Hostname: page-component-848d4c4894-75dct Total loading time: 0 Render date: 2024-05-23T16:19:43.026Z Has data issue: false hasContentIssue false

A Review of AIDS-Related Legislative and Regulatory Policy in the United States

Published online by Cambridge University Press:  28 April 2021

Extract

This article surveys proposals for public health statutes and regulations to control the spread of the human immunodeficiency virus (HIV). The data were collected by the Harvard School of Public Health in pursuance of a contract for the U.S. assistant secretary for health and by the Intergovernmental Health Policy Project at George Washington University. The intention is to provide a representative overview of legal and policy alternatives, not to offer a comprehensive account of statutes and proposals in all jurisdictions.

The AIDS epidemic has refocused attention on public health law, raising anew questions about the application, effectiveness, and constitutionality of various disease control measures. State and local legislatures have considered a broad range of measures designed to control the spread of AIDS. Virtually every state legislature has debated AIDS-related bills; between January 1 and April 15, 1987, more than 360 AIDS-related bills were introduced in the United States. Thus far, approximately twenty-eight states have enacted AIDS-related legislation.

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 1987

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Citations for state statutes are provided where available. Citations for bills, regulations, and guidelines are not given. These citations can be found in the publications cited in notes 2 and 3.Google Scholar
Curran, WJ, Gostin, I., Clark, M, Acquired immunodeficiency syndrome: Legal and regulatory policy, contract #282-86-0032, Washington, D.C.: U.S. Public Health Service, 1986. See Gostin L, Curran WJ, Legal control measures for AIDS: Reporting requirements, surveillance, quarantine, and regulation of public meeting places, American Journal of Public Health 1987, 77(2): 214-18; Gostin, L, Curran, WJ, AIDS screening, confidentiality and the duty to warn, American Journal of Public Health 1987, 77(3): 361–65.Google Scholar
Merritt, R, Thomas, C, Ziegler, A, AIDS-related bills considered in the 1986 legislative session, 1987, Washington, D.C.: George Washington University Intergovernmental Health Policy Project (IHPP); Thomas, C, A synopsis of state AIDS related legislation, 1987, Washington, D.C.: IHPP.Google Scholar
See Gostin, L, The future of communicable disease control: Toward a new concept in public health law, Milbank Quarterly 1986, 64 (supp. 1): 7996.Google Scholar
Thomas, C, supra note 3.Google Scholar
Between 43 and 61 percent of respondents to three national public opinion polls conducted between November 1985 and January 1986 were “very” or “somewhat” concerned about AIDS as a problem to their own health. Between 76 and 79 percent said AIDS is now a threat to the general public. Singer E, Rogers TF, Corcoran MC, Public opinion about AIDS, Public Opinion Quarterly, forthcoming.Google Scholar
Institute of Medicine, National Academy of Sciences, Confronting AIDS: Directions for public health, health care and research, 1986, Washington, D.C.: National Academy Press.Google Scholar
New York Times, April 26, 1987; New York Times, May 4, 1987.Google Scholar
Neslund, VS, Matthews, GW, Curran, WJ, The role of CDC in the development of AIDS recommendations and guidelines, Law, Medicine & Health Care 1987, 15(1–2): 7379. References for, and a discussion of, each of the guidelines described here can be found in this article.Google ScholarPubMed
Department of Health and Human Services, Food and Drug Administration, General biological products standards, additional standards for human blood and blood products-serological test for antibody to HTLV-III, Proposed Rules, 21 CFR Parts 606, 610, 640, 51 Fed. Reg., cols. 6326–68 (1986).Google Scholar
Department of Health & Human Services, Public Health Service, Medical examination of aliens (AIDS), Proposed Rules, 14 CFR Pan 34, 51(78) Fed. Reg. 15354 (April 23, 1986).Google Scholar
See Hermann, DHJ, Liability related to diagnosis and transmission of AIDS, Law, Medicine & Health Care 1987, 15(1–2): 3645.Google Scholar
Centers for Disease Control, Additional recommendations to reduce sexual and drug abuse related transmission of HTLV-III/LAV, Mortality and Morbidity Weekly Report 1986, 35: 152–55.Google Scholar
Cleary, P et al., Health education about AIDS among seropositive blood donors, Health Education Quarterly 1986 13: 317–29.Google ScholarPubMed
Centers for Disease Control, Acquired immunodeficiency syndrome (AIDS): Precautions for clinical laboratory staff, Mortality and Morbidity Weekly Report, Nov. 5, 1982, 31: 577–80.Google Scholar
Office of Biologics, National Center for Drugs and Biologics, Food and Drug Administration, Recommendations to decrease the risk of acquired immunodeficiency syndrome (AIDS) from plasma donors, March 24, 1983.Google Scholar
Provisional Public Health Service inter-agency recommendations for screening donated blood and plasma for antibody to the virus causing acquired immunodeficiency syndrome, Mortality and Morbidity Weekly Report 1985, 34: 1.Google Scholar
See HHS, supra note 10.Google Scholar
New York City Department of Health, HIV counseling and testing policy, March 1987.Google Scholar
The logic of compulsory case-finding, while superficially appealing, is in our judgment ill conceived. See Gostin, L, Curran, WJ, Clark, M, The case against compulsory case finding in controlling AIDS—Testing, screening and reporting, American Journal of Law & Medicine, 1987, 12(1): 753. See also Barry, MJ, Cleary, PD, Fineberg, HV, Screening for HIV infection: Risks, benefits, and the burden of proof, Law, Medicine & Health Care 1986, 14(5-6): 259-67; Bayer, R, Levine, C, Wolf, SM, HIV antibody screening: An ethical framework for evaluating proposed programs, Journal of the American Medical Association 1986, 256(13): 1768-74.Google Scholar
