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Acquired Immune Deficiency Syndrome

From lawbrain.com

A disease caused by the human immunodeficiency virus (HIV) that produces disorders and infections that can lead to death.

Acquired immune deficiency syndrome (AIDS), a fatal disease that attacks the body's immune system making it unable to resist infection, is caused by the human immunodeficiency virus (HIV), which is communicable in some bodily fluids and transmitted primarily through sexual behavior and intravenous drug use.

The United States struggled to cope with AIDS from the early 1980s until the late 1990s, when new drug therapies started to extend the length and quality of life for many people with AIDS. Since the beginning, AIDS and its resulting epidemic in the United States have raised a great number of legal issues, which are made all the more difficult by the nature of the disease. AIDS is a unique killer, but some of its aspects are not: epidemics have been seen before; other sexually transmitted diseases have been fatal. AIDS is different because it was discovered in—and in the United States still predominantly afflicts—unpopular social groups: gay men and drug users. This fact has had a strong impact on the shaping of AIDS law. Law is often shaped by politics, and AIDS is a highly politicized disease. The challenge in facing an epidemic that endangers everyone is complicated by the stigma attached to the people most likely to be killed by it.

Epidemics have no single answer beyond a cure. Since no cure for AIDS existed as of the early 2000s, the law continued to grapple with a vast number of problems. The federal government has addressed AIDS in two broad ways: by spending money on research and treatment of the disease and by prohibiting unfairness to people with HIV or AIDS. It has funded medical treatment, research, and public education, and it has passed laws prohibiting discrimination against people who are HIV-positive or who have developed AIDS. States and local municipalities have joined in these efforts, sometimes with federal help. In addition, states have criminalized the act of knowingly transmitting the virus through sexual behavior or blood donation. The courts, of course, are the decision makers in AIDS law. They have heard a number of cases in areas that range from employment to education and from crimes to torts. Although a body of case law has developed, it remains relatively new with respect to most issues and controversial in all.

Contents

AIDS and the Federal Government

Political attitudes toward AIDS have gone through dramatically different phases. In the early 1980s, it was dubbed the gay disease and as such was easy for lawmakers to ignore. No one hurried to fund research into a disease that seemed to be killing only members of a historically unpopular group. When it was not being ignored, some groups dismissed AIDS as a problem that homosexuals deserved, perhaps brought on them by divine intervention. Discriminatory action matched this talk as gay men lost jobs, housing, and medical care. AIDS activists complained bitterly about the failure of most U.S. citizens to be concerned. Public opinion only began to shift in the late 1980s, largely through awareness of highly publicized cases. As soon as AIDS had a familiar or more mainstream face, it became harder to ignore; when it became clear that heterosexuals were also contracting the disease, the epidemic acquired higher priority.

By the late 1980s, much of the harshness in public debate had diminished. Both liberals and conservatives lined up to support legislative solutions. President Ronald Reagan left office, recommending increases in federal funding for medical research on AIDS. Already the amount spent in this area had risen from $61 million in 1984 to nearly $1.3 billion in 1988. President George H.W. Bush took a more active approach, and in 1990 signed two new bills into law. One was the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act (Pub. L. No. 101-381, 104 Stat. 576), which provides much-needed money for states to spend on treatment. The other was the ground-breaking Americans with Disabilities Act (ADA) (42 U.S.C.A. §§ 12112–12117), which has proved to be the most effective weapon against the discrimination that individuals with the disease routinely suffer. Bush also hurried approval by the Food and Drug Administration for AIDS-related drugs. Though he supported Americans with the disease, Bush agreed to a controversial ban by Congress on travel and immigration to the United States for people with HIV.

