¹ The Epidemic that Sneaked into L.A.: Health Authorities Face Growing TB Threat, L.A. TIMES, Dec. 4 , 1993, at B7Google Scholar [hereinafter The Epidemic]. Today, TB infects about one-third (1.7 billion) of the world. See Sudre, P. et al., Tuberculosis: A Global Overview of the Situation Today, 70 BULL. WORLD HEALTH ORG. 149, 151 (1992)Google ScholarPubMed; see also Dolin, P.J. et al., Global Tuberculosis Incidence and Mortality During 1990-2000, 72 BULL. WORLD HEALTH ORG. 213, 215-17 (1994)Google ScholarPubMed (predicting that if TB control does not improve by the year 2000, it will have infected 90 million people worldwide this decade, reaching a rate of infection of 10.2 million new cases per year).

² See The Epidemic, supra note 1, at B7 (stating that TB rates in the United States were on the decline from more than 84,000 cases in 1953 to only 22,673 cases in 1984).

³ See Neglected Infrastructure Means Uphill Battle Against TB Epidemic, 1 Health Care Pol'y Rep. (BNA) No. 39, at 1699 (Dec. 6 , 1993)Google Scholar [hereinafter Neglected Infrastructure].

⁴ See id..

⁵ See The Epidemic, supra note 1, at B7. Since 1993, TB rates for the American-born have de creased while rates for the foreign-born have increased. Centers for Disease Control and Prevention, Tuberculosis Morbidity—United States, 1995, 275 JAMA 1629, 1629-30 (1996)CrossRefGoogle Scholar [hereinafter TB Morbidity 1995].

⁶ See Neglected Infrastructure, supra note 3, at 1699.

⁷ See Andrias, Richard T., The Criminal Justice System and the Resurgent TB Epidemic, CRIM. JUST., Spring 1994, at 2, 54Google Scholar (stating that had the “National Action Plan" proposed by the U.S Office of Technology Assessment been implemented in 1989, it would have cost only $36 million annually to fight TB. “However, budgeted funds were cut each year, and to institute a similar program in 1994 would cost roughly $484 million—more than thirteen times as much—because of the spread of the disease in the past five years.”).

⁸ See Vlahou, Toula, The TB Debate: Public Health vs. Private Liberty, ORLANDO SENTINEL, Jan. 24 , 1993, at GlGoogle Scholar.

⁹ See, e.g., TB Morbidity 1995, supra note 5, at 1629-30.

¹⁰ See Cantwell, Michael F. et al., Epidemiology of Tuberculosis in the United States, 1985 Through 1992, 272 JAMA 535, 537 (1994)CrossRefGoogle ScholarPubMed.

¹¹ Id..

¹² See id. at 539. One year later, another study reaffirmed these results. See McKenna, Matthew T. et al., The Epidemiology of Tuberculosis Among Foreign-Born Persons in the United States, 1986 to 1993, 332 NEW ENG. J. MED. 1071, 1075 (1995)CrossRefGoogle ScholarPubMed; see also infra notes 87-93 and accompanying text.

¹³ See, e.g., Better Immigrant TB Testing Urged, MIAMI HERALD, Aug. 17 , 1994, at 6AGoogle Scholar; Majority of New TB Cases Hit Immigrants, CHI. TRIB., Aug. 17 , 1994, at 19Google Scholar; Medicine: Rise in TB is Linked to Immigrants, HIV, SEATTLE POST-INTELLIGENCER, Aug. 17 , 1994, at A3Google Scholar; Most TB Cases Found Among Immigrants, S.F. CHRON., Aug. 17 , 1994, at D4Google Scholar; TB Crossing the Borders, WASH. POST, Aug. 17 , 1994, at A2Google Scholar; TB Increase Found in Immigrants, L.A. TIMES, Aug. 17 , 1994, at A12Google Scholar.

¹⁴ Two such groups include the American Immigration Control Foundation and Federation for American Immigration Reform.

¹⁵ See infra notes 94-96 and accompanying text.

¹⁶ Neglected Infrastructure, supra note 3, at 1701; see also Rubin, Sylvia, TB Not What it Used to Be—New Drugs the Difference, S.F. CHRON., Dec. 20 , 1993, at D7Google Scholar (“The reason for the increase in San Francisco? ‘The majority of our TB cases are in individuals not born in the United States, and San Francisco is a city of immigrants’ . . . .”).

¹⁷ HIV weakens the body’s immune system allowing TB to develop more rapidly. See infra text accompanying notes 29-32.

¹⁸ See Colangelo, Faith & Hogan, Mariana, Jails and Prisons—Reservoirs of TB Disease: Should Defendants with HIV Infection (Who Cannot Swim) Be Thrown into the Reservoir?, 20 FORDHAM URB. L.J. 467, 467 n.2 (1993)Google Scholar (quoting New York City Task Force On Tuberculosis In The Crim. Just. Sys., FINAL REPORT 11, 12 (1992)Google Scholar).

¹⁹ Id.; see also Martin, Steve C., Environment, Responsibility, and the History of Tuberculosis, 21 J.L. MED. & ETHICS 390, 391 (1993)CrossRefGoogle Scholar (noting that improvements in nutrition had more to do with declining case rates and mortality of TB than the introduction of antituberculosis medicine).

²⁰ See Martin, supra note 19, at 390-91.

²¹ See id.

²² See infra Part II.C.

²³ See The Worrisome Upswing in Tuberculosis, HEALTH NEWS, Apr. 1994, at 4Google Scholar.

²⁴ See Guidelines for Preventing the Transmission of Mycobacterium Tuberculosis in Health- Care Facilities, 1994, 43 Morbidity & Mortality Wkly. Rep. (U.S. Dep't Health & Human Servs.) No. RR-13, at 4 (Oct. 28 , 1994)Google Scholar [hereinafter Guidelines for Preventing].

²⁵ See id.

²⁶ See id.

²⁷ See id.

²⁸ See id.

²⁹ See, e.g., Burwen, Dale R. et al., National Trends in the Concurrence of Tuberculosis and Acquired Immunodeficiency Syndrome, 155 ARCHIVES INTERNAL MED. 1281, 1281 (1995)CrossRefGoogle ScholarPubMed (citing ten percent); Guidelines for Preventing, supra note 24, at 4 (citing eight percent).

³⁰ See Harvard Community Health Plan, Inc., TUBERCULOSIS SCREENING AND PROPHYLAXIS IN ADULTS 2 (1989)Google Scholar.

³¹ See DeCock, Kevin M. et al., Preventive Therapy for Tuberculosis in HIV-infected Persons: International Recommendations, Research, and Practice, 345 LANCET 833, 833 (1995)CrossRefGoogle Scholar; see also Burwen et al., supra note 29, at 1281 (TB infected persons “coinfected with HIV develop active TB at a rate of approximately 7% to 10% per year, much higher than the estimated 10% lifetime risk in non-HIV-infected persons.”) (emphasis added).

³² See Burwen et al., supra note 29, at 1285 (“[A] detailed TB and AIDS registry match from Florida indicate that although TB and AIDS may occur 0 to 5 or more years apart, in just over 90% of the cases, [active] TB occurred within 2 years before and 1 year after the diagnosis of AIDS.”).

³³ Compare The Worrisome Upswing in Tuberculosis, supra note 23, at 4.

Id., and Andrias, supra note 7, at 5 (“[O]n average, people have a 50 percent chance of becoming infected with TB if they spend eight hours a day for six months or twenty-four hours a day for two months working or living with someone with active TB.”) (citation omitted) with Funeral Directors and Farmers at Risk for Tuberculosis, AIDS WKLY. PLUS, Oct. 7 , 1996, at 18Google Scholar (discussing a study that showed that funeral directors have an elevated risk of TB which “can be cultured from cadavers, even if they have been embalmed for several days”), Califano, Joseph A., Three Headed Dog from Hell: The Staggering Public Health Threat Posed by AIDS, Substance Abuse and Tuberculosis, WASH. POST, Dec. 21 , 1992, at A22Google Scholar (TB is a highly contagious, deadly disease that “you can catch from the person next to you in a movie theater or classroom.”), California School Becomes Notorious for Epidemic of TB, N.Y. TIMES, July 18 , 1994, at A1Google Scholar [hereinafter California School Becomes Notorious] (TB outbreak at high school infecting 23% of students could have been prevented if a 16-year-old girl’s persistent cough was diagnosed properly), and Infection Key Role in TB Epidemic, ST. PETERSBURG TIMES, June 16 , 1994, at 5AGoogle Scholar (“At least one third of the patients studied in [New York and San Francisco] were found to have recently contracted the bacteria from an infected person.”).

³⁴ See Gostin, Lawrence O., The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law, and Society, 54 MD. L. REV. 1, 21 (1995)Google ScholarPubMed [hereinafter Gostin, The Resurgent Tuberculosis Epidemic]. Gostin cites an article by a former U.S. Health, Education and Welfare Department director as an example of a source which exaggerates the infectiousness of TB. See Califano, supra note 33, at A22.

