Commentary on Reynolds v. McNichols
Feminist Judgements: Health Law (Seema Mahopatra and Lindsay Wiley eds.) Cambridge University Press. (Forthcoming)
Northeastern University School of Law Research Paper No. 363-2019
10 Pages Posted: 13 Dec 2019 Last revised: 6 Jan 2020
Date Written: December 12, 2019
The 1973 case Reynolds v McNichols concerns a woman who was repeatedly arrested on suspicion of and for “prostitution.” During these arrests, Roxanne Reynolds, the defendant, was subject to forced examination and treatment. The arrests and examinations were authorized by Section 735 of the Revised Municipal Code of the City and County of Denver, which directed the Department of Health and Hospitals “to use every available means to ascertain the existence of and investigate all suspected cases of communicable venereal disease, and to determine the sources of such infections.” Reynolds argued that the ordinance was unconstitutional because it was irrational, arbitrary, and subjected Reynolds to involuntary treatment and that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment because it was being applied against female sex workers and not their male clients. Despite her compelling claims, the original decision found for the state, holding that the acts of the state the involuntary detention and treatment were within the police power “designed to protect public health.” The court tossed out her equal protection claim, addressing it only to say that because there was no evidence that Reynolds had actually had sex with her clients there was no reason that the men should be arrested.
In her rewritten opinion, Wendy Parmet takes a feminist lens to find for Reynolds. First, by excavating the long history of public health law with an eye towards how this history impacts the experiences of women, Parmet finds that arresting, detaining and treating women, and not their male clients, is an equal protection violation. Second, through a detailed review of the probable cause requirement of the Fourth Amendment—Parmet’s rewritten decision highlights that the City of Denver does not have probable cause to detain and arrest a person simply because she is a sex worker. And, finally, Parmet brings in a new line of constitutional doctrine on the right to privacy. Reynolds, decided in the same year as Roe v. Wade, provides an opportunity to reinforce how women have the right to do what they wish with their bodies, and, in turn, emphasizes that a person has the right to refuse treatment.
In supplementing the rewritten decision, this commentary first offers a historical perspective on the involuntary testing and treatment of sex workers for contagious diseases including sexually transmitted infections. It then turns to the sex worker movement, which picked up steam in 1973, the same year as Reynolds. The sex worker movement pushed to counter ordinances like the one used to arrest, detain, and treat Reynolds by advocating for a harm-reduction approach, that would address the harms of sex work without criminalizing the people selling and buying sex. After providing this background, this commentary provides an overview of the original decision and the feminist rewrite.
Keywords: equal protection, harm reduction, sex work, privacy
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