Like his predecessors, President Bill Clinton called for fighting the disease, rather than the people afflicted with it. In 1993, he appointed the first federal AIDS policy coordinator. He fully funded the Ryan White Care Act, increasing government support by 83 percent, to $633 million, and also increased funding for AIDS research, prevention, and treatment by 30 percent. These measures met most of his campaign promises on AIDS. He reneged on one: despite vowing to lift the ban on HIV-positive aliens, he signed legislation continuing it. In addition, he met a major obstacle on another proposal: Congress failed to pass his health care reform package, which would have provided health coverage to all U.S. citizens with HIV, delivered drug treatment against AIDS on demand to intravenous drug users, and prohibited health plans from providing lower coverage for AIDS than for other life-threatening diseases.

AIDS and Public Life

Having HIV is not a sentence to remove oneself from society. It does not limit a person's physical or mental abilities. Only later, when symptoms develop—as long as ten years from the time of infection—does the disease become increasingly debilitating. In any event, people who are HIV-positive and AIDS-symptomatic are fully able to work, play, and participate in daily life. Moreover, their rights to do so are the same as anyone else's. The chief barrier to a productive life often comes less from HIV and AIDS than from the fear, suspicion, and open hostility of others. Because HIV cannot be transmitted through casual contact, U.S. law has moved to defend the civil rights of those individuals with the disease.

AIDS in the Workplace The workplace is a common battleground. Many people with AIDS have lost their jobs, been denied promotions, or been reassigned to work duties that remove them from public contact. During the 1980s, this discrimination was fought through lawsuits based on older laws designed to protect the disabled. Plaintiffs primarily used the Rehabilitation Act of 1973 (29 U.S.C.A. § 701 et seq.), the earliest law of this type. But the Rehabilitation Act has a limited scope: it applies only to federally funded workplaces and institutions; it says nothing about those that do not receive government money. Thus, for example, the law was helpful to a California public school teacher with AIDS who sued for the right to resume teaching classes (Chalk v. United States District Court, 840 F.2d 701 [9th Cir. 1988]), but it would be of no use to a worker in a private business.

With passage of the ADA in 1990, Congress gave broad protection to people with AIDS who work in the private sector. In general, the ADA is designed to increase access for disabled persons, and it also forbids discrimination in hiring or promotion in companies with fifteen or more employees. Specifically, employers may not discriminate if the person in question is otherwise qualified for the job. Moreover, they cannot use tests to screen out disabled persons, and they must provide reasonable accommodation for disabled workers. The ADA, which took effect in 1992, quickly emerged as the primary means for bringing AIDS-related discrimination lawsuits. From 1992 to 1993, more than 330 complaints were filed with the U.S. Equal Employment Opportunity Commission (EEOC), which investigates charges before they can be filed in court. Given the lag time needed for EEOC investigations, those cases started appearing before federal courts in 1994 and 1995.

AIDS and Health Care Closely related to work is the issue of health care. In some cases, the two overlap: health insurance, Social Security, and disability benefits for people with AIDS were often hard to obtain during the 1980s. Insurance was particularly difficult because employers feared rising costs, and insurance companies did not want to pay claims. To avoid the costs of AIDS, insurance companies used two traditional industry techniques: they attempted to exclude AIDS coverage from general policies, and they placed caps (limits on benefits payments) on AIDS-related coverage. State regulations largely determine whether these actions were permissible. In New York, for example, companies that sell general health insurance policies are forbidden to exclude coverage for particular diseases. Caps have hurt AIDS patients because their treatment can be as expensive as that for cancer or other life-threatening illnesses. Insurance benefits can be quickly exhausted—in fact, AIDS usually bankrupts people who have the disease. The problem is compounded when employers serve as their own health insurers. In McGann v. H&H Music Co., 946, F.2d 401 (5th Cir. [1991]), a federal court ruled that such employers could legally change their policies to reduce coverage for workers who develop expensive illnesses such as AIDS.

