Full file at
The Law of Emergencies
Nan D. Hunter
Instructor’s Manual
Chapter 2
A. Context: DeShaney v. Winnebago County (p. 34)
DeShaney v. Winnebago County grew out of a horrible set of circumstances. A one-year-old Wisconsin boy named Joshua DeShaney placed in his father’s custody in 1980 pursuant to a court order. Three years later, reports of child abuse led the Winnebago County Department of Social Services to intervene and remove the boy to the custody of a hospital. Soon thereafter, Joshua was released to his father based on the recommendation of social workers. Over the course of the next year, a social worker visited the DeShaney home on a number of occasions, witnessed a number of suspicious circumstances, but failed to take any follow-up actions. In early 1984, the father beat Joshua so severely the boy went into a life-threatening coma. Although Joshua did not die, the brain damage from the attack was so severe that he was expected to spend the rest of his life in an institution.
Joshua’s mother subsequently filed a lawsuit against Winnebago County for failing to intervene in the situation. The county won the lawsuit at every level – including the Supreme Court – on the grounds that there was not sufficient state action in the case to merit Due Process protection under the 14th Amendment. Essentially the Supreme Court held that because Joshua was not in the custody of the state, the state had no affirmative duty to protect him from a non-state or private actor. The decision is a seminal case with respect to both the state action requirement for invoking Due Process protection (see below) and the concept of negative liberties. In a famous dissenting opinion, Justice Harry Blackmun berated the majority opinion, arguing that ample state action existed in the process of establishing a Department of Social Services to protect against child abuse. For Blackmun, if individuals expected and were instructed to rely on state social services, it would be a contradiction to deny them relief when they did just that.
DeShaney remains a contested decision, with many liberal scholars citing it as an unwarranted and dangerous precedent. Its scope, however, was recently reaffirmed in the case of Castle Rock v. Gonzales.[1] Jessica Gonzales of the Colorado town of Castle Rock obtained a restraining order against her husband during divorce proceedings. Less than three weeks later, the husband violated the order by taking possession of the children at around 5 p.m. Gonzales phoned the police four times over the course of the next seven hours, claiming that the husband had taken the children and pleading that the order be enforced. Even though the husband had called Gonzales and admitted he had the children, the police took no action. Sometime after 3 a.m., the husband arrived at the Castle Rock police station and began a gunfight with the police. The corpses of the three children, all of whom had been killed before the husband arrived at the police station, were later found in his vehicle. Ms. Gonzales sued the town – and specifically its police department – for failing to enforce the protection order. Once again, the Supreme Court denied relief on the grounds that the state action requirement had not been met – in this case because the restraining order was not mandatory and therefore created no entitlement by the mother to its enforcement.
B. Critical Thinking (p. 41) – Greene, Antoinette R., and Due Process
Greene v. Edwards is a representative case for the ways in which the quarantine power can be challenged:
Legal challenges to quarantines . . . cannot hope to succeed by attacking the quarantine power in itself but must instead attack some feature of quarantine administration which, as the Supreme Court has also recognized, may proceed “by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” [Jacobson v. Massachusetts.] An example of a successful attack of this sort appears in Greenev. Edwards, in which a person quarantined for tuberculosis successfully challenged an administrative process that confined him without providing, among other things, adequate access to counsel and an opportunity to cross-examine witnesses against him at the quarantine hearing.[2]
The chief procedural defect the Greene court located was the failure to appoint counsel for Mr. Greene, although the court also expressed a willingness to take a strict view of other defects, such as: the right to notice; the right to a full hearing (including the right to cross-examine adverse witnesses); and the right to a certain standard of proof. In reaching this decision, “the West Virginia Supreme Court reasoned that there is little difference between loss of liberty for mental health reasons and the loss of liberty for public health rationales,” so that “[p]ersons with infectious disease . . . are entitled to similar procedural safeguards.”[3] The more overarching concern is that any such deprivation of liberty (confinement) must be supported by adequate procedural due process protections.
In In re Antoinette R, on the other hand, there is no mention of many of the safeguards referenced by the West Virginia Supreme Court in Greene; instead it seems implicit that most of those safeguards have been complied with. The “posture” of the case – how it reached the court deciding the issue – indicates that Antoinette R. had already received a hearing for the detention and was able to present evidence supporting her case (hence all the information about her religious awakening). The chief safeguard appears to be the burden put on the state to demonstrate the appropriateness of detaining the individual in question. As the court says, New York “demonstrated through clear and convincing evidence the respondent’s inability to comply with a prescribed course of medication in a less restrictive environment” (p. 40). This standard of proof is very favorable to the individual to be detained, which many commentators would argue is altogether proper when one’s liberty is to be so seriously restricted. Although not as high as the burden on the prosecution in a criminal case (beyond a reasonable doubt), a clear and convincing standard requires a very thorough showing on the part of the state. The many steps that the New York health department went through indicates that many of the same safeguards that the West Virginia court commanded were met. The clear and convincing standard is one of the safeguards contemplated by the Greene court.
