¹ Most commentators distinguish between “testing” and “screening,” using the former term to refer to testing individuals and the latter to refer to surveying a group to discover which members carry a disease. See Bayer, , Levine, & Wolf, , HIV Antibody Screening: An Ethical Framework for Evaluating Proposed Programs, 4 NEW ENG. J. PUB. POL'Y 173, 175 (1988)Google Scholar. This article often uses “testing” to cover both situations, partly because the author perceives no clear dividing line between them and partly because a coerced test is the same from the perspective of the person from whom the test is demanded, no matter which label is employed.

² For example, this position has been taken by the Centers for Disease Control (CDC), the Presidential Commission on the Human Immunodeficiency Virus Epidemic, the American Medical Association, the National Institute of Medicine and former Surgeon General C. Everett Koop. See R. BAYER, PRIVATE ACTS, SOCIAL CONSEQUENCES: AIDS AND THE POLITICS OF PUBLIC HEALTH (1989) (discussing the development of “the voluntarist consensus“).

³ See discussion of the failure of premarital testing laws, infra pp. 70-77.

⁴ Because the person tested is guilty of criminal behavior by which the disease may have been transmitted, testing seems an especially appropriate part of punishment. Some might limit required testing to criminal conduct where there exists a close connection between the offense and transmission of AIDS. That policy might also support forced testing of convicted sodomists, in a jurisdiction where sodomy is criminal. That case is much less compelling, however, insofar as the sodomy is consensual rather than forced, even if consensual sodomy is not constitutionally protected. See Bowers v. Hardwick, 478 U.S. 186, 197 (1986). Similarly, the nexus between the offense and transmission might support forced testing of all convicted IV drug users, but needle-sharing also is usually consensual rather than forced. Forced needle-sharing, punishable as assault, should be treated the same way as rape is for purposes of mandatory HIV screening.

⁵ See discussion on testing of rapists, infra pp. 100-02.

⁶ See Andrews, Patents: A Broader Use for AZT, N.Y. Times, June 10, 1989, § 1, at 36, col. 6; HARVARD AIDS INSTITUTE, MONTHLY REP., TWO AZT TRIALS SHOW DRUG's EFFECTIVENESS AGAINST AIDS 13 (Sept. 1989); Zonana, AIDS Group in L.A. Joins Call for HIV Testing, L.A. Times, Aug. 19, 1989, at 1, col. 2; Hilts, Drug Said to Help AIDS Cases with Virus but No Symptoms, L.A. Times, Aug. 18, 1989, at Al, col. 1; Cimons, AIDS-Related Complex Found Slowed By AZT, L.A. Times, Aug. 4, 1989, at 1, col. 5.

⁷ Much of the discussion in this section is drawn from: Schwartz, , Dans, & Kinosian, , Human Immunodeficiency Virus Test Evaluation, Performance, and Use, 259 J. A.M.A. 2574 (1988)Google Scholar [hereinafter Schwartz]; Gross, , HIV Antibody Testing: Performance and Counseling Issues, 4 NEW ENG.J. PUB. POL'Y 189, 191 (1988)Google Scholar.

⁸ See Gross, supra note 7, at 190.

⁹ See Schwartz, supra note 7, at 2575.

¹⁰ See id.; Gross, supra note 7, at 191.

¹¹ The Western Blot is a confirmatory test that “identifies antibodies to proteins of a specific molecular weight, and therefore helps to eliminate false positives.” AIDS AND THE LAW: A GUIDE FOR THE PUBLIC 130 (H. Dalton, S. Burris & the Yale AIDS Law Project 1987).

¹² See Gross, supra note 7, at 191.

¹³ See Schwartz, supra note 7, at 2575.

¹⁴ See Gross, supra note 7, at 191.

¹⁵ Currently, more than 25 biotechnology companies are working to develop new strategies or tests better suited to tasks other than screening the blood supply. To improve specificity, second-generation antibody tests (using recombinant DNA technology) are being developed; antigen tests to improve detection of infection in the early stages, and polymercase chain reaction (PCR) for early detection in infants and tracing the course of the infection in the body. “Public health officials, clinicians and researchers will have to become familiar with the technical characteristics of these tests to ensure they are used and interpreted properly.” INSTITUTE OF MEDICINE, MOBILIZING AGAINST AIDS 291-95 (1989).