³⁵ See Gostin, The Resurgent Tuberculosis Epidemic, supra note 34, at 20-22.

³⁶ See Frieden, Thomas R., Tuberculosis Control and Social Change, 84 AM. J. PUB. HEALTH 1721, 1722 (1994)CrossRefGoogle ScholarPubMed (“There are many unanswered questions in tuberculosis epidemiology: Where does most transmission occur? Why are some patients and organisms so effective at spreading infection and disease?”).

³⁷ See California School Becomes Notorious, supra note 33, at A1.

³⁸ See id.

³⁹ See id.

⁴⁰ See id. (“One student with an active case has lost part of her lung.”).

⁴¹ Id. Not all misdiagnoses, however, result from health care workers mishandling cases. “Diagnosing TB . . . is not an exact science because a TB patient can exhibit symptoms similar to those of other diseases and TB can occur in conjunction with other diseases.” Andrias, supra note 7, at 6.

TB cases left to linger due to misdiagnosis or failure to take medicine can produce catastrophe. One of the largest outbreaks of TB occurred in 1994 in the small town of Bath, Maine, where there had been only one case of TB each year and none since 1991. See Davisson, John F., What Risk Does TB Pose in the Workplace?, 56 OCCUPATIONAL HAZARDS 84 (1994)Google Scholar, available in 1994 WL 2888434. A white, middle-class shipyard worker infected 417 of his coworkers when his active TB went undiagnosed for eight months, in part because he did not have all the typical symptoms. See id.; see also Bloom, Barry R. & Murray, Christopher J.L., Tuberculosis: Commentary on a Reemergent Killer, 257 SCI. 1055, 1059 n.60 (1992)CrossRefGoogle ScholarPubMed (a schoolteacher who believed he had smokers’ cough infected 56% of the students (175 of 353), and 28% of his colleagues became TB positive); Dutt, Asim K. et al., Outbreak of Tuberculosis in a Church, 107 CHEST 447, 449 (1995)CrossRefGoogle Scholar (one man’s TB went undiagnosed for four years, infecting seven of eight family contacts, 26% of the coworkers at the garment factory where he worked, and 77% of the parishioners at the church he attended; among all of these cases including his, 4.3% developed active TB); Etkind, Sue et al., Treating Hard-To-Treat Tuberculosis Patients in Massachusetts, 6 SEMINARS RESPIRATORY INFECTIONS 273, 277 (1991)Google ScholarPubMed (reporting that a homeless man with multidrug-resistant TB (MDR-TB) infected 60 others at a shelter); Small, Peter M. et al., The Epidemiology of Tuberculosis in San Francisco: A Population-Based Study Using Conventional and Molecular Methods, 330 NEW ENG. J. MED. 1703, 1708 (1994)CrossRefGoogle Scholar (reporting that one single patient who stopped taking TB medicine was responsible for spreading the disease among six percent (29) of San Francisco’s TB patients); Altman, Lawrence, Man With TB Infected 45 at Bar, Study Says, N.Y. TIMES, July 27 , 1995, at A21Google Scholar (reporting that homeless man with TB who frequented a bar failed to go to the nearby public clinic, ultimately infecting 45 others at the bar).

⁴² See Hamburg, Margaret A. & Frieden, Thomas R., Tuberculosis Transmission in the 1990s, 330 NEW ENG. J. MED. 1750, 1750 (1994)CrossRefGoogle ScholarPubMed; see also supra note 41. Some carriers of the disease expel an alarmingly high amount of bacilli droplets in the air. Consequently, the chance that a per son becomes infected after just one hour of exposure to a person with active TB ranges from any where between one in 600 to one in four. See American Thoracic Soc'y, Control of Tuberculosis in the United States, 146 AM. REV. RESPIRATORY DISEASES 1623, 1627 (1992)CrossRefGoogle Scholar. In the latter cases, “extensive transmission [occurred] . . . during exposure as brief as two hours.” Id. Studies performed in New York and San Francisco suggest that about one in ten active cases may be highly infectious and account for most transmission of TB. See Hamburg & Frieden, supra, at 1750.

⁴³ See generally Snider, Dixie E. Jr. & Roper, William L., The New Tuberculosis, 326 NEW ENG. J. MED. 703 (1992)CrossRefGoogle ScholarPubMed.

⁴⁴ See Bloch, Alan B. et al., Nationwide Survey of Drug-Resistant Tuberculosis in the United States, 271 JAMA 665, 665 (1994)CrossRefGoogle ScholarPubMed.

⁴⁵ Five commonly prescribed drugs are isoniazid, rifampin, pyrazinamide, streptomycin and ethambutol. See PHYSICIANS’ DESK REFERENCE 1398 (1996) [hereinafter PDR]. For patients with MDR-TB, doctors can administer several other drugs. See American Thoracic Soc'y, Treatment of Tuberculosis and Tuberculin Infection in Adults and Children, 149 AM. J. RESPIRATORY CRITICAL CARE MED. 1359, 1361-64 (1994)Google Scholar [hereinafter ATS].

⁴⁶ See Bloch et al., supra note 44, at 670.

⁴⁷ See id.

⁴⁸ See HARVARD COMMUNITY HEALTH PLAN, INC., supra note 30, at 4.

⁴⁹ See Annas, George J., Control of Tuberculosis—The Law and the Public’s Health, 328 NEW ENG. J. MED. 585, 587 (1993)CrossRefGoogle ScholarPubMed.

⁵⁰ For an often cited example, see Brudney, Karen & Dobkin, Jay, Resurgent Tuberculosis in New York City: Human Immunodeficiency Virus and the Decline of Tuberculosis Control Programs, 144 AM. REV. RESPIRATORY DISEASES 745, 746-47 (1991)CrossRefGoogle ScholarPubMed (reporting that of 178 patients in Central Harlem, 89% did not complete treatment); Lambert, Marjorie, State Keeps Eye on TB Patients: Get ting Victims to Follow Orders Is a Costly Battle, SUN SENTINEL (Ft. Lauderdale), Jan. 8 , 1995, at 5BGoogle Scholar (estimating that only 50% to 60% complete treatment); Navarro, Mireya, Pill Monitors Make Sure TB Patients Swallow, N.Y. TIMES, Sept. 5 , 1992, at A1Google Scholar (quoting Dr. Frieden, director of the Bureau of TB Control for New York City, stating, “[i]t’s very hard to take your medicine every day”).

⁵¹ See HARVARD COMMUNITY HEALTH PLAN, INC., supra note 30, at 4; ATS, supra note 45, at 1361-64; see also Gittler, Josephine, Controlling Resurgent Tuberculosis: Public Health Agencies, Public Policy, and Law, 19 J. HEALTH POL. POL'Y & L. 107, 119 (1994)CrossRefGoogle Scholar (“[I]t has been estimated that about 50 percent of [patients who suffer side-effects of medication] do not adhere to therapy at some point.”); The Epidemic, supra note 1, at B7 (noting that one patient exclaimed, “these drugs are going to kill me”). Sometimes patients experience more dangerous side-effects including hepatitis and liver failure, which can be fatal. See Taylor, William C. et al., Should Young Adults with a Positive Tuberculin Test Take Isoniazid?, 94 ANNALS INTERNAL MED. 808, 808 (1981)CrossRefGoogle ScholarPubMed.

⁵² See Brudney, Karen, Homelessness and TB: A Study in Failure, 21 J.L. MED. & ETHICS 360, 361 (1993)CrossRefGoogle ScholarPubMed (remarking that because about 50% to 80% of the homeless suffer from mental illness and in addition must struggle daily to find food and shelter, “the notion that [they] can remember and comply with clinic appointments and medication regimens is laughable”).

⁵³ See, e.g., Harris v. Roberts, 458 N.Y.S.2d 719, 720 (App. Div. 1983) (rejecting infectious TB patient’s request for release from detention, noting that she suffered from a mental illness causing “severe anxiety concerning medical matters" such that she denied having TB); Navarro, Mireya, Gauging Threat of Recalcitrant TB Patients, N.Y. TIMES, Apr. 14 , 1992, at A1Google Scholar [hereinafter Navarro, Gauging Threat] (reporting that a man with a history of schizophrenia, detained for having infectious TB, was shackled to his bed by police after frequently spitting out his TB medicine and once hurling a phone across the room).

⁵⁴ See Brudney & Dobkin, supra note 50, at 748; see also infra note 212 (discussing one nurse’s observations concerning the drug addicts’ inability to adhere to treatment). Alcoholism also increases the toxic effects of TB medication. See PDR, supra note 45, at 508, 1532.