In January 1995, the settlement in a lawsuit brought by a Philadelphia construction worker with AIDS illustrated that the ADA could be used to fight caps on coverage. In 1992, the joint union-management fund for the Laborers' District Council placed a $10,000 limit on AIDS benefits, in stark contrast to the $100,000 allowed for other catastrophic illnesses. At that time, the fund said the cap on AIDS benefits was designed to curb all health costs. In 1993, the EEOC ruled that the fund violated the ADA, and, backed by the AIDS Law Project of Philadelphia, the worker sued. Rather than fight an expensive lawsuit, the insurance fund settled: under the agreement, it extended coverage for all catastrophic illnesses to $100,000. Hailing the settlement as a major blow against widespread discrimination in insurance coverage, the law project's executive director, Nan Feyler, told the Philadelphia Inquirer, "You can't single out someone based on a stereotype."

In other respects, health care is a distinct area of concern for AIDS patients and health professionals alike. Discrimination has often taken place. State and federal statutes, including the Rehabilitation Act, guarantee access to health care for AIDS patients, and courts have upheld that right. In the 1988 case of Doe v. Centinela Hospital, 57 U.S.L.W. 2034 (C.D. Cal.), for example, an HIV-infected person with no symptoms was excluded from a federally funded hospital residential program for drug and alcohol treatment because health care providers feared exposure to the virus. The case itself exposed the irrationality of such discrimination. Although its employees had feared HIV, the hospital argued in court that the lack of symptoms meant that the patient was not disabled and thus not protected by the Rehabilitation Act. A federal trial court in California rejected this argument, ruling that a refusal to grant services based solely on fear of contagion is discrimination under the Rehabilitation Act.

Other actions during the 1990s have relied upon the ADA. In 1994, the U.S. Justice Department reached a settlement in a lawsuit with the city of Philadelphia that ensures that city employees will treat patients with AIDS. The first settlement in a health care–related ADA suit, the case grew out of an incident in 1993: when an HIV-positive man collapsed on a Philadelphia street, emergency medical workers not only refused to touch him but told him to get on a stretcher by himself. The man sued. In settling the case, the city agreed to begin an extensive training program for its 900 emergency medical technicians and 1,400 firefighters. In addition, officials paid the man $10,000 in compensatory damages and apologized. The Justice Department viewed the suit as an important test of the ADA. Assistant Attorney General James Turner said the settlement would "send a clear message to all cities across the nation that we will not tolerate discrimination against persons with AIDS."

Health care professionals are not the only ones with concerns about HIV transmission. Patients may legitimately wonder if their doctors are infected. During the early 1990s, the medical and legal communities debated whether HIV-positive doctors have a duty to inform their patients of the illness. According to the Centers for Disease Control (CDC), the risk of HIV transmission from health care workers to patients is very small when recommended infection-control procedures are followed, yet this type of transmission has occurred. The first cases of patients contracting HIV during a medical procedure were reported in 1991: Dr. David J. Acer, a Florida dentist with AIDS, apparently transmitted HIV to five patients. One was Kimberly Bergalis, age twenty-three, who died as a result. Before her death, Bergalis brought a claim against the dentist's professional liability insurer, contending that it should have known that Acer had AIDS and effectively barred him from operating by refusing to issue him a malpractice insurance policy. Bergalis's claim was settled for $1 million. A second claim by Bergalis, against the insurance company that recommended Acer to her, was settled for an undisclosed amount.

Since the Bergalis case, many U.S. dentists, physicians, and surgeons with AIDS have begun disclosing their status to their patients. Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (Md. 1993), illustrates the consequences of not doing so. In Faya, the court held that an HIV-positive doctor has the legal duty to disclose this medical condition to patients and that a failure to inform can lead to a negligence action, even if the patients have not been infected by the virus. The doctor's patient did not contract HIV but did suffer emotionally from a fear of having done so. The unanimous decision held that patients can be compensated for their fears. Although this case dealt specifically with doctor-patient relationships, others have concerned a variety of relationships in which the fear of contracting AIDS can be enough for a plaintiff to recover damages.