¹⁶ Tests can be offered on a “voluntary” (at the patient's request), “routine” (pursuant to a policy of routinely offering the test, which a patient is free to refuse) or “mandatory” (the patient must be tested and cannot refuse) basis. See GEORGE WASH. UNIV., 1 INTERGOVERNMENTAL HEALTH POLICY PROJECT, AIDS: A PUBLIC HEALTH CHALLENGE 2-2 (M. Rowe & C. Ryan eds. 1987) [hereinafter AIDS: A PUBLIC HEALTH CHALLENGE].

¹⁷ See infra pp. 40-41.

¹⁸ The state of New York, for example, allows for notification “only if the results have been reactive or equivocal for more than one test, and the confirmatory HIV antibody test result has been unequivocally reactive.” N.Y. COMP. CODES R. & REGS. tit. 10, § 58-1.1(0(2) (1988). In practice, this means a double ELISA confirmed by a Western Blot.

¹⁹ See Gross, supra note 7, at 191.

²⁰ A smoke detector provides a commonly understood analogy: If it is too sensitive, it will detect not only true fires, but also cigarettes and burned toast. On the other hand, if the detector is made less sensitive, there will be fewer false alarms (that is, the specificity will be enhanced), but the detector might miss some small fires (such as a flare-up in a frying pan). One can improve both sensitivity and specificity — by buying a more expensive smoke detector or using more expensive and painstaking tests — but a range of trade-offs will still remain.

²¹ See Meyer, & Pauker, , Screening for HIV: Can We Afford the False Positive Rates?, 317 NEW ENG. J. MED. 238, 239 (1988)Google Scholar.

²² Similarly, false negative results are much greater in high risk populations. See infra pp. 61-63.

²³ Low prevalence populations have high false positive results. See Meyer & Pauker, supra note 21, at 238-39; Steckleberg, & Cockerill, , III, Seriologic Testing for Human Immunodeficiency Virus Antibodies, MAYO CLINIC PROC. 373 (1988)Google Scholar (Most patients (68% to 89%) from low risk groups (prevalence of 0.1 % or less) who show reactivity on screening tests will have falsepositive results.). Health officials have expressed concern about the cost-effectiveness of the test. See, e.g., Saletan, AM. POL., Oct. 1987, at 9 (” ‘We feel premarital testing is not the best use of the state's money’ since it covers a low-risk population, says Lucas'.” (quoting the Indiana State Health Department's legal affairs director)).

²⁴ See Cleary, , Barry, , Mayer, , Brandt, , Gostin, , & Fineberg, , Compulsory Premarital Screening for the HIV, 258 J. A.M.A. 1757, 1760 (1987)Google Scholar (discussing the impact of false positives in the context of premarital testing) [hereinafter Cleary]; cf. McLaughlin, , AIDS:. An Overview, 4 NEW ENG. J. PUB. POL'Y 15, 28 (1988)Google Scholar (discussing discrimination suffered by those with HIV virus); Gross, supra note 7, at 200 (discussing the psychological impact of a positive test result).

²⁵ See Meyer & Pauker, supra note 21, at 238-39; Gross, supra note 7, at 192.

²⁶ See Forstein, , Understanding the Psychological Impact of AIDS: The Other Epidemic, 4 NEW ENG. J. PUB. POL'Y 159, 166 (1988)Google Scholar.

²⁷ See Steckleberg & Cockerville, III, supra note 23, at 374.

²⁸ See the reports cited in Gross, supra note 7, at 193 nn.25-27.

²⁹ Gostin, , Curran, & Clark, , The Case Against Compulsory Casefinding in Controlling AIDS — Testing, Screening and Reporting, 12 AM. J.L. & MED. 7, 14 (1987)Google Scholar.

³⁰ See Hirsh, AIDS and the Blood Supply, in AIDS: FACTS AND ISSUES 104, 109-10 (V. Gong & N. Rudnick eds. 1986).

³¹ To address these problems, the Presidential Commission recommends the development of a model state laboratory law that would address the types and levels of tests to be performed as well as specific quality control measures. In the meantime, laboratories and medical professionals should adopt the policy of not reporting positive test results until such results are confirmed by a Western Blot or comparable test. See REPORT OF THE PRESIDENTIAL COMMISSION ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC 81 (1988) (Recommendations 6-33, 6-37) [hereinafter PRESIDENTIAL COMM'N].

³² See id.

³³ See id. (Recommendation 6-38). The state of New York, for example, has issued testing protocols under its authority to regulate clinical laboratories. See N.Y. COMP. CODES R. & REGS. tit. 10, § 58-1 (1988).