⁵⁵ See U.S. DEP'T OF HEALTH & HUMAN SERVS., IMPROVING PATIENT ADHERENCE TO TUBERCULOSIS TREATMENT 11-12 (1994)Google Scholar [hereinafter PATIENT ADHERENCE]; see also Catanzaro, Antonino & Moser, Robert John, Health Status of Refugees from Vietnam, Laos, and Cambodia, 247 JAMA 1303, 1304 (1982)CrossRefGoogle ScholarPubMed (noting that in their study blood samples sometimes could not be obtained “because some refugees declined consent owing to cultural beliefs”); Martin, Julia A., Proposition 187, Tuberculosis, and the Immigration Epidemic?, 7 STAN. L. & POL'Y REV. 89, 99 (1996)Google Scholar (“Immigrants with tuberculosis often depend on folk remedies before they seek outside medical help. For example, immigrants from Cambodia and Laos often prefer local lay healers, known as shamans, to American physicians.” (citations omitted)); Foster, David, TB an Unwelcome Hitchhiker with Immigrants—Medicine: Nurse Says Highly Contagious Disease Is Entering U.S. Along with a Variety of Newcomers, L.A. TIMES, Feb. 13 , 1994, at B3Google Scholar (reporting that an immigrant patient asked her health worker if they could meet in private fearing that her husband, who distrusted Western medicine, would find out she was taking TB medication).

⁵⁶ See PATIENT ADHERENCE, supra note 55, at 11-12; California School Becomes Notorious, supra note 33, at B6 (commenting on the stigma following a major outbreak of TB in a school infecting 23% of its students, one student said: "We've had football games where people came wearing surgical masks. My best friend’s dad won't even stand next to me. We're the TB school.”); see also Man With MDR-TB Quarantined Despite 12 Negative Sputum Smears, AIDS WKLY., Apr. 18 , 1994, at 14, 15Google Scholar (reporting that in a detention hearing for a defendant with MDR-TB, on the judge’s order, everyone in the courtroom put on a dust-mist face mask except the defendant’s two attorneys and their expert witness).

⁵⁷ See Navarro, Gauging Threat, supra note 53, at A1 (quoting Milton Ellison, a TB detainee, ‘“I feel so fine .... It feels like if I had TB and you could catch it from me would I look this healthy? ... I could smoke three cigarettes straight and wouldn't even cough. It seems like I've been framed. It’s not even reality.'”); Gaura, Maria Alicia, TB Patient Loses Court Challenge, S.F. CHRON., Feb. 6 , 1995, at A15Google Scholar (reporting that a patient with MDR-TB, detained for failing to adhere to treatment, did not believe she had tuberculosis, saying, “I have asthma, and I'm a smoker .... I don't feel that I have TB.”).

⁵⁸ See City of New York v. Antoinette R., 630 N.Y.S.2d 1008, 1011-12 (Sup. Ct. 1995) (rejecting TB patient’s request for release from detention and noting that although her infectious TB had subsided, the dangers associated with MDR-TB and her failure to complete treatment in the past required detention until cure); see also Navarro, Gauging Threat, supra note 53, at Al (A man detained for MDR-TB treatment said, “It’s too many pills, and it’s too many pills to take at one time,... I can't swallow all those pills.”).

⁵⁹ See Antoinette R., 630 N.Y.S.2d. at 1009-10.

⁶⁰ See Goble, Marian et al., Treatment of 171 Patients with Pulmonary Tuberculosis Resistant to Isoniazid and Rifampin, 328 NEW ENG. J. MED. 527, 530-31 (1993)CrossRefGoogle ScholarPubMed (study of MDR-TB patients showed treatment failed or TB relapsed in 44% of the patients).

⁶¹ See Iseman, Michael D., Treatment of Multidrug Tuberculosis, 329 NEW ENG. J. MED. 784, 785 (1993)Google ScholarPubMed.

⁶² See Gostin, The Resurgent Tuberculosis Epidemic, supra note 34, at 33.

⁶³ See Cantwell et al., supra note 10, at 538 (estimating that “HIV-infected individuals ac counted for at least 50% of the excess TB cases in the United States from 1985 through 1992”); Snider & Roper, supra note 43, at 704. Studies conclude that a majority of active TB cases in the United States are directly linked to HIV. See Increase in AIDS-Associated Illnesses Focuses New Attention on an Old Nemesis, 256 JAMA 3323, 3323 (1986)CrossRefGoogle Scholar (reporting comments by Centers for Disease Control and Prevention (CDC) director that the increase in TB was “clearly because of AIDS”); Tenth Annual AMA Science Reporters Conference Focuses on Variety of Public Health Issues, 266 JAMA 2336, 2337 (1991)CrossRefGoogle Scholar (reporting comments by CDC director of TB control, Dr. Dixie Snider, that increases in TB cases “are due primarily to TB occurring in persons with [HIV] infection—the strongest risk factor ever identified”). But see Majority of TB Cases Not Associated With HIV/AIDS, Study Says, AIDS WKLY., Feb. 21 , 1994, at 16Google Scholar.

⁶⁴ See Gostin, The Resurgent Tuberculosis Epidemic, supra note 34, at 49.

⁶⁵ See, e.g., Asch, Steven et al., Does Fear of Immigration Authorities Deter Tuberculosis Patients from Seeking Care?, 161 W.J. MED. 373 (1994)Google ScholarPubMed.

⁶⁶ See Cantwell et al., supra note 10, at 537; McKenna et al., supra note 12, at 1071.

⁶⁷ See Cantwell et al., supra note 10, at 535.

⁶⁸ See id. Some studies suggest that undocumented aliens have a lower risk of contracting active TB due to a healthier physique. See Ciesielski, Stephen D. et al., The Epidemiology of Tuberculosis Among North Carolina Migrant Farm Workers, 265 JAMA 1715, 1718 (1991)CrossRefGoogle ScholarPubMed (The CDC report “considers TB an imported problem in this population. . . . [T]his characterization is untenable because the data . . . show that nearly all cases of TB occurred among U.S.-born white and black farm workers, with none among Hispanics.”); see also Blum, Raymond N. et al., Results of Screening for Tuberculosis in Foreign-Born Persons Applying for Adjustment of Immigration Status, 103 CHEST 1670, 1672-73 (1993)CrossRefGoogle ScholarPubMed (tests of mostly Mexican immigrants showed that latent TB was prevalent, but active TB was not).

⁶⁹ See Tuberculosis Morbidity—United States, 1992, 42 Morbidity & Mortality Wkly. Rep. (U.S. Dep't Health & Human Servs.) No. 36, at 696-97 (Sept. 17 , 1993)Google Scholar.

⁷⁰ See Hamburg, Margaret A., Rebuilding the Public Health Infrastructure: The Challenge of Tuberculosis Control in New York City, 21 J.L. MED. & ETHICS 352, 352 (1993)CrossRefGoogle ScholarPubMed.

⁷¹ But see Martin, supra note 55, at 90 (claiming that “immigration is the primary force behind the tuberculosis resurgence”).

⁷² Neglected Infrastructure, supra note 3, at 1701.

⁷³ See Bloch et al., supra note 44, at 667, 670. But see Frieden, Thomas R. et al., The Emergence of Drug-Resistant Tuberculosis in New York City, 328 NEW ENG. J. MED. 521, 524 (1993)CrossRefGoogle ScholarPubMed (finding that in New York, the proportion of immigrants with drug-resistant TB was comparable to rates for nonimmigrants. The study also concludes that a patient’s recent immigration does not mean increased risk of drug resistance.). New York City accounts for 61.4% of all MDR-TB cases in the United States. See Bloch et al., supra note 44, at 669.

⁷⁴ Bellin, Eran, Failure of Tuberculosis Control: A Prescription for Change, 271 JAMA 708, 708 (1994)CrossRefGoogle Scholar.

⁷⁵ See Bloch et al., supra note 44, at 669; see also Gittler, supra note 51, at 112-16 (showing a disproportionate rate of TB cases per 100,000 people in Central Harlem (240.2 in 1992) as compared with the rest of New York City (52.0 in 1992)).

⁷⁶ See Cantwell et al., supra note 10, at 537.

⁷⁷ See id.

⁷⁸ No studies analyze this point. Studies around the world, however, have shown that TB can spread without the help of HIV or immigration. See TB Deaths Increasing in Eastern Europe, 109 PUB. HEALTH REP. 717, 717 (1994)Google Scholar (reporting that in Eastern Europe TB has infected more than two million persons in just the past five years). But see Tuberculosis—Western Europe, 1974-1991, 42 Morbidity & Mortality Wkly. Rep. (U.S. Dep't Health & Human Servs.) No. 32, at 628 (Aug. 20 , 1993)Google Scholar (concluding that immigrants account for a substantial, if not the majority, of TB cases in Western Europe).

⁷⁹ See Small et al., supra note 41, at 1703.

⁸⁰ See Alland, David et al., Transmission of Tuberculosis in New York City: An Analysis by DNA Fingerprinting and Conventional Epidemiologic Methods, 330 NEW ENG. J. MED. 1710, 1715 (1994)CrossRefGoogle ScholarPubMed; Small et al., supra note 41, at 1707.

⁸¹ Small et al., supra note 41, at 1708; see also Alland et al., supra note 80, at 1716; supra note 41 (discussing mass outbreaks of TB).

⁸² See Frieden, Thomas R. et al., A Multi-Institutional Outbreak of Highly Drug-Resistant Tuberculosis, 276 JAMA 1229, 1234 (1996)CrossRefGoogle ScholarPubMed.

