This analysis from the New England Journal of Medicine discusses the unique legal concerns that may arise in containing COVID-19 while also attempting to safely unwind current restrictions. As the authors state, “A showdown between public health imperatives and civil liberties appears inevitable.”

However, as the authors describe, it is difficult to look to past public health quarantine and isolation scenarios for guidance, given the many gaps in our understanding of this disease and the at once broad, yet weak community-wide restrictions currently being imposed not only by government upon individuals, but also by government upon its own institutions, as well as by private actors like employers.

Because this outbreak is far more widespread than prior recent epidemics such as SARS or H1N1, and will require widespread public re-engagement before adequate, effective treatments and vaccines have been made available, the authors suggest that normal quarantine and isolation processes likely will not be sufficient. Quarantine and isolation tend to be more “binary” – you are either locked down, or given clearance. Because of the many unknowns of the disease’s transmission, and the likelihood that there will be peaks and drops in area disease prevalence, a novel, graduated opening structure will be necessary, combined with robust accurate testing and tracing.

Instead of looking to quarantine and isolation law, these authors suggest that emergency curfew cases may hold more relevance in these cases. Furthermore, courts have been very deferential in the imposition of curfews.

The authors also believe that, with appropriate access and management of cost barriers, widespread testing could be achieved through voluntary participation of the public, especially if certain social privileges — such as certifications for return to work, school, or travel — might be conditioned upon such participation.