Hermann Biggs’s idea of the broad scope of health department powers notwithstanding, O’Neill eloquently insisted that the health department could not legally keep Mary Mallon in confinement for life:
If such an act as this can be done in the case of any person said to be infected with typhoid germs, it can be perpetrated in the cases of thousands of persons in this city who might be said to be infected with tuberculosis and other kindred diseases. If the mere statement that a person is infected with germs is sufficient, then that person can be taken away from his or her home and family and locked up and imprisoned for life on North Brothers [sic] Island. That is what has happened in this case.37
The case indeed related to the issue of how much authority medicine and departments of health could have in their efforts to protect the general healthy population, and specifically, how much authority they could wield over healthy citizens. O’Neill wanted to question health officials’ authority; were their “mere statemerits” sufficient grounds for lifelong isolation of an individual? The New York American reporter understood this larger issue at stake in the court case: “It is . . . expected to demonstrate just how far the Board of Health powers go—whether this body has the legal right to banish a human being to solitary confinement in the absence of a court commitment.”38
Looking back on the 1909 case during an interview with a press reporter two years later, O’Neill tried to make light of the issue: “If the Board of Health,” he said, “is going to send every cook to jail who happens to come under their designation of ‘germ carrier,’ it won’t be long before we have no cooks left, and the domestic problem will be further complicated.”39 Sarcasm aside, the point he raised was nonetheless extremely important. Would the courts accept the words of “medical men” as sufficient to deprive a citizen of liberty for life? As O’Neill put it (again with two years’ hindsight):
It is quite a problem if a municipality can, without legal warrant, or due process of law, clap some one in jail upon the word of some medical man. If the Board of Health can act this way with any one who is alleged to be a germ carrier, yet who never suffered from the disease, then it can put thousands upon thousands of persons who suffered at some time or another from typhoid fever in confinement.40
The power of medicine to define who endangered the public’s health received considerable public discussion during Mary Mallon’s 1909 court hearing. For example, a “New Thought Student” wrote to the New York Times:
If one unfortunate woman must be labeled “Typhoid Mary,” why not send her other companions? Start a colony on some unpleasant island, call it “Uncle Sam’s suspects,” there collect Measles Sammy, Tonsillitis Joseph, Scarlet Fever Sally, Mumps Matilda, and Meningitis Matthew. Add Typhoid Mary, request the sterilized prayers of all religionized germ fanatics, and then leave the United States to enjoy the glorious freedom of the American flag under a medical monarchy.41
Public power wielded by established scientific experts and experts of all kinds increased significantly in the early twentieth century. The Jacobson decision itself gave authority to the medical community to define the value of vaccination, casting aside its more fringe challengers who believed the procedure to be dangerous. Progressive politicians, businessmen, and reformers were winning elections across the country as they tried to bring “good government,” which emphasized order and rationality, to American cities and replace the haphazard and often corrupt partisan ward bosses. The use of educated authorities in all fields was central to this movement.42 Reform was challenged by those whom the reformers sought to replace, people whose point of view supported O’Neill in his questioning of the right of health officials to curtail individual liberty. In New York City reformers frequently replaced Irish politicians, adding an ethnic layer to the clash of viewpoints.
A second issue raised by O’Neill’s arguments before the court in 1909, in addition to due process, was whether or not Mary Mallon was the menace to the health of New Yorkers that officials claimed she was. He stated unequivocally that Mary Mallon was healthy, not in need of medical attention, and that therefore she did not endanger any other person’s health. He told the judges: “Said Mary Mallon is in perfect physical condition, and has . . . never been obliged to receive the care and attention of a physician or surgeon.” He insisted on the basis of Mallon’s health that “she is not in any way or any degree a menace to the community or any part thereof.” If the department was holding her in order to treat her, O’Neill denied her need of treatment.
On this point, bacteriology itself was on trial. O’Neill did not accept the new bacteriological concept that healthy people could carry disease to others, and that typhoid fever specifically could be transmitted through fecal discharges, via unwashed hands and food ingestion, from a healthy person to another. He denied her sickness: “We absolutely deny that this woman ever suffered or is now suffering from the affliction alleged,” he told reporters.43 He also denied the charge that Mary Mallon had infected the specific people whose illnesses Soper traced to her. To quote O’Neill again:
It may safely be assumed and we have charged that in some of the houses where this woman was employed the conditions were most unsatisfactory, and unsanitary, and the cases of typhoid referred to by the officials of the Health Department may be undoubtedly ascribed to this. This woman has been a victim of unfortunate circumstances in having been employed in houses where typhoid broke out, the disease having been unquestionably the result of conditions with which she had nothing to do.44
Admitting typhoid existed in some of the homes in which Mallon cooked, O’Neill insisted there was no convincing evidence that she was to blame for its presence. He instead drew on the more commonly accepted route of typhoid infection—unsanitary conditions and polluted water supplies, or infection outside the home—to explain the disease incidence. Although he did not call attention to the statistics, he could have bolstered his case even more by noting that in 1907 the city reported over 4,400 new cases of typhoid fever and alleged tracing only two of them to Mallon. There were far more dangers menacing the health of New Yorkers than could be accounted for by this one woman. Typhoid fever lurked throughout the city.