Every state has an interest in ensuring that individuals receive a full and fair process before confinement. At its most basic, conforming to such due process protections helps strengthen public support for such confinement programs. On a more practical level, a pre-confinement hearing enhances the validity of individual confinements, making them less subject to after-the-fact challenges and thereby requiring less litigation on the part of the state to justify them.
C. Context for the Cases Cited under the Heading “Substantive Due Process” (p. 41)
- Washington v. Glucksberg was a challenge to a Washington state law that banned physician-assisted suicide on the grounds that it violated a terminally ill patient’s Due Process liberty right to choose death over life. In a unanimous opinion, the Supreme Court upheld the law. As the excerpt on p. 44 indicates, the Court looked with a cautious eye at which interests were so thoroughly rooted in the tradition and history of the nation as to merit fundamental status. Physician-assisted suicidefailed to meet that standard since it generally has been and continues to be outlawed. Chief Justice Rehnquist pointed to more than 700 years of Anglo-American common-law tradition of either punishing or otherwise disapproving of both suicide and assisting suicide, in reaching the conclusion that it is offensive to the traditions of the nation.
- Cruzan v. Missouri Department of Health was a case concerning the right to refuse medical treatment. Nancy Cruzan was involved a serious automobile accident that left her in a persistent vegetative state. After Cruzan was sustained for several weeks on artificial feedings, her parents sought to terminate the life-support system. State hospital officials, however, refused to do so. The parents brought suit claiming that the Due Process Clause of the 14th Amendment permitted them to refuse such treatment. The Supreme Court, while recognizing that the right to refuse medical treatment is a protected interest under the Due Process Clause, ultimately held that Missouri acted lawfully in restricting that right by requiring a showing of clear and convincing evidence that the patient herself – not her family – would have desired the withdrawal of the treatment. In other words, while the right to refuse medical treatment is a protected interest, a state is not obliged under the Due Process Clause to accept the “substitute judgment” of family members when there is insufficient proof of what the patient would have actually wanted.
- Poe v. Ullman represented a 1961 challenge to an almost century-old Connecticut statute that prohibited both the actual use of contraceptives and counseling such use. The two women who brought the case (Poe and Doe) had both experienced pregnancies that resulted in children who did not live past birth, and both were informed by their physician that any further pregnancies would meet a similar end and possibly threaten their ownlives. Accordingly the women filed suit alleging that the law violated liberty interests protected by the 14th Amendment’s Due Process clause. The Supreme Court eventually dismissed the case for a lack of standing on the part of the plaintiffs. (Briefly, a plaintiff must have actually suffered an injury or be at risk of suffering an injury to have “standing” to sue in federal court. In Poe, the Court dismissed the suit because the women complained only of the threatened application of the prohibition laws – the laws had never actually been enforced.) Shortly after Poe was decided, two Connecticut physicians (including Estelle Griswold) opened a birth control clinic in New Haven in an attempt to test the prohibition on contraceptives. Both physicians were arrested and fined $100. The case made it back to the Supreme Court, which this time reached the merits. In the 1965 decision in Griswold v. Connecticut, Justice William O. Douglas located in the “penumbras” and “emanations” of other constitutional provisions a right to privacy that extended to the use of contraceptives. This “penumbral” argument about constitutionally protected rights has remained both influential and controversial.
D. More Background for the Jew Ho Excerpt (p. 46)
The case of Jew Ho v. Williamson is not as famous as some of the other cases in these first two chapters – for example, Jacobson is the seminal public health case, while Yick Wov. Hopkins[4] (cited in Jew Ho) is the landmark decision standing for the proposition that a neutral law applied in a discriminatory way will violate the Equal Protection Clause. Jew Ho, however, might have a more interesting fact pattern than either of those, as the following excerpt should help illustrate:
One of the most infamous quarantines occurred in 1900 in San Francisco when a small number of cases of bubonic plaque erupted in Chinatown. During the last half of the nineteenth century and well into the twentieth century, the Chinese on the West Coast had been the subject of significant racial hostility, which often manifested itself through discriminatory laws. Much like Russian Jews in New York, health authorities, reformers, and journalists understood the Chinese in California as lacking appropriate homes and domestic arrangements. Indeed, filth was understood as part of Chinese people's very character, and as such, they were deemed a continual source of contagion and disease potentially afflicting whites in San Francisco. Both working class whites and city health officials in the late nineteenth century had repeatedly attempted to raze Chinatown. As a committee of the San Francisco Board of Health stated, the “Chinese cancer must be cut out of the heart of the city.” In fact, the federal government was so concerned that Chinese immigrants would bring contagious disease into the United States that in 1896 the Surgeon General ordered quarantine stations on the West Coast to disinfect the baggage of all Chinese entering the United States.