See Herbold, MR, AIDS policy development within the Department of Defense, Military Medicine 1986, 151(12): 623–27.Google Scholar
AIDS Policy and Law 1986, 1(18): 5.Google Scholar
Los Angeles Times, February 28, 1987.Google Scholar
New York Times, June 9, 1987.Google Scholar
Zablocki v. Redhail, 434 U.S. 374 (1977).Google Scholar
See, gen., Sotto, LJ, Undoing a lesson of fear in the classroom: The legal recourse of AIDS-linked children, University of Pennsylvania Law Review 1986, 135(193): 193221.Google Scholar
See, e.g., Friedland, et al., Lack of transmission of HTLV-III/LAV to household contacts of patients with AIDS or AIDS related complex with oral candidiasis, New England Journal of Medicine 1986, 314: 344; Jason, et al., HTLV-III/LAV antibody and immune status of household contacts and sexual partners of persons with hemophilia, Journal of the American Medical Association 1986, 255: 212; Centers for Disease Control, Update: Prospective evaluation of health care workers exposed via the parenteral or mucous-membrane route to blood or body fluids from patients with AIDS—U.S., Mortality and Morbidity Weekly Report 1985, 34: 101; Weiss, et al., HTLV-IIl infections among health care workers: Association with needle-stick, Journal of the American Medical Association 1985, 254: 2089.Google ScholarPubMed
The CDC is seriously considering adding dementia and emaciation to the list of illnesses recognized as confirming a diagnosis of AIDS. New York Times, May 1, 1987.Google Scholar
429 U.S. 589 (1977).Google Scholar
See Gostin, L, Curran, WJ, The limits of compulsion in controlling AIDS, Hastings Center Report 1986, 16(6): 2429.Google ScholarPubMed
See National Institute of Justice, AIDS in correctional facilities: Issues and options, Washington, D.C.: NIJ, 1986.Google Scholar
Id.; Vaid, U, NPP gathers the facts on AIDS in prison, National Prison Project Journal 1985, 6: 1.Google Scholar
Cordero v. Coughlin, 607 F. Supp. 9 (S.D.N.Y. 1984); In re LaRocca v. Dalsheim, 120 Misc. 2d 697, 467 N.Y.S. 2d 302 (1983); Foy v. Owen, No. 85-6909 (E.D.Pa., March 19, 1986).Google Scholar
Kelley, PW et al., Prevalence and incidence of HTLV-III infection in a prison, Journal of the American Medical Association 1986, 256: 2198–99.Google Scholar
Singer, Rodgers, and Corcoran, supra note 6.Google Scholar
Curran, Clark, and Gostin, Contract #282-86-0032, supra note 2.Google Scholar
See Singer, Rodgers, and Corcoran, supra note 6.Google Scholar
Field, MA, Sullivan, K, AIDS and the criminal law, Law, Medicine & Health Care 1987, 15(1–2): 4660.Google ScholarPubMed
See Singer, Rodgers, and Corcoran, supra note 6.Google Scholar
New York v. St. Mark's Baths, 130 Misc. 2d 911 (Supreme Court of New York County, 1986).Google Scholar
New York Times, December 15, 1985.Google Scholar
New York Times, October 24, 1985.Google Scholar
See Bowers v. Hardwick, 106 S.Ct. 2841 (1986).Google Scholar
See Singer, Rodgers, and Corcoran, supra note 6.Google Scholar
See supra note 7.Google Scholar
The American Civil Liberties Union has recommended a model statute for AIDS testing and confidentiality. The statute would: (1) require the written informed consent of the subject or a guardian before administration of a serologic test for HIV; (2) protect the confidentiality of HIV related information from disclosure or compelled disclosure without authorization; (3) restrict court orders unless there is a compelling need for the test results that cannot be accommodated by other means; and (4) prohibit employers from requiring the test as a condition of hiring, promotion, or continued employment unless the test is a bona fide occupational qualification for the job in question. Hunter N, AIDS testing and confidentiality: A model statute, New York: ACLU, March 24, 1987.Google Scholar
See Gostin, Curran, and Clark, supra note 20.Google Scholar
See, gen., Handsfield, HH, Kellerman, AL, AIDS in the workplace: A guidebook for health care personnel, Journal of Emergency Medical Services 1987, 12(4): 3034.Google Scholar
Parmet, W, AIDS and the limits of discrimination law, Law, Medicine & Health Care 1987, 15(1–2):6172Google ScholarPubMed
Assistant Attorney General Charles J. Cooper, Application of section 504 of the Rehabilitation Act to persons with AIDS, ARC or infection with AIDS virus, 1986.Google Scholar
–U.S.– 1987.Google Scholar
Cronan v. New England Tel. Co. (Mass. Sup. Ct. No. 80332, Aug. 15, 1986); Dist. 27 Comm. School Bd. v. Board of Educ., 502 N.Y.S.2d 325, 336, 130 Misc.2d 398, 415 (Sup. 1986); Shuttleworth v. Broward Cty., 41 F.E.P. Cases 406 (S.D. Fla. 1986); New York State Ass'n for Retarded Children v. Carey, 612, F.2d 644 (2d Cir. 1979).Google Scholar
In New York City, legal counsel for the Public Health Department indicates that the state's general anti-discrimination statute would apply to AIDS as a disability.Google Scholar
New York Times, February 1, 1987.Google Scholar
We have not even touched on other areas of legal reform that we predict will occur within the next five years. First, some states may choose to loosen the restrictions on distribution, prescription or exchange of sterile needles. Second, some states may make provision to supply legal services to help AIDS patients make “end-of-life” decisions. AIDS patients may need assistance in making valid wills for the distribution of their property, as well as valid living wills or durable powers of attorney to control future treatment decisions in the event that they become incompetent.Google Scholar