The limits of laboratory findings become evident in this differential treatment of sick typhoid fever sufferers and healthy carriers of typhoid fever. Both carried equally virulent and dangerous bacilli in their excreta; both could transmit the bacilli to others. Chapin argued, in fact, that, although both healthy and sick were “equally dangerous potentially,” the “well person moving freely about may be more dangerous to the community than the sick person who is confined to the house.”67 Sick people felt too ill to prepare food for others or carry on their normal duties; the healthy continued their usual patterns. The sick presented a recognizable threat, whereas the well hid their invisible dangers. If notions of risk to the community were the measure of public policy, the healthy carrier should be more restrained than those ill with the disease. Yet Chapin, Rosenau, and other public health officials advocated and practiced almost the opposite differential treatment. Public health workers sought control of carriers in ways that acknowledged their health, their place in the community, and the near practical impossibility of constraining them all, considerations well beyond laboratory findings.
The policies developed concerning typhoid fever patients and carriers led to considerable success in typhoid control over the first half of the twentieth century. Water and milk controls earlier had dramatically reduced the number of people suffering from the disease, and further reductions became evident in the years that carriers became closely associated with disease transmission. Authorities often tied the good results to health department activities. Friedman concluded his study of carriers with the observation that the isolation of acute cases in hospitals and at home, and the injunctions against carriers working as food handlers, nurses, and teachers “interrupted the cycle of disease transmission and effected a steep decrease in the yearly number of cases of typhoid fever in New York City.”68 Any evaluation of carrier policy must take this positive finding into account.
Early twentieth-century public health opinion about healthy carriers of typhoid fever did not routinely advise quarantine as it did for typhoid sufferers; for healthy carriers, isolation was a last resort. C. L. Overlander of Boston, for example, thought attempts to follow carriers might be a “will-o’-the-wisp,” out of the grasp of local officials’ financial and manpower abilities. He concluded that “detention of such persons in quarantine . . . is a proceeding unwarranted viewed from either the standpoint of the patient himself, the health officer or the community.”69 Accepted public health policy emphasized helping carriers survive in the community, not taking them outside of it.70
Despite this prevailing opinion, and distinct from their actions as they evolved in other cases, New York health officials’ first response to Mary Mallon when she was located in New York City in March, 1907, was isolation. Health officers might have meant her isolation on North Brother Island to be temporary until they determined another course of action, but, if so, they forgot about Mary Mallon and left her alone in the cottage on the grounds of Riverside Hospital. William Park remembered her sixteen months after her initial capture, but did not act to release her. Until she herself initiated a court action seeking her release, health department officials did nothing to return her to society. Yet, according to the theory of the day, Mary Mallon walking the streets of New York would have endangered no one. It was only necessary to separate healthy carriers from the general population if they could not be stopped from carrying out activities, such as cooking, that would actually put others at risk of infection. In 1907, officials did not yet know whether Mallon would successfully take up other work: they chose to isolate her merely on the basis of their prediction that she would not give up cooking.
Health officials outside of New York City, including most significantly Charles Chapin and Milton Rosenau, explicitly objected to the immediate isolation of Mary Mallon. As Rosenau stated during the first meeting at which George Soper revealed Mary Mallon’s initial capture and isolation, in April, 1907, “It is not necessary to imprison the bacillus carrier; it is sufficient to restrict the activities of such an individual.”71 Chapin, too, concluded his 1910 analysis of how healthy carriers should be handled with an indictment of New York’s incarceration of Mary Mallon: “What result is secured by keeping her in confinement, other than the placing of discredit on public health work, it is difficult to see.”72 Both men believed that isolation was too strong a penalty, as well as an impractical remedy, for healthy carriers in general and for Mary Mallon in particular. For these two prominent public health officials, bacteriology, while emphasizing the importance of germ hosts, did not reduce the solution merely to removing carriers from society or demand that carriers’ civil liberties be denied.73
Yet New York officials kept Mallon isolated in her island cottage until she brought a law suit seeking release, in July, 1909. Failing in that attempt, she returned to the island. In 1910 a new health commissioner, Ernst J. Lederle, finally decided to let her go. He recognized that such a total isolation as Mallon had been subjected to was not medically indicated for typhoid fever carriers who were dangerous only when they cooked the food that others ate. Also, Mallon’s small part in New York City’s typhoid saga, in which hundreds of carriers were free and thousands of new cases occurred each year, did not seem to warrant the attention and expense. Lederle told the press, “She has been released because she has been shut up long enough to learn the precautions that she ought to take.”74 The New York American quoted him more informally: “For Heaven’s sake, can’t the poor creature be given a chance to live? An opportunity to make her living, and have her past forgotten? She is to blame for nothing—and look at the life she led!”75
Mallon signed an affidavit swearing to give up cooking, and Lederle helped her find employment in a laundry.76 He told reporters that he was doing this because, “She was incarcerated for the public’s good, and now it is up to the public to take care of her.”77 The department tracked her for a while, as they did other carriers under their observation, but in time, Mary Mallon disappeared. Along with many other carriers, she absconded from officials’ view and tried to lead her life without close observation.
