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Invoking, Monitoring, and Relinquishing a Public Health Power: The Health Hold Order

Potterat, John J. BA*; Rothenberg, Richard B. MD, MPH; Muth, John B. MD, MPH*; Woodhouse, Donald E. JD, MPA*; Muth, Stephen Q. BA*

Sexually Transmitted Diseases: July 1999 - Volume 26 - Issue 6 - p 345–349
Original Articles

Objective: To describe a quarter-century's use of a public health power (Health Hold Orders) as an adjunct to noncoercive sexually transmitted disease (STD) control efforts in a middle-American city.

Methods: Persons arrested for prostitution were involuntarily detained for up to 72 hours if they had not been tested for STD within 30 days of arrest. Such persons were mandatorily tested/treated for STD and voluntarily tested for HIV by health department providers in Colorado Springs from mid-1970 through 1994.

Results: Prostitutes viewed temporary detention as inconvenient, but not as inappropriate. Over the 25-year interval, 4,965 examinations in prostitutes yielded 818 positive gonorrhea tests; the 1,564 tests performed under the health-hold order yielded 218 positive results. Positivity rates among prostitutes locally for reportable STD/HIV declined substantially during the period of observation, providing support for termination of the involuntary detention system.

Conclusions: The involuntary detention system contributed to observed communitywide declines in STD/HIV prevalence. Our experience demonstrates the importance of surveillance and empiric validation in public health practice.

*From the El Paso County Department of Health and Environment, Colorado Springs, Colorado, and the Department of Family and Preventive Medicine, Emory University School of Medicine, Atlanta, Georgia

The authors thank H. H. Rohrer, MD, MPH, Director of the (then) City-County Health Department in Colorado Springs (February 1970 through August 1971) and Robert “Bob” Russel, JD, El Paso County District Attorney (1965-1984) for providing historical and archival material and Edward P. Richards, JD, for useful discussions.

Dr. Muth retired in 1997; Mr. Woodhouse currently practices law in Pennsylvania.

Reprint requests: John Potterat, STD/HIV Program, 301 South Union Blvd., Colorado Springs, CO 80910.

Received for publication August 3, 1998, revised October 16, 1998, and accepted October 28, 1998.

THE CONSTITUTION OF THE United States delegates the power to control communicable diseases to the individual states. State authority to manage such diseases has been manifested in a variety of ways1; as applied to the control of sexually transmitted diseases (STDs), it has sparked considerable discussion.1–3 In Colorado Springs, Colorado, we invoked and formally applied such public health authority to members of a specific population: persons suspected of engaging in prostitution. We invoked this authority in 1970 and, based on epidemiologic data accumulated over the 25-year interval, elected to terminate this public health procedure in 1994.

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The Colorado Springs region has hosted several large military installations since 1942. By 1970, the armed forces composed 13% of its population (1970 County Census: 235,977); most servicemen were single men in their late teens and early twenties. During the late 1960s, substantial increases in reported gonorrhea cases alarmed civilian and military health officers; such cases in Colorado Springs almost tripled, from 663 cases in 1968 to 1,659 in 1970. This burgeoning epidemic was related to at least three societal changes: Colorado Springs's transition from small town to metropolitan center; escalation of the Vietnam war, which increased the number and mobility of servicemen; and the emergence of changes in young people's sexual mores and recreational drug use. Demographic information suggested fertile ground for a dynamic prostitution market: the 1970 Census recorded a male-female ratio of 1.4:1 for the 15 to 34 age group and, disturbingly, of 2.1:1 for the 20 to 24 age group (the one with the highest reported rates of gonorrhea). Ethnographic studies by the American Social Health Association and interviews with gonorrhea patients indicated that nearly 90% of cases involved young soldiers who reported sexual liaisons with local prostitute women or camp followers.