⁸³ See Mathur, Puran et al., Delayed Diagnosis of Pulmonary Tuberculosis in City Hospitals, 154 ARCHIVES INTERNAL MED. 306, 309 (1994)CrossRefGoogle ScholarPubMed; McAnulty, Jeremy M. et al., Missed Opportunities for Tuberculosis Prevention, 155 ARCHIVES INTERNAL MED. 713, 716 (1995)CrossRefGoogle ScholarPubMed; The Use of Preventive Therapy for Tuberculosis Infection in the United States, 39 Morbidity & Mortality Wkly. Rep. (U.S. Dep't Health & Human Servs.) No. RR-8, at 9 (May 18 , 1990)Google Scholar.

⁸⁴ See Conrad, Katherine, Poor TB Prevention Blasted; State Reviews Alameda County, SAN JOSE MERCURY NEWS, June 30 , 1995, at B1Google Scholar (reporting that nearly one-third of the cases among Alameda County children in 1994 "could have been prevented if the county health department had been more vigilant in tracking the highly contagious disease”).

⁸⁵ See Hamburg & Frieden, supra note 42, at 1750.

⁸⁶ See generally Alland et al., supra note 80; Small et al., supra note 41. But see McKenna et al., supra note 12, at 1074 (“The absence of correlation between state-specific disease rates for the foreign-born and those for the native population suggests that transmission to U.S.-born persons is probably not extensive.”).

⁸⁷ See McKenna et al., supra note 12, at 1071-76.

⁸⁸ See id. at 1074.

⁸⁹ See id.

⁹⁰ Id. at 1075.

⁹¹ See id. These findings reaffirmed earlier studies. See Cantwell et al., supra note 10, at 537; Tuberculosis Among Foreign-Born Persons Entering the United States, 39 Morbidity & Mortality Wkly. Rep. (U.S. Dep't Health & Human Servs.) No. RR-18, at 4 (Dec. 28 , 1990)Google Scholar [hereinafter TB Among Foreign-Born] (reporting that between 1986 and 1989, “22% of all reported cases of tuberculosis occurred in the foreign-born population" and that a majority of those who develop TB “do so within the first five years after they enter the United States”); Zuber, Patrick & Binkin, Nancy, TB Among Immigrants and Refugees in Hawaii, TB NOTES (U.S. Dep't Health & Human Servs.), Winter 1995, at 20Google Scholar.

⁹² See McKenna et al., supra note 12, at 1075.

⁹³ Id.

⁹⁴ Foster, supra note 55, at B3.

⁹⁵ Id.

⁹⁶ See id.

⁹⁷ See Loue, Sana, IMMIGRATION LAW AND HEALTH, PATIENTS AND PROVIDERS 6-1 (1993)Google Scholar (citation omitted).

⁹⁸ See Pub. L. No. 87-301, 75 Stat. 650 (1961); Medical Examination of Aliens, 42 C.F.R. § 34.2(b)(8) (1993).

⁹⁹ See 8 U.S.C. § 1182 (1994); 42 C.F.R. § 34.3; U.S. Dep'T of Health & Hum. Servs., TECHNICAL INSTRUCTIONS FOR MEDICAL EXAMINATION OF ALIENS, at III-1 to -3 (1991)Google Scholar [hereinafter TECHNICAL INSTRUCTIONS].

¹⁰⁰ See 42 C.F.R. §34.3.

¹⁰¹ See id. § 34.3(b)(i)-(iv).

¹⁰² See TECHNICAL INSTRUCTIONS, supra note 99, at III-l.

¹⁰³ See id. at III-3. Note that latent TB does not show up on X-rays. See Study Cites Immigrants for Rise in TB, ORLANDO SENTINEL, Aug. 17 , 1994, at A4Google Scholar.

¹⁰⁴ See TECHNICAL INSTRUCTIONS, supra note 99, at III-2; see also 42 C.F.R. § 34.3(b)(3). Sputum collection consists of the patient coughing up whatever moisture (not saliva) he can from the lungs and spitting it into a test tube. See TECHNICAL INSTRUCTIONS, supra note 99, at A-18.

¹⁰⁵ See TECHNICAL INSTRUCTIONS, supra note 99, at III-3.

¹⁰⁶ See id. at III-3, A-22; LOUE, supra note 97, at 9-8.

¹⁰⁷ See TECHNICAL INSTRUCTIONS, supra note 99, at IH-3.

¹⁰⁸ Id. at A-22.

¹⁰⁹ See id. at III-3.

¹¹⁰ LOUE, supra note 97, at 9-8. Cases that should be referred often are not. See Jacobs, Sandra, TB and Immigrants, CHI. TRIB., Apr. 21 , 1995, § Evening, at 7Google Scholar.

¹¹¹ See TECHNICAL INSTRUCTIONS, supra note 99, at IH-3.

¹¹² Cf. LOUE, supra note 97, at 9-8; McKenna et al., supra note 12, at 1075.

¹¹³ See supra note 29 and accompanying text.

¹¹⁴ Approximately 700,000 aliens apply for visas abroad each year. See National Action Plan to Combat Multidrug-Resistant Tuberculosis, 41 Morbidity & Mortality Wkly. Rep. (U.S. Dep't Health & Human Servs.) No. RR-11, at 18 (June 19 , 1992Google Scholar).

¹¹⁵ Telephone Interview with Dr. Rocio M. Loor, of the Dep't of Health & Rehabilitative Servs., State of Florida, West Palm Beach (Nov. 15, 1995).

¹¹⁶ See Medical Examination of Aliens, 42 C.F.R. § 34.3(b)(1)(v) (1993).

¹¹⁷ See id. § 34.3(b)(2); Cantwell et al., supra note 10, at 537. The regulations also require a skin test for “other aliens in the United States who are required by the INS to have a medical examination in connection with a determination of their admissibility.” 42 C.F.R. § 34.3(b)(2).

¹¹⁸ See Cantwell et al., supra note 10, at 538.

¹¹⁹ See id.

¹²⁰ The CDC has not required latent TB testing for several reasons: (1) CDC cannot ensure quality control of the testing materials and procedures abroad; (2) possibility of fraudulent testing and (3) applicant’s cost of examination (e.g., hotel and travel) would substantially increase because in most countries, the medical exam takes place in one location on a certain day and the TB test requires a return visit two to three days after injection. See TB Among Foreign-Born, supra note 91, at 5.

¹²¹ See McKenna et al., supra note 12, at 1074 (“Another reason for high incidence rates among recent arrivals is the more than 20 million non-immigrant visitors and students and the estimated 200,000 undocumented immigrants who enter the United States every year.”).

¹²² See H.R. REP. No. 103-218, at 22 (1993), available in 1993 WL 329916.

¹²³ See H.R. REP. No. 101-723(I), at 139 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6776.

¹²⁴ See, e.g., Branigin, William, Multi-Agency Report Urges Global Crackdown to Stem Tide of Illegal Aliens, STAR-LEDGER (Newark), Dec. 28 , 1995, at 29Google Scholar; Dillon, Sam, U.S. Jails 10 for Smuggling Asian Aliens from Mexico, N.Y. TIMES, May 30 , 1996, at A9Google Scholar (reporting that an estimated 100,000 Chinese, Indian and Pakistani migrants enter the United States illegally each year and pay smugglers up to $28,000 to get into the United States from Central America and Mexico).

¹²⁵ H.R. REP. NO. 103-710, at 3 (1994), reprinted in 1994 U.S.C.C.A.N. 3397, 3398.

¹²⁶ See id. at 3398-99.

¹²⁷ See id. at 3399.

¹²⁸ See Pub. L. No. 103-400, 108 Stat. 4169 (1994) (codified as amended at 22 U.S.C. §§ 290n to 290n-6 (Supp. 1996)).

¹²⁹ See 22 U.S.C. § 290n-3.

¹³⁰ See id. § 290n-l to-2.

¹³¹ See 140 CONG. REC. S13847, S13849 (daily ed. Sept. 30, 1994) (statement by Senator Hutchinson) (describing the health situation along the border as a “ticking time bomb”).

¹³² See 140 CONG. REC. H10605, H10606-07, H10608 (daily ed. Oct. 3, 1994).

¹³³ Id. at H10607; see also Sternberg, Steve, The Downside of Economic Expansion: Pollution, Disease Have Become Major Byproducts Along U.S.-Mexico Border, WASH. POST, Apr. 30 , 1995, at A3Google Scholar (noting that diseases in Mexico spread like “wildfire" across the border and are responsible for the high rates of TB and hepatitis in San Diego).

¹³⁴ See Dowling, Patrick T., Return of Tuberculosis: Screening and Preventive Therapy, 43 AM. FAM. PHYSICIAN 457, 460 (1991)Google ScholarPubMed.

¹³⁵ See id. at 461.

¹³⁶ See id.

¹³⁷ See The Worrisome Upswing in Tuberculosis, supra note 23, at 4.

