|Typhoid Mary: Captive to the Public’s Health
Judith Walzer Leavitt
This chapter gives a legal perspective to the case of Mary Mallon (a.k.a. Typhoid Mary), a known typhoid carrier. The New York City Department of Health placed Mary in isolation in 1907 when it appeared that she had infected 27 people with typhoid, resulting in one fatality. Although this chapter is a secondary source, it is based on historical research and conclusions gathered by the author, Judith Walzer Leavitt. Leavitt's primary sources include records of the New York City Department of Health; reports by William H. Park, George A. Soper, and other scientists and physicians; legal correspondence; articles from various periodicals and journals; and more.
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 DarIington, 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 applied 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 an other 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
The precipitating events that allowed for Mary Mallon and lawyer George Francis O'Neill to begin habeas corpus proceedings remain somewhat hidden. The New York American reporter covering the case believed that "some wealthy [sic] New Yorkers" supported Mary Mallon in her effort to seek release after reading of her plight in the newspaper's pages on June 20, 1909, in an article that moved them to "pity for the lone woman who has not a relative or a friend to whom she can turn."12 The reporter did not identify the benefactors. Possibly William Randolph Hearst himself funded the legal proceedings-he had done so for other people whose stories interested his newspaper's readers-but we can only speculate on whether and why he may have helped Mallon.13 The June 20 story in the American was no doubt important to the case and critical to the release of Mallon's actual identity. However, it seems unlikely that it was the sole cause of Mallon's legal suit.
Mary Mallon had been determined to obtain her freedom from the early moments of her detention. She resisted strenuously when she was first arrested in 1907, and she continued during her years on the island to indicate that she did not accept her isolation. Presumably with an eye toward her ultimate freedom, Mallon obtained private laboratory analyses of her feces and urine beginning in July, 1908, a full year before her court appearance. Continuing through August and September of that year, she sent specimens to be analyzed at the Ferguson Laboratory on 42nd Street in Manhattan. It is unlikely she would have bothered to do this if she were not planning some sort of attempt to prove her innocence. After a six-month hiatus, she resumed her quest for private laboratory opinion in April, 1909, sending seven more samples to George Ferguson in that month alone. Mallon then wrote to Ferguson directly seeking information about all of her specimens and received a response that "none of the specimens submitted by you, of urine and feces, have shown Typhoid colonies."14 It appears from this active communication and documentation of a pattern of negative stool samples that Mallon was planning a legal battle at least as early as April, 1909, if not eight months earlier when she had sent her first feces samples to the laboratory. The legal action ultimately materialized a week after publication of the American article at the end of June, 1909.
It is possible that Mary Mallon could not, or thought she could not, financially support legal proceedings until the news paper publicity generated the money. Lawyer O'Neill's connection to her cannot be documented until after June 20 when his services seem to have been made possible through the benefaction of Hearst or the newspaper's readers, as the reporter suggested. If late June was in fact the first time she consulted with legal counsel, Mallon's previous preparations and documentation through the Ferguson Laboratory served her well in bringing the case quickly to the court of justice. The New York American article appeared in the Sunday edition, June 20,1909; eight days later O'Neill filed the habeas corpus petition hoping it would lead to Mary Mallon's release from her North Brother Island detention.15
The June 20, 1909, article, which originated public knowledge about Mary Mallon and revealed her identity, contained a short reportorial statement about Mary Mallon's "predicament." She "is a prisoner for life," wrote the reporter, even though she has committed no crime, has never been accused of an immoral or wicked act, and has never been a prisoner in any court nor has she been sentenced to imprisonment by any judge." The newspaper added some "curious facts" about typhoid fever and the difficulties of medical detection work.16 The prose was surprisingly unsensationalistic for a Hearst newspaper, but the alarming illustrations and photographs were certain to grab readers' attention (see fig. 5.2 and chap. 5 for more on this first news account of Mary Mallon).
The story in the newspaper, whose Sunday circulation reached almost 800,000 New Yorkers, did not question the city's legal right to imprison Mallon for life.17 In fact, the reporter assumed this would be her fate: "Mary Mallon will probably be a prisoner for life on the Quarantine Island in East River." On these pages William Park, too, seemed to have conquered whatever doubts he had originally felt about the city's right to hold Mallon concluding, "It is clear that she will be a prisoner on North Brother Island for a long time, perhaps for life."18 Yet this was not attorney O'Neill's opinion of what the law demanded.