³⁴ See generally Gostin, Curran & Clark, supra note 29, at 17.

³⁵ See Mayer, The Clinical Spectrum of HIV Infections: Implications for Public Policy, 4 NEW ENG. J. PUB. POL'Y 37, 41-42 (1988) (noting that many individuals remain asymptomatic for several years after seroconverting); Green, The Transmission of AIDS, in AIDS AND THE LAW, supra note 11, at 28, 30 (stating that the average incubation period for the disease — from infection by the virus to the onset of AIDS — is four and one-half years).

³⁶ See Mayer, supra note 35, at 45.

³⁷ See supra note 6 and accompanying text.

³⁸ See Mayer, supra note 35, at 45-46.

³⁹ See id.

⁴⁰ See id. at 46.

⁴¹ See Bayer, Levine & Wolf, supra note 1, at 177.

⁴² Testing may produce a variety of psychological responses, often dependent on one's motivation for testing. As would be expected, a positive result can bring on profound gloom, anxiety and depression, and may increase the risk of suicide, homicide or other sociopathic behavior. It may cause particular problems where drug or alcohol abuse is an issue. Even a negative result may increase rather than decrease anxiety because the ambiguities in current testing technologies encourage some to become chronic repeat testers. See Gross, supra note 7, at 197-201.

⁴³ See generally Marzuk, , Tierney, , Tardiff, , Gross, , Morgan, , Hsu, & Mann, , Increased Risk of Suicide in Persons with AIDS, 259 J. A.M.A. 1333 (1988); Glass, AIDS and Suicide, 259 J. A.M.A. 1369 (1988)Google Scholar.

⁴⁴ Many commentators have noted the damage done by such politicization of the AIDS issue. For example, in 1987, North Carolina Senator Jesse Helms expressed the opinion that quarantine would be necessary to contain AIDS. See R. BAYER, supra note 2, at 3 (citing N.Y. Times, June 15, 1987, at A13, col. 1). Lyndon LaRouche has called for both universal screening and quarantine to halt the spread of AIDS. His party's effort to have a public referendum adopted by California voters to facilitate such measures was soundly defeated. Public health experts called the measure “scientifically unwarranted,” “absurd,” “stupid” and “disastrous.” See id. at 147-49.

Other prominent political figures, including President Bush, White House Chief of Staff John Sununu and former President Ronald Reagan, have publicly advocated mandatory premarital screening despite the overwhelming consensus among public health experts that such policies are medically unjustified and fiscally wasteful. See, e.g., Epstein, , New Hampshire: The Premarital Testing Debacle, 4 NEW ENC. J. PUB. POL'Y 475 (1988)Google Scholar.

⁴⁵ Evidence of the enormity of the discrimination problem, as well as the seriousness of the repercussions for the affected individuals, was presented during public hearings held by the Presidential Commission. See PRESIDENTIAL COMM'N, supra note 31, at 119; see also INSTITUTE OF MEDICINE, supra note 15, at 238-42.

⁴⁶ McLaughlin, , AIDS: An Overview, 4 NEW ENG. J. PUB. POL'Y 15, 28 (1988)Google Scholar.

⁴⁷ South Fla. Blood Serv., Inc. v. Rasmussen, 467 So. 2d 798, 802 (Fla. Dist. Ct. App. 1985).

⁴⁸ See McLaughlin, supra note 46, at 28.

⁴⁹ See id.

⁵⁰ Anderson, , AIDS and Public Policy: Implications for Families, 4 NEW ENG. J. PUB. POL'Y 411, 416 (1988)Google Scholar; PRESIDENTIAL COMM'N, supra note 31, at 105.

⁵¹ See Lipson, , A Crisis in Insurance, 4 NEW ENG. J. PUB. POL'Y 285, 293-94 (1988)Google Scholar.

⁵² McLaughlin, supra note 46, at 28.

⁵³ See PRESIDENTIAL COMM'N, supra note 31, at 140.

⁵⁴ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-34 (citing W. CURRAN, L. GOSTIN & M. CLARK, ACQUIRED IMMUNODEFICIENCY SYNDROME: LEGAL AND REGULATORY POLICY (1988)).

⁵⁵ AIDS Testing Without Consent Reported, N.Y. Times, Jan. 9, 1988, at 7, col. 4.

