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Typhoid Mary: Captive to the Public's Health, Judith Walzer Leavitt


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.

 

Footnotes

  1. NYCDH, AR, 1907, p. 299

  2. William H. Park, "Typhoid Bacilli Carriers," JAMA 51 (1908): 981.

  3. "Woman Cook a Walking Typhoid Fever Factory," The World, April 1, 1907, p.1.

  4. New York American, April 2, 1907, p. 2.

  5. In the Matter of the Application for a Writ of Habeas Corpus for the Production of Mary Mallon, New York Supreme Court (June 28–July 22, 1909), Memorandum. Available in the New York County Courthouse.

  6. New York American, April 2, 1907, p. 2.

  7. A New York American reporter claimed she was moved to the island after one month (June 30, 1909). This cannot be verified in extant health department records.

  8. George A. Soper, "The Work of a Chronic Typhoid Germ Distributor," JAMA 48 (1907): 2019–22. He read the paper before the Biological Society of Washington, D.C., on April 6, 1907. The discussion following it was printed in Science, n.s. 25 (1907): 863-65 and is also available in the Smithsonian Archives, Record Unit 7185. Approximately fifty people attended this meeting. Park, "Typhoid Bacilli Carriers," pp. 981-82. Park first presented his paper at the Joint Meeting of the Section on Practice of Medicine and the Section on Pathology and Physiology of the American Medical Association, 59th Annual Session, Chicago, June, 1908. It was during the discussion of Park’s paper that M. J. Rosenau used the term typhoid Mary, the first published instance.

  9. NYCDH, AR, 1907, p. 321.

  10. George Edington to author, January 18, 1994, quoting his mother who worked in the Riverside Hospital doctors’ dining room, in response to Author’s Query, New York Times, Book Review sec., January 16, 1994; Emma Rose Sherman, telephone interview with author, from her home in New York City, June 14, 1993: the cottage on the outside was "darling" but on the inside was like a "pit sty and had a bad stench:" and (New York) Sun, March 28, 1915.

  11. The term is from the Latin, habere, which means to have and corpus, or body, and literally requires the restrainer to bring the body of the restrained person to court. As legal expert James Tobey explains, "When a person has been arrested or deprived of his liberty by quarantine, isolation, or commitment to a hospital, jail, or institution, he is entitled to have the legality of his detention passed upon by a court of record. This he may do by means of a writ of habeas corpus, a command by the court to produce or "have the body" of the person in court at a specified time." James A. Tobey, Public Health Law (New York: The Commonwealth Fund, 1947), p. 355.

  12. "’Typhoid [sic] Mary’ Never Ill, Begs Freedom," New York American, June 30, 1909, p. 3.

  13. Hearst’s biographers do not provide any information that would verify his possible participation in the Mallon case. See, for example, John K. Winkler, William Randolph Hearst: A New Appraisal (New York: Hastings House, 1955), and W. A. Swanberg, Citizen Hearst (New York: Scribner’s Sons, 1961). Swanberg notes other occasions when Hearst got financially involved with the people whose cases his newspaper covered. In 1897, the New York Morning Journal (previous name of the New York American) editorially defended Elizabeth Sommers, who had been jailed for accosting a police officer while drunk. Hearst hired an attorney who secured a writ of habeas corpus for Sommers, and she was ultimately released (p. 120).

  14. George Ferguson to Mary Mallon, April 30, 1909, In the Matter of …Mary Mallon (1909) laboratory reports.

  15. All the Ferguson laboratory reports are included in In the Matter of …Mary Mallon (1909) at the New York County Courthouse. It is also possible that Mallon had already planned the court appearance when the New York American learned of her plans and advertised them. There is no evidence that O’Neill took this as a pro bono case.

  16. "’Typhoid Mary’ The Extraordinary Predicament of Mary Mallon, a Prisoner on New York’s Quarantine Hospital Island, Not Because She is Sick, But Because She Breeds Typhoid Fever Germs and Scatters Them Wherever She Goes," New York American, June 20, 1909, American Magazine sec., pp. 6-7. The depiction of the victims was slightly out of line with information provided by Soper. (See discussion of the count in chap. 1.) I am grateful to Dawn Corley for locating this issue for me.