Routine HIV-testing in healthcare facilities also raises legal issues. Most people who are HIV-positive want this information kept confidential. Facilities are free to use HIV testing to control the infection but in most states only with the patient's informed consent. Some states, such as Illinois, require written consent. The level of protection for medical records varies from state to state. California, for example, has broad protections; under its statutes, no one can be compelled to provide information that would identify anyone who is the subject of an HIV test. However, every state requires that AIDS cases be reported to the CDC, which tracks statistics on the spread of HIV. Whether the name of an HIV-infected person is reported to the CDC depends on state laws and regulations.

AIDS and Education Issues in the field of education include the rights of HIV-positive students to attend class and of HIV-positive teachers to teach, the confidentiality of HIV records, and how best to teach young people about AIDS. A few areas have been settled in court: for instance, the right of students to attend classes was of greater concern in the early years of the epidemic and later ceased to be a matter of dispute.

Certain students with AIDS may assert their right to public education under the Education for All Handicapped Children Act of 1975 (EAHCA), but the law is only relevant in cases involving special education programs. More commonly, students' rights are protected by the Rehabilitation Act. Perhaps the most important case in this area is Thomas v. Atascadero Unified School District, 662 F. Supp. 376 (C.D. Cal.1986), which illustrates how far such protections go. Thomas involved an elementary school student with AIDS who had bitten another youngster in a fight. Based on careful review of medical evidence, the U.S. District Court for the Central District of California concluded that biting was not proved to transmit AIDS, and it ordered the school district to readmit the girl. Similarly, schools that excluded teachers with AIDS have been successfully sued on the ground that those teachers pose no threat to their students or others and that their right to work is protected by the Rehabilitation Act, as in Chalk.

Confidentiality relating to HIV is not uniform in schools. Some school districts require rather broad dissemination of the information; others keep it strictly private. In the mid-1980s, the New York City Board of Education adopted a policy that nobody in any school would be told the identities of children with AIDS or HIV infection; only a few top administrators outside the school would be informed. The policy inspired a lawsuit brought by a local school district, which argued that the identity of a child was necessary for infection control (District 27 Community School Board v. Board of Education, 130 Misc. 2d 398, 502 N.Y.S.2d 325 [N.Y. Sup. Ct. 1986]). The trial court rejected the argument on the basis that numerous children with HIV infection might be attending school and instead noted that universal precautions in dealing with blood incidents at school would be more effective than the revelation of confidential information.

Schools play a major role in the effort to educate the public on AIDS. Several states have mandated AIDS prevention instruction in their schools. But the subject is controversial: it evokes personal, political, and moral reactions to sexuality. Responding to parental sensitivities, some states have authorized excused absences from such programs. The New York State Education
Department faced a storm of controversy over its policy of not allowing absences at parental discretion. Furthermore, at the local and the federal levels, some conservatives have opposed certain kinds of AIDS education. During the 1980s, those who often criticized liberal approaches to sex education argued that AIDS materials should not be explicit, encourage sexuality, promote the use of contraceptives, or favorably portray gays and lesbians. In Congress, lawmakers attached amendments to appropriations measures (bills that authorize the spending of federal tax dollars) that mandate that no federal funds may be used to "promote homosexuality." In response, the CDC adopted regulations that prohibit spending federal funds on AIDS education materials that might be found offensive by some members of certain communities. Despite the controversy, some communities have taken radical steps to halt the spread of AIDS. In 1991 and 1992, the school boards of New York City, San Francisco, Seattle, and Los Angeles voted to make condoms available to students in their public high school systems.

AIDS and Private Life

Although epidemics are public crises, they begin with individuals. The rights of people who have AIDS and those who do not are often in contention and seldom more so than in private life. It is no surprise that people with HIV continue having sex, nor is it a surprise that this behavior is, usually, legal. Unfortunately, some do so without knowing they have the virus. Even more unfortunately, others do so in full knowledge that they are HIV-positive but without informing their partners. This dangerous behavior has opened one area of AIDS law that affects individuals: the legal duty to warn a partner before engaging in behavior that can transmit the infection. A similar duty was recognized by courts long before AIDS ever appeared, with regard to other sexually transmitted diseases.