¹³⁸ See Andrias, supra note 7, at 4; Dowling, supra note 134, at 461 (“Not all infected persons have a . . . reaction to the skin test. A number of infectious, nutritional, metabolic and mechanical factors are associated with false-negative results.”); Rothenberg, Karen H. & Lovoy, Elizabeth C., Something Old, Something New: The Challenge of Tuberculosis Control in the Age of AIDS, 42 BUFF. L. REV. 715, 725 (1994)Google Scholar (“Because HIV infection can depress the body’s immune response to infection, approximately ten to eighty percent of HIV-infected individuals with TB produce a negative TB skin test.”) (citation omitted); Starke, Jeffrey R., Tuberculosis Skin Testing: New Schools of Thought, 98 PEDIATRICS 123, 124 (1996)Google ScholarPubMed (noting that in mass testing school children for TB, the vast majority of students who test positive have false results); Conrad, supra note 84, at B4 (quoting Dr. Allan, health officer in Alameda County, California, “‘[w]e do not recommend massive skin testing because you get too many false positives'”).

¹³⁹ Telephone Interview with Gail Pendleton of the National Immigration Project, Boston, Mass. (Sept. 10, 1994).

¹⁴⁰ See Dowling, supra note 134, at 462; Telephone Interview with Brigitta Paine, R.N., of the National Immunization Network, Brighton, Mass. (Sept. 15, 1994) [hereinafter Paine Interview].

¹⁴¹ Garrett, Laurie, NYC Has Most TB, and Most Effective Approach, NEWSDAY (N.Y.), Mar. 2 , 1994, § City, at 22Google Scholar.

¹⁴² See Paine Interview, supra note 140.

¹⁴³ See Raviglione, Mario C. et al., HIV-Associated Tuberculosis in Developing Countries: Clinical Features, Diagnosis, and Treatment, 70 BULL. WORLD HEALTH ORG. 515, 516 (1992)Google ScholarPubMed (“[T]he usefulness of PPD in aiding disease diagnosis is limited and of little relevance in the developing countries.”). The United States and the Netherlands are the only countries in the world never to have used the BCG vaccination on a national scale. See Dowling, supra note 134, at 462. Studies show that BCG can have anywhere from 0% to 80% efficacy. See HARVARD COMMUNITY HEALTH PLAN, INC., supra note 30, at 2. The CDC in the United States cites the inconsistency of this vaccine and the interference with PPD skin tests as reasons why it does not recommend its use. See id.

¹⁴⁴ See HARVARD COMMUNITY HEALTH PLAN, INC., supra note 30, at 3 (instructing doctors to provide treatment despite BCG).

¹⁴⁵ Despite New York City’s TB epidemic, the Health Department ended its policy of testing school children for TB, in part because the test produced “a lot of falsely positive results, especially since immigrant children who undergo them have received an important general vaccine [(BCG)] that produces a misleading TB test result.” Polner, Robert, City Halts TB Tests in Schools, NEWSDAY (Queens, N.Y., ed.), June 18 , 1996, at A4Google Scholar.

¹⁴⁶ See HARVARD COMMUNITY HEALTH PLAN, INC., supra note 30, at 4.

¹⁴⁷ Hepatitis is a serious and sometimes fatal disease of the liver, usually accompanied by fever and other systemic problems. See Dienstag, Jules L. et al., Accute Hepatitis, in HARRISON’S PRINCIPLES OF INTERNAL MEDICINE ch. 252, at 1322, 1326, 1335 (Wilson, Jean D. et al. eds., 12th ed. 1991)Google Scholar.

¹⁴⁸ See Taylor et al., supra note 50, at 808.

¹⁴⁹ See id.

¹⁵⁰ See Price of TB Drugs Increases Sharply, AIDS WKLY., Feb. 8 , 1993, at 5Google Scholar (not including monitoring costs); see also Snider, Dixie E. Jr. et al., Preventive Therapy -with Isoniazid: Cost-Effectiveness of Different Durations of Therapy, 255 JAMA 1579, 1579-80, 1582 (1986)CrossRefGoogle ScholarPubMed (estimating social cost of treatment, which included the cost of drugs, medical bills, monitoring and savings from cases prevented, anywhere from $8,414 to $10,721 per case).

¹⁵¹ See Rothenberg & Lovoy, supra note 138, at 728.

¹⁵² See id.

¹⁵³ See id.

¹⁵⁴ See Grzybowski, Stefan, Isoniazid Chemoprophylaxis, 255 JAMA 1615, 1615 (1986)CrossRefGoogle ScholarPubMed (noting that experiments with widespread use of INH treatment resulted in several deaths from hepatitis); Snider et al., supra note 150, at 1582 (recommending selective use of INH therapy in light of high costs); see also Jolly v. Coughlin, 76 F.3d 463, 472 (2d Cir. 1996); Karolis v. New Jersey Dep't of Corrections, 935 F. Supp. 523, 529 (D.N.J. 1996).

¹⁵⁵ See 139 CONG. REC. S15638, S15643 (daily ed. Nov. 2, 1993).

¹⁵⁶ See Neglected Infrastructure, supra note 3, at 1700. Problems include drug addiction, mental illness and homelessness. See Brudney & Dobkin, supra note 50, at 748.

¹⁵⁷ 139 CONG. REC. at S15643.

¹⁵⁸ See Annas, supra note 49, at 586-87.

¹⁵⁹ See Gostin, The Resurgent Tuberculosis Epidemic, supra note 34, at 97.

¹⁶⁰ 197 U.S. 11(1905).

¹⁶¹ See id. at 31.

¹⁶² Id. at 28.

¹⁶³ See id. at 38 (“While this [C]ourt should guard with firmness . . . life, liberty or property[,] ... it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce the law.”).

¹⁶⁴ Gostin, The Resurgent Tuberculosis Epidemic, supra note 34, at 97.

¹⁶⁵ See WASH. REV. CODE ANN. §§ 70.20.010-.185 (West 1975), repealed by 1985 Wash. Laws ch. 213, §32.

¹⁶⁶ Id. § 70.20.040.

¹⁶⁷ See id. § 70.20.050.

¹⁶⁸ See id. § 70.20.060-.070.

¹⁶⁹ See WASH. REV. CODE ANN. §§ 70.28.010-.080 (West 1992).

¹⁷⁰ Id. §70.28.031.

¹⁷¹ Id.

¹⁷² See Gostin, Lawrence O., Controlling the Resurgent Tuberculosis Epidemic: A 50-State Sur vey of TB Statutes and Proposals for Reform, 269 JAMA 255 (1993)CrossRefGoogle Scholar [hereinafter Gostin, A 50-State Survey of TB Statutes].

¹⁷³ WASH. REV. CODE ANN. § 70.28.005 (West Supp. 1995).

¹⁷⁴ See Greene v. Edwards, 263 S.E.2d 661, 663 (W. Va. 1980) (holding that the reasoning in extending due process to commitment of the mentally ill applies equally to civil commitment of TB sufferers).

¹⁷⁵ See O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975).

¹⁷⁶ See id.; see also ALASKA STAT. § 18.15.136(b)(4)(B), (c)(3) (Michie Supp. 1995); CAL. HEALTH & SAFETY CODE §§ 121366, 121367(a)(2) (1996); DEL. CODE ANN. tit. 16, § 526(a)(1)-(2) (1995); FLA. STAT. ANN. § 392.56(2)(b) (West 1995); GA. CODE ANN. §§ 31-14-3(a), -7(a) (Supp. 1995) (stating that a diagnosis of active, infectious TB does not by itself justify commitment and that an order for detention cannot be met without showing that the person refuses to comply with TB control rules); R.I. GEN. LAWS § 23-10-6(1), (3)(a)(ii) (Supp. 1995); N.Y. CITY HEALTH CODE § 11.47(f)(ii) (1993); MINN. H.R. 2108, 79th Leg. § 6.3(4) (1996) (same bill passed the senate on Mar. 12, 1996); cf. LA. REV. STAT. ANN. § 40:31.24B(2) (West Supp. 1996) (An order shall include “[a] description of the facts leading to the belief that the person is suffering from active tuberculosis, is in need of immediate care and treatment in an inpatient facility for the treatment of active tuberculosis, and is a public health risk.”); N.J. ADMIN. CODE tit. 8, § 57-5.7(a)(1)-(6) (1996).

¹⁷⁷ See Ball, Carlos A. & Barnes, Mark, Public Health and Individual Rights: Tuberculosis Control and Detention Procedures in New York City, 12 YALEL. & POL'Y REV. 38, 53 (1994)Google Scholar.

¹⁷⁸ See N.Y. CITY HEALTH CODE § 11.47(d)(5).

¹⁷⁹ See Ball & Barnes, supra note 177, at 53-54.

¹⁸⁰ See N.Y. CITY HEALTH CODE § 11.47(d)(5).