The questions O’Neill raised about Mallon’s culpability, even though they did not get full airing in court, remain cogent. It is conceivable that, as the investigators before George Soper had themselves concluded, typhoid erupted in those houses from sources extraneous to Mary Mallon and her cooking. The evidence connecting Mary Mallon to the twenty-two specific cases of typhoid fever was indeed incomplete. The court, and we assume the health department, did not ask for or receive information about the full record of Mary Mallon’s employment and the families for whom she cooked who did not report any typhoid. Mallon claimed to have been connected to many such uninfected homes, one of them a friend’s home in which she lived repeatedly when she was not employed.45 She did name one family to reporters: “I was [a] cook for Mr. Stebbins’ family and for other families and nobody fell sick while I was there.”46
Even those who accepted the healthy carrier concept and accepted Mallon’s connection to the specific cases might have questioned along with O’Neill the necessity of isolating her from the general population in order to stop her from being a “menace to the community.” Mary Mallon had been isolated from the beginning and not as a last resort. This action implied that health officials believed, although they did not argue explicitly before the court, that Mallon was the equivalent of sick, even though she was symptomless, because her body harbored pathogenic bacteria. Certainly the distinction between a person sick with typhoid fever and a person carrying the typhoid bacilli was irrelevant to the people who ate the food into which the bacilli dropped.47
But from Mary Mallon’s and George O’Neill’s point of view, the difference between sickness and health was paramount. She insisted she was not sick and had never been sick with typhoid fever. She used her personal knowledge about her own body to argue that since she had no disease s
ymptoms she could not menace anyone else’s health. She did not want to be treated like someone who was sick when she felt healthy and vigorous, and was in fact leading a productive life when she was taken.
If Mallon had based her definition of herself as healthy on her experiences alone, the case would have represented a stark clash between two conflicting worldviews, experiential and scientific. But the situation grew more complicated, for while she adamantly insisted on her own knowledge of her health, Mallon also assessed it in part by procuring laboratory analyses of her own feces and urine which showed that she harbored no pathogenic bacteria. She seemed to condone the health department’s definition of health when she herself sought laboratory analyses. But Mallon’s privately acquired laboratory results from the Ferguson Laboratory were all negative, verifying to her satisfaction what she already believed, that she was healthy. The health department laboratory repeatedly (but intermittently) found her feces infected, suggesting to health officials that her health was only skin deep. The court, for reasons that went unexplained, accepted reports from the laboratory that found her infected and rejected reports that claimed her healthy. The files record no evidence of discussion on this point.
The most important public health issue of the 1909 court case concerned isolation.48 O’Neill filed the writ in order to seek Mary Mallon’s release from her forcibly imposed isolation. In this he had the support, although he did not use it, of the major public health authorities of the time. As we have seen, Charles Chapin thought the only purpose served by keeping Mallon locked up was to give public health a bad name. Either O’Neill was not the “medical legal expert” the newspaper had chosen to call him and did not think of using the testimony of public health experts who would have supported him, or he believed the case too compelling on due process grounds alone to need the outside help. In any case, attempts to understand the full context of legal and medical thinking about Mary Mallon are stymied by the fact that public health experts did not get a chance to participate directly in the court debate.
The health department drew a one-to-one relationship between the positive stool samples as tested in its own laboratory and the necessity to isolate Mary Mallon. Lawyer Nicholson claimed that Soper’s epidemiological investigation and “the pathological examination conducted in said Department is positive and complete as to the danger of allowing a person infected as the petitioner, to go at large and mingle with the community.” He continued, “The Board of Health shows the danger and menace to the public that the petitioner would be if allowed to be at large in the community.”49 The legal precedent cited in defense of this position was the health department authority to forcibly isolate people sick with contagious diseases.
Two parts of the health department argument in court may amaze modern readers. First is the ease with which the health department lawyer assumed that laws written about people sick with infectious disease could be applied to this new category of healthy people who harbored bacilli (especially when faced with evidence upon which two laboratories disagreed) even while they wrote of their uncertainty elsewhere. The judge, seemingly without consideration or question, acquiesced with the assumption that the two groups—people sick with typhoid fever and healthy carriers of typhoid fever—were identical in the eyes of the law. There was no discussion about it in the record.
