The most intrusive public health measures are ongoing restrictions of an individual's liberty. A
classic example is the case of Typhoid Mary. Some people who are infected with typhoid become
chronic carriers. If they work in food handling or preparation or in child care, they can spread the
disease to others. If they work at other jobs, they pose no risk of disease transmission to their
casual contacts. Typhoid Mary was a real person who was a typhoid carrier. She was a threat
because she worked as a cook and refused to stop this work. Every time the health department
located her, usually through a new outbreak of typhoid, she would move and change her name, but
not her occupation. Typhoid Mary infected more than a hundred people, and several of them died of
the disease. She was finally placed under house arrest to keep her from cooking and infecting
others.
A 1941 case, also involving a typhoid carrier, is a good example of the court's view of the
appropriateness of personal restrictions to control disease. The case concerned the issue of
whether the identity of typhoid carriers could be disclosed if necessary to prevent them from
handling food and thus exposing others to disease. It was argued:
The Sanitary Code which has the force of law ... requires local health officers to keep the
state department of health informed of the names, ages and addresses of known or
suspected typhoid carriers, to furnish to the state health department necessary
specimens for laboratory examination in such cases, to inform the carrier and members of
his household of the situation and to exercise certain controls over the activities of the
carriers, including a prohibition against any handling by the carrier of food which is to be
consumed by persons other than members of his own household.... Why should the
record of compliance by the county health officer with these salutary requirements be kept
confidential? Hidden in the files of the health offices, it serves no public purpose except a
bare statistical one. Made available to those with a legitimate ground for inquiry, it is
effective to check the spread of the dread disease. It would be worse than useless to keep
secret an order by a public officer that a certain typhoid carrier must not handle foods
which are served to the public.[Thomas v Morris, 36 NE2d 141,142 (NY 1941)]
The most extreme public health restriction is quarantine, or isolation. The word "quarantine" derives
from quadraginta, meaning 40. It was first used between 1377 and 1403 when Venice and the other
chief maritime cities of the Mediterranean adopted and enforced a 40-day detention of all vessels
entering their ports.[Bolduan C, Bolduan N. Public Health and Hygiene. Philadelphia, Pa: WB
Saunders;1941] Quarantine was widely used until the 1950s. For self-limited diseases such as
measles, the infected person was required to stay home without visitors. For chronic diseases,
such as infectious tuberculosis before anti- tubercular agents were available, the infected person
might be required to stay at a sanitarium with other infected patients.
With the advent of antibiotics and effective immunizations, quarantine was seldom necessary to
prevent the spread of communicable disease. It was still used by tuberculosis control programs
when dealing with recalcitrant tuberculosis carriers, but it was usually the homeless and alcoholics
who were held because this was the only way to ensure that they got their medicine.
When it was discovered that AIDS was a communicable disease, there was some discussion of
using quarantine to prevent its spread. Although it was never considered seriously, the resulting
hysteria made public health authorities reluctant to consider quarantine and isolation in any
circumstances. Several states, bowing to public pressure, rewrote their disease control laws to
make it very difficult to restrict disease carriers. These limitations on the use of restrictive
measures are not mandated by the Constitution, and the U.S. Supreme Court has never ruled that
public health restrictions of individuals are improper.
The repercussions of these policies were evident in the growing number of reports of the spread of
tuberculosis and other diseases from known carriers to health care providers and members of the
general population.[Haley CE, McDonald RC, Rossi L, et al. Tuberculosis epidemic among hospital
personnel. Infect Control Hosp Epidemiol. 1989;204:10] These were cases that could have been
prevented but were not because of limits on the use of effective isolation.[Dooley SW, Villarino ME,
Lawrence M, et al. Nosocomial transmission of tuberculosis in a hospital unit for HIV infected
patients. JAMA. 1992;267:2632]
With the reemergence of tuberculosis in the early 1990s and the increase in cases of pan- drug-
resistant tuberculosis, public health authorities in many states were facing a deadly, untreatable
disease without the legal tools necessary to control its spread. Public health officials had to go to
their legislatures and ask the legislators to restore powers they had taken away in the 1980s,
including the right to use isolation and mandatory treatment without crippling legal process
requirements. Many states, such as New York, restored adequate legal authority and public health
officials were able to mount a successful campaign to control the reemergence of tuberculosis.
Some states, however, were unwilling to revise their laws and still put substantial hurdles in the
way of effective management of communicable disease, including drugresistant tuberculosis. In the
future, public health professionals should be wary of giving up powers through legislation, even if
they do not feel they need those powers. Nothing requires health departments to use their full
constitutional authority, but once this authority is surrendered, it can be very difficult to regain when
necessary to manage an unforeseen future outbreak.
