Traditional public health laws do not provide for pre-restriction hearings to review a health officer's orders.[71] Instead, review is through post- restriction habeas corpus proceedings.[72] Although courts have recognized that detention involves grave intrusion into an individual's expectation *343 of liberty,[73] the control of communicable disease has been found to outweigh the individual privacy interest.[74]

The authority to detain without judicial process was reviewed most recently in Reynolds v. McNichols.[75] Ms. Reynolds, a prostitute, challenged a Denver public health officer's authority to require her to be examined and treated for venereal disease without a judicial hearing.[76] The court rejected petitioner's equal protection claim,[77] declining to apply strict scrutiny to the ordinance in question.[78] The court found that both the detention and the walk-in orders[79] were constitutional.[80]

*344 Perhaps the clearest difference between public health detentions and criminal arrests is that public health detentions are not bailable.[81] The rationale underlying this rule is that if the person could be relied on not to spread the disease while out on bail, there would be no need for detention in the first place.[82]

[71] ]. See Ex parte Roman, 199 P. 580, (1921). This case was a test of the legality of the statute allowing the detention of prisoners suspected of being infected with a communicable disease. After upholding the state's power to authorize the holding of a potentially infected prisoner beyond his sentence, the court discussed the review of such detentions:

However, if, after such arrest or detention, such person challenges the right of the authorities to continue the detention, the fundamental law affords such person the right to have the legality of his or her detention inquired into by a court of competent jurisdiction in a habeas corpus proceeding. The law denies to no one restrained of his liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist.

[72] See In re Halko, 246 Cal.2d 553, 554, 54 Cal. Rptr. 661, 662 (1966):

Petitioner contends the right of the health officer to issue consecutive certificates of quarantine and isolation for periods of six months each, "'without means of questioning and judicially determining"' the conclusion of the health officer, results in "continually depriving one of his liberty."' Therefore, section 3285 "is unconstitutional in that it deprives this petitioner of his liberty without due process of law."

We disagree with the petitioner's interpretation of the law and his assertion that section 3285 is unconstitutional.

[73] The individual may also be subjected to an examination for venereal disease during his or her detention. See People v. Strautz, 386 Ill. 360, 54 N.E.2d 441 (1944).

[74] Id.; Welch v. Shepherd, 165 Kan. 394, 196 P.2d 235 (1948).

[75] 488 F.2d 1378 (10th Cir. 1973).

[76] The statute defined a person under suspicion as any person arrested and charged with "vagrancy, prostitution, rape, a violation of this article, or another offense related to sex."' Id. at 1384. The ordinance provides that persons who have been arrested may be detained in jail without bail, pending examination and treatment.

[T]he detention of any person in jail under the provisions hereof shall continue only for such time as is reasonably necessary to examine such person and render treatment if such person is found to have a venereal disease in a communicable form. The provisions hereof shall not be utilized as, nor construed to be, a penalty or punishment. No person detained for health under the provisions hereof shall be released from such detention even if he or she is otherwise eligible for release on bond or by reason of payment of fine, or termination of sentence imposed.

Id. While vagrancy was not at issue in this case, it would be expected that vagrancy would only be an acceptable ground for testing and treatment if it was correlated with communicable disease transmission.

[77] Similarly, the claim that the ordinance was enforced only against females, and not males, is, under the circumstances of this case, insufficient to invoke the equal protection provision of the Fourteenth Amendment. The trial court indicated that it was of the view that the equal protection argument was not properly within the issues raised by the pleadings in the case and accordingly did not consider it. In any event, in our view plaintiff's suggestion that she was unconstitutionally dealt with by the city authorities is under the circumstances unavailing.

In regard to her equal protection argument, the fact that on the two occasions when plaintiff was arrested in a hotel room the plaintiff's customer was not himself arrested and detained for examination is not significant. From the record before us, there is nothing to indicate that plaintiff did in fact have sex relations with either of her male companions, though evidence of solicitation was obvious. Such being the case, there was no reason to examine plaintiff's male companions.

Id. at 1383.

[78] The court asserted only that there was no equal protection claim available and, thus, refused to discuss the level of scrutiny which would be applicable to the case. Id.

[79] Detention could have been avoided if the prisoner had agreed to accept treatment without further testing. Moreover, the ordinance empowered the Director of Denver Health and Hospitals to order persons suspected of carrying a venereal disease, who were not in jail, to present themselves for examination and treatment. See id. at 1385. The ordinance also authorized the Denver police to order persons to present themselves at Denver Health and Hospitals for examination and treatment. Id. at 1386.

[80] Involuntary detention for a limited period of time for the purpose of permitting examination and treatment of a person reasonably suspected of having a venereal disease has been upheld by numerous state courts, against a wide variety of constitutional challenge,s as a valid exercise of the police power designed to protect the public health. Id. at 1382. The Reynolds court held: "'The provisions of the ordinance permitting limited detention for involuntary examination and treatment of a venereal disease being in themselves constitutional, the fact that the city provides a less onerous alternative, which the plaintiff in this case elected to follow, does not violate any constitutional right of the plaintiff."' Id. at 1383.

[81] "To grant release on bail to persons isolated and detained on a quarantine order because they have a contagious disease which makes them dangerous to others, or to the public in general, would render quarantine laws and regulations nugatory and of no avail."' Varholy v. Sweat, 153 Fla. 571, 575, 15 So. 2d 267, 270 (1943).

[82] In this matter, public health cases resemble another police power action where bail is not mandatory, the regulation of immigration. See Carlson v. Landon, 342 U.S. 524 (1952). Congress adopted this same rationale in the Bail Reform Act of 1984. In upholding this law, the Supreme Court adopted a public health rationale for not requiring that the state prove its case "beyond a reasonable doubt."' U.S. v. Salerno, 631 F.Supp. 1364 (S.D.N.Y. 1988).