Ebola Tales: Maine Judge Cuts Baby in Half, Arizona Panics, and Washington Has No Act to Get Together
William Boardman
“The court is fully aware of the misconceptions, misinformation, bad science and bad information being spread from shore to shore in our country with respect to Ebola. The court is fully aware that people are acting out of fear and that this fear is not entirely rational. However, whether that fear is rational or not, it is present and it is real. [Nurse Kaci Hickox’s] actions at this point, as a health care professional, need to demonstrate her full understanding of human nature and the real fear that exists. She should guide herself accordingly.”
~ Chief Judge Charles C. LaVerdiere, Maine District Court, conclusion in his October 31 Order Pending Hearing
he best argument for quarantining healthy people, as Judge LaVerdiere acknowledges, is that the mere fact of their being anywhere near Ebola sufferers makes other people, like the governors of Maine, New Jersey, and New York, scared out of their wits crazy (or lets them seize an opportunity for extreme demagoguery, or both). Yes, real fear exists, as the judge notes, and that fear is clearly “not entirely rational,” a serious understatement, but that’s the judicial mind at work. No judge in his right mind is going to do the simplest right thing and say healthy people can’t be quarantined no matter how much public hysteria public officials drum up. But he might find a reasonable answer that looks like compromise.
Judge LaVerdiere’s decision gives the impression of cutting the baby in half. The reality is that he did not accommodate himself to the hysterics of the Maine Public Health Department and Governor Paul LaPage. He ruled explicitly that Maine has not met its burden of proof, that Maine had not shown by clear and convincing evidence that Nurse Hickox was a public health threat. The judge wrote that Nurse Hickox, who treated Ebola patients in West Africa, “currently does not show any symptoms of Ebola and is therefore not infectious.” [emphasis in original]
Nurse Hickox has, at all relevant times, behaved as a responsible health professional. She has self-monitored, following the CDC (Centers for Disease Control) guidelines for “Direct Active Monitoring,” a protocol designed to allow health workers possibly exposed to Ebola to watch out for symptoms and act accordingly if any appear. (In New York City, Dr. Craig Spencer followed that protocol, realized he was infected, went into treatment, and as of November 4, was improving and in stable condition.)
Constitutional freedom weighed against institutional panic
Given the reality of the case before him – hysterical state vs. responsible nurse – the judge entered a temporary order on October 31 “maintaining the status quo”: requiring Nurse Hickox to continue doing what she had been doing all along. He granted none of the more draconian measures sought by the state. His decision reflected a balance of competing interests, as he noted: the nurse’s “freedom, as guaranteed by the U.S. and Maine Constitutions” as weighed against the rather hyperbolically stated “public’s right to be protected from the potential severe harm posed by transmission of this devastating disease.”
Having upheld both state and national constitutions, the judge issued a final order on November 3, affirming an agreement between the now calmed-down parties. This order waived any further hearing, “absent emergency circumstance,” and lifted all court orders effective at 11:59 p.m. on November 10. Sanity had prevailed, but not without a fight by the state on the side of irrationality.
In his temporary order, Judge LaVerdiere put the case in perspective this way:
… we would not be here today unless [Nurse Hickox] generously, kindly and with compassion lent her skills to aid, comfort, and care for individuals stricken with a terrible disease. We need to remember as we go through this matter that we owe her and all professionals who give of themselves in this way a debt of gratitude.
A Republican Tea-Party favorite, Governor LePage was less generous, as is his wont. Apparently unable to distinguish between collaboration and blind obedience, LePage said of Nurse Hickox: “Despite our best effort to work collaboratively with this individual, she has refused to cooperate with us.” The governor trashed the court, saying falsely that the “judge has eased restrictions with this ruling.” At another point, on the campaign trail, LePage said, pretty much rejecting any judgment but his own:
We don’t know what we don’t know about Ebola… [Nurse Hickox] has violated every promise she has made so far, so I can't trust her. I don’t trust her. And I don’t trust that we know enough about this disease to be so callous.
Politico calls LePage “America’s craziest governor.” The governor has acknowledged that only 60% of Maine’s public school students are proficient in English and math, a condition about which he said: “If you want a good education, go to an academy. If you want a good education, go to private schools. If you can’t afford it, tough luck – you can go to the public school.” On November 4, Maine re-elected Le Page with 47% of the vote in a three-way race.
Meanwhile, panic flares from Arizona to the Defense Department
Michael Petzer is the pastor of the Living Hope Family Church in Tucson, Arizona, and he does not have Ebola or any Ebola symptoms – not that any of that protected him from police knocking on his door at 2 in the morning on Sunday, October 26, for a “welfare check.”
Late last summer, Petzer went to Zambia for about 10 days to train missionaries there. He returned to Tucson on September 6. Almost eight weeks later, Tucson police officers came to his door at 2 a.m. They stood some distance away, not wearing any protective clothing, and wanted to know if he had Ebola. They were following up on a report from the University of Arizona Medical Center. The medical center was reporting that a patient there had said the pastor had Ebola.
The patient, a woman in Petzer’s church, was at the hospital with what she called Ebola symptoms, although she was apparently not sick with the virus. She had reported that her pastor had come back from Africa on September 6. Hospital privacy rules prevent Petzer from knowing what basis the woman had for saying he had Ebola, or how she might have caught it from him.
