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

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.

Curran WJ Gostin 1. 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.

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.

See Gostin L , The future of communicable disease control: Toward a new concept in public health law, Milbank Quarterly 1986, 64 (supp. 1): 79–96.

Thomas C , supra note 3.

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.

Institute of Medicine, National Academy of Sciences, Confronting AIDS: Directions for public health, health care and research, 1986, Washington, D.C.: National Academy Press.

New York Times, April 26, 1987; New York Times, May 4, 1987.

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): 73–79. References for, and a discussion of, each of the guidelines described here can be found in this article.

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).

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).

See Hermann DHJ , Liability related to diagnosis and transmission of AIDS, Law, Medicine & Health Care 1987, 15(1–2): 36–45.

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.

Cleary P , Health education about AIDS among seropositive blood donors, Health Education Quarterly 1986 13: 317–29.

Centers for Disease Control, Acquired immunodeficiency syndrome (AIDS): Precautions for clinical laboratory staff, Mortality and Morbidity Weekly Report, Nov. 5, 1982, 31: 577–80.

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.

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.

See HHS, supra note 10.

New York City Department of Health, HIV counseling and testing policy, March 1987.

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): 7–53. 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.

See Herbold MR , AIDS policy development within the Department of Defense, Military Medicine 1986, 151(12): 623–27.

AIDS Policy and Law 1986, 1(18): 5.

Los Angeles Times, February 28, 1987.

New York Times, June 9, 1987.

Zablocki V. Redhail , 434 U.S. 374 (1977).

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): 193–221.

See, e.g., Friedland , 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 , 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 , HTLV-IIl infections among health care workers: Association with needle-stick, Journal of the American Medical Association 1985, 254: 2089.

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.

429 U.S. 589 (1977).

See Gostin L Curran WJ , The limits of compulsion in controlling AIDS, Hastings Center Report 1986, 16(6): 24–29.

See National Institute of Justice, AIDS in correctional facilities: Issues and options, Washington, D.C.: NIJ, 1986.

Id.; Vaid U , NPP gathers the facts on AIDS in prison, National Prison Project Journal 1985, 6: 1.

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).

Kelley PW , Prevalence and incidence of HTLV-III infection in a prison, Journal of the American Medical Association 1986, 256: 2198–99.

Singer, Rodgers, and Corcoran, supra note 6.

Curran, Clark, and Gostin, Contract #282-86-0032, supra note 2.

See Singer, Rodgers, and Corcoran, supra note 6.

Field MA Sullivan K , AIDS and the criminal law, Law, Medicine & Health Care 1987, 15(1–2): 46–60.

See Singer, Rodgers, and Corcoran, supra note 6.

New York v. St. Mark's Baths, 130 Misc. 2d 911 (Supreme Court of New York County, 1986).

New York Times, December 15, 1985.

New York Times, October 24, 1985.

See Bowers V. Hardwick , 106 S.Ct. 2841 (1986).

See Singer, Rodgers, and Corcoran, supra note 6.

See supra note 7.

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.

See Gostin, Curran, and Clark, supra note 20.

See, gen., Handsfield HH Kellerman AL , AIDS in the workplace: A guidebook for health care personnel, Journal of Emergency Medical Services 1987, 12(4): 30–34.

Parmet W , AIDS and the limits of discrimination law, Law, Medicine & Health Care 1987, 15(1–2):61–72

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.

–U.S.– 1987.

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).

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.

New York Times, February 1, 1987.

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.