Increases in reported crimes accompanied these social changes. Concerned criminal justice and public health authorities organized a series of meetings during the late 1960s to deal with these social problems. By early 1970, our health department appointed a new director, who undertook the task of organizing community resources to address the STD epidemic. Initial control efforts mobilized public health workers, criminal justice officials, and the media. Briefly, civilian and military health workers interviewed STD patients and attempted field follow-up of named partners. Military policemen enforced proscriptions directed at interdicted sites frequented by soldiers suspected of soliciting commercial sex. Civilian police enhanced their efforts to repress prostitution by creating a special monitoring unit, the vice-squad. The District Attorney pressed for vigorous prosecution and for creative sentencing of persons engaging in prostitution. (For example, “hiccup sentences” were imposed on persons convicted of prostitution: instead of imposing a continuous 90-day sentence, judges meted out sentences that confined the prisoner to jail from the 25th day of a month to the 5th day of the next. Generally, this occurred over a 3-month period; its purpose was to discourage prostitution on or about military payday.) The media alerted the public to the burgeoning gonorrhea epidemic and encouraged residents to consider legalizing prostitution in this military environment. The civilian-military partnership was forged as early as 1948 and subsequently amended as The Seven Point Agreement of 1967,4 an accord between the Departments of Defense, Transportation, and Health and Human Services and local health jurisdictions. This directive urged civilian and military health officers to cooperate to discourage importation and spread of venereal infection to and from military personnel in American communities.5

Two additional observations deeply influenced the decision to invoke the public health authority during the emerging gonorrhea epidemic: the peripatetic lifestyle of most women engaging in prostitution in Colorado Springs and their apparently cavalier attitude toward venereal infection. First, ethnographic data suggested that more than half of prostitutes followed a professional circuit that comprised several neighboring states; these women solicited clients locally for the few days surrounding military payday and then resumed travel on the circuit. Estimates based on sporadic medical examination and on contact tracing information suggested that at least one third of such women had sexually transmissible infections and that most eluded public health interventions in other communities within their circuit. Second, conventional STD control measures (e.g., contact tracing and street outreach) were failing to success-fully refer prostitutes to medical care: “a fluid lifestyle without permanent domicile, a rather fatalistic and stoical approach to life's problems, and a major concern with sheer survival … [served] … to relegate the seeking of health care to a low priority….”6

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The Health Hold Order

Accordingly, a legal system requiring public health clearance of persons arrested for prostitution offenses (the “Health Hold Order”) was instituted by the health department in Colorado Springs in June, 1970. Legal and epidemiologic grounds for this procedure are reported elsewhere.6 Briefly, this authority derived from the Colorado Statute, which states:

State, county and municipal health officers, or their authorized assistants or deputies, within their respective jurisdictions are directed, when in their judgment it is necessary to protect the public health, to make examinations of persons reasonably suspected of being infected with venereal disease and to detain such persons until the results of such examinations are known … It is the duty of all local and state health officers to investigate sources of infection of venereal disease, to cooperate with the proper officials whose duty it is to enforce laws directed against prostitution….7

In practice, a person arrested for prostitution was permitted to post bond only after a health department representative made a determination of the likelihood that the detainee had an STD. Such determination was made either directly (that is, based on results of standard gonorrhea cultures and syphilis serologies obtained by the health department or by a local licensed clinician in the 30 days preceding arrest) or indirectly (based on results of such tests collected from the population of prostitutes tested locally). Using a standard of “reasonable suspicion” (being suspected of engaging in prostitution locally and therefore of likelihood of having a reportable STD), such persons were detained for a period not exceeding 72 hours to permit examination by a qualified practitioner. Persons arrested for prostitution were examined and treated at our health department STD clinic free of charge; those for whom reasonable suspicion was absent were permitted to post bond immediately. The Health Department used a 365 days-a-year (8 am to midnight) on-call system to respond to any arrest for prostitution within a few hours. Health Hold Order data were reviewed by several of us at the time of preparation of our STD program's annual reports, starting in 1972.

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STD/HIV Testing

Endocervical specimens, collected by health department practitioners, were processed using Thayer-Martin culture medium for gonorrhea and with direct immunofluorescence assays for chlamydia. Serologic specimens for syphilis were tested with the Venereal Disease Research Laboratory test (1970-1974) and, subsequently, with the rapid plasma reagin test; the fluorescent treponemal antibody absorption test was used for confirmatory testing. Antibody to HIV was detected with enzyme-linked immunosorbent assay technology and confirmed with the Western Blot test.

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Data Sources

Data on arrests for prostitution were obtained from police and jail records and from health department prostitution logbooks and databases.6,8 Diagnoses were extracted from STD clinic charts, from HIV Counseling & Testing (CTS) records, and from communitywide STD/HIV morbidity reports. Since 1995, as part of our continuing efforts to monitor prostitution's impact on local STD/HIV transmission, police arrest records for prostitution have been periodically reviewed and cross-checked with our STD/HIV clinic and morbidity databases.