  17. N.W. Ayer & Son’s American Newspaper Annual (Philadelphia: N.W. Ayer & Son, 1907), p. 605, gives the circulation figure as 778,205, and here I estimate 1909 figures. The daily New York American garnered only 300,000 in 1907.

  18. New York American, June 20, 1909. There are some errors in Park’s statement which leads one to think he was not directly quoted. First, he twice refers to Mallon as a "typhus" carrier–a different disease, even though once thought to be the same: Park certainly knew the difference and would not have made this mistake. Second, he claimed that Mallon was "of course, segregated with the typhoid patients," when he knew she was the only person with typhoid isolated on North Brother Island, where almost every inmate was a tuberculosis sufferer. Third, he wrote that "examination is made each day," when it was made at the most three times a week and often not more than once a week. Fourth, he intimated that Mallon was unique among the small numbers of carriers, when the literature already posited that 3 percent of recovered cases became life-long carriers. See chap. 1 for the state of medical knowledge.

  19. George Francis O’Neill’s biography was pieced together from various newspaper notes about him and from the city directories; his admission to the bar was verified in a letter from Joe Murphy, Senior Assistant Appellate Court Clerk, to Sarah Pfatteicher, my research assistant, December 29, 1993. See his obituary in the New York Times, December 24, 1914. On his expertise, see, for example, the New York Times, December 3, 1911: "The lawyer who will prosecute Mary’s case against the city is the same one who appeared for her before the Supreme Court in 1909, when her freedom was denied. He is George Francis O’Neill of 5 Beekman Street, and he is a specialist in medico-legal questions." The address given for Mallon’s lawyer, 5 Beekman Street, corresponded to the office address of the specific O’Neill who died in 1914 and whose home address was 502 E 89th Street. When he defended Albert Patrick, O’Neill’s office moved to 291 Broadway, but his home address remained the same. On the Patrick case, see, for example, the New York Times, December 18, 1910; May 4, 1911; November 28, 1912. No papers of O’Neill’s have been located. I have not been able to verify his standing for state senate. I would like to thank the New York Bar Association for their help in my efforts to learn more about this attorney.

  20. Fred S. Westmoreland, the resident physician at Riverside Hospital, admitted that the health department received from Soper a report "similar" to his printed one, "with the exception that in the [printed] report the names are eliminated." O’Neill probably would not have seen this until after filing his petition. See In the Matter of …Mary Mallon (1909), Return to the Writ. I cannot absolutely verify that the notes quoted were written by O’Neill, but the context strongly suggests it.

  21. The notes were written on the back of one of the pages of Mary Mallon’s undated letter and are part of In the Matter of …Mary Mallon (1909).

  22. In the Matter of …Mary Mallon (1909), Petition for Habeas Corpus.

  23. On habeas corpus proceedings in public health matters, see Tobey, Public Health Law, pp. 354-56.

  24. In the Matter of …Mary Mallon (1909), Memorandum.

  25. See any of the newspapers cited above during June and July, 1909. For example, the New York Times reporter wrote on July 17, 1909: "Mary Mallon, known to fame as ‘Typhoid Mary,’ and once the cook in the family of J. Coleman Drayton of 56 East Seventy-ninth Street." Or the (New York) Sun of June 30, 1909: "She is Mary Mallon and in her day cooked in the homes of J. Coleman Drayton, Henry Gilsey, and others in New York."

  26. Larry Gostin, "Traditional Public Health Strategies,: in AIDS and the Law: A Guide for the Public, ed. Harlon L. Dalton, Scott Burris, and the Yale AIDS Law Project (New Haven: Yale University Press, 1987), pp. 47-65, quotations from p. 50.

  27. Jacobson v. Massachusetts (1905), 197 U.S. 11. The decision is reproduced in its entirety in Tobey, Public Health Law, pp. 238–40, and the quotations here are from that printing.

  28. Tobey, Public Health Law, p. 240.

  29. Gibbons v. Ogden (1824), 9 Wheat, 1, 6 L. Ed. 23, quoted in Tobey, Public Health Law, p. 42.

  30. In the Matter of …Mary Mallon (1909), Memorandum.

  31. NYCDH, AR, 1919, p. 81. The department of health traced sixty-seven typhoid carriers in 1919, of which Copeland described four as "refractory, requir[ing] special care in order to make them comply with our requirements," two sentences after he states the laws on the books did not apply to healthy carriers.