George Francis O'Neill was thirty-four years old when he took on Mary Mallon's case. The young lawyer had been a customs inspector before being admitted to the New York state bar on May 13, 1907, almost two months after Mallon's incarceration. The New York Times identified him as a medical-legal expert, although his legal experience was still very new. Six months after Mallon's habeas corpus hearing, the Medico-Legal Society engaged O'Neill as the personal counsel to Albert Patrick when he sought a pardon on the charge of killing Texas millionaire George Marsh Rice. That case, like Mary Mallon's, rested on medical evidence, and the governor ultimately pardoned Patrick. The record does not reveal very much else about George Francis O'Neill's legal practice. He shared office space with other lawyers; he stood twice as the Republican candidate for the state senate from the 22nd district, apparently unsuccessfully. His physicians diagnosed tuberculosis in 1915, after which time O'Neill traveled outside of New York to try to regain his health. Unsuccessful in this attempt, he died on December 23, 1914, at thirty-nine years of age.19
Whatever convinced George Francis O'Neill to take Mary Mallon's case, he was active in his pursuit of justice as he saw it. Scribbled in the court records are two notes that reveal his state of mind. In one he wrote, "absurd to take woman on an alleged report in which no name is mentioned -- [.]" He must refer here to the city's seizing of Mallon based on Soper's report, although one assumes that Soper did indeed use her name in his communication with health department officials even though he did not reveal it in the public record.20 O'Neill's designation of the city's behavior as "absurd" showed his confidence that Mallon might be released. In the second note, he scribbled, "Had a right to examine first and then take, not take and then examine," again a seeming reference to the city's initial actions in March, 1907, when Baker and the health department took Mallon against her will to the Willard Parker Hospital and did not release her again.21 O'Neill admitted here that the city could under its own regulations examine Mary Mallon, but they could not immediately take her. Both the notes emphasize lack of due process, the key point in O'Neill's legal argument at the habeas corpus hearing.
O'Neill petitioned in the writ on behalf of Mallon that she' is imprisoned or restrained in his [sic] liberty in Riverside Hospital North Brother Island, N.Y," and that the cause of her restraint was "unknown." He asked that the superintendent of Riverside Hospital be required to "produce said Mary Mallon before …a Justice of the Supreme Court."22
O'Neill filed this writ of habeas corpus to test the legality of Mallon's detention in a court of law.23 The health department had no choice but to bring Mary Mallon before the New York Supreme Court, where Judges Mitchell Erlanger and Leonard Giegerich heard the arguments in late June and early July, 1909. The health department stated for the record that Mary Mallon was confined on North Brother Island "for the reason that she is infected with the bacilli of typhoid, and is undergoing treatment under the care of physicians therein."24
From our late-twentieth-century perspective, it is interesting to realize that the legal issues debated in 1909 were Mallon's rights as a carrier and the health department's obligations vis à vis healthy typhoid fever carriers in general. No one at the time, as far as I have been able to determine, worried about the rights of Mary Mallon's "victims" and their families. No family for whom Mary Mallon worked brought suit or entered the debate in any way. The newspapers freely used the names of those who had employed Mallon as a cook, including such socially prominent names as J. Coleman Drayton and Henry Gilsey. The families' rights to privacy were abridged repeatedly, and details of their private lives and the losses they suffered were held up to public scrutiny.25 As sympathetic as observers might have been to the plight of those who were said to have contracted typhoid fever from Mary Mallon (or died from it), the victims were not the subject of the legal discussions, nor did they seek revenge or enter the debate then as they might try to do today.