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Gonorrhea and Syphilis Testing

Between June 1970 and December 1994, 4,965 examinations of women known or suspected of engaging in prostitution were performed by health department staff; 818 (16.5%) yielded positive tests for gonorrhea (Table 1) (no record exists of a person arrested for soliciting commercial sex who also refused STD examination). Both the number and proportion of positive results were highest during the early 1970s, stabilized at moderate levels from the mid-1970s through the 1980s, and declined precipitously during the 1990s. The proportion of positive gonorrhea tests was typically approximately 24% during the 1970s, 13% during the 1980s, and 4% thereafter (data not shown). Only 25 cases of infectious syphilis (0.5% of visits) were diagnosed during this 25-year period.



The proportion of all visits occasioned by arrest increased over time, whereas the proportion of nonarrest visits declined (Table 1). Although the overall number and proportion of positive gonorrhea diagnoses declined over time, the positivity rate for women arrested for prostitution declined more slowly, remaining above 10% during the entire period. We surmise that, because police officers are reportedly likelier to arrest newly arrived prostitutes (“Getting to know you” idea), this higher rate represents gonorrhea importation.

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Chlamydia Testing

As part of the routine evaluation that served to support continued use of the Health Hold Order, screening for genital chlamydia infection began in 19879, when affordable commercial assays became available. The initial prevalence of 9% during the late 1980s declined to 6.9% during the early 1990s, but increased to 9.3% after revocation of the Health Hold system, although the numbers are small (Table 2).



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HIV Testing

For the period 1985 through 1994, although testing for evidence of HIV infection was not mandatory, virtually all (453/462) women with known or suspected histories of local prostitution were voluntarily tested and 14 (3.1%) were positive.

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Male Prostitutes

Until the mid-1980s, male prostitutes were rarely observed in Colorado Springs. Between 1985 and 1994, the police arrested 21 males (all cross-dressers) for solicitation on 28 occasions. All were served Health Hold Orders. Three of the 21 men (14.3%) were positive for HIV antibody, one for pharyngeal gonorrhea, and one for infectious syphilis.

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Post Health Hold Era Testing (1995-1997)

During the three years after revocation of the Health Hold Order system, visits to our STD clinic by women who were known or suspected prostitutes declined by nearly two thirds (from 160 examinations in 1994 to 58 in 1997); of 215 examinations between 1995 and 1997, 3 (1.4%) were positive for gonorrhea, as were 20 (9.3%) for chlamydia. Only 2 of 95 (2.1%) women locally engaging in prostitution tested positive for HIV since 1995.

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Community STD/HIV Trends

During the period of observation, reportable STD/HIV infections declined substantially, and they continue to do so. Gonorrhea rates declined 90%, from 667 per 100,000 population in 1970 to 170 per 100,000 in 1994 (to 66 per 100,000 in 1997). Chlamydia rates declined by more than one third, from 307 per 100,000 in 1988 to 252 per 100,000 in 1994 (to 195 per 100,000 in 1997). Infectious syphilis declined 99.7%, from 19 per 100,000 in 1973 to 2 per 100,000 in 1994 (to 0.6 per 100,000 in 1997). Rates of newly diagnosed HIV cases declined 83.7%, from 43 per 100,000 in 1986 to 16 per 100,000 in 1994 (to 7 per 100,000 in 1997).

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Involuntary, temporary (up to 72 hours) detention of persons arrested for prostitution in Colorado Springs was initiated in mid-1970 because, in the judgment of the local public health and criminal justice authorities, such a system represented a defensible balance of civil and community rights in light of the realities of the STD epidemic and of the attributes of the population to whom it was directed. Such a balance seemed in keeping with the doctrine of the “least restrictive alternative,” which may be summarized as follows: “Even though the government purpose is legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental liberties when the end can be more narrowly achieved.”10 Conventional STD control initiatives, such as street outreach and contact tracing, had proved ineffective in light of prostitute women's peripatetic lifestyle and STD health-care behaviors6. When it became clear that benefits, to prostitutes and to the community, of mandatory STD testing no longer outweighed the onus of involuntary detention, this detention system was revoked-25 years after its inception.