⁵⁶ California, Colorado, Hawaii, Illinois, Indiana, Maine, Massachusetts, New York, North Carolina, Oregon, Rhode Island and Wisconsin all require this. See 1988 N.Y. Laws 584; GEORGE WASH. UNIV., INTERGOVERNMENTAL HEALTH POLICY PROJECT: A SYNOPSIS OF STATE AIDS LEGISLATION ENACTED DURING THE 1983-1987 LEGISLATIVE SESSIONS 41-45 (1988) [hereinafter A SYNOPSIS OF STATE AIDS LEGISLATION].

⁵⁷ See Maine H.B. 1099, ch. 443, 1987 Laws; A SYNOPSIS OF STATE AIDS LEGISLATION, supra note 56, at 43. New York's informed consent law contains similar provisions. 1988 N.Y. Laws 584.

⁵⁸ Several states, including California, Illinois, Massachusetts, Wisconsin and New York require written permission. See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-36. New York's model informed consent form describes the nature of the voluntary test and the risks and benefits, and it lists the persons and entities to whom the results may be disclosed under state law. Informed consent is not required for testing that is (1) court ordered, (2) authorized by state or federal law, (3) for the purposes of distributing blood or body parts, (4) connected with anonymous research, (5) to determine cause of death or to test the deceased for epidemiological purposes, or (6) for contact notification. See N.Y. COMP. CODES R. & REGS. tit. 10, § 63 (1989).

⁵⁹ Edgar, & Sandomire, , Medical Privacy Issues in the Age of AIDS: Legislative Options, 16 AM. J.L. MED. 155 (1990)Google Scholar.

⁶⁰ Anonymous testing sites (where the test is set up so that only the person tested can obtain the test result) or “double blind” testing for research purposes (where the result will not be associated with any identified person) can be exempted from a written informed consent requirement. See Bayer, Levine & Wolf, supra note 1, at 177-78; infra pp. 51-54 (discussion of double blind testing and of anonymous testing sites and this article's recommendation that anonymous testing be available in order to encourage more persons to submit to testing).

⁶¹ See Gross, supra note 7, at 195 (examining issues and suggesting guidelines for counseling people seeking HIV testing); Centers for Disease Control, Public Health Service Guidelines for Counseling and Antibody Testing to Prevent HIV Infection and AIDS, 36 MORBIDITY & MORTALITY WEEKLY REP. 509, 509-15 (1987)Google Scholar.

⁶² The Massachusetts Department of Public Health estimates that a premarital screening program would include counseling costs of sixty-five dollars per person. See Cleary, supra note 24, at 1759.

⁶³ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-38, 2-39; see also PRESIDENTIAL COMM'N, supra note 31, at 73-74.

⁶⁴ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-39.

⁶⁵ See id.

⁶⁶ New York law, for example, requires pre-test and post-test counseling (or an appropriate referral) and specifies that counseling must address such issues as: (1) coping emotionally with test results; (2) discrimination issues; (3) information on the ability to release or revoke the release of confidential HIV related information; (4) information on ways to prevent exposure or transmission of HIV and on the availability of medical treatment; and (5) the need to notify contacts (if appropriate) and information on state or county assistance in voluntary contact notification. See N.Y. COMP. CODES R. & REGS. tit. 10, § 63-3 (1989).

⁶⁷ Alabama, California, Colorado, Florida, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Nevada, North Carolina, Oregon, Rhode Island and Wisconsin. See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 15-27.

⁶⁸ 1988 N.Y. Laws 584.

⁶⁹ See id.

⁷⁰ See DEPUTY SEC'Y OF DEFENSE, MEMORANDUM ON POLICY, IDENTIFICATION, SURVEILLANCE, AND ADMINISTRATION OF PERSONNEL INFECTED WITH HUMAN IMMUNODEFICIENCY VIRUS (HIV) (Aug. 4, 1988) [hereinafter DEP't OF DEFENSE, MEMORANDUM ON POLICY]; ARMY REG. 600-110, IDENTIFICATION, SURVEILLANCE, AND ADMINISTRATION OF PERSONNEL INFECTED WITH HUMAN IMMUNODEFICIENCY VIRUS (HIV) (Mar. 11, 1988) [hereinafter ARMY REG. 600-110].

⁷¹ See DEP't OF DEFENSE, MEMORANDUM ON POLICY, supra note 70; ARMY REG. 600-110, supra note 70.

