Paula Mindes
excerpted from: Paula Mindes, Tuberculosis Quarantine:
a Review of Legal Issues in Ohio and Other States , 10 Journal of Law
and Health 403-418, 408-413, 418-423 (1995-96) (160 Footnotes)
There are two principal sources of current legal thinking on
quarantine for contagious diseases. The first originates in the law of
quarantine itself. The second concerns civil commitment adjudication.
Quarantine laws are limited to controlling infectious diseases. Civil
commitment laws govern incarceration when people are a danger to
themselves or others, are mentally ill and unable to care for
themselves, or present a danger to others because they spread infectious
disease.
Before antibiotics, quarantine was important in preventing the spread
of infection. Since it was not possible to attack bacterial causes of
disease directly, sources of disease had to be kept away from other
people. According to a recent study in the Journal of the American
Medical Association, many state statutes which address the control of
contagious diseases have been on the books since the turn of the
century. The leading case on quarantine, Jacobson v. Massachusetts was
decided in 1905. Even more recent statutes were enacted forty years ago.
Only ten states have substantially changed their TB-related law within
the last few years.
The public health powers in state statutes include: compulsory
examination and treatment, emergency detention and quarantine.
Quarantine may be defined as either in-home isolation or commitment to
state facilities. These measures are accomplished through public health
orders or court orders. Some states have civil and/or criminal penalties
for failing to comply with a such an order. Other statutes do not spell
out penalties.
Some statutes define which diseases are contagious and therefore
subject to quarantine regulations. Others authorize state health
departments to decide which illnesses are contagious. Some empower
public health authorities to make quarantine or isolation decisions
without any direction as to illnesses or conditions.
Thirty-three states permit authorities to isolate people in their
homes. In most cases there are no due process protections specified out
in the law.
Forty-two states permit commitment to treatment facilities.
Thirty-six states require a court order to commit someone to a facility.
Several do not require a court order or a hearing. Generally court
orders will be initiated by a petition from public health authorities
requesting a hearing. Written notice to the person concerned is usually
required, but the hearing may be held with or without the patient. Only
thirteen states explicitly grant the right to be represented by counsel
in any part of the proceedings. Of these, eleven will provide counsel to
indigent individuals.
Release is accomplished when a determination is made that the person
is no longer a threat to the public health, or no longer infectious.
Some statutes specify criteria for release which may be vague ("no
longer a danger to the public health") or specific (evidence in
sputum tests that the person is no longer actively contagious). Ten
states have no statutory time limits on the length of time a patient may
be held without discharge or recommitment. In many states the only
explicit due process protection afforded persons who are quarantined is
the opportunity to petition the court for release.
In section III, infra, the due process protections of civil
commitment law will be considered as they might apply to quarantine
proceedings.
B. Case Law
Quarantine is a very old public health measure. Historical references
date back at least to the Old Testament. When people were thought
(rightly or wrongly) to have a contagious condition, they were isolated
from others by confining them to their houses or by compelling them to
live outside the community.
Following English common law United States quarantine laws fall under
the power of the state to protect public health and safety. In Gibbons
v. Ogden, the United States Supreme Court alluded to the legitimacy of
quarantine under the police power. The Court directly reviewed
quarantine concepts in Compagnie Francaise de Navigation a Vapeur v.
Louisiana State Board of Health. The law and its implementation were
upheld as an appropriate exercise of police power. The suit arose when a
geographic area of Louisiana was closed off to all new entrants because
of the presence of infectious disease. The plaintiffs (a shipping
company) regarded the action as a Commerce Clause violation, because it
interfered with foreign commerce. The Court rejected the Commerce Clause
argument, holding that the law was not repugnant to the Constitution.
The dissent urged that the Court should have been addressing the
particular implementation of the law rather than its constitutionality
in general. The dissenters agreed however that "[t]he power of the
several States ... to establish quarantine regulations ... is so well
settled by repeated decisions of this court as to be no longer open to
doubt."
Three years later the Court handed down the controlling opinion in
quarantine law, Jacobson v. Massachusetts. The Jacobson case was about
mandatory vaccination against smallpox, not quarantine. However, the
Court specifically mentioned quarantine in its holding and the case is
still good law.
Jacobson also settled another controversy. There had been a number of
challenges to the authority of state boards of health to develop and
implement public health regulations, including quarantine. Plaintiffs in
these suits contended that the creation of the regulations was an
illegitimate delegation of legislative power to executive or
administrative bodies. State supreme courts generally upheld the
creation and activities of the boards, as long as their actions were
reasonable and not arbitrary. The Jacobson opinion affirmed that states
could create bodies which would be given the authority to protect the
public health through reasonable regulations.