The second point is even more striking. Health officials argued that if laboratory analysis showed pathogenic typhoid bacilli in fecal discharges, in order safely to protect the community, the person harboring them should not “mingle” with people or go “at large” among healthy people. At the end of the memorandum filed by the department lawyer, the connection was drawn very starkly, and in capital letters:
THE EXAMINATION OF THE STOOLS OF THE PATIENT SHOWS CLEARLY OF HER INFECTED CONDITION AND THE DANGER TO THE PUBLIC BY ALLOWING THIS PERSON TO GO AT LARGE UNTIL SUCH TIME AS SHE IS FREE FROM THE INFECTION OF THE BACILLI OF TYPHOID.50
If the logic of this statement had been followed generally, health officials would have had to isolate all healthy carriers they found. In 1909 they had identified only five healthy carriers in New York City, but the health officials knew that there were hundreds, if not thousands, of others yet to be found. A general application of the principle even to all identifiable carriers did not get discussed in 1909, nor did the court ask health officials to justify locking up one person in the face of thousands, most unidentified, going free. If they had, perhaps the outcome of Mary Mallon’s hearings would have been different. The health department budget and ability (or interest) did not extend to locking up thousands of healthy New Yorkers.
The fact that health officials applied the argument of necessary isolation to Mary Mallon and not necessarily to other healthy carriers identified in the department laboratory suggests that they viewed Mary Mallon as different from other healthy carriers. They did not argue for her difference before the court. They knew they had and would continue to have other healthy carriers in the city of New York, who would be permitted to “mingle.” They knew, in fact, that typhoid carriers could mingle with the general population and not cause any risk whatsoever. But they wanted Mary Mallon isolated, and they used the simplest and most absolute argument possible—if infected, isolate—before the judge.
Fred S. Westmoreland, the resident physician at Riverside Hospital who received Mary Mallon and who testified on the department’s behalf at the hearing, restated the case and made one important addition:
Owing to . . . her occupation as a cook . . ., the Department of Health concluded that the patient would be a dangerous person and a constant menace to the public health to be at large; and, consequently . . . decided . . . to place her in a contagious hospital and isolate her from the general public.51
In bringing Mallon’s occupation into the picture, Westmoreland narrowed the definition of who the health department might not allow to mingle with the citizenry. Not all carriers need be isolated, only the ones who handled food and thus endangered others. This position was closer to the view of public health experts nationally in that it related to the activity that might encourage bacteria to be transmitted from carriers’ excreta to the mouths of susceptible people. But it suggested that isolation would be necessary for all carriers who were food handlers, a policy that also was never developed or even contemplated in New York, or anywhere else in the country.
The judge listened to the arguments and heard the simple message that the health department intended for the court to hear, that people excreting pathogenic bacteria, whether sick or well, could be considered sick because of their ability to transmit disease, thereby fitting the existing laws, and needed to be isolated to protect the public. O’Neill’s contention that Mallon was not sick became irrelevant in the face of the positive bacteriological analyses. In mid-July, 1909, Judge Mitchell Erlanger agreed with the health officials and ordered that the writ be dismissed and “that the said petitioner, Mary Mallen [sic] be and she hereby is remanded to the custody of the Board of Health of the City of New York.”52
In considering the meaning of this court decision, it is important to recall once again the circumstances of Mary Mallon’s isolation. When she was first located on George Soper’s epidemiological evidence in March, 1907, she was immediately taken. Never before had the health department tried to isolate a healthy person. The concept of healthy carrier was in its infancy, and many people had not yet heard about it. When a laboratory test showed Mary Mallon’s feces to be positive for typhoid bacilli, she, the first to be labeled a healthy carrier and herself not yet a repeat offender, was placed on North Brother Island in complete isolation, and she was not released. The judge, two years and three months later, in July, 1909, ruled that the health authorities had acted properly and that they could keep her indefinitely in isolation on North Brother Island.
Officials did not allow Mary Mallon a chance to prove whether or not, upon learning of the situation, she would or could change her behavior and cease infecting others. T
he health department and the court acted to keep her in quarantine when all she had done was to insist she was healthy and to resist what seemed to her to be an unreasonable arrest. The initial action in 1907 and the 1909 court affirmation of it permitted a healthy woman to be indefinitely kept in isolation upon the charge that she might pass on infection to other people. The court and the health department put the protection of society and the public’s health as they saw it above the protection of one individual’s liberty.
Mary Mallon’s legal case brings to light an important question: is it possible to protect the health of the population and at the same time not infringe on individual liberty? This question presupposes that we want the protection public health programs provide, and at the same time that we are vigilant of individual freedom. In pitting these two strongly held values and legal positions against each other, a dilemma arises that is at least sometimes, if not often, impossible to resolve. Public health departments limit what disease prevention they can accomplish if they acknowledge, as they must do under our country’s laws, a citizen’s right to personal liberty. But individual liberty can be legally abridged in the name of protecting the public’s health. As much as we all might wish it, no federal, state, or local agency trying to protect the health of citizens will always be able to do that job without threatening and infringing on the freedom of some citizens. Conversely, protecting individual liberty above all else may sometimes put people at risk for exposure to infectious disease. We as a society have decisions to make—over and over again—about which side of the dilemma we value the most.
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