In early 1915 an outbreak of typhoid fever occurred at the Sloane Maternity Hospital in New York City. Twenty-five doctors, nurses, and hospital staff were stricken, and two died. Investigation of this outbreak uncovered a Mrs. Brown, a new cook who had been employed in the hospital for three months before the outbreak.
Both S. Josephine Baker and George Soper claimed to have played a role in identifying Mrs. Brown as Mary Mallon. Dr. Baker told a newspaper reporter, “I was head of the Child Hygiene Bureau at the time, but I was interested in the Sloane case and went up to make an investigation for that reason. As I walked into the kitchen, the first person I met was Typhoid Mary Mallon. She had been cooking for the hospital under the name of Mrs. Brown.”78 George Soper related a different story. He wrote that Dr. Edward B. Cragin, the chief physician at the Sloane Hospital, “telephoned me asking that I come at once to the hospital to see him about a matter of great importance.” Cragin told Soper about the outbreak of typhoid fever in the hospital: “The other servants had jokingly nicknamed the cook ‘Typhoid Mary.’ She was out at the moment, but would I recognize her handwriting if she was really that woman? He handed me a letter from which I saw at once that the cook was indeed Mary Mallon, and I also identified her from his description.”79
Whoever might have helped in the identification of Mrs. Brown as Mary Mallon, officials finally found and trapped her in a Corona, Queens, house and brought her back to North Brother Island.80 Health Commissioner S. S. Goldwater promised “she would never endanger the public health again.”81
The resolve of health department officials to isolate Mary Mallon in 1915, when she was found cooking after having agreed not to, is easier to understand than their initial decision to send her to North Brother Island in 1907 before alternative strategies were tried. Their later decision was more in keeping with contemporary thinking that isolation should be used o
nly as a last resort. Soper expressed common sentiment on the subject: “Whatever rights she once possessed as the innocent victim of an infected condition . . . were now lost. She was now a woman who could not claim innocence. She was known wilfully and deliberately to have taken desperate chances with human life. . . . She had abused her privilege; she had broken her parole. She was a dangerous character and must be treated accordingly.”82
We might understand the officials’ reasons for Mary Mallon’s second isolation, the one that became lifelong, but even that incarceration presents a puzzle. Other carriers, once relocated, were not necessarily isolated, as the case of Tony Labella indicates, and he had even carried his destructive force across state boundaries, a fact that would seem to argue for stiffer penalties. Was Mary Mallon isolated twice, the second time until her death, because she was the first carrier to be traced or because she was indeed more dangerous than other carriers? Was it to give a message to other carriers to behave themselves or risk similar treatment? Why did officials not choose to retrain her for a job that did not involve food handling and let her go?
The policies developed in New York City, and indeed, around the country, during the years following Mallon’s second incarceration certainly allowed for occasional isolation. In Mallon’s case, as we will see in the next chapter, Biggs and his associates had judicial sanction and acted within their prerogatives as they understood them. Nonetheless, such isolation was an extreme response to healthy carriers, especially when seen in the context of a public health system that could not locate most of the carriers in the population and that could not control so many of the ones it was able to identify. In the early part of the century—as today—it was rare, if not completely unheard of, to take a healthy person in the prime of life and keep her a virtual prisoner until her death. The existence of a policy that permitted isolation of healthy individuals does not itself explain how and why Mary Mallon became chosen for long-term and indefinite isolation.
What does seem clear from an overview of the health policy of the early twentieth century is that officials chose Mary Mallon as an extreme example of what might happen if health policies were not obeyed. Because she was the first identified carrier, it is reasonable to conclude that officials used her case as an example for others at the same time as they determined policy based on what they learned from her. Science found her to be dangerous; but she then refused to accept the scientific explanation and did not cooperate with authorities. If all carriers responded as she did, any health department control of typhoid fever would be profoundly threatened. Therefore, some health officials, like S. Josephine Baker, were convinced that “the only answer was to keep her in the custody of the Department, out of contact with other people’s food.” Her own “bad behavior,” Baker concluded, “inevitably led to her doom.”83 Mary Mallon’s public defiance of authorities during her initial arrest, her continuing refusal to obey proscriptions, and, as we will see, her denials of being a carrier made in court and in interviews with the newspapers provoked health officers to assert their authority and court the public confidence by forcibly keeping her out of the kitchen. She became proof positive that with an effective health department alert and ready, “Public health [was] purchasable.”
The health department had determined that Mallon was dangerous above and beyond other carriers and needed to be isolated from the public as a “menace to the public health.”84 Other carriers remained at large during the years of Mallon’s incarceration—in fact, most carriers avoided detection at all—yet such distinctions did not bother New York officials, who continued to believe they acted properly in her case. Mallon provided an example of the extreme, extraordinary power of the state, perhaps even its “arbitrary powers” in Biggs’s phrase.