Fourteenth Amendment due process challenges to communicable disease
regulations were not well received by the courts. In one opinion the
judge said "the Fourteenth Amendment to the Constitution ... [h]as
no application to this class of case", because the state could not
be made powerless to act against a contagious disease. In Ex parte
Company, decided the same year, Ohio Supreme Court Justice Clark said,
[t]here is perhaps no provision of the federal constitution [sic]
that is more overworked than the 14th amendment. Counsel generally are
apparently unanimous in thinking that any judgment or finding as against
the client denies such client the equal protection of the laws, or is
without due process of law.
In 1952 the Florida Supreme Court upheld a quarantine statute against
a Fourteenth Amendment challenge in Moore v. Draper. The petitioner's
habeas corpus request was denied, and would only be reconsidered if he
could show he was cured.
In State v. Snow, decided in 1959 the issue was whether the state had
proceeded correctly under a relatively recent "Act to Require
Isolation of Recalcitrant tuberculous [sic] Patients; Prescribing
Methods and Procedures Therefor; and for other Purposes." The State
of Arkansas had sought to have Snow committed to a TB sanatorium,
alleging that he would not submit to treatment and was a danger to
others. The trial court refused to issue the order on the grounds that
the state had not met its burden of proof. It had not introduced some of
the evidence required under the law, and other evidence introduced was
out of date at the time of the trial in probate court. On appeal, the
state supreme court affirmed the probate court decision because it could
not find the decision contradicted by a preponderance of the evidence.
In dicta the court stated that "adjudication as to commitment
... of a tubercular person is, in some respects, similar to an inquest
regarding insanity ... neither ... civil nor ... criminal but rather ...
a special proceeding by the State in its character of parens patriae."
It also said that the law must be strictly construed to protect
individual rights.
Parens patriae is a concept which describes the obligation of the
state to act as "parent of the country" in caring for those
who cannot care for themselves. In this view, the infected person is
incapacitated rather than a threat to the community. From an
adjudication point of view, tuberculosis patients are thus similar to
juveniles and the insane. This is the other side of the duty of the
state to protect the rest of the community from infected individuals. It
justifies similar limitations on individual rights, however.
State v. Snow demonstrates continuing support for the quarantine
power while raising the parallel of the rights of the individual in
insanity adjudications.
In the Halko case in 1966 the California Court of Appeals reached a
different conclusion regarding individual rights in quarantine cases.
Halko was confined to a hospital because of an active case of TB. After
he left the institution without permission he was sentenced to jail for
violating his quarantine order. He did not go to jail, but was instead
quarantined for successive periods of six months in the security section
of the same hospital. He petitioned for a writ of habeas corpus,
asserting that the certificates of quarantine deprived him of his
liberty. The court reviewed the relevant statutes and determined that
health officers had all of the powers required to order and enforce
quarantine orders. After a review of California case law on public
health and quarantine, the court addressed the question of whether the
public health authorities could restrict Halko's liberty, and found that
they could. They held that when there are reasonable grounds to support
the allegation of illness, personal liberty may be restrained. If
someone continued to be infected, as Halko did, public health officers
could continue to quarantine them. Halko may be distinguished from Snow
by the statutory language. There was no provision in the California
statute for a probate court review of quarantine determinations, and no
specific statement of what evidence must be introduced to support
quarantine orders.
The state of law was summarized by Parmet in her comprehensive 1985
survey of quarantine laws. "[W]ith the dramatic decline in the
incidence of infectious disease ... courts and legislatures have not
been required to modernize the law of quarantine ... [E]xisting
precedent does not reflect significant contemporary developments in
constitutional and public health law." One of the significant
developments has been in the law governing civil commitment.
IV. OHIO QUARANTINE LAW
A. Ohio Revised Code
Relevant statutory law is found under the power of counties to
establish hospitals and under the powers of the department of health and
the board of health. Some still-current sections were in place before
1953 when the General Code became the Revised Code. Quarantine measures
under Ohio law included isolating people in their own homes as well as
removing them to public facilities. In 1949 the Attorney General
considered whether "home quarantine", authorized under §
4429, General Code was an appropriate exercise of the police power.
Medical authority at the time discouraged in-home care because it spread
infection to others in the household and did not provide the most
effective treatment. The Attorney General expressed concern about the
"social and economic embarrassment" involved in placarding a
home and isolating the whole family. Balancing the health benefit (or
lack thereof, according to medical experts) against liberty interests
and social stigma, he opined that "in view of control measures now
available" home quarantine would be arbitrary and unreasonable
under normal circumstances. Contemporary society thinks removing people
from their homes to treat their illness may be inhumane. When this
opinion was written, the opposite may have been true, at least for
illnesses requiring long-term care.