Legal historians have documented how judicial interpretations of the law--even of the Constitution--change significantly over time. Whereas late-twentieth-century courts are extremely vigilant of individual rights and due process, early twentieth-century judges demonstrated a "preference for social control over individual autonomy," a point of view that was evident in these 1909 proceedings. As legal analyst Larry Gostin has demonstrated: "Courts [in the early part of the century] tended to uphold public health statutes as long as the state did not act in 'an arbitrary, unreasonable manner' or go 'beyond what was reasonably required for the safety of the public."' These early assessments about what was reasonably required increasingly rested on medical opinion and evidence.26
Mary Mallon's habeas corpus case can be best understood histori6ally in its proper legal context, following as it did closely on the heels of the 1905 United States Supreme Court decision Jacobson V. Massachusetts. That case involved a Massachusetts citizen, Henning Jacobson, who did not want to submit to vaccination against smallpox. The state legislature had empowered the boards of health to require vaccination if an epidemic of smallpox threatened; the Cambridge Board of Health adopted such a regulation when smallpox appeared in the city and ordered all inhabitants to be vaccinated. Jacobson argued that the ruling violated his individual rights. Justice Harlan and six of his colleagues on the Supreme Court thought otherwise:
The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.... Real liberty for all could not exist under the operation of the principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.27
The most important issue for Justice Harlan, as it was four years later for Judge Erlanger, was the danger to other people posed by individuals or groups who would not cooperate with health officials. Both judges might have also agreed that there were limits to how far the state could go in protecting the public health. Nowhere in the U.S. Supreme Court decision did the justices rule that people could be forcibly vaccinated against their will. As legal expert James Tobey concluded from his analysis of vaccination laws in general and Jacobson v. Massachusetts in particular, "Compulsory vaccination means that all persons may be required to submit to vaccination for the common good; and if they refuse …they may be arrested, fined, imprisoned, quarantined, isolated, or excluded from school …but they cannot be forcibly vaccinated, desirable as such a procedure might be from the standpoint of public health protection."28 Individual liberty and public health, thus, could be protected simultaneously under compulsory vaccination provisions, but there were limits on each.
In this tradition, the New York health officials and their lawyers based the city's right to hold Mary Mallon on its obligation to protect the public's health. Under the provision of police powers, resting with the state and in this case delegated to the city and to its board of health, city physicians justified their inspection, quarantine, and health laws of every description. As Chief Justice John Marshall had defined these obligations, they constituted "the acknowledged power of a State to provide for the health of its citizens."29 Laws aimed at public health protection were subject to limitations, of course, based upon constitutional rights of citizens. The Fourteenth Amendment requires that no state shall deprive a person of life, liberty, or property without due process of law. Mallon's right to a habeas corpus hearing demonstrated that the courts had the power to curb a city's right to isolate one of its citizens. O'Neill's petition for Mallon's release brought up the questions of how far and under what circumstances the New York City Health Department could abridge one citizen's rights in its efforts to protect the health of others.
Corporation Counsel Francis K. Pendleton and George P. Nicholson, counsel to the health department, based their argument during Mary Mallon's habeas corpus hearing on sections 1169 and 1170 of the city code (see above). "It is evident," they wrote, "that sufficient power rests in the Board of Health for the isolation of Mary Mallon"--evident, they believed, because of laboratory results showing her to be "infected with the contagious.bacilli of Typhoid in large quantities."30 In support of this conclusion, the lawyers presented the numerous positive laboratory reports of Mallon's stool samples.
Section 1170 gave the health department authority over "any person sick with any contagious, pestilential or infectious disease" (my emphasis). One relevant question was whether a law written to cover "any person sick" applied to a person who was well but who carried bacilli that could make other people sick. Could a healthy person who was shown in laboratory reports to be carrying pathogenic bacilli be, for legal purposes, considered sick under this clause? This was one of the points that O'Neill wanted to question most seriously. Was a medical conclusion based on laboratory evidence-especially in this early-twentieth-century era when bacteriological evidence was new and not yet systematically applied--sufficient to define a person who felt healthy as sick?
In chapter 2 we looked at the New York City Health Department rules, instituted between 1915 and 1921, that were designed to monitor and control typhoid fever cases and carriers. These attempts to broaden the sanitary code's control of people with infectious diseases specifically to include healthy carriers (all of which followed Mary Mallon's second incarceration) indicate that health officials did not believe the earlier laws written about sick people could rightfully be applied to healthy carriers. In 1919, Health Commissioner Royal Copeland wrote, "The one striking and conspicuous improvement now needed is in the formulation of rules and regulations to be adopted by the Board of Health for the control of typhoid carriers."31 Copeland ultimately got the regulations he requested and in 1921 happily reported, "Perhaps the most important step made by this Bureau [of Preventable Diseases] during the year was the formation of a definite set of regulations, in co-operation with the Counsel of the Department, for control of typhoid fever carriers. Heretofore," Copeland wrote, "the Department attempted to exercise control from time to time without any well formulated policy and without legal sanction for its requirements" (my emphasis).32 By the department's own later admission, then, not until 1921 did the laws allowing for the isolation of the sick rightfully apply to carriers of typhoid fever.33
Yet here in 1909 were department officials appearing in a New York court of law claiming that the laws then on the books were sufficient to detain Mary Mallon. The health officials who appeared in the New York Supreme Court at the habeas corpus hearing to defend their isolation of Mary Mallon voiced no doubts about whether the laws designed to control the sick could be applied to the seemingly healthy. They simply presented the sections of the city code as if they applied to Mallon. They assumed without questioning that they already had the authority they needed. Using the language of the new science of bacteriology to define Mallon as effectively sick, laboratory-defined sick because she could spread disease, they masked the ambiguity of the laws and, apparently, the judge allowed this to pass without comment.
