4. Standard of Proof
The deference of courts to public health authority finds further
expression in their rulings on the appropriate standard of proof for restricting
an individual's liberty.
When persons detained
under the public health authority petition for habeas corpus relief, the courts
use a "reasonable belief"' standard for determining the validity of the detention
or testing orders.
Reasonable belief may be based on individual specific information,
such as a diagnosis of tuberculosis,
may be obtained through voluntary testing of individuals at risk.
In modern public health practice, *345
statutorily required disease reports
are the basis of most disease control activities.
These statutes require physicians and laboratories to report on persons found
to be infected with the disease in question.
The disease report then becomes the basis for the reasonable belief that an
individual is infected and should be restricted to protect the public health.
The courts will also accept a reasonable belief based on epidemiologic
Courts have been willing to
accept the epidemiologic link between an individual's status, such as being
and the probability that
the individual will be infected with a communicable disease.
The Supreme Court used a similar reasonable-belief analysis in a prevention
involving the release of a successful
habeas corpus petitioner: the Court found that the fact that the petitioner
had been convicted of a crime (even though the conviction was overturned) weakened
petitioner's claim that he had been unjustly detained.
The Court's reliance on a conviction as evidence of an increased probability
of guilt is an epidemiologic-based finding analogous to a finding that being
a prostitute *346
increases a person's probability of being infected
with a venereal disease.
In re martin, 83 Cal.
App. 2d 164, 167, 188 P.2d 287, 289 (1948), deals with the appropriate standard
of proof for instituting quarantine. Petitioners were arrested for vagrancy,
then detained on a venereal disease health-hold when they posted bail.
It would seem unnecessary to state that the delegation of such
complete authority over one of the most fundamental of our constitutional rights
--the right of personal liberty--must of necessity carry with it the obligation
to exercise such unusual powers only when, under the facts as brought within
the knowledge of the health authorities, "reasonable ground exists to support
the belief"' that the person so held is infected. (citation omitted).
Id. at 168-69: "The necessity
of proof in cases such as this is analogous to that required on a preliminary
examination before a magistrate prior to commitment on a criminal charge, the
extent of the inquiry being merely as to the existence of reasonable cause pending
opportunity for further investigation or examination."
See In re Halko, 246 Cal.2d
553, 54 Cal. Rptr. 661 (1966); Moore v. Draper, 57 So. 2d 648 (Fla. 1952); Moore
v. Armstrong, 149 So. 2d 36 (Fla. 1963).
Ex parte Johnston, 40
Cal. App. 242, 180 P. 644 (1919) (petitioner voluntarily submitted to test for
venereal disease, and tested positive; health officer then ordered that petitioner
[FN87]. See Simonsen v.
Swenson, 104 Neb. 224, 228, 177 N.W. 831, 832 (1920):
No patient can expect that if his malady is found to be of a
dangerously contagious nature he can still require it to be kept secret from
those to whom, if there was no disclosure, such disease would be transmitted.
The information given to a physician by his patient, though confidential, must,
it seems to us, be given and received subject to the qualification that if the
patient's disease is found to be of a dangerous and so highly contagious or
infectious a nature that it will necessarily be transmitted to others unless
the danger of contagion is disclosed to them, then the physician should, in
that event, if no other means of protection is possible, be privileged to make
so much of a disclosure to such persons as is necessary to prevent the spread
of the disease.
See Jones v. Stanko, 118
Ohio St. 147, 160 N.E. 456 (1928); see also Whalen v. Roe, 429 U.S. 589 (1977),
(discussion of the general power to require the reporting of public health and
safety related information).
See In re Arata, 52 Cal.
App. 380, 198 P. 814 (1921); In re Clemente, 61 Cal. App. 666, 215 P. 698 (1923);
Ex parte Company, 106 Ohio 50, 139 N.E. 204 (1922); In re Dayton, 52 Cal. App.
635, 199 P. 548 (1921); Ex parte Kilbane, 32 Ohio St. 530, 530, 67 N.E.2d 22
(1945); Ex parte King, 128 Cal. App. 27, 16 P.2d 694 (1932).
"The demographic factors
that correlate best with gonorrhea incidence are age, race, marital status,
socioeconomic status and urban residence. Individuals who are single, have a
lower socioeconomic status and reside in a large city are more likely to be
infected by gonorrhea."' H. W. HETHCOTE AND J.A. YORKE, LECTURE NOTES IN MATHEMATICS:
GONORRHEA TRANSMISSION DYNAMICS AND CONTROL (1984) [hereinafter HETHCOTE].
But see Caves v. Hilbert,
92 Okla. Crim. 175, 222 P.2d 169 (Crim. App. 1950) (no cause to arrest a woman
and have her tested for venereal disease just because she was in a hotel room
with a man, who was not her husband); Ex parte Dillon, 186 P. 170, 49 Cal. App.
239 (1919) (having sex in rooming houses held not to constitute probable cause
for venereal disease quarantine).
Hilton v. Braunskill,
107 S.Ct. 2113 (1987). See infra, Part II, Section B, subsection 6.
See infra text accompanying
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