The Epidemic of Due Process Violations for Tuberculosis Patients

Tuberculosis (TB) is the leading infectious disease killer in the world, causing 1.5 million deaths annually, according to the Centers for Disease Control and Prevention (CDC). [1] In 2022, 8,300 TB cases were reported in the United States, which was a slight increase from the year before. [2] Within public health policy, treatment of TB patients has become subject to both the judgment of medical practitioners and public health officials given the highly contagious and dangerous nature of the disease. Should it be determined that the patient has active, communicable TB, and could potentially pose a danger to public health, public health officials are legally entitled to detain the patient in a quarantine facility, which may last anywhere from a few days to months until treatment is completed. Known as emergency detention, in such cases, public hearings are not required, raising concern about questions of due process and liberty interests, or an individual's right to do anything in accordance with due process. [3]

 Express TB-control laws govern state-specific TB prevention; however they vary considerably from jurisdiction to jurisdiction. [4] The CDC has determined that, “All state TB prevention and control laws must comply with federal constitutional requirements,” which refer to the standards established by the fifth and fourteenth amendments. [5] Nevertheless, with such variance in express TB-control laws, it has been difficult to solidify procedural due process practices uniformly across the country. Many express TB-control laws involve a considerable amount of subjectivity in TB assessments and procedures, which creates legal and constitutional ambiguities especially in the context of emergency detention. Thus, the implementation of procedural due process on a federal level is necessary in order to protect against unconstitutional emergency detention of TB patients.

The first legal examination regarding the individual rights of TB patients was in City of Newark v J.S., 1993. In 1993, the City of Newark filed for and obtained an order for the commitment of patient J.S. so “that the person will so conduct himself that he will not constitute such a menace." [6] According to the court, J.S, had a history of disappearance and going against medical advice. While residing in a shelter following his release, he failed to attend his TB appointment because he lacked the means to afford a visit after his Supplemental Security Income check was delivered to a different hospital. As a result of this instance, along with allegations that he failed to keep up with TB medication and regimens, rendered him as “noncompliant,” and subject to emergency detention without a trial. J.S’ sentence raises concerns about the inequities between TB patients across jurisdictions, seeing that his failure to keep up with his TB appointments stems from the fact that he could not afford to do so.

The court presiding over City of Newark vs. J.S., 1993 sided with Newark, however the court reiterated the importance of complying with the Disability Act of 1990. Also known as the ADA, the act has provided a national mandate for the elimination of discrimination for people with disabilities. Referring to the involuntary commitment of J.S., the court stated that, “there is such authority,” to involuntarily commit a person with TB to a hospital, “and that the standards and procedures applicable to involuntary civil commitments must be followed in applications to commit persons with TB.” [7] Even for disabled patients with conditions that would subscribe them to the authority of public health officials due to their designation as a “threat to public health,” the ADA serves to provide federal protection against civil liberty violations. [8] Although City of Newark v. JS loosely references ADA standards and federal civil commitment procedures, there is no clear declaration of due process rights in the case of emergency detention. The lack of a clear federal policy causes significant variation in how different jurisdictions approach TB cases; this thus brings to light the enormous amount of subjectivity involved in TB cases which is what allowed for J.S. 's unconstitutional emergency detention in the first place.

However, some jurisdictions have recognized the need for procedural due process when it comes to a conflict of liberty rights, particularly for emergency detention in other disability cases, such as for mentally ill patients. In Addington v. Texas., 1979, the plaintiff was subject to emergency detention following the plaintiffs' mother’s petition for his involuntary confinement. Psychiatrists, cited as experts in the case, referenced concern for the plaintiff’s psychotic schizophrenia and paranoid tendencies, alongside evidence of the plaintiff's threats to injure himself or people around him. In his trial, the jury determined that the plaintiff was “without a doubt” mentally ill and required hospitalization. Following the plaintiff’s appeal, the case then moved into the Texas Court of Appeals, where the ruling was reversed under the appellants argument that there should have been a "beyond a reasonable doubt" standard of proof, which means that all members of the jury must have be convinced that Addington’s condition required hospitalization. The original court had declined to adopt the "beyond a reasonable doubt" standard of proof due to Texas state laws reserving this standard for criminal convictions–not civil commitments. [9] Later, the Texas Supreme Court reinstated the original decision to hospitalize Addington and held that the appropriate ruling had been issued. The court also held that a "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil commitment. To justify confinement, the court affirmed that it must be shown that the person is likely to pose a danger to self or others and that there would be a "substantial risk of dangerous conduct within the foreseeable future," as previous statements from experts had confirmed. [10]

As a whole, the court’s statement on justification for confinement makes an important clarification in the operation of the implementation of procedural due process at the federal level. The Texas Supreme Court affirmed in their opinion that "civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." [11] Securing the right to due process does not ensure that people’s individual rights are always protected, even when posing a serious threat to public health. Instead, for patients facing emergency detention, it offers the right to defend their case with proper notice and representation in court. In other words, taking away due process from TB patients does simply violate their guaranteed constitutional rights, but rather deprives them of their opportunity to argue for their civil liberties.