  32. NYDCH, AR, 1921, p. 52.

  33. There is some confusion in the record about when New York law actually allowed health officials to consider carriers as sick in terms of health policy. According to one report of the New York’s regulations, on March 30, 1915, section 86 of the health code was revised to allow for carriers to be "subject to the regulations governing clinical cases" of the typhoid fever and other infectious diseases. Similarly, a revision of regulation 3 was recognized by the Board of Heath Minutes on June 30, 1915, to the effect that "any person who is a ‘carrier’ of disease germs of Asiatic cholera, bacillary dysentery, epidemic cerebrospinal meningitis, poliomyelitis, diphtheria or typhoid fever, shall be subject to the regulations governing clinical cases of these respective diseases." Minutes, Board of Health of the City of New York, New York Municipal Archives, Box 3939, vol. 2 in the box. But Commissioner Copeland and other New York officials before 1921 did not see this as helpful in their own attempts to control carrier behavior (since they were not attempting to hospitalize or isolate every carrier they found), and their response is most critical for understanding events. See Charles E. Simon, Human Infection Carriers: Their Significance, Recognition and Management (Philadelphia: Lea & Febiger, 1919), pp. 238–39.

  34. In the Matter of …Mary Mallon (1909), Traverse to the Return to the Writ.

  35. George Soper, "Typhoid Mary," Military Surgeon 45 (1919): 10.

  36. Despite the sound of the name of the court, this is a first-level city court that heard the case. See Randolph E. Bergstron, Courting Danger: Injury and Law in New York City 1870–1910 (Ithaca: Cornell University Press, 1992), p. 13: "In New York City the Supreme Court was the primary court of initial jurisdiction, while the highest State Court was the Court of Appeals."

  37. New York Evening Post, July 16, 1909, p. 1.

  38. New York American, June 30, 1909, p. 3.

  39. Quoted in the New York Times, December 3, 1911, p. 9.

  40. Quoted in the New York American, December 3, 1911, sec. 5, p. 6.

  41. Letter to the editor, July 2, 1909.

  42. On Progressive urban politics see David P. Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885–1900 (Columbia: University of Missouri Press, 1972); Robert H. Wiebe, The Search for Order, 1877–1920 (New York: Hill & Wang, 1967); John D. Buenker, Urban Liberalism and Progressive Reform (New York: W. W. Norton & Co., 1973); and a host of single-city studies including Zane L. Miller, Boss Cox’s Cincinnati: Urban Politics in the Progressive Era (New York: Oxford University Press, 1968) and Melvin G. Holli, Reform in Detroit: Hazen S. Pingree and Urban Politics (new York: Oxford University Press, 1969). For the effects of reform on public health, see Judith Walzer Leavitt, The Healthiest City: Milwaukee and the Politics of Health Reform (Princeton: Princeton University Press, 1982).

  43. Quoted in the New York Evening Post, July 16, 1909, p. 1.

  44. Ibid.

  45. New York World, July 20, 1909, p. 18.

  46. Quoted in the Brooklyn Daily Eagle, June 29, 1909, p. 1. The identification of specific strains of typhoid bacilli that could have connected Mallon specifically to her victims–phage testing–did not exist in 1909. While the new science of bacteriology had uncovered ways to identify pathogenic bacteria within Mallon’s body, it could not definitively state that her germs were the same type that had infected or killed her twenty-two alleged victims. Indeed, the victims’ bacteria had not received the same laboratory scrutiny that Mallon’s had undergone. My thanks to Thomas Brock for his discussion of serotypes, phage types, and bacteria strains.On phage typing and its use in connecting case to carrier, see for example, M. Dorthy Beck and Arthur c. Hollister, Typhoid Fever Cases and Carriers: An Analysis of Records of the California State Department of Public Health from 1910 through 1959 (Berkeley: State of California Department of Public Health, 1962), pp. 60–66. For an example of the debate on these issues, see W.H. Hamer, "Typhoid Carriers and Contact Infection: Some Difficulties Suggested by Study of Recent Investigations Carried out on ‘Living Lines.’" Proceedings of the Royal Society of Medicine 4 (1910–11): 105–46. Mary Mallon specifically is discussed on p. 109.

