(Updated: 1 January 2015)

Legal Issues: The court system then and now

Breaking new ground?

• Infected = Sick (legal issue)
• Infected = dangerous?
• sick = dangerous only because of contagion
• Thus, fear of contagion is the basis for the laws
• Generally: is fear the basis for law?

Nature of Courts in 1907

• More “state” oriented
• Individualism less an issue
• no such thing as “privacy”
• Guardian of status quo

Questionable equivalencies

• sick = contagious
• infected = sick
• infected = contagious

Sick = Contagious

Infected = Sick

• Basis for isolation of Mary Mallon
• cf. HIV and AIDS
• Questionable legality
• cf. pneumonia germs (we’re all carriers!)

Infected = Contagious

• Basis for quarantine
• What about families that she did NOT infect?
• Other sources of typhoid were greater
• Broke new ground in US law

Other remedies

• Take first then examine or vice versa?
• Why was she a threat? (and how big a threat?)
  • in 1907?
  • in 1915?

Equal treatment under the law?

Other carriers: Tony Labella

• 87 cases, 2 deaths in NYC
• fled to NJ from NYC in 1922
• 35 more cases, 3 deaths
• not isolated

Other Carriers: Alphonse Cotils

• A listed carrier
• in 1924 found be working in his restaurant
• suspended sentence
  • “can’t lock a man away just because he’s unlucky enough to carry some germs

Other carriers: “Typhoid John”

• Adirondack guide
• Infected 38, 2 of whom died.
  • (more than Mary Mallon at that time)
• Judge let him go
• Newspaper dubbed him Typhoid John
  • Obviously know of Typhoid Mary

Typhoid John (contd.)

• Judge:
  • “there was no State law by which a human carrier of typhoid bacilli could be kept from spreading contagion and disease”
• NY Times:
  • “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 persons in the United States”

Big Issue in 1907 was predictability

• Would Mary Mallon stop cooking?
• Was isolation a “last resort?”
• Rosenau and Chapin thought NYC was embarrassing itself
• After 1915, maybe different, but in 1907…?

Another issue is detection

• Tyranny of “zero tolerance” when detection limits change
• Who knew that Mary Mallon was not the only carrier in New York?
• The Public Health Department? The Judge? Her Lawyer?
• Today: radon, anthrax, carcinogens, etc.

How about today?

• Tuberculosis
• AIDS
• The unknown
• Ebola

Legal issues: Procedural issues

Vaccination case (1905)

• could require vaccination
  • penalties if not vaccinated
• could not vaccinate
• cf. could remove gall bladder

Mary’s “Day in Court”

• 1909 — two years later
• Role of William Randolph Hearst and his Newspaper
• Argued on due process
• Also her own tests and her own view
• Never challenged “carrier = sick”
• Never asked other public health experts

Missed opportunities (1990’s view)

• Never challenged “carrier = sick”
• Never asked other public health experts
• Never asked how many others there were
• Carriers total
• Cook who were carriers
• Judge ordered her confined as a threat

Her own bacteriological tests

• Why were they negative
• Why were they discounted
• Why did she have them done

Question of Due Process

• Health dept. as both police and jury
• No hearing or appeal
• Commensurate penalty for the risk she posed?
• Uniform application

Why do carriers scare us?

• Do you believe in carriers
• Do you believe in other harmful unseen
• spies, aliens, evil spirits, communists, anthrax spores, terrorists, government coverups, internet invasions of privacy, etc.

Isolation as protection (or vengeance)?

• Why isolate the sick or carriers
  • Can’t infect ME
• Why isolate robbers and murderers?
• Role of fear
  • Again, spies, homosexuals, communists, carriers, foreigners, etc.
• “The selling of fear in America”

Summarize

• How big was the threat
• Was isolation the only alternative
• Was it legal — was it moral
• Why did it happen
• How did they get away with it

Prejudice and the Media

 Prejudice and Social Expectations

• Good or bad?
  • protective but restrictive
  • educational but conservative
  • simplifies but depersonalizes
• Effects on Mary Mallon

What defined Mary Mallon

• Sex
• Ethnicity
• Class
• Education

Gender Issues: unmarried

• no man to “control” her
  • no family to enforce health restrictions
• questionable moral code
  • lived in apt. of a man (and a dirty one at that!)
• rebel or “something” must be wrong
• valid arguments?

Gender Issues: female

• expect docile and submissive
• expect suffering
• not a breadwinner or a “career”
  • contrast with Josephine Baker

Did it matter?