A failure to inform in AIDS cases has given rise to both civil and criminal lawsuits. One such case was brought by Mark Christian, the lover of actor Rock Hudson, against Hudson's estate. Christian won his suit on the ground that Hudson concealed his condition and continued their relationship, and the jury returned a multimillion-dollar verdict despite the fact that there was no evidence that Christian had been infected. Another case was brought in Oregon in 1991, when criminal charges were filed against Alberto Gonzalez for knowingly spreading HIV by having sex with his girlfriend. After Gonzalez pleaded no contest to third-degree assault (a felony) and to two charges of recklessly endangering others, he received an unusual sentence: the court ordered him to abstain from sex for five years and placed him under house arrest for six months. Although such convictions are increasingly common, courts have also recognized that not knowing one has HIV can be a valid defense. In C. A. U. v. R. L., 438 N.W.2d 441 (1989), for example, the Minnesota Court of Appeals affirmed a trial court's finding that the plaintiff could not recover damages from her former fiancé, who had unknowingly given her the virus.

State Legislation and the Courts To stem transmission of HIV, states have adopted several legal measures. Two states attempted to head off the virus at the pass: Illinois and Louisiana at one point required HIV blood testing as a prerequisite to getting a marriage license. Both states ultimately repealed these statutes because they were difficult to enforce; couples simply crossed state lines to be married in neighboring states. Several states have taken a less stringent approach, requiring only that applicants for a marriage license must be informed of the availability—and advisability—of HIV tests. More commonly, states criminalize sexual behavior that can spread AIDS. Michigan law makes it a felony for an HIV or AIDS-infected person to engage in sex without first informing a partner of the infection. Florida law provides for the prosecution of any HIV-positive person committing prostitution, and it permits rape victims to demand that their attackers undergo testing. Indiana imposes penalties on persons who recklessly or knowingly donate blood or semen with the knowledge that they are HIV-infected.

Older state laws have also been applied to AIDS. Several states have statutes that make it a criminal offense for a person with a contagious disease—including a sexually transmitted disease—to willfully or knowingly expose another person to it, and some have amended these laws specifically to include AIDS. In addition, in many states, it has long been a crime to participate in an act of sodomy. The argument that punishing sodomy can stem HIV transmission was made in a case involving a Missouri sodomy statute specifically limited to homosexual conduct. In State v. Walsh, 713 S.W.2d 508 (1986), the Missouri Supreme Court upheld the statute after finding that it was rationally related to the state's legitimate interest in protecting public health. Other AIDS-related laws have been invalidated in court challenges: for instance, in 1993, a U.S. district judge struck down a 1987 Utah statute that invalidated the marriages of people with AIDS, ruling that it violated the ADA and the Rehabilitation Act.

Sex is only one kind of behavior that has prompted criminal prosecution related to AIDS. Commonly, defendants in AIDS cases have been prosecuted for assault. In United States v. Moor, 846 F.2d 1163 (8th Cir., 1988), the Eighth Circuit upheld the conviction of an HIV-infected prisoner found guilty of assault with a deadly weapon—his teeth—for biting two prison guards during a struggle. Teeth were also on trial in Brock v. State, 555 So. 2d 285 (1989), but the Alabama Court of Criminal Appeals refused to regard them as a dangerous weapon. In State v. Haines, 545 N.E.2d 834 (2d Dist. 1989), the Indiana Court of Appeals affirmed a conviction of attempted murder against a man with AIDS who had slashed his wrists to commit suicide; when police officers and paramedics refused to let him die, he began to spit, bite, scratch, and throw blood.

Civil Litigation tort law has seen an explosion of AIDS-related suits. This area of law is used to discourage individuals from subjecting others to unreasonable risks and to compensate those who have been injured by unreasonably risky behavior. The greatest number of AIDS-related liability lawsuits has involved the receipt of HIV-infected blood and blood products. A second group has concerned the sexual transmission of HIV. A third group involves AIDS-related psychic distress. In these cases, plaintiffs have successfully sued and recovered damages for their fear of having contracted HIV.