In March 1900, the body of a Chinese man was found in Chinatown; a physician quickly diagnosed the cause of death as bubonic plague and reported it to the Board of Health. That same evening San Francisco's Board of Health made the determination to quarantine all of Chinatown, allowing only Caucasians to leave the area and no one to enter. The death of a Chinese man from bubonic plague only seemed to confirm the belief that Chinatown was a place of danger from which contamination emanated.
Unlike the quarantine of Russian Jews that occurred in New York where no one threatened legal suit on behalf of the quarantined immigrants, the Chinese Consul General . . . immediately threatened to file suit in federal court. This threat, along with uncertain laboratory results from the autopsy regarding the presence of bubonic plague, caused the quarantine to be quickly lifted. Within the month, however, additional potential cases of plague appeared. At this point, the federal government through the Surgeon General formulated a plan to require the inoculation of all Chinese in San Francisco with an experimental vaccine. Federal officials also informed railroad companies that they were not to transport Chinese out of the city unless the individual could produce a vaccination certificate, and federal officials were stationed at crossings out of San Francisco and California to ensure compliance. Meanwhile, the Secretary of the Treasury authorized the Surgeon General “to forbid the sale or donation of transportation by common carrier to Asiatics or other races particularly liable” to bubonic plague.
These orders produced considerable protest in the Chinese community. Taking immediate action, the Chinese Consolidated Benevolent Association filed suit on behalf of all Chinese in San Francisco against the San Francisco Board of Health and the federal quarantine officials. The plaintiffs claimed that the vaccine was toxic and experimental and that the actions of local and federal officials were “purely arbitrary, unreasonable, unwarranted, wrongful, and oppressive.” They further claimed that these health orders violated personal liberty and the right to pursue a lawful business. In addition, the complaint alleged that the orders constituted a denial of equal protection as they were applied only to Chinese and Japanese.
In Wong Wai v. Williamson, the court ruled in the plaintiffs' favor and issued an injunction against city and federal officials on the ground that the rules violated the Fourteenth Amendment. The court concluded that the rules were unreasonable because there was no rational basis for requiring only the Chinese to be inoculated before leaving the city. They were also racially discriminatory as they singled out Asians, although the government failed to demonstrate that Asians were more susceptible to bubonic plague than others. Furthermore, as the court wrote:
[W]hen the municipal authority has neglected to provide suitable rules and regulations upon the subject, and the officers are left to adopt such methods as they may deem proper for the occasion, their acts are open to judicial review, and may be examined in every detail to determine whether individual rights have been respected. The court thus found the regulations to be arbitrary, discriminatory, and unrelated to preserving public health.
This ruling did not end the matter, however. Texas health officials soon closed its border to goods and travelers from San Francisco. Further, one federal official wrote in his memoirs that the federal government delivered the following ultimatum to California: “You are a sovereign state . . . but if you do not take steps to control this vital danger, we will establish a quarantine entirely around you.” Likewise the California Board of Health began to put considerable pressure on San Francisco authorities to establish a quarantine of Chinatown. In response, city officials passed an ordinance specifically authorizing the Board of Health to quarantine persons, houses, places, and districts “when in its judgment it is deemed necessary to prevent the spreading of contagious or infectious diseases.” Quickly, the Board quarantined all of Chinatown.
Chinatown was once again sealed off with barbed wire and wooden fence posts while over a hundred policemen enforced the quarantine. Meanwhile, residents of Chinatown began to suffer from food shortages and implored city, state, and federal officials to provide provisions for those quarantined. Instead, officials of all three levels of government contemplated the removal of Chinatown residents to (yet to be established) quarantine facilities and began discussing the burning of Chinatown ... Quickly, lawyers filed a habeas petition on behalf of a quarantined Chinese man who did not live in Chinatown but who had become trapped while visiting friends. The habeas petition was granted. Within a week lawyers, once again representing a number of Chinese organizations, filed suit, with Jew Ho as the plaintiff. Ho claimed that the quarantine infringed on his personal liberty and his right to conduct business. The complaint alleged that the quarantine itself was discriminatory in that officials demarcated the quarantined area to specifically exclude whites. Furthermore, the plaintiff contended that the vast majority of Chinatown experienced no incidence of bubonic plague and the quarantine of 15,000 residents heightened the risk of exposure to disease rather than protecting their health. Finally, all levels of government had failed to provide for the needs of those quarantined. The city responded that all those who died of plague were Chinese living in Chinatown. Further, it claimed that Ho, and others by virtue of being Chinatown residents, potentially had been exposed to plague.