In 1951, § 4429-1 of the Ohio General Code provided the department
of health with the power to "at once ... cause [someone with a
communicable disease] to be separated from susceptible persons in such
places and under such circumstances as will prevent the ... conveyance
of the infectious agents ... and shall enforce such restrictive measures
as may be prescribed by the state department of health."
Ohio law has several provisions which govern quarantine generally.
Under § 3701 of the Ohio Revised Code, the department of health has the
authority to "declare and enforce" or "modify, relax and
abolish" quarantines. It may make other rules for preventing
communicable disease. The chapter also provides that individuals shall
not knowingly fail to prevent transmission of their illness to others.
Those who care for sick individuals, and those who "have charge of
a public conveyance or place of public accommodation" shall not
recklessly or negligently fail to protect others; or fail to inform
health authorities of the presence of contagion. Criminal penalties are
available under quarantine law, but they do not appear to have been much
used. The statutes and cases do express the obligations of infected
persons and others to avoid the spread of infection.
Ohio quarantine regulations are very sweeping in the power granted to
boards of health. They are also sweeping in their potential effect on
people's lives. Most of the provisions below were effective when the
code was revised in 1953, and were carried over from similar provisions
in the General Code. Quarantine regulations are covered under § 3707.
Key provisions include the following:
§ 3707.06 - Physicians or other persons "called to attend"
persons with contagious diseases are required to report to the health
commissioner "the name, age, sex, and color [sic] of the
patient."
§ 3707.07 - In case of a complaint or reasonable belief that there
is infectious disease at a particular place, the board of health shall
have it inspected, and may either send the sick person to a facility, or
quarantine the location, including any people exposed to the disease.
§ 3707.08 - Where there is infectious disease, the board shall
isolate infected persons and those exposed, and have the location
placarded. Anyone isolated or quarantined must have written permission
to leave locations to which they are restricted.
§ 3707.14 - When people are quarantined the board of health is
obligated to provide food, fuel and other necessities, at public expense
if necessary.
§ 3707.16, .20 - Quarantined persons may not attend school, places
of worship or other public gatherings. They may not be sent to any
institution such as a jail, children's home, or institution for the
blind or mentally ill without notice of their illness or exposure.
Significant changes were made in 1955, with the passage of Amended
House Bill 127, "'[t]he Recalcitrant Tuberculosis Law' enacted to
protect society and based upon the legal principle that liberty implies
absence from arbitrary restraint, not immunity from reasonable
regulations imposed in the interest of society". This legislation
was considered to be a significant advance, "protective rather than
punitive." It put in place the specific mechanisms for implementing
§ 339.40, infra, evidentiary requirements, and mechanisms for release.
There is no mention of the right to counsel, however.
Key provisions of Chapter 339 include the following:
§ 339.40 - when proper presentation of facts has been made, the
board of health is authorized to order the removal of persons with TB
who are a menace to public health and cannot be treated at home. If
someone is suspected of having TB on the basis of medical evidence, that
person may be compelled to be examined regularly until certified as
"free from tuberculosis in a communicable stage."
§ 339.51 - evidence of communicable TB consists of laboratory
reports of sputum or other body fluid which are positive for the
presence of TB bacilli, or chest X-rays which show active TB. A sputum
test showing bacteria means the person is considered to have active TB
for three months or until three successive tests show no bacilli.
§ 339.52-.60 a board of health may request an order from the probate
court to remove someone to a tuberculosis facility. The board must file
an application with the court alleging that the person is suffering from
TB, is a menace to public health, and has either "refused to enter
or has absented himself from a tuberculosis hospital against medical
advice." After an application has been filed, a hearing is
scheduled. The person named in the application must receive a summons no
less than three days before the hearing. The judge examines any witness
from the board of health and any others. The hearing may be conducted
without the person summoned, if he or she does not appear.
If the judge determines the allegations of the application are true,
"the ... court shall enter a commitment order committing the person
to a facility." When someone is committed, she or he remains
hospitalized until discharged. After ninety days a patient may apply to
the same probate court to be discharged. The discharge is requested on
the grounds that the patient no longer has communicable TB, and thus is
not a menace to public health. The court holds a hearing within seven
days. If it determines that the patient is not infectious, the discharge
will be ordered, but not otherwise. Patients may also be released when
an appropriate public health official certifies they are no longer a
menace to the community.