¹⁸¹ See Shelton v. Tucker, 364 U.S. 479, 488 (1960). Although not itself a civil commitment case for the mentally ill, courts have applied Tucker widely to civil commitment cases. See Ball & Barnes, supra note 177, at 55 (citing Convington v. Harris, 419 F.2d 617 (D.C. Cir. 1969) and Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966)); see also ALASKA STAT. § 18.15.136(c)(4); CAL. HEALTH & SAFETY CODE § 121367(a)(3); DEL. CODE ANN. tit. 16, § 526(a)(3); FLA. STAT. ANN. §§ 392.56(2)(c), 392.64(1); GA. CODE ANN. § 31-14-7; R.I. GEN. LAWS § 23-10-6(3)(a)(iii); N.Y. CITY HEALTH CODE § 11.47(f)(iii); MINN. H.R. 2108, § 6.3(3); WASH. ADMIN. CODE § 246-170-051(1), (4)(b) (1995); cf. LA. REV. STAT. ANN. § 40:31.24A(b) (An affidavit must contain “[f]acts showing that the person has been encouraged to seek treatment and is unwilling to seek such treatment or to comply with quarantined directly observed therapy, or both.”); N.J. ADMIN. CODE tit. 8, § 57-5.6(a)-(e).

¹⁸² See N.Y. CITY HEALTH CODE § 11.47(f)(iii).

¹⁸³ See Addington v. Texas, 441 U.S. 418, 431-32 (1979); Greene, 263 S.E.2d at 663; ALASKA STAT. § 18.15.139(b); CAL. HEALTH & SAFETY CODE § 121366; DEL. CODE ANN. tit. 16, § 526(a); FLA. STAT. ANN. § 392.56(2)(a); GA. CODE ANN. § 31-14-3(b); LA. REV. STAT. ANN. § 40:31.26A(4); R.I. GEN. LAWS § 23-10-6(2); N.Y. CITY HEALTH CODE § 11.47(e); MINN. H.R. 2108, § 8.3. But see WASH. ADMIN. CODE § 246-170-055(1) (preponderance of the evidence).

¹⁸⁴ 386 U.S. 605 (1967).

¹⁸⁵ See id. at 610 (holding that the defendant has the right to counsel and an opportunity to be heard, cross-examine and offer evidence of his own); see also Parham v. J.R., 442 U.S. 584, 606 (1979) (holding that a child facing civil commitment is entitled to a hearing before a “neutral factfinder”); Greene, 263 S.E.2d at 663.

¹⁸⁶ See ALASKA STAT. § 18.15.139(c); CAL. HEALTH & SAFETY CODE § 121366; DEL. CODE ANN. tit. 16, § 526(b); FLA. STAT. ANN. §§ 392.55(4)(c), 392.56(3)(c); LA. REV. STAT. ANN. § 40:31.25D(2)(a); GA. CODE ANN. § 31-14-3(b); R.I. GEN. LAWS § 23-10-6(2); N.Y. CITY HEALTH CODE § 11.47(e); MINN. H.R. 2108, § 6.6; N.J. ADMIN. CODE tit. 8, § 57-5.9(a)(2); WASH. ADMIN. CODE § 246-170-055(1).

¹⁸⁷ See ALASKA STAT. § 18.15.139(a); CAL. HEALTH & SAFETY CODE § 121366; DEL. CODE ANN. tit. 16, § 526(f); FLA. STAT. ANN. § 392.60(2); LA. REV. STAT. ANN. § 40:31.25; R.I. GEN. LAWS § 23-10-6(2); N.Y. CITY HEALTH CODE § 11.47(e); MINN. H.R. 2108, § 6.4; WASH. ADMIN. CODE § 246-170-055(3).

¹⁸⁸ See DEL. CODE ANN. tit. 16, § 526(a); GA. CODE ANN. § 31-14-3(a) (requiring a “full and fair hearing" on filing petition for commitment); N.J. ADMIN. CODE tit. 8, § 57-5.8(b).

¹⁸⁹ See CAL. HEALTH & SAFETY CODE § 121366; DEL. CODE ANN. tit. 16, § 526(b); FLA. STAT. ANN. §§ 392.55(4)(b), .56(3)(b); GA. CODE ANN. § 31-14-3(b); LA. REV. STAT. ANN. § 40:31.25D(2)(b)-(c); R.I. GEN. LAWS § 23-10-6(7)(b)(1); N.Y. CITY HEALTH CODE § 11.47(e); MINN. H.R. 2108, § 8.1(3); N.J. ADMIN. CODE tit. 8, § 57-5.9(a)(3); WASH. ADMIN. CODE § 246- 170-055(1).

¹⁹⁰ See DEL. CODE ANN. tit. 16, § 526(b); FLA. STAT. ANN. §§ 392.55(4)(a), 392.56(3)(a), 392.58 (1995); GA. CODE ANN. § 31-14-3(a); Greene, 263 S.E.2d at 663; MINN. H.R. 2108, § 5.1; N.J. ADMIN. CODE tit. 8, § 57-5.7(b); WASH. ADMIN. CODE § 246-170-051(3), (5).

¹⁹¹ See DEL. CODE ANN. tit. 16, § 526(b); FLA. STAT. ANN. § 392.60(1); GA. CODE ANN. §§ 31- 14-3(b), -8.2; LA. REV. STAT. ANN. § 40-.31.26B; R.I. GEN. LAWS § 23-10-6(7)(b)(2); Greene, 263 S.E.2d at 663; MINN. H.R. 2108, § 8.7.

¹⁹² See ALASKA STAT. § 18.15.136(d); CAL. HEALTH & SAFETY CODE § 121367(b); DEL. CODE ANN. tit. 16, § 526; GA. CODE ANN. § 31-14-3(a); LA. REV. STAT. ANN. §§ 40:3I.22C, 25D; R.I. GEN. LAWS § 23-10-6(3)(b); N.Y. CITY HEALTH CODE § 11.47(f)(2); MINN. H.R. 2108, §§ 6.3(6), 8.1; WASH. ADMIN. CODE § 246-170-051(3).

¹⁹³ See ALASKA STAT. § 18.15.139(a); CAL. HEALTH & SAFETY CODE § 121366; DEL. CODE ANN. tit. 16, § 526(j); FLA. STAT. ANN. § 392.56(4); GA. CODE ANN. § 31-14-8; R.I. GEN. LAWS § 23-10-6(2), (4); N.Y. CITY HEALTH CODE § 11.47(e), (g)(1); O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975) (holding that commitment may last only as long as constitutionally adequate reasons exist); Jackson v. Indiana, 406 U.S. 715, 738 (1972) (holding that “the nature and duration of commitment [must] bear some reasonable relation to the purpose for which the person is committed.”); MINN. H.R. 2108, § 6.5; NJ. ADMIN. CODE tit. 8, § 57-5.8(d); WASH. ADMIN. CODE § 246-170-055(4); cf. LA. REV. STAT. ANN. § 40:31.27B (annual review).

¹⁹⁴ See Sherman, Rorie, New York TB Rules Are Hailed: Even Civil Libertarians Accept New Regulations, NAT'L L.J., Apr. 5 , 1993, at 9Google Scholar.

¹⁹⁵ Reilly, Rosemary G., Combating the Tuberculosis Epidemic: The Legality of Coercive Treatment Measures, 27 COLUM. J.L. & SOC. PROBS. 101, 149 (1993)Google Scholar (“[T]hese regulations embody decades of developments in both the legal and medical areas and represent a sensible, well- structured response to the threat of tuberculosis.”); see also Ball & Barnes, supra note 177, at 67 (Section 11.47 "codifies the required due process principles, striking, in our estimation, an appropriate balance between public health needs and civil liberty requirements.”).

¹⁹⁶ See Navarro, Gauging Threat, supra note 53, at Al.

¹⁹⁷ N.Y. CITY HEALTH CODE § 11.47(d).

¹⁹⁸ See id. § 11.47(d)(1)-(5).

¹⁹⁹ See id. § 11.47(j) (defining active TB for purposes of the authority to detain without requiring or even mentioning infectiousness, only requiring some scientific evidence from sputum smears or cultures taken from whatever part of the body, or an X-ray such that “there is clinical evidence or clinical suspicion of pulmonary tuberculosis disease”).

²⁰⁰ 614 N.Y.S.2d 8 (App. Div. 1994).

²⁰¹ See id. at 9.

²⁰² See Respondents’ Brief at 23, City of New York v. Doe, 614 N.Y.S.2d 8 (App. Div. 1994 (No. 400770/94).

²⁰³ See id.

²⁰⁴ See id. at 24-25.

²⁰⁵ See id. at 25.

²⁰⁶ See id. at 25-26.

²⁰⁷ See id. at 27.

²⁰⁸ See id.

²⁰⁹ See id. at 35-36.

²¹⁰ Id. at 27.

²¹¹ See id. at 9-10 (“[T]he premature discontinuance of treatment [for MDR-TB] is extremel; dangerous to the patient, the patient’s family, and to the community at large ....”).

²¹² See id. at 11. The City cited the observations of a nurse at the AIDS Unit, Columbia Presbyterian Medical Center:

Id. at 11-12.

²¹³ See Amici Curiae Brief at 12, Doe, 614 N.Y.S.2d 8 (No. 400770/94).

²¹⁴ See id.

