The second major restriction on public health power is the right of habeas corpus. While courts
have been willing to allow persons to be restricted without a court hearing, they require that a
restricted person have access to a court to review the public health order. This review is done
through a habeas corpus proceeding, which the U.S. Constitution guarantees to every imprisoned
or confined person. Habeas corpus, roughly translated, means "bring me the body." It requires a
judge to review the legality of a person's confinement, usually including a personal statement by
the confined person.
Because a habeas corpus proceeding is held after the person has been confined, it does not
interfere with the health department's ability to take quick action. Unlike routine court hearings,
habeas corpus is used only when requested by the confined person. Many, perhaps most, people
restricted by public health orders do not wish to contest the restriction. In the vast majority of
cases, confinement is temporary–for a medical examination, initial treatment of a disease, or some
other similarly minor inconvenience. By contrast, requiring hearings before enforcing routine or
uncontested public health orders diverts limited resources from other public health agency
functions.
