The possibility of Ebola breakouts in major American cities raises difficult questions of public health, public safety, and civil liberties. So it is no great surprise that states’ efforts to quarantine persons exposed to the decision would be met with threats of federal lawsuits. More interesting, however, is the appearance of one particular organization as a critic of the quarantine: the American Civil Liberties Union.
Specifically, the ACLU’s New Jersey chapter has challenged Governor Christie to justify the state’s quarantine, arguing that “coercive measures like mandatory quarantine of people exhibiting no symptoms of Ebola and when not medically necessary raise serious constitutional concerns about the state abusing its powers.”
The ACLU’s criticism might seem unremarkable, if one thinks of the ACLU as an organization dedicated to defending civil liberties. But the ACLU is no such thing, its brand name notwithstanding. It recently endorsed the states’ power to impose extreme constraints — even forcible medical treatment — in order to protect public health and safety. The ACLU made such arguments in its brief before the Supreme Court, defending Obamacare’s individual mandate.
Specifically, the ACLU and other organizations argued that the government’s power to prevent serious health threats trumps individual liberty:
The ACLU’s citations to Jacobson included the Court’s sweeping rejection of individual liberty:
And in the Court’s closing remarks, cited by the ACLU’s brief, the Court concluded that compulsory smallpox vaccinations were a suitable response to the public health threat:
Thus, while government efforts to stifle the spread of Ebola should be scrutinized, temporary quarantines for those exposed to infected persons seems well within reasonable bounds so far — and, to borrow a line from the Supreme Court 1905 decision cited by the ACLU, such a response seems perfectly “consistent with the experience of … other countries whose authorities have dealt with the disease of smallpox.”
Indeed, temporary quarantines fall far short of mandatory vaccinations that the ACLU endorsed in its argument in defending Obamacare.
To be fair, the ACLU was hardly alone in making such arguments in support of the individual mandate. Columbia law professor Philip Bobbitt wrote a law review article (styled as an un-filed Supreme Court brief), arguing that the individual mandate was completely justifiable under the federal government’s national security powers. Elsewhere, Wake Forest’s Mark Hall argued that a Supreme Court decision striking down Obamacare’s individual mandate could “preclude, for instance, federal action to mandate vaccinations or other preventive measures even in the worst conceivable public health emergency, such as an outbreak of the avian flu that realistically might threaten tens of millions of lives.” Northeastern’s Wendy Parmet made similar arguments, in support of broad government powers to protect public health. So did The Altantic‘s Garrett Epps.
Still, the ACLU’s sweeping endorsement of government power in the Obamacare case was striking. It contrasted sharply with the ACLU’s more nuanced analysis of such issues in a 2008 paper urging government to treat “pandemic preparedness” as a public health issue, rather than a law enforcement or national security issue, and criticizing the overuse of quarantines.
In short, the ACLU was against extreme public-health measures, before it was for them, before it was against them. Surveying its positions, it’s hard not to conclude that the ACLU’s endorsement of Jacobson v. Massachusetts‘s blunt approach was just another hasty error committed in service of the ACLU’s defense of Obamacare.
This seems to be something of a trend at the ACLU, where defense of civil liberties has been replaced by defense of Democratic Party policy preferences, in major cases. We see this in a variety of contexts. On free speech, the ACLU now endorses heavy campaign finance regulations — a stark reversal highlighted by former ACLU executive director Ira Glasser and legendary First Amendment Floyd Abrams, and by professors Ron Collins and David Skover in a recent ebook.
On religious liberty, the ACLU filed a brief in the Hobby Lobby case, arguing that religious liberty should be trumped by laws entitling women to employer-funded contraception. More recently, the ACLU has sided with same-sex-marriage activists who demand that individual citizens waive their religious liberties when operating businesses related to weddings: just last week, the ACLU’s blog argued that Las Vegas wedding chapel owners should not be allowed to invoke religious liberty as a basis for refusing to perform wedding services for same-sex couples.
Again, the federal and state governments’ responses to domestic Ebola infections raise difficult questions that deserve serious public scrutiny. But in this debate, let’s not mistake the ACLU for a serious civil liberties organization. We can expect it to defend conventional left-wing policy preferences and sensibilities, but not much more.
Adam White is a lawyer in Washington, D.C.