²¹⁵ See id.

²¹⁶ See id. at 12-13.

²¹⁷ Housing Works, Inc. is a nonprofit community organization providing housing, case management and other services for HIV and TB afflicted individuals. See id. at iv. Housing Works’ philosophy is that “when you can stabilize people’s housing and give them some structured programming in their life, it makes compliance possible.” Id.

²¹⁸ Respondents’ Brief at 32, Doe, 614 N.Y.S.2d 8 (No. 400770/94).

²¹⁹ See Amici Curiae Brief at 27-28, Doe, 614 N.Y.S.2d 8 (No. 400770/94).

²²⁰ See id. at 11.

²²¹ See id. at 12-13.

²²² See id. at 13.

²²³ Doe, 614 N.Y.S.2d at 9. But see City of Newark v. J.S., 652 A.2d 265, 279 (N.J. Super. 1993) (finding that a patient “must remain isolated until he is no longer contagious”). With similar facts of a homeless man failing to adhere to treatment, not keeping DOT appointments and drifting around with active, infectious TB, a New Jersey court decided that confinement should end once the patient becomes noninfectious. See id. Furthermore, unlike in Doe, the New Jersey court suggested that if the patient complies until he is noninfectious, he should be released on mandatory DOT, notwithstanding the court’s own observation that the patient may not be as able to comply once out of the hospital’s controlled environment. See id. at 279 & n.13 (stating that the patient’s “in-hospital conduct will go a long way towards demonstrating his ability to follow medical therapy once released and will be considered if after his active TB is cured, J.S.’s confinement is sought because his alleged failure to follow continued therapy will make him a future risk.”).

²²⁴ See Amici Curiae Brief at 13, Doe, 614 N.Y.S.2d 8 (No. 400770/94).

²²⁵ See Respondents’ Brief at 24, Doe, 614 N.Y.S.2d 8 (No. 400770/94).

²²⁶ See id. at 35 (“TB that is not yet cured can quickly become re-infectious.”). However, this is not always the case. See Man With MDR-TB Quarantined Despite 12 Negative Sputum Smears, AIDS WKLY., Apr. 18, 1994, at 14-15 (reporting that a detention order for patient in Georgia was granted despite facts that 12 previous sputum smears for TB came back negative and that a retired officer of the CDC testified that the patient posed a “very, very remote" risk of infecting others). Generally, active TB in the lungs and throat is infectious but also can be not infectious or not yet infectious. See U.S. Dep'T Of Health & Hum. Servs., QUESTIONS AND ANSWERS ABOUT TB 2 (1994)Google Scholar.

²²⁷ See City of New York v. Antoinette R., 630 N.Y.S.2d 1008, 1011 (Sup. Ct. 1995).

²²⁸ See id. at 1011-12.

²²⁹ See Hamburg & Frieden, supra note 42, at 1750 (asking, “[a]re long delays common in initiating treatment for tuberculosis? When they are, treatment can be 100 percent complete, but transmission can still be extensive.” The authors noted that transmission was extensive in San Francisco despite a 95% TB treatment completion rate.); see also supra note 40 (discussing massive outbreaks of TB).

²³⁰ See Kraut, Alan M., Healers and Strangers: Immigrant Attitudes Toward the Physician in America—A Relationship in Historical Perspective, 263 JAMA 1807 (1990)CrossRefGoogle ScholarPubMed; Rubel, Arthur J. & Garro, Linda C., Social and Cultural Factors in the Successful Control of Tuberculosis, 107 PUB. HEALTH REP. 626 (1992)Google ScholarPubMed; Uba, Laura, Cultural Barriers to Health Care for Southeast Asian Refugees, 107 PUB. HEALTH REP. 544 (1992)Google ScholarPubMed; Emmons, Steve, A New War on TB: Myths and Poor Medical Care Have Allowed Tuberculosis to Make a Comeback, L.A. TIMES (Co, Orange. ed.), Jan. 9 , 1994, at E1Google Scholar, available in 1994 WL 2122754.

²³¹ See Cantwell et al., supra note 10, at 537; McKenna et al., supra note 12, at 1075.

²³² See Tuberculosis Among Asian/Pacific Islanders—United States, 1985, 258 JAMA 181, 181 (1987)CrossRefGoogle Scholar (suggesting that half of all active TB cases among Asian/Pacific Islanders could have been prevented had refugees and immigrants been given TB skin tests and preventive therapy shortly after their arrival in the United States).

²³³ See Berkman, Lisa, Preschool Aide Diagnosed with Contagious TB, L.A. TIMES (Co, Orange. ed.), Jan. 27 , 1994, at B6Google Scholar (noting the county’s intention to “make school skin testing . . . mandatory for all new submissions to public schools and start students who test positive on preventive therapy”); Hill, James, District 112 Working on a TB Policy: Board Acts After Kids Are Found with Virus, CHI. TRIB., Mar. 23 , 1995, at 2Google Scholar (reporting that Illinois passed a law requiring mandatory testing for kindergartners, fifth graders and ninth graders).

²³⁴ See Blumstein, Rebecca, School Bus Drivers Face TB Tests: Suffolk Reacts to Rise in Cases, NEWSDAY (N.Y.), May 11 , 1995, at A24Google Scholar.

²³⁵ See 300 HBD Officers Being Screened for TB Bacteria, HOUS. POST, Mar. 30 , 1995, at A1Google Scholar.

²³⁶ See Smith, Leef, New Postal Service Policy on TB Raises Civil Rights Issue, WASH. POST, Apr. 29 , 1993, at Va.1Google Scholar.

²³⁷ See N.Y. CITY HEALTH CODE § 11.48 (1993).

²³⁸ See Parmet, Wendy, AIDS and Quarantine, 14 HOFSTRA L. REV. 53, 69 (1985)Google Scholar [hereinafter Parmet, AIDS and Quarantine]. For a history of how public health laws discriminated against groups or classes of persons, see id. at 61-71.

²³⁹ 103 F. 1 (N.D. Cal. 1900).

²⁴⁰ See id. at 2-3.

²⁴¹ See id. at 7-9.

²⁴² See id. at 9-10.

²⁴³ See id. at 10.

²⁴⁴ See generally id.

²⁴⁵ See Parmet, supra note 238, at 70-71.

²⁴⁶ See id. at 71.

²⁴⁷ 103 F. 10 (N.D. Cal. 1900).

²⁴⁸ See id. at 26.

²⁴⁹ Id. at 22.

²⁵⁰ See id. at 23.

²⁵¹ See Parmet, AIDS and Quarantine, supra note 238, at 71.

²⁵² I do not agree that Jew Ho afforded strict scrutiny to the Chinese residents because this case was an exceptionally egregious example of abuse of power that even under the modern rational basis test, would not be held constitutional. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (holding that the city violated equal protection when it required permits for homes for the mentally retarded, while it did not require permits for other care and multiple dwelling facilities).

²⁵³ Miller v. Johnson, 115 S. Ct. 2475, 2490 (1995).

²⁵⁴ See Nardell, Edward A. & Brickner, Philip W., Tuberculosis in New York City: Focal Transmission of an Often Fatal Disease, 276 JAMA 1259, 1259-60 (1996)CrossRefGoogle ScholarPubMed; see also supra notes 75- 86, and accompanying text.

²⁵⁵ See Ciesielski et al., supra note 68, at 1718.

²⁵⁶ “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.

²⁵⁷ See Graham v. Richardson, 403 U.S. 365, 372, 376 (1971).

²⁵⁸ See Foley v. Connelie, 435 U.S. 291, 297-300 (1978).

²⁵⁹ See Ambrach v. Norwick, 441 U.S. 68 (1979); Foley, 435 U.S. at 297-300.

²⁶⁰ See Foley, 435 U.S. at 297 (noting that the purpose for the political function exception is to reserve for citizens the right to govern).

²⁶¹ The federal government need only satisfy the rational basis test with respect to classifications based on alienage. See 3 Rotunda, Ronald D. & Nowak, John E., TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 18.12, at 236 (2d ed. 1992)Google Scholar.

²⁶² Foley, 435 U.S. at 295.

²⁶³ See Sugarman v. Dougall, 413 U.S. 634, 646 (1973).

²⁶⁴ See In re Griffiths, 413 U.S. 717, 729 (1973).

²⁶⁵ See Nyquist v. Mauclet, 432 U.S. 1, 12 (1977).

²⁶⁶ See generally 3 Rotunda & Nowak, supra note 261, § 18.12, at 236 (arguing that alienage “cases could be made consistent by recognition of an intermediate standard of review" but that disagreement “among the justices concerning the proper judicial role in reviewing alienage classifications may mean that this area will remain one of great theoretical confusion”).

²⁶⁷ See Starke, supra note 138, at 124-25.

²⁶⁸ See supra notes 175-80 and accompanying text.

²⁶⁹ 485 U.S. 535(1988).

²⁷⁰ See Gostin, Lawrence O., Tuberculosis and the Power of the State: Toward the Development of Rational Standards for the Review of Compulsory Public Health Powers, 2 U. CHI. L. SCH. ROUNDTABLE 219, 257-58 (1995)Google Scholar [hereinafter Gostin, Power of the State].