Zambia does not have an Ebola outbreak. Zambia is about 2,500 miles from the countries that have Ebola outbreaks. The African continent is about three times the size of the continental United States. Petzer was not amused by the incident:
I think this is hysteria, and a zero understanding of geography…. I am now in a country that has had Ebola. I traveled from a non-infected country to one (United States) where there are people in quarantine. I think this is an issue of public ignorance and not an issue of public health. People hear Africa, and everyone thinks “Ebola.” Most Americans do not have a clue that Africa is a large continent and not a country. People have to stop the hysteria of it all.
The hysteria of it all shows up in national polling from October 30 to November 1 that found 71% of all Americans in favor of a state-mandated quarantine for health workers like Kaci Hickox – people who have treated Ebola patients but have no symptoms of Ebola and are therefore not contagious. The poll question apparently did not include the relevant constitutional issue, clearly articulated in Maine by Judge LaVerdiere.
The basic choice: constitutional freedom or mandatory quarantine?
Asked to choose between freedom under the Constitution and a mandatory quarantine, 91% of Tea Party supporters chose quarantine, as did 85% of Republicans and 65% of Democrats. These findings tend to support the perception that, while American fascist tendencies are widespread, they’re increasingly concentrated on the political right.
Similarly, “only” about 65% of those 18-34 years old choose quarantine over the Constitution, while 90% of seniors favor quarantine. Likewise, 63% of college-educated Americans choose quarantine, compared to 80% of those with a high school education or less.
The embrace of mandatory quarantine as a solution for Ebola is rooted in ignorance of the virus and a failure to realize that quarantines tend to make things worse. The New England Journal of Medicine makes the case that mandatory quarantines are “not scientifically based,” that they are “unfair and unwise and will impede essential efforts to stop these awful outbreaks….” Also acknowledging the balancing act required for instituting rational quarantines, UN Secretary-General Ban Ki-moon has warned against “unnecessarily” restricting the movement of health workers or others:
The best way to stop this virus is to stop the virus at its source rather than limiting, restricting the movement of people or trade … particularly when there are some unnecessarily extra restrictions and discriminations against health workers. They are extraordinary people who are giving of themselves, they are risking their own lives.
When it comes to a coherent national policy on quarantines relating to Ebola, there isn’t one. The White House has kind of let it be known that it sort of agrees with the scientific and medical consensus, and the president has sent more than 1,000 U.S. troops to build hospitals and medical infrastructure in the Ebola zone, but medical personnel there continue to be overwhelmingly volunteers. A serious government program to fight Ebola seems unlikely any time soon, if ever. Meanwhile, President Obama, while leading the American non-effort, indulges in counter-factual rhetoric like this on October 30:
America in the end is not defined by fear. That's not who we are. America is defined by possibility. And when we see a problem and we see a challenge, then we fix it. We don't just react based on our fears. We react based on facts and judgment and making smart decisions. That's how we have built this country and sustained this country and protected this country. That's why America has defined progress -- because we're not afraid when challenges come up.
Actually, the record suggests most Americans ARE defined by fear
The mixed message from the administration is illustrated by the Pentagon decision to institute exactly the kinds of quarantines the White House is calling inappropriate for civilian Ebola medical workers. Even though military personnel don’t treat Ebola patients in West Africa, some of them do handle contaminated blood samples in labs which presumably have stringent safety protocols.
On October 27, the U.S. Army, acting on its own authority, had already ordered the 21-day quarantine of a general and eleven other soldiers returning from West Africa. For unexplained reasons, the Army ordered the quarantine at a base near Venice, Italy, which hardly made the Italians happy and certainly showed no great courage on the part of the Americans. Military officials provided only general assurances about the symptom-free health of the 12 quarantined, nothing about any specific risk or blood test results.
Two days later, in similarly contradictory manner, Defense Secretary Chuck Hagel’s action was even less consistent with White House confidence. Following fear-drenched polling results, he ordered that every single U.S. soldier returning from Africa be quarantined for 21 days, regardless of any soldier’s specific circumstances or lack of contact with the virus. The quarantine order replaced the Pentagon’s previous protocol of monitoring, as recommended by the CDC. With that amazingly timid decision, Hagel fell right in step with those frightened, anti-constitutional majorities of furthest right, oldest, and least educated Americans.
The United States may eventually end up leading the fight against Ebola in a constructive manner, but that’s not happening now. The U.S. may be doing more than a lot of countries, including Russia, India, and Japan, or African countries with a fraction of American resources. But the American performance remains one of exceptional narcissism, where the one fatal case in Dallas looms larger in public consciousness than the thousands and thousands of dead and dying Africans.
For leadership among nations, the place to look is Cuba. No other country has sent as many health professionals to fight Ebola as Cuba. The second largest medical contingent comes from Doctors Without Borders. Cuba has a population of 11 million to the U.S. 320 million, but with 83,000 doctors, Cuba has one of the highest ratios of doctors-to-population in the world. Cuba’s doctors provide Cubans with free health care at a world class level. And most of the time there are also 50,000 Cuban doctors working in needy regions of some thirty other countries. Cuba’s medical response to the world in general – and to Ebola in particular – would be admirable from any nation.
But the United States, the self-adoring “one indispensable nation in world affairs,” doesn’t do admiration. With an unjustifiable U.S. embargo that was first imposed in 1960, what the indispensable U.S. does for the admirable Cuba is a quarantine that’s every bit as arbitrary and fearful as Ebola quarantines.
We do not live in a rational culture.
William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.
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