Personal Restrictions
There are several types of modern public health orders against persons.[Richards, EP and Rathbun KC, "The Role of the Police Power in 21st Century Public Health," Journal of Sexually Transmitted Diseases, 1999;26(6):350-7]  Some orders restrict the occupations that a person can practice, such as preventing typhoid carriers from working in food handling, persons with Hanson's Disease from working in child care, or persons with HIV from working as prostitutes.  Public health orders can require people to be tested for communicable diseases, to be treated for communicable diseases, or, if treatment is not sufficient or the person refuses treatment, to be confined so that they do not spread disease.  Tuberculosis probably accounts for most of the orders to test, treat, or confine.[In re Halko, 246 Cal. App. 2d 553, 54 Cal. Rptr. 661 (Cal.App.Dist.2 1966)] Concerns about bioterrorism have raised questions about the use of mass quarantine and isolation orders, as was done in Canada and Asia for the control of SARS.
The classic case upheld the detention of prostitutes for STI testing[Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973)] after they had been arrested on criminal charges.  The federal court upheld this order as a proper exercise of public health powers and did not require a pre-detention hearing.  Once the prostitutes were tested or treated, they were released. More generally, the courts have found that the constitution does not require pre-detention hearings on disease control orders unless mandated by specific laws.
Many state laws have been criticized for not proving specific provisions for due process hearings on disease control orders that allow the detention of individuals.  Specific due process provisions are not necessary for a detained person to demand a hearing.  The US Constitution provides for the writ of habeas corpus, the right of every person detained by government for whatever purpose to have to be brought before a judge and be allowed to contest the legality of the detention.  While there is an ongoing controversy whether this right can be suspended and when it applies to foreigners, there is no question that it applies to all public health orders. While a person is entitled to a habeas corpus hearing, there is no right to bail for public health detentions because that would undermine the purpose of the detention.[Pauline Varholy v. Rex Sweat, 15 So. 2d 267, 153 Fla. 571 (1943)]
Outside of criminal law and takings and certain other areas protected by the US Constitution, the Constitution allows Congress to set the standard for judicial review of administrative actions.  Congress can allow the courts to decide cases de novo, meaning the court can ignore the agency findings.  Congress can also allow certain administrative actions to be done without review by the courts.  For example, the determination of smallpox compensation awards by the secretary of HHS cannot be appealed to the courts.  This legislative power to limit review can also be used to require persons seeking habeas corpus review of detention orders to submit to an administrative agency review of their claims before they can talk to a judge.[Richards EP, Rathbun KC. Making state public health laws work for SARS outbreaks. Emerg Infect Dis Feb 2004]
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