²⁷¹ See id. at 258 (citing Ward v. Skinner, 943 F.2d 157, 162 (1st Cir. 1991)).

²⁷² Id.

²⁷³ See id.

²⁷⁴ See id.

²⁷⁵ See id.

²⁷⁶ See Shapiro v. Thompson, 394 U.S. 618, 630-31 (1969) (finding that denying welfare benefits to recent state residents to deter the in-migration of indigents affects the individuals’ basic rights to travel throughout the United States, and thus strict scrutiny applies).

²⁷⁷ Gostin acknowledges that in recent cases such as City of New York v. Doe, the court recognizes belonging to high-risk groups (in that case, drug abusers and the homeless) as part of the state’s individualized assessment of risk. See Gostin, Power of the State, supra note 270, at 266.

²⁷⁸ See Jackson, Sheila Davis-, Community Relations Strengthen TB Outreach Services in San Francisco, TB NOTES (U.S. Dep't of Health & Human Servs.), Winter 1995, at 7Google Scholar; Carey, Lori Laliberte- & Krall, Yung, Working with an Interpreter, TB NOTES (U.S. Dep't of Health & Human Servs.), Winter 1995, at 17Google Scholar; cf. WASH. REV. CODE ANN. § 70.28.005(3) (West Supp. 1995) (“To protect the public’s health, it is the intent of the legislature that local health officials provide culturally sensitive and medically appropriate early diagnosis treatment education and follow-up to prevent tuberculosis.”).

²⁷⁹ See Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996), aff'g 894 F. Supp. 734 (S.D.N.Y. 1995); Karolis v. New Jersey Dep't of Corrections, 935 F. Supp. 523 (D.N.J. 1996).

²⁸⁰ 42 U.S.C. § 2000bb-l (1994).

²⁸¹ 76 F.3d at 468.

²⁸² See id. at 480.

²⁸³ See id. at 471-72.

²⁸⁴ 42 U.S.C. § 2000bb-l(a) to (b).

²⁸⁵ Id.

²⁸⁶ Jolly, 76 F.3d at 476.

²⁸⁷ See id.

²⁸⁸ See id. "An inquiry any more intrusive would be inconsistent with our nation’s fundamental commitment to individual religious freedom; thus, courts are not permitted to ask whether a particular belief is appropriate or true—however unusual or unfamiliar the belief may be.” Id.

²⁸⁹ See 42 U.S.C. § 2000bb-l(b)(1).

²⁹⁰ Jolly, 76 F.3d at 477.

²⁹¹ See id. at 477-79.

²⁹² See id. at 477.

²⁹³ See id.

²⁹⁴ See id. at 472.

²⁹⁵ See id. at 479.

²⁹⁶ See id. at 478.

²⁹⁷ See id. at 478-79.

²⁹⁸ See id. at 478 n.5; see infra notes 311-14, 318-22 and accompanying text (discussing Karolis, in which threats of segregation furthered a compelling interest).

²⁹⁹ See Jolly, 76 F.3d at 479.

³⁰⁰ See id.

³⁰¹ See id.

³⁰² See id.

³⁰³ See id.

³⁰⁴ See id.

³⁰⁵ Id.

³⁰⁶ Id. at 480.

³⁰⁷ See id.

³⁰⁸ 935 F. Supp. 523 (D.N.J. 1996).

³⁰⁹ See id. at 531.

³¹⁰ See id. at 525.

³¹¹ See id.

³¹² See id.

³¹³ See id.

³¹⁴ See id.

³¹⁵ See id. at 526-27.

³¹⁶ Id. at 526 (citing Sherbert v. Verner, 374 U.S. 398 (1963)).

³¹⁷ Id. at 527.

³¹⁸ See id. at 527-28.

³¹⁹ See id.

³²⁰ See id.

³²¹ Id. at 528.

³²² Id. at 530.

³²³ See id. at 528-29.

³²⁴ Id. at 528.

³²⁵ Id.

³²⁶ See id.

³²⁷ See id.

³²⁸ See id. at 530.

³²⁹ See id.

³³⁰ See id.

³³¹ See id.; see also Dickinson v. Herman, No. 95-15679, 1996 U.S. App. LEXIS 2247, at *6 (9th Cir. Jan. 23, 1996). In this unpublished opinion, the Ninth Circuit found that skin tests of in mates furthered a compelling interest using the least restrictive means under the RFRA. See id. The court supported its finding with only a statement by the state’s expert, a prison doctor, who said, “‘the only way to detect and provide an effective anti-tuberculosis program is thorough [sic]’ the TB skin test.” Id.

³³² See Jolly, 76 F.3d at 476.

³³³ See generally Rubel & Garro, supra note 230.

³³⁴ If he cannot prove a religious motive, his claim obviously fails under the RFRA.

³³⁵ See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602 (1989); Glover v. Eastern Neb. Community Office of Retardation, 867 F.2d 461, 464 (8th Cir.), cert. denied, 493 U.S. 932 (1989) (holding that human service agency’s employee HIV testing program violated the Fourth Amendment).

³³⁶ See Skinner, 489 U.S. at 616; Schmerber v. California, 384 U.S. 757, 767-68 (1966); United States v. Nicolosi, 885 F. Supp. 50, 55 (E.D.N.Y. 1995) (holding that the government must obtain a warrant to collect a saliva sample from the mouth of the defendant).

³³⁷ See Skinner, 489 U.S. at 616 (“[I]t is obvious that . . . physical intrusion, penetrating the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.”).

³³⁸ See New Jersey v. T.L.O., 469 U.S. 325 (1985) (search of student’s pocketbook by vice principal); Michigan v. Tyler, 436 U.S. 499, 506 (1978) (firemen entering privately owned building to put out a fire); Camara v. Municipal Court, 387 U.S. 523, 528 (1967) (building inspection).

³³⁹ See Vernonia School Dist. 47J v. Acton, 115 S. Ct. 2386 (1995); Von Raab, 489 U.S. at 656; Glover, 867 F.3d at 464.

³⁴⁰ U.S. CONST. amend. IV.

³⁴¹ Acton, 115 S. Ct. at 2390.

³⁴² Von Raab, 489 U.S. at 665-66.

³⁴³ Acton, 115 S. Ct. at 2391.

³⁴⁴ Id. at 2393.

³⁴⁵ Id. at 2394.

³⁴⁶ In upholding mandatory drug tests for high school athletes, the Court noted that “[t]he most significant element in this case is . . . that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.” Acton, 115 S. Ct. at 2396. Because testing for TB helps the state achieve its public health goal of preventing the spread of potentially fatal infectious diseases in society, the test appears more reasonable.

³⁴⁷ 42 U.S.C. §§ 12101-12213 (1994).

³⁴⁸ See Ball & Barnes, supra note 177, at 58-59; Carlon, Cynthia A., Tuberculosis Control: Will Our Legal System Guard Our Health and Will the ADA Hamper Our Control Efforts?, 13 J. LEGAL MED. 563, 574-77, 583-87 (1992)CrossRefGoogle ScholarPubMed; Gittler, supra note 51, at 127-28; Gostin, The Resurgent Tuberculosis Epidemic, supra note 34, at 92-96; Rothenberg & Lovoy, supra note 138, at 738-43.

³⁴⁹ Compare Ball & Barnes, supra note 177, at 59 (finding that the Americans with Disabilities Act (ADA) does not apply to TB civil commitment statutes, citing ADA legislative history which specifically states that TB laws designed to protect the public health “against individuals who pose a direct threat to the health or safety of others" are not preempted by the ADA), with Rothenberg & Lovoy, supra note 138, at 741-42 (finding that the ADA should apply to TB civil commitment statutes).

³⁵⁰ See City of Newark v. J.S., 652 A.2d 265, 273 (N.J. Super. 1993) (reasoning that the ADA’S heightened scrutiny of government action should apply to civil commitment of TB sufferers because “[i]f public entities are barred from subjecting disabled persons to discrimination, can it be seriously doubted but that they are barred from involuntarily confining them?”).

³⁵¹ See id. at 277-78 (holding that the city satisfied the ADA by ordering confinement based on the “nature of the risk,” "the duration of the risk,” "the severity of the risk" and “the probabilities the disease will be transmitted and will cause varying degrees of harm”).

³⁵² See Rothenberg & Lovoy, supra note 138, at 728 n.63 (One patient with MDR-TB infected nine others, eight of whom required hospitalization. The hospitalizations cost just under one million dollars, five times the TB control budget allocated to that county.).

³⁵³ See Prevention and Control of Tuberculosis in U.S. Communities with At-Risk Minority Populations, 41 Morbidity & Mortality Wkly. Rep. (U.S. Dep't Health & Human Servs.) No. RR-5, at 8 (Apr. 17 , 1992)Google Scholar (The CDC states that “[s]creening at-risk populations for TB . . . and providing appropriate treatment are crucial for achieving TB elimination.”) (emphasis added).