With the health department defining Mallon as sick because she harbored pathogenic bacteria, O'Neill was left to insist that Mallon was not sick because she had no physical symptoms and therefore could not be a health menace to the community. O'Neill did not challenge the authority of the health officials over the sick, and he thus lost an opportunity to challenge and have the judge define more precisely the extension of health department authority to healthy individuals who happened to be disease carriers.
ONeill's key point in his effort to "discharg[e] the said Mary Mallon from the care and custody of the Department of Health of the City of New York" concerned what he saw as the abridgement of her constitutional right to due process. He argued that the health department did not follow due process in its incarceration of Mary Mallon in 1907: "The said Mary Mallon is being confined without commitment or any other order of any Court within the State of New York, or that of any other person or authority having power to restrain her." He insisted that the health department, given this situation, could not legally continue to isolate her indefinitely. Mallon had not had her day in court.34
There really was no disputing this point. Soper himself admitted when he later related her story, "She was held without being given a hearing; she was apparently under life sentence; it was contrary to the Constitution of the United States to hold her under the circumstances."35 When O'Neill petitioned for Mallon's release in the writ of habeas corpus filed before the New York Supreme Court on June 28, 1909, it was the first (and, as it happened, the last) time her case was subject to judicial review.36 O'Neill was clearly correct in pointing out that no court of law had yet ruled on the legal issues in the case. But his emphasis on due process was not uppermost in the mind of the judge. The Court focused on whether or not the health department had over stepped its authority in keeping Mary Mallon separated from the general population, rather than on the process officials used to do so. The overarching question for the judge was whether public health protection demanded that healthy carriers like Mallon be isolated from the public.
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 statements" 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 y ears 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, Tonsilitis 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 symptoms 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 Malion 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. The 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.
In the 1909 legal proceedings, the judge ruled that Mary Mallon's liberty, like Henning Jacobson's in 1905, could be taken away in the name of protecting the public's health. He did not point to any limitations on the health department's authority to protect the public in the instance of protecting the liberty of healthy carriers of typhoid fever. Indeed, S. Josephine Baker learned from the case, "what sweeping powers are vested in Public Health authorities. There is very little that a Board of Health cannot do," Baker concluded, "in the way of interfering with personal and property rights for the protection of the public health."53 Nonetheless, the health department did seem to recognize some limits to its authority. While it forced Mallon to stay on North Brother Island, it did not force her to undergo the surgical removal of her gallbladder (a procedure, as we have seen in chap. 1, often unsuccessful and dangerous in this period, that had the potential for alleviating her condition). The risks to her of surgical complications or even death were so high that officials, while suggesting the operation, did not insist upon it.54
We might speculate that if the New York City Health Department had tried to isolate against their will all the known healthy typhoid carriers--over 400 by the 1930s--the judicial rulings might have begun to go in the opposite direction. The court might have put limitations on health department use of its authority with regard to the isolation of large numbers of healthy people. But the judge seemed to have no problem with a single case, perhaps reasoning that because Mary Mallon was the first healthy carrier to be identified, she made a good example to deter potential future offenders. Whatever other reasons might have motivated him--and I will explore some possible ones in later chapters--the judge interpreted an ambiguous law as allowing him to accept the advice of the city physicians and permit long-term isolation.
Part of what Mary Mallon's case reveals is the early-twentieth-century acceptance of the authority of scientific experts and of laboratory tests as legal measurers of truth and determiners of the abridgment of liberty.55 Significant parts of American society came to trust these new tools based on microscopic examination instead of relying only on experience. Even in a case of conflict, when a person said she was healthy and one laboratory agreed, but another claimed she was not, health policy seemed to rest with the point of view that favored the new science. Health law stood on the shoulders of bacteriological findings.
There is more at work here than the prominence of medical knowledge or the legal acceptance of new medical theories. Let us posit for a moment that all parties in Mallon's case agreed that she carried and disseminated typhoid fever with her cooking. The question still remained about whether or not people who gave disease to others needed to be isolated. Was it not possible to stop Mary Mallon from cooking without placing her in strict isolation in a cottage on an island? After all, officials did not later isolate most other healthy carriers they found. If health officials and judges believed strict isolation was the only way to stop Mary Mallon's potential dangers, why and how did they reach this conclusion? What differentiated her case from others?