  1. For a general argument against detaining healthy carriers, see C.L. Overlander, "The Typhoid Carrier Problem," Boston Medical and Surgical Journal 169 (1913): 37–40.

  2. The words isolation and quarantine were often used synonymously, as I tend to do here, but it should be noted that they have technically different meanings. Isolation refers to the separation of infected people during their period of infectivity to prevent them from spreading their disease; quarantine refers to the detention or separation of people who might be at risk for becoming sick, by virtue of, for example, being exposed to disease, to keep them from in turn exposing others. Because of Mary Mallon’s ambiguous legal and new medical definition, it could be argued that she falls into both camps. See Tobey, Public Health Law, p. 138.

  3. In the Matter of …Mary Mallon (1909), Memorandum.

  4. Ibid.

  5. In the Matter of …Mary Mallon (1909), Return to Writ.

  6. In the Matter of …Mary Mallon (1909), Proposed Order and Notice of Settlement.

  7. S. Josephine Baker, Fighting for Life (New York: Macmillan Co., 1939), p. 77.

  8. This position was in line with national thinking at the time. Charles Simon, for example, wrote, "while operative treatment may be urged upon every fecal carrier …the vast majority of the cases will not come to operation of their own free will, nor can they be compelled to subject themselves to the dangers incidental to such treatment." Human Infection Carriers, pp. 100-1.

  9. Another example of the law abridging individual rights in the name of science can be found in Susan E. Lederer, Subject to Science: Human Experimentation in American before the Second World War (Baltimore: The Johns Hopkins University Press, 1995). I explore the lure of science in this period as it became evident with regard to childbirth in Brought to Bed: Childbearing in American 1750–1950 (New York: Oxford University Press, 1986).

  10. "Guide to a Walking Typhoid Factory," New York Times, December 2, 1910.

  11. New York American, March 15, 1924, p. 8. See also, the New York Tribune, which quotes Judge Cobb, "Any punishment I would impose would be in the hope that it would be a deterrent." March 15, 1924, p. 20.

  12. The healthy carrier case that did become the weathervane of how health departments might act in similar circumstances was Illinois ex rel. Barmore v. Robertson, 302 Ill. 422 (1922), a ruling by the Illinois Supreme Court, in which Clarence Darrow defended healthy typhoid carrier Jennie Barmore (unsuccessfully) in her plea for release from house quarantine. The result was the same as Mallon’s case in that it furthered health department authority to isolate carriers without systematic consideration of due process and personal liberty. I have written about this case in "Gendered Expectations: Women and Public Health in the Early Twentieth Century," in U.S. History as Women’s History: New Feminist Essays, ed. Linda K. Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar (Durham: University of North Carolina Press, 1995). I am grateful to Sarah Pfatteicher and Bob Conlin for helping me understand the legal traditions in publishing cases.

  13. The Cuban response to HIV infection is examined in the Conclusion. See Karen Wald, "AIDS in Cuba: A Dream or a Nightmare?" Z Magazine, December 1990, pp. 104-9; Nancy Scheper-Hughes, "AIDS, Public Health, and Human Rights in Cuba," The Lancet 342 (1993): 965-68; and Scheper-Hughes, "AIDS, Public Health, and Human Rights in Cuba," Anthropology Newsletter 34 (October, 1993): 46, 48.

  14. Charles v. Chapin, The Sources and Modes of Infection (New York: John Wiley & Sons, 1910), p. 110; Milton J. Rosenau, Preventative Medicine and Hygiene (New York: D. Appleton-Century Co., 1935), p. 144.


Typhoid Mary by Judith Walzer Leavitt Copyright ©1996 by Judith Walzer Leavitt Reprinted by permission of Beacon Press, Boston


 

Consider These Questions

Background

 

1. Given Judith Walzer Leavitt's sources for the chapter (articles, court records, health records, additional secondary sources), does she limit the point of view of the argument?

2. What types of primary sources are left out of Leavitt's account of the 1909 New York Supreme Court decision on Mary Mallon?

3. Mary Mallon's case concerns public health. In what ways do we hear/not hear the voice of the "public" as presented by Leavitt?




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