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University of Pennsylvania Journal of Constitutional Law





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Quarantine and isolation are methods employed by public health officials to control the spread of dangerous disease pathogens through physical isolation of those exposed or symptomatic. While use of these methods has declined in the last century through advances in medical knowledge and treatment, emerging disease threats will likely require increased reliance on them. Despite this, quarantine statutes and related regulations fail to provide compensation to those subject to them, and little recourse exists to make those individuals whole for losses incurred, though the pandemic has highlighted a need for work in this area. One means of shifting the burden of such losses back to government actors enacting public health orders may be through recognition of a metaphorical, individually held property interest in an individual's own body. This reconceptualization of individuals' relationships to their bodies should be leveraged in attempts access Constitutional Fifth Amendment takings claims and providing remuneration for losses suffered at the hands of government actors while protecting public health through curbing infectious disease spread. While limited caselaw exists to support such claims, democratic ideals including justice and fairness require recognition of the harms result and from quarantine and isolation beyond due process claims alone, and further consideration by policy makers with respect to how, and upon whom, the burdens of such orders fall. Advocating for remuneration itself is one component in the absence of appropriate state legislation and regulatory action mechanisms such as metaphorical Fifth Amendment takings claims present another means to reach the same ends. Ideal policy solutions in lieu of such claims include creation state and/or federal compensation funds for a subset of individuals subject to such state action, coupled with the creation of statutory or regulatory protections for common concerns that individuals subject to public health orders experience. The article pulls its recommendations from an analysis of press coverage of several quarantines that occurred during the 2015 Ebola crisis, primarily focusing on the narrative of two women: Lousie Troh, quarantined in Dallas, Texas, and Kaci Hickox, quarantined in New Jersey and Maine, respectively. Their stories, and other related Narratives this paper notes, should inform the structure of appropriate protections for those subject to public health orders, with a structure focused on direct and indirect economic losses created by their imposition. Such policy solutions should also be dynamic, seeking further insight from the experiences of individuals subject to Orders, and subject to ongoing revision based on experience. While metaphorical takings are one means through which to create just outcomes, legislative action may present the most reasonable and appropriate means to create equitable protections and to incentivize compliance by the individuals who bear collective public health burdens in the protection of the broader health.



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