The involuntary detention system was closely linked to voluntary periodic examination, which provided both the person arrested and the health department with recent evidence of freedom from STD; therefore, examinations in detention furnished only a portion of the putative benefits that the Health Hold Order system afforded. The relative contribution of such a system to the substantial declines in reported STD/HIV infections in Colorado Springs during this period is difficult to assess directly. Such declines occurred in context of communitywide control initiatives that included nearly universal tracking of persons with STD5,11,12 and HIV13,14 and of their exposed partners, in conjunction with targeted screening12,15 and outreach programs.6,9,14,16 Nevertheless, we suspect that the observed reductions in STD (particularly gonorrhea) incidence may not have been attained (or sustained) in the absence of a mechanism for assuring periodic examination and treatment of poorly motivated members of high prevalence populations such as prostitutes in Colorado Springs.9

During our more than a quarter century of continuous observation, the number of women we assessed as prostitutes also noticeably declined. Relying on multiple sources and using techniques described previously,8 we observed a 33% decline in women engaging in prostitution locally during the 1990s as compared with the 1980s. Decline in prostitution prevalence, coupled with decline in STD prevalence among such women, provided evidence against their importance as STD vectors in Colorado Springs. Although earlier surveillance information suggested an important role for them in gonorrhea transmission,6 by the 1990s few STD/HIV cases could be linked to local prostitutes. Use of the Health Hold Order on persons arrested for solicitation was discontinued at the end of 1994, because surveillance data could no longer support either the “reasonable suspicion” or “least restrictive alternative” standard.

We feel that our long experience with the STD Health Hold Order not only demonstrates proper and responsible use of the public health power, but also argues for renewed implementation under appropriate epidemiologic circumstances. In our view, its use caused little harm and accomplished much good. Balanced against the inconvenience of short-term detention were the benefits: women engaging in prostitution, being stimulated to seek periodic medical attention, received competent medical care for STD/HIV and were often introduced to allied medical and social agencies17; and reduction of STD/HIV prevalence among them contributed not only to improved personal health but, arguably, to communitywide incidence reduction.

Informed discussion with women arrested for prostitution over the years suggested that they viewed involuntary detention as an irritating inconvenience; few regarded it as inappropriate. Not only did most of them know that by volunteering for periodic STD examination, they could avert detention exceeding more than a few hours, but they frequently advocated for our certifying their health status using a “health card” system. (Because prostitution is illegal in Colorado Springs, such a system would have amounted to quasilegalization of prostitution.) Indeed, the fact that no person arrested for soliciting commercial sex, to our knowledge, ever refused STD care may be interpreted as a form of acceptance.

The constitutionality of the Health Hold Order was challenged immediately after its inception by a local attorney representing four women arrested for prostitution. By early November of 1970 the District Court denied the attorney's request for a writ of habeus corpus. Shortly thereafter, in Reynolds v. McNichols18, the U.S. Court of Appeals for the Tenth Circuit upheld the constitutionality of involuntary detention of a person for medical examination for sexually transmitted disease.19

Exercising public health authority for the benefit of the community implies that personal autonomy will sometimes be curtailed. Such curtailment is ethically and legally sound.1,2 Nevertheless, concern for the civil rights of persons subjected to the STD Health Hold Order, and for similar public health practices, is justified. A common criticism of our practice was its application to arrested prostitutes but not to their arrested customers. This criticism has merit, because it would seem, prima facie, that high STD prevalence in prostitutes implies high prevalence in their clients. In reality, periodic examination of men arrested for solicitation (a relatively uncommon event because of police practices) failed to demonstrate significant prevalence of infection among such men (not surprisingly, because they were usually arrested before sexual exposure with the person soliciting sex). Therefore, we could not make a consistent case for reasonable suspicion of infection in the clients of prostitutes, but recognized that we did not have access to the type of systematic information we were able to obtain for the prostitutes themselves. Lastly, application of the Health Hold Order was not exclusively confined to specific populations. Involuntary detention (or its threat) was periodically used on individuals reasonably suspected of having STD, whose reluctance to seek STD examination made us view them as a “human form of resistant strain.”6

Our long experience with the Health Hold Order system underlines the importance of empiric validation of public health maneuvers. It may have been possible to revoke the Health Hold Order a few years earlier, but recognition of the yearly vagaries of epidemiologic data seemed to justify a conservative approach to relinquishing its use. Although this does not provide a definitive argument for the use of such procedures, it does emphasize the need for empiric substantiation of their need and use. The potential for abuse of public health powers is real, but long-term monitoring of actual activity provides a basis for deciding if such concern is well founded. Our experience demonstrates the critical link between social and epidemiologic decisions in public health, and that neither should be taken in the other's vacuum.

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