Was it necessary to restrain even one person’s individual liberty in order to achieve health? New York public health officials believed so, especially when that individual had achieved public notoriety. Public health officials saw Mary Mallon as a menace to the public’s health, and their actions fit their perceptions. Today, as we again weigh the relative importance of public health and individual liberty in discussions about whether to isolate (and for how long) people with tuberculosis or HIV infection, public officials are, in the same tradition, making similar choices and isolating a few in the name of protecting the many. In the next chapter we will look more closely at the laws that applied to Mallon, and in succeeding chapters delve further into the question of why authorities kept her isolated in her island cottage for so many years, explore how the public responded to her isolation, and evaluate the personal cost of such actions to epidemic disease carriers themselves.
“A Menace to the Community”
Law and the Limits of Liberty
CHAPTER THREE
When health department officials forced Mary Mallon into the city ambulance and took her against her will into Willard Parker Hospital and then to her isolation on North Brother Island in March, 1907, they acted with uncertain legal authority. The basic question of whether or not health officials could take away a healthy individual’s liberty in the name of protecting the public’s health had not yet been answered in court. William Park and Hermann Biggs knew that they had legal authority to isolate, by force if necessary, people sick with diseases who they believed might transmit those illnesses to others if not confined. They had experience in taking people sick with smallpox or tuberculosis against their will to isolation hospitals run by the health department. In 1907, for example, the same year they secluded Mary Mallon on North Brother Island, health officials removed thirty-five people suffering with pulmonary tuberculosis to Riverside Hospital “by force as being nuisances and dangerous to those about them.”1 But never before had they attempted to take a healthy person, a person who did not show any symptoms of suffering from any disease, away from her home and employment to put her in a city institution in the name of protecting the city’s health.
As we have seen, William Park felt uncertain about the health department’s authority to deprive a healthy Mary Mallon of her liberty “for perhaps her whole life.”2 Newspapers made these official concerns a matter of public debate. Thomas Darlington, commissioner of health when Mallon was taken, admitted to a reporter that there was “considerable doubt as to the legal right of the health officials to detain the germ woman. She had violated no laws.” While science knew her to be a menace, he said, her legal status remained uncertain.3 The New York American reported that health officials were going “to appeal to eminent lawyers to determine what action they can take.”4
In this chapter, I examine the legal perspective on Mary Mallon’s situation. While lawyers and judges shared basic viewpoints with scientists and public health officials in defining the menace she posed to healthy New Yorkers, the legal experts put concerns about individual citizens’ legal and constitutional rights in the foreground. Their actions generally upheld health department actions, but in the legal arena the courts applied their own particular logic to the problem of how to handle healthy carriers in general and Mary Mallon in particular.
The “extraordinary and even arbitrary” board of health powers that Hermann Biggs touted as he traveled around the country and the world (see chap. 2) rested in part upon sections 1169 and 1170 of the Greater New York Charter. These sections included the following provisions:
The board of health shall use all reasonable means for ascertaining the existence and cause of disease or peril to life or health, and for averting the same, throughout the city. [Section 1169] Said board may remove or cause to be removed to [a] proper place to be by it designated, any person sick with any contagious, pestilential or infectious disease; shall have exclusive charge and control of the hospitals for the treatment of such cases. [Section 1170]5
These provisions had been written and in use before any concept of healthy carrier was known. What officials needed to know in 1907, when they first isolated Mary Mallon, and in 1909, when the case came to court, was if these laws applie
d to this new situation of isolating a person with no physical symptoms but whose body harbored pathogenic organisms.
If health officials indeed consulted with lawyers in 1907 about how to proceed in their actions concerning Mary Mallon, no record of the deliberations remains. Either officials received encouragement from their legal consultants to go ahead with their plans to isolate her or they proceeded on their own to separate Mary Mallon from society and take away her liberty without legal advice. According to the newspaper, city officials not only kept her against her will in a hospital and subjected her to repeated laboratory tests, they also refused to permit Mallon “even by telephone, to converse with her relatives or any one else excepting the surgeons and her guards.”6 After a few weeks the health department removed Mary Mallon from the city hospital to a cottage on North Brother Island, and the issue of the legality of her isolation faded from view.7
Officials remained cognizant of their need to keep Mallon’s identity private. Soper described the process of discovering a cook who was a healthy carrier of typhoid fever to the Biological Society of Washington in 1907, and Park expanded on her case to an American Medical Association audience in 1908.8 Neither named the woman at the center of the case. Health department reports for these years merely noted briefly that “a woman who had served as cook in various families” was “examined from week to week.”9 Mary Mallon meanwhile remained in her one-room bungalow—described by one contemporary as a “shack,” by another as a “pig sty,” and by a third as “a lonely little hut”—accompanied by her fox terrier, alone with her thoughts.10
It was not until late June, 1909, two years and three months after her initial arrest, that newspapers revealed her identity because the opportunity came for Mary Mallon to test her banishment in a court of law. At that time she and her lawyer, George Francis O’Neill, filed a writ of habeas corpus, initiating a legal proceeding guaranteed all citizens. Habeas corpus may be used when a person has been arrested or deprived of liberty, as in this case through isolation or quarantine; it requires authorities—in this case, the health department—to bring the person to court for the purpose of obtaining a legal judgment about the detention. The writ is issued as a matter of right, but a release, which Mallon and her lawyer hoped would result from the hearing, does not always follow.11
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