Advances in Treatment Though the search for an AIDS vaccine has consumed many researchers, by 2003 no breakthroughs had appeared. However, other researchers have concentrated on ways of controlling AIDS through drug treatment regimens that require individuals to consume many different types of medications at the same time. These anti-AIDS "cocktails" undergo constant study and modification as researchers learn more about the working of HIV. The medications are from a family of drugs called protease inhibitors.

Survival rates have dramatically improved for those individuals using protease inhibitors, but other problems have also arisen. Some persons do not respond to these medications or the side effects from taking the drugs diminish the quality of life. Protease inhibitors, for many people, are intolerable because of nausea, diarrhea, vomiting, headache, kidney stones, and serious drug interactions with other medications. By 2003 researchers had found that serious side effects include increased risk of heart attack, abnormalities in fat distribution, an increased propensity toward diabetes, and abnormalities in cholesterol metabolism.

Cost is another concern associated with protease inhibitors. To be effective, protease inhibitors must be used in combination with at least two other anti-HIV drugs. Annual costs for this treatment ranges between $12,000-$15,000 per person. Those persons without private health insurance must rely on public programs such as the AIDS Drug Assistance Program (ADAP), a federally funded initiative to provide AIDS-related drugs to people with HIV. Most ADAP programs, which are administered by
states, have lacked the funding to enroll everyone in need.

International Issues By 2003 the international AIDS problem had become a crisis in Africa and parts of Asia. The United Nations(UN) and the World Health Organization (WHO) have worked together to address the issues of prevention and treatment, but the statistics reveal grim conditions. In December 2002 a joint UN-WHO report disclosed that 42 million people in the world are living with HIV and AIDS. In 2002 five million people contracted HIV and over three million people died of AIDS. The situation is gravest in sub-Saharan Africa, where over 29 million adults and children are living with HIV and AIDS, contracted mainly through heterosexual contact. These figures stand in stark contrast to North America, where less than one million people are living with HIV and AIDS.

The growth of AIDS in Africa and Asia has raised worries about global political and economic stability. Governments in these ravaged countries have not been able to afford the anti-viral drugs. In 2002 pharmaceutical companies agreed to sell these drugs to these countries as generic drugs, dropping the cost from $12,000 to $300 a year per patient; yet even at these prices many governments would be hard pressed to purchase them.

In 2003, President George W. Bush proposed spending $15 billion over five years to support international AIDS prevention and the purchase of anti-viral drugs. The largest share of the money would be contributed directly by the United States to other countries, such as through programs sponsored by the U.S. Agency for International Development. The proposal would account for almost half the money in a global fund committed to fight HIV and AIDS.

Further Readings

ACLU. 1996. The Rights of People Who Are HIV Positive. Carbondale: Southern Illinois Univ. Press.

——. 1995a. AIDS and Civil Liberties. Briefing paper no. 13.

——. 1995b. Lesbian and Gay Rights. Briefing paper no. 18.

——. 1994. ACLU Wins Precedent-Setting Claim in AIDS Case; Federal Court Rules That ADA Covers AIDS Discrimination. Press release, November 21.

——. 1993. ACLU Files AIDS Discrimination Suit; Challenges South Carolina Insurance Risk Pool. Press release, April 6.

"Fighting Aids." February 10, 2003. PBS News Hour. Available online at <http://www.pbs.org> (accessed May 29, 2003).

Health and Human Services Department. Social Security Administration. 1991. A Guide to Social Security and SSI Disability Benefits for People with HIV Infection. Pub. no. 05-10020, September.

Jarvis, Robert M., et al., eds. 1996. AIDS Law in a Nutshell. 2d ed. Minneapolis, Minn.: West.

Rollins, Joe. 2002. "AIDS, Law, and the Rhetoric of Sexuality." Law & Society Review 36 (April).

White House. Office of the Press Secretary. 1994. Proclamation for World AIDS Day, November 30, 1994. Press release.

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