Specific TB procedures often appeal to state legislation, which is exemplified in Greene v. Edwards, 1979, which examined TB public health policies within the context of the West Virginia Tuberculosis Control Act. The plaintiff, William Arthur Greene was involuntarily detained at Pinecrest Hospital; however the detention papers served to Greene failed to mention that he had the right to be represented. Greene alleged that the Tuberculosis Control Act, which was cited in Greene’s commitment, was unconstitutional due to the fact that it failed to afford procedural due process, patients’ right to cross-examine, confront and present witnesses, and require that patients only be “committed only upon clear, cogent and convincing proof.” [12] From a larger frame of reference, this case revealed that express TB control laws in fact, have the potential to be fallible without federal backing.

As constitutional conflicts between procedural due process and express TB control laws have become more mainstream, the CDC conducted an analysis of TB express laws and identified key points of variance between jurisdictions. In the case of emergency detainment, while 68% of cases did address procedural rights, in other cases, court order was only mentioned  as an enforcement measure, but there was no explicit mention of due process and other rights of the accused. Many of the discrepancies stemmed from designating what group of people held authority to enforce: while some legislation delegated enforcement to a specific agency or government official, legislation from other jurisdictions refer to a general governmental obligation. [13] Principally, the lack of designation of authority leads to discrepancies when it comes to treatment of TB patients across jurisdictions. Although a federal application of procedural due process would not promise to clear up the entirety of such discrepancies, it does guarantee stricter enforcement of adhering to patients’ civil liberties, as it promises uniformity across all jurisdictions.

In some states, health authorities were authorized to make emergency detention orders without prior court orders. [14] A hearing was only required after a specified amount of time elapsed for the patient's detention or request for release. In these cases, emergency detention was often used following TB patients' failure to follow treatment and comply with public health orders, commonly as a “precautionary measure.” When used as an enforcement measure, emergency detention takes on a new name– civil commitment. Civil commitment cases further ignore the necessity for inarguable evidence that patients would have served as a clear danger to public health, and instead left detainment subject to a public health officials judgment. More alarmingly, only 8% of jurisdictions had specific language preventing discrimination and stigmatization. [15] The study  noted that there is significant confusion, legal ambiguity, and concerns about the discrepancies between local jurisdiction, legislation, and Supreme Court rulings. This nonuniform application of federal jurisdiction, particularly of constitutional rights, has consequently made it difficult to enforce that all state legislation uphold civil liberties.

Ambiguity in state legislation is not uncommon. In fact, a key point of federalism allows for such delegation of power and authority to be the case. However, it is not enough to refer states to their obligation to ensure their state legislation is constitutional, but rather procedural due process should be implemented and afforded on a federal level. TB is not unequivocal: its symptoms and contagion are straightforward and consistent in most patients. This is an important aspect that should be considered when treating TB patients and subscribing them to commitment. For TB cases, ambiguity creates inequalities between groups of patients.

Admittedly, it is difficult to create legislation that balances the human rights of TB patients and overall public health given the highly contagious nature of the disease. This was made most abundantly clear to the broad public during the COVID-19 pandemic, with tensions surrounding individual liberties and an enactment of a nation-wide quarantine coming to light during this time. However, these debates between individual rights and public health have long existed prior, despite the common misunderstanding of TB as an ancient disease associated with urbanization and poor public and private sanitation common during the Industrial Revolution. Still, public health law must play this delicate balancing game, and to do so, appealing to constitutional law and preserving the right to due process should be prioritized by legislators.

 Edited by Sierra Romero

[1] “Due Process.” Centers for Disease Control and Prevention, September 1, 2012. https://www.cdc.gov/tb/programs/laws/menu/appendixa.htm. 

[2] Kimberly R. Schildknecht, , Robert H. Pratt, Pei-Jean I. Feng, Sandy F. Price, and Julie L. Self, “Tuberculosis — United States, 2022.” MMWR. Morbidity and Mortality Weekly Report 72, no. 12 (March 24, 2023): 297–303. https://doi.org/10.15585/mmwr.mm7212a1. 

[3] “Due Process.” Centers for Disease Control and Prevention.

[4] Oscar A. Cabrera,, James G Hodge, and Lawrence O Gostin. Rep., Express Tuberculosis Control Laws in Selected U.S. Jurisdictions. Centers for Law & the Public’s Health Disease Control and Prevention (CDC) , October 1, 2008,  https://www.cdc.gov/phlp/docs/Centers_Report-Express_TB_Control_Laws-Final.pdf. 

[5] “Due Process.” Centers for Disease Control and Prevention.

[6] City of Newark v. J.S, 279 N.J. Super. 178 (1993).

[7] City of Newark v. J.S, 279 N.J. Super. 178 (1993).

[8] City of Newark v. J.S, 279 N.J. Super. 178 (1993).

[9] Addington v. Texas, 441 U.S. 418 (1979).

[10] Addington v. Texas, 441 U.S. 418 (1979).

[11] Addington v. Texas, 441 U.S. 418 (1979).

[12] Greene v. Edwards, 263 S.E.2d 661 (1980).

[13] Cabrera, Express Tuberculosis Control Laws in Selected U.S. Jurisdictions.

[14] “Due Process.” Centers for Disease Control and Prevention.

[15] Cabrera, Express Tuberculosis Control Laws in Selected U.S. Jurisdictions.