• descriptions of Mary Mallon
  • walked like a man, used strong language
• females cooked, males did not (?!)
• no family ties
  • nobody to control her
  • nobody to defend her
• job options

Female carriers (later)

• most on the list were female
• more dangerous because of cooking
  • rules included wives, women over 40, grandmothers, mothers-in-law, etc.

Ethnicity: Americans view the Irish

• Religion
• Poverty
• Drink and Temper
• Education
• Rising status (Eastern Europeans were newer)

The Irish view themselves: History

• Penal laws relaxed between 1830 and 1870
  • taxation and tithes to Church of Ireland
  • ownership of property
  • religious restriction
  • language eradication
• Independence delayed by World War I

The “English Question”

• Allies of Irish
  • hated England (revolution and civil war)
  • land of opportunity
• Allies of English
  • protestant
  • anti-Irish prejudice

Did it matter?

• Credibility
• Alien-ness

Class Issues

• Progressive era
  • caring but condescending?
  • is it different now?
• Heirarchic expectations (both sides)
  • she was expected to obey
  • she expected to be cheated

Working class

• Job options
• “safety net”
• Class solidarity during her escape from Josephine Baker!
• differences between Mary Mallon and Josephine Baker

Did it matter?

• What if member of a “prominent family?”
• What if propertied?

Education

• She wrote with a clear strong hand
• expectations and surprises

The Stereotype

• This is a good example of how a carrier should not act.
• See what can happen if you don’t listen!

The Newspaper Accounts

• Early accounts were positive (in text)
• Early accounts had diabolical pictures
• The need to sell papers
• Tabloid journalism

March, 1907

• Hearst’s American broke the story
• first announcement of the concept of carrier (March 1907)

April, 1907

• There is one here in New York!
• Screaming headlines
  • “Human typhoid germ”
  • “Presence kept secret”.
• Pulitzer’s World repeated it, then it died for 2 years

June 20, 1909: Court case.

• Probably financed by Hearst
• Banner pictures were demonic
  • cracking skulls into frypan
  • procession of those she infected
• Text was quite sympathetic

June 30, 1909: She lost.

• Why should I be banished like a leper (3-column headline)
• Sympathetic drawings
• Sympathetic text
• Marriage proposal from Michigan!

After the 1915 Outbreak, negative

• Use of pseudonym
• Maternity hospital
• By 1930’s all had softened
• Legal Issues: Equal Treatment?

Her life and her legacy

Her life

She was a domestic servant — harsh life

• treated like children (condescending)
• treated like slaves
  • long hours (early AM to late eve)
  • easily replaced but not easy to find new jobs
• trapped
  • no time to hunt for jobs or husbands
  • no place to live between jobs
• upstairs-downstairs
  • religion
  • class
• at least factories were inspected
• she had grounds for suspicion

Persecuted?

• Never heard of healthy carriers
• Scapegoating
• Surgery: “they are trying to kill me”

Common sense vs. bacteriology

• If germs cause disease, how can she have millions of germs and not be sick?
• if gall bladder (feces) is where the germs are found, how can they get to the mouth?
  • just too repulsive to consider!
• today’s example: Helicobacter pylori and ulcers

Stubborn or convinced

• amended release document to “…possible to cause harm…”
• Ferguson Lab reports

Returned to cooking. Why?

• Used to make twice the avg. domestic’s salary ($45/month)
• Mr. Briehof died in 1913
• No other good jobs

When did she start cooking again

• Soper said “immediately.”
• First documented in 1914
• Certainly not before 1912 (health dept. followed her that long)

On the island for life

• seemed to adapt
• series of jobs
• several friends
• just don’t mention typhoid
• never trusted doctors (or dentists)

What is the evidence that she caused typhoid fever in anyone?

• Statistical
• Circumstantial
• Would you believe it today?

Her legacy

Change in the story since her death.

• 1950-1970, almost uniformly negative
  • triumph of modern bacteriology and science
  • implicit trust in governmental science
• after 1980, more complex views
  • post AIDS or post Vietnam?

Modern Issues raised by Mary Mallon’s story

• identification and labeling
• isolation as a solution
• blame and responsibility

Identification and labeling

• not neutral
• marginalized to start with
• power relations
• cf. Gaetan Dugas

Isolation as solution

• Huge power in Public Health officer
• Michigan definition
• Care of sick vs. protection of uninfected
• which is primary?
• Cuban AIDS solution
• Ebola questions

Blame and responsibility

• scapegoating
• immigrant and marginalized communities
• alternatives: what if they retrained Mary?
  • they did later (on the island)
  • they did for some others

What should we isolate What should we protect against?

• Moral threats? (religious threats)
• Political threats? (ideologies)
• Cultural threats? (TV and pornography)
• Does it depend on the era?