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Alan Dershowitz: Quarantine Decisions Are a Political Duty

By    |   Tuesday, 28 October 2014 10:50 AM

Elected officials, not medical experts, should determine the parameters for quarantining people in the United States, says Harvard law professor Alan Dershowitz.

"It cannot be the medical experts," he said Tuesday on "America's Forum" on Newsmax TV, acknowledging that his answer might at first seem counter-intuitive.

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“Nobody has elected them to make the cost-benefit analysis of what is the risk of a false positive versus a false negative,” Dershowitz said. “That is essentially a political decision, and the experts have to provide all the expertise, but ultimately it's elected political officials who decide whether it's better to err on the side of confining a few people unnecessarily than of spreading a disease.

“In the last analysis, probably the courts will make that decision. They will defer to medical expertise, but in the end, it is a political, not a medical, decision.”

New Jersey Gov. Chris Christie was correct to order nurse Kaci Hickox into quarantine on her return from west Africa, Dershowitz said.

Hickox was the first person forced into a mandatory quarantine for people arriving at Newark Liberty International Airport from the three west African countries stricken with Ebola.

“He was right in the beginning,” Dershowitz said of Christie. “Remember, we say when it comes to convicting people of crime, better 10 guilty go free than even one innocent be wrongly confined. But you reverse that when it comes to public health.

“Better 10 people who can't communicate Ebola be confined for a short period of time than even one be allowed to be free and go on the subways and infect other people, infect people close to him.

“So, it's permissible for political figures to err on the side of safety rather than on the side of rights, if there is only a temporary restriction and it doesn't carry with it any kind of negative connotation,” he said.

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“Nobody's accusing you of anything, and we're all citizens, and as citizens we have to make some sacrifices in the public interest, even if we don't want to be vaccinated, even if we think we're at low risk for disease that are prevented by vaccination.

“We have to all be vaccinated. We have to take decisions that benefit the people as whole.”

Should Hickox sue for purported constitutional and civil liberty violations, as she has threatened, Dershowitz predicted she would not be successful.

“The courts will defer to safety over rights when it comes to this kind of public health potential,” he said. “The courts are going to defer to elected public officials so long as they rely on reasonable medical conclusion. The courts are going to say, again, it's better to err on side of safety than on the side of liberty when comes to this kind of short-term confinement.

“What's the big deal out of holding somebody for a couple of days?”

In a civilized society, we have to make sacrifices, says Dershowitz, so long as they are reasonable.

“If we're talking about six months or two months or even a month, or we're talking about being put in the kinds of institutions that people used to be put in when they had tuberculosis, that would be one thing,” he said.

“But we're no longer living in that kind of society, and my suggestion to folks who come in from abroad is, understand that you pose something of a risk, that you can't find out instantaneously whether you have a communicable illness. So, you have to allow yourself to be treated medically and isolated for a relatively brief period of time.

“We have to strike the appropriate balance.”

Newly appointed Ebola czar Ron Klain, a former Harvard law student of Dershowitz, needs time to get up to speed, Dershowitz said, noting that Klain must weigh political, federal, state and liberty considerations against medical issues.

Though Ebola is tragic for west Africa, it is “the best thing that could have happened” to America, he said.

“Don't misunderstand what I'm saying: It makes sure that we're prepared for the next airborne and really dangerous plague,” he said. “This one turns out not to be so dangerous. It's a practice run for us.

“Not for the people of Africa, who are suffering grievously, but for us it will make us better prepared.”

Two nurses in Dallas were infected with Ebola while caring for a Liberian man, Thomas Eric Duncan, who later died of the virus.

New York City’s Dr. Craig Spencer tested positive for Ebola after returning from working with patients in west Africa.

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Elected officials, not medical experts, should determine the parameters for quarantining people in the United States, Harvard law professor Alan Dershowitz said on "America's Forum."
ebola, quarantine, courts, civil rights
Tuesday, 28 October 2014 10:50 AM
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