MOTHER SUMMED IT UP PRETTY WELL

May 22, 2020

I loved Constitutional Law at UNC Law School.  I memorized the facts, rationale, and holding of every case assigned.  I even studied all the footnotes.  After all, the Constitution was the supreme law of the land.  I figured I’d better learn about it.  But about 300 cases later, I realized that listening to my mother could have saved me a lot of time. 

When I was around nine years old, during one of our many arguments, I told Mother that, “I have rights!  You can’t make me do that!”  Her response was, “Yes, you do have rights, but those rights end at the tip of your nose.” I came to learn that her statement was a great summary of Constitutional law.

As I watched menacing, armed men circle our state legislature demanding an end to the COVID-19 quarantine, I remembered my Mother’s words.  These men loudly proclaimed that they had a right of free speech and the right to bear arms. One yelled at a policeman, “That’s two of my constitutional rights you’re violating. You can’t do that!”

Obviously, the armed men had stopped after reading the first two amendments to the Constitution.  By not reading on, they missed the tenth amendment.  That amendment “trumps” the others.  It gives states the power to “regulate behavior” for the betterment of “the health, safety, morals, and general welfare” of their citizens. For well over 200 years, this law has authorized states to impose public health regulations including quarantine and isolation orders – even when those regulations impinge on individual rights guaranteed by the Constitution. 

One of the most famous US quarantine cases involved Mary Mallon.  Immigrating to the US from Ireland, she worked as a domestic for wealthy families.  She drew the attention of public health authorities when several of her employers’ family members became infected with typhoid fever.  It is estimated that she was responsible for 3000 typhoid infections in New York.  Many of her victims died.  As she was an asymptomatic carrier of the disease, her employers had not suspected that she was ill.

New York quarantined Mary to protect the public.  Mary sued for her freedom.  Eventually, the state agreed to turn her loose if she would agree to stop working as a cook.  Shortly after her release, she went back to cooking and infected no less than 25 more unsuspecting New Yorkers – two of whom died. The authorities placed Mary back in quarantine where she stayed for many years until her death.

North Carolina laws allow both State and local health authorities to quarantine and isolate persons who endanger the public health. Over the years, both state and federal courts have routinely upheld the states’ right and obligation to protect citizens from public health hazards.

So, Mom was right.  I do have certain rights – but my rights end when the exercise of those rights threatens the public health.  I can sneeze, but the government can require me to wear a face mask to help keep my germs from getting past the end of my nose. 

Thanks for reading. 

Patrice Walker

The Handshake

This September, I took my first vacation in years and headed off to Ireland. Because you are supposed to relax while you are on vacation, I made every effort to avoid working. Yet, when a North Carolina Court of Appeals ruling from Orange County made the headlines in Ireland, I had to read the case.

The Defendant in the case suffered from genital herpes. He had an affair with the Plaintiff’s wife. We don’t know whether the Defendant warned the Plaintiff’s wife about the herpes issue. We do know that he failed to warn her Husband that he was planning on sleeping with the wife and that he might give her herpes. Unfortunately, the wife became infected with herpes during the course of the affair. Shortly thereafter she infected her husband.

The Plaintiff-Husband sued the Defendant-Boyfriend for “negligent infliction of a sexually transmitted disease.” The Court ruled that “a person is liable if he negligently exposes another to a contagious or infectious disease.” It held that a person who knows “or should know” that he has a sexually transmitted disease must warn those persons with whom “he expects to have sex.” It then held that the Defendant also owed a duty to warn the spouses of his potential sex partners. I spent the rest of my vacation pondering the repercussions of the Court’s holding.

Clearly, both religious and public health authorities should applaud the courage of the Court. If the law requires people to warn the spouses of those with whom they are planning an affair of any potential disease, marital infidelity would decrease. If they must also warn unmarried sex partners, promiscuity should also decline. This in turn would have the positive side effect of slowing the spread of infectious diseases and promoting the integrity of marriage and the family. It should reduce the incidence of unwanted pregnancies and abortion.

But then I wondered whether the holding could be applied to other settings. For example, this time of year, we are all encouraged to get a flu shot to avoid catching and spreading the flu. If you haven’t gotten a flu shot, do you need to warn people that you may be infectious? Should you wear some sort of a sign? Should you stay away from movie theaters, grocery stores, school, work and other crowded areas to avoid the possibility of infecting numerous potential plaintiffs and having to defend a class action lawsuit?

Just last week, I thought about this case while I was in a meeting with my banker. Shortly after sitting down with him, I couldn’t help but notice that he had a very runny nose. He had no handkerchief or tissue and used his hand to wipe away the sniffles. This was the same hand he had earlier extended to me as a welcome and the same hand with which he picked up a pen for me to use to sign some papers.

Realizing that he was exposing me to an infectious disease, I determined to avoid touching my face until I could wash my hands. About then, my own nose began to itch. Over the next thirty minutes, the itch became unbearable. I eventually used my forearm to rub my nose. Unfortunately, this attracted attention from the bank security guard who began eyeing me and the sleeve of my jacket suspiciously. When the meeting finally ended, I headed out to my car. In the parking lot, I ran into an old friend. Overjoyed and distracted by his unexpected appearance, I absentmindedly shook his hand.

I spent the rest of the afternoon worrying about whether I should call him and warn him about the banker’s sniffles. Did I need to call his wife and children and also warn them? Did I have any insurance coverage for negligently exposing my friend and his family to this cold? I worried myself into a tizzie for a couple of days. I was able to finally relax on the second day after my visit to the bank when I still had no cold symptoms. Luckily we had all escaped the banker’s contagion. Perhaps he was just having an allergy attack.

In view of the Court’s ruling, I became concerned about the potential liability of shaking hands and decided to research the custom. I’ve learned that even the ancient Egyptians shook hands. Offering a hand that carried no weapons showed your good intentions to the person you were greeting. Of course Egyptians didn’t know about germ warfare.

My mother, who was always very concerned about germs, taught me that a gentleman does not try to shake a lady’s hand until she offers it to him. She encouraged me to “keep my hands to myself.” My research indicates however, that this tradition is no longer acceptable. It is now considered rude for a lady, especially in a business setting, to refuse to shake hands. Unfortunately for us germ-a-phobes, it is considered even more rude to offer to shake hands while wearing gloves.

Billy Crystal and I can only hope that the Court of Appeals ruling in the herpes case will cause our citizens to rethink the handshaking tradition. It’s bad enough to miss time from work feeling too sick to have fun. Having to lay in bed worrying about getting sued for sharing cold or flu germs adds insult to injury.