⁷² In the military, for example, units about to be deployed overseas are required to undergo HIV testing. When the list of those who are to be detained for medical treatment is posted, “it's not difficult to deduce that they may be positive for HIV.” Squires, AIDS Limbo, Washington Post, Apr. 26, 1988, (Health), at 5, col. 3.

⁷³ New York State has issued regulations narrowly defining the circumstances in which employees or agents of the Department of Public Health may have access to or may communicate such information. N.Y. COMP. CODES R. & REGS. tit. 10, § 50-3.10 (1989).

⁷⁴ See Council on Ethical & Judicial Affairs, Elhical Issues Involved in the Growing AIDS Crisis, 259 J. A.M.A. 1360, 1361 (1988)Google Scholar; Dickens, , Legal Rights & Duties in the AIDS Epidemic, 239 SCIENCE 580, 581 (1988)Google Scholar.

⁷⁵ See PRESIDENTIAL COMM'N, supra note 31, at 128-30. New York law reaches a similar compromise. While a doctor has no legal duty to warn, a doctor may notify or cause to be notified a person reasonably believed to be at significant risk for HIV infection if the patient refuses to do so. N.Y. COMP. CODES R. & REGS. tit. 10, § 63 (1989); see also Murray & Aumann, Ethical Issues in AIDS, in AIDS: FACTS AND ISSUES, supra note 30, at 139, 142.

⁷⁶ PRESIDENTIAL COMM'N, supra note 31.

⁷⁷ See id. at 128.

⁷⁸ See PRESIDENTIAL COMM'N, supra note 31, at 74 (Recommendation 6-1) (states should accept confidentiality laws).

⁷⁹ Closen, , Connor, , Kaufman, , & Wojcik, , AIDS: Testing Democracy — Irrational Responses to the Public Health Crisis and the Need for Privacy in Serological Testing, 19 J. MARSHALL L. REV. 835, 910 (1986)Google Scholar.

⁸⁰ Conversation with Thomas Vernon, Commissioner of Public Health, Colorado Department of Public Health, in Saratoga Springs, New York (May 11, 1989). Dr. Vernon explains that when persons in high risk groups do not test in Colorado it is because they do not want to know the result, not because they fear the results will be publicized. At the same time Colorado does engage in contact notification, which, Dr. Vernon points out, inherently requires the cooperation of the person who is tested and cannot be mandated. Dr. Vernon stresses that notification policy does not impair confidentiality, because the department does not disclose the name of the contact who is infected. Sometimes, however, it will be easy to surmise the source of infection and to that extent contact notification can undermine confidentiality.

⁸¹ Procedures also should be established to avoid communicating unwitting messages to those who are tested. For example, a negative test result generally is available to labs sooner than a positive result, because a negative result can be obtained from a single ELISA while a positive result should be based on confirmatory tests. If negative results are delivered quickly to people who are tested, those whose results are delayed may surmise that confirmatory tests are being performed and will infer, unnecessarily and perhaps incorrectly, that they test positive.

⁸² Bayer, Levine & Wolf, supra note 1, at 184-85.

⁸³ See id.

⁸⁴ It is worth noting that the same issues presented here appear in magnified form when home-testing or other self-testing for HIV is under consideration.

⁸⁵ See supra note 67.

⁸⁶ Conversation with Thomas Vernon, Commissioner of Public Health, Colorado Department of Public Health, in Saratoga Springs, New York (May 12, 1989).

⁸⁷ See PRESIDENTIAL COMM'N, supra note 31, at 75. The Commission also repeats that it takes too long to obtain test results and to get counseling.

⁸⁸ See supra note 44.

⁸⁹ See supra note 2.

⁹⁰ See, e.g., Grutsch & Robertson, The Coming of AIDS: It Didn 't Start with Homosexuals and It Won't End With Them, AM. SPECTATOR, Mar. 1986, at 12.

⁹¹ For examples of early proposals for quarantine and mass screening legislation based on misinformation about AIDS, see R. BAYER, supra note 2, at 173-75.

⁹² See generally Gostin, Curran & Clark, supra note 29, at 20-21.

⁹³ See id. at 21.

⁹⁴ See id. at 20.

⁹⁵ As a result, voluntary test sites show high seroprevalence rates among the populations they test. Alternative Test Sites (ATS), for example, which offer confidential or anonymous testing, reported seroprevalence rates of 11% - 20% at various state testing sites. See AIDS: A PUBLIC HEALTH CHALLENOE, supra