusion, we do not use the terms quarantine and isolation interchangeably. We use the term isolation to denote the separation and confinement of individuals known or suspected to be infected with a contagious disease to prevent them from transmitting disease to others.”

So take a closer look at that: quarantine is meant to separate healthy people who have potentially been exposed, while isolation is meant to separate people who have been infected.

Are those the definitions that Dr. Acton and Governor DeWine are applying to those two words that appear in Ohio’s emergency health law? Presumably, but to be honest I never saw either the governor or the health director address the legal meanings of those terms.

So let’s proceed assuming those are the operational definitions of quarantine and isolation. Now, what about their rational use?

In his paper, Dr. Barbera explained that the “moral authority for human quarantine is historically based on the concept of the public health contract. Under the public health contract, individuals agree to forego certain rights and liberties, if necessary, to prevent a significant risk to other persons. Civil rights and liberties are subject to limitation because each person gains the benefits of living in a healthier and safer society.”

Do you remember signing a public health contract? Neither do I. But we certainly have seen our liberties limited during this quarantine. Has it given us a healthier, safer society? We hope so, but at what cost?

Dr. Barbera’s paper gave a further history of the legal authority for the imposition of quarantine in the United States. It “originated at a local level during the colonial period. Massachusetts established state quarantine powers in the first comprehensive state public health statute in 1797. At approximately the same time, a federal statute authorized the president to assist in state quarantines. The act was later replaced by a federal inspection system for maritime quarantines. Thereafter, the federal government became more active in regulating the practice of quarantine, and a 19th-century conflict between federal and state quarantine powers resulted.”

In the ensuing debate, the states maintained that they had authority to quarantine in accordance with their police power. “The federal government maintained that its preeminent authority was derived from regulatory powers over interstate commerce. Today, states are primarily responsible for the exercise of public health powers.”

That is roughly how it has played out during this current crisis. The nation’s governors have exercised their power to close down their states. As to the reopening, the president has some power to direct the process because, “if the exercise of quarantine clearly would affect interstate commerce, the federal government may claim that its authority is supreme.”

In Ohio, Governor DeWine and Dr. Acton have exercised power that appears to be in accordance with the state laws. Which means that they have presumably acted within their authority to close private businesses, cancel school, limit gatherings and restrict travel. But we have already seen lawsuits being filed by business owners who were destroyed in this quarantine. Will such suits succeed? At this point it doesn’t look like it, but these are uncharted waters. I’m making no predictions.

We are in the midst of the biggest quarantine in human history. During this battle with the Covid-19 virus, we’ve restrained more of our civil society than any of us ever dreamed or thought possible. Worldwide, almost 3 billion people are under some form of lockdown.

Our state, national and world economies have taken a massive hit, and we have not yet begun to understand the damage that has been done. Millions are out of work. In some places people seem set for open rebellion, while others suffer in quiet despair. And while the hospitals haven’t yet been overrun as we were told they would be, the virus still lurks.

New York and New Jersey have been the hardest hit – those two states alone account for more than half the deaths for the entire country. Will the rest of the nation eventually be hit as hard? At this point that doesn’t seem likely. That’s why limited re-openings will begin shortly. It might not go smoothly, but some states will blaze a trail that others can follow. That’s how our federalist system is supposed to work.

From the moment the Covid-19 virus was unleashed upon the world, all of us – doctors, leaders, all of us – were dealing with a host of unknowns. How did it pass between people? How contagious was it? How deadly? Because it was so new – the “novel coronavirus” – we had almost no answers.

Let us hope that during this shut-down we bought ourselves the time to answer some key questions, and that in the days and weeks to come we learn to fight this enemy with the laser precision of a drug or a serum or limited isolation, and not with the ancient, blunt force of a massive, destructive quarantine.

By Kevin Diehl

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