Pandemics, Quarantines, Utility, and Dignity

Abstract

Medical quarantines were once common in the United States, but in the last 50 years they have been used infrequently by the government. That changed with the spread of the novel Coronavirus, and the resulting COVID-19 illness, in 2020. Cruise ships where the virus had taken hold were quarantined and passengers were prohibited from disembarking. Residents of towns in Spain, and an entire province of China, were prevented from leaving by their respective governments. This Article argues that the permissibility of coercive quarantines is best understood as an example of threshold deontology. Threshold deontology is the view that individual human dignity must prevail over the common good, but that in moments of extreme emergency, when a “threshold” has been reached, the reverse is true: the common good can trump individual rights. Part I provides a brief overview of the use of coercive quarantines to fight COVID-19 and the surprising lack of objection that these measures triggered. Part II explores the unmistakably utilitarian logic behind public health generally and quarantines specifically. Then, Part III introduces the concept of human dignity as a constraint on utilitarian public health by surveying three representative jurisdictions: The United States, German domestic law, and the European Convention on Human Rights. Part III concludes that even liberal democracies vary subtly but significantly in how strongly they protect human dignity and that these differing levels of commitment to human dignity help explain why some legal cultures have been so quick to resort to quarantines, while other communities have been reluctant. Finally, Part IV suggests that jurisdictions that are usually protective of individual rights but decide to fight COVID-19 with coercive quarantines are best understood as operating under the sway of threshold deontology. This Article does not defend threshold deontology as a moral theory but does argue that it is best understood as a covert form of indirect consequentialism. Moreover, this Article concludes that threshold deontology is the key moral battleground for debating the quarantine power during the COVID-19 era.