The law was not always interpreted in such a way as to demand isolation. Compare the New York Supreme Court ruling in Mallon's 1909 case with a report the following year of an Adirondack guide, Mallon's "brother in affliction," dubbed "Typhoid John" by one newspaper, who was identified as a typhoid fever carrier and the perpetrator of an epidemic among tourists that killed two and infected over thirty-six more (more in both categories than Mallon had been associated with at the time). The state health department in this case determined that "there was no State law by which a human carrier of typhoid bacilli could be kept from spreading contagion and disease," and did not try to detain him, although it did offer him free medical care. The newspaper similarly concluded that "there is no law in this country restraining the movements of these human carriers of typhoid germs, although medical experts estimate that there are probably some 10,000 such afflicted and afflicting persons in the United States."56 While comparing Mary Mallon to this man, the reporters and health officials did not, significantly, note the anomaly of her isolation.
In Mallon's court case the health department did not bring up arguments to distinguish her from other carriers, in terms of her resistance or of her being the first carrier to be traced. Health officials presented to the court a situation in which a healthy woman needed to be isolated because the presence of pathogenic bacteria in her alimentary tract defined her as a danger to society. The legal proceedings indicate that the judge was convinced that the positive laboratory tests proved Mallon's dangers and that similar laboratory tests in another case would bring the same conclusion. Science and medicine could adequately define a health menace.
Given the universality of the arguments raised in court, what happened to Mary Mallon as a healthy carrier should have been typical and precedent-setting. But we already know that when a similar case of Alphonse Cotils (a repeat healthy carrier, which Mary Mallon was not in 1907 or in 1909) came before the municipal court in 1924, the judge suspended his sentence (see chap. 2). In that case, the judge thought, "The only object in imposing a prison sentence would be to deter other typhoid germ carriers from handling foodstuffs."57 He clearly did not see the specifics of Mallon's isolation as precedent-setting or generalizable.
The judges in 1909 and in 1924 did not speak about the universal applicability of their rulings; and the health officials, who understood it, chose not to bring it up. They had no intention of isolating all carriers. O'Neill made some effort at generalizing in his sarcastic remarks about locking up all cooks, but did not effectively carry the argument to its conclusion. Mary Mallon's habeas corpus hearing did not lead to a legal precedent about healthy carriers. Her case was not published in the legal journals, and it was not cited as precedent in other cases concerning typhoid carriers.58
In the early twentieth century the law spoke with a single voice and a simple guideline: public health authorities had the medical ability and the legal authority to define a public health menace, regardless of due process or the curtailment of an individual's liberty and regardless of consistency. The judges were willing to give health departments the power to discriminate among carriers and decide which healthy people who carried pathogenic bacteria in their bodies were to go free and which were to be detained.
The public health laws that exist today are basically similar to the ones developed at the beginning of the twentieth century. The states' obligation to protect the health of citizens cannot be abridged or obliterated, but that obligation is constantly open to interpretation as to how it should be carried out and whose expertise might be called upon to help. Legal questions like ones posed earlier in the century continue to face public health officials trying to prevent the spread of HIV infection and drug-resistant tuberculosis. There are public health workers who believe that infected people in both instances should be kept separate from the healthy population, possibly on the basis of laboratory screening tests before any symptoms develop, and others who think that while a few individuals may need to be singled out for such isolation, most do not. Evaluation of the danger of disease transmission is one criterion that remains important to the decision, but other factors enter into the equation today as in the past.
Current fears of living in a police state put limits on plans to isolate large numbers of people, even in the face of potential public health dangers. Mass isolation has been used in Cuba, where the state has created a community within the boundaries of which all AIDS sufferers must live, but such authoritarian behavior on the part of the government in the United States would not easily be met with cooperation.59 Charles Chapin knew, early in the century, that "there certainly would be most energetic opposition on the part of the public" to such policies. Besides, Rosenau had insisted, "It is unnecessary to place bacillus carriers incommunicado."60 But that is, just what health authorities did with Mary Mallon in 1907 and, what the court reinforced in 1909: they forced one woman to live in isolation in the name of protecting the public's health. From the legal point of view, justice could be served in allowing such abridgment of individual liberty.
Typhoid Mary by Judith Walzer Leavitt Copyright ©1996 by Judith Walzer Leavitt Reprinted by permission of Beacon Press, Boston