There is no other mechanism for requesting release under this
section, but see the discussion of section 3707, infra.
B. Ohio Case Law
Relevant Ohio case law deals with the powers of the board of health
to make and enforce regulations. Cases of actual quarantine involved
smallpox or venereal disease (VD) rather than tuberculosis. An early
important case was Ex parte Company. Company concerned requests for
habeas corpus filed by two women who had been arrested for prostitution.
Neither was convicted. One was discharged by the court and the other was
found not guilty. While they were in custody they had been found to have
VD. When their cases were resolved they were quarantined for the disease
and applied for habeas corpus to be released from quarantine. They
asserted that the quarantine, examination and detention provisions of
the Sanitary Code violated the Fourteenth Amendment of the U. S.
Constitution and section 5. Article 1 of the Ohio Constitution; that the
provisions violated Ohio law; and that the legislature was not permitted
to delegate its power to make laws to other bodies.
The court readily disposed of the Constitutional claims on the
grounds that legislative power to enact "reasonable and proper
restraints" for the public good "is no longer open to
question". It noted that the Fourteenth Amendment did not extend
the Bill of Rights to the States. The statute provided that anyone
charged with a prostitution offense should be held if they were found to
be infected with a venereal disease. The court found that the law was
adequately supported by another statute which provided for the
quarantine of any persons infected with venereal disease, incarcerated
or not.
Lastly the court determined that the legislature had given
administrative authority to boards of health to create rules and
regulations. Such grants of authority had been upheld in a number of
other states. Only one case with distinguishable facts held otherwise.
The court dismissed the petitions and remanded the petitioners to the
health commissioner.
Turner v. Toledo noted in dicta that the legislature has the power to
protect the public health, and the board of health has the power to
quarantine persons who were infected with or exposed to contagious
disease (in this case smallpox).
State ex rel. Sippel et al. concerned tuberculosis hospitals funded
under the taxation powers of counties. The plaintiffs alleged inter alia
that the legislature did not have the right to enact TB laws. The Darke
County Common Pleas Court relied on the legislative power to pass laws
for the protection of the public. "[It] is the judge of the
mischief and the remedy for tuberculosis."
McGowen v. Schaeffer concerned plumbing, but addressed the powers of
the legislature and boards of health. Plaintiffs contended there was no
statutory power which would permit licensing. The court stated that
boards of health and municipalities had the right to enforce public
health regulations. They held that the statutory "may" meant
"'shall"' pass such rules and regulations as they deem
necessary for ... the health and welfare of the public." The power
granted to boards of health was not a delegation of legislative power,
and would only be limited by the courts if it was abused. In conclusion
the court said "[t]he implied powers of a board of health should be
given construction in the broadest sense, and police powers exercised by
the board should be liberally construed ... because ... boards are the
sentinels guarding the people from ... diseases which might well develop
into an epidemic."
A quarantine-related question was at issue in Ex parte Mabel Mason.
Mason was a prostitute who had been quarantined. She argued that she
could not be held without proof beyond a reasonable doubt that she had
VD. The court held the quarantine procedure was analogous to commitment
of juveniles. As a result it did not call for trial by jury and proof
beyond a reasonable doubt was therefore not necessary. In this opinion
the court addressed only the criminal law standard of proof. Neither the
plaintiff nor the court appear to have considered due process issues in
their arguments.
Quarantines rarely seem to have been overturned. One such case based
on procedural grounds was In re Mossie Jarrell. For unknown reasons
Jarrell was arrested by Cincinnati city police and put in the workhouse,
where she was examined by a doctor who reported that she had a venereal
disease. She was then quarantined and filed a habeas corpus petition for
release. The court granted it, because the proper procedures had not
been followed in confining her. The examination was made pursuant to an
illegal arrest. The quarantine order was issued not by the health
commissioner as required by the regulations but by a clerk in his
office. The health commissioner had not made the necessary finding that
Jarrell had VD. For these reasons the court held the quarantine void and
granted the habeas corpus petition. The court did not address any
general due process concerns with quarantine orders.
Ex parte Kilbane demonstrated that correctly executed quarantine
orders were still acceptable. The Kilbane case was factually very
similar to Company, and was decided on the Company precedent. The court
held that Kilbane was not "unlawfully restrained and deprived of
her
Thus in Ohio as in the rest of the country the legislature has the
power to create boards of health, which themselves have the power to
create and execute a wide variety of public health regulations. What
distinguishes Ohio law in this area is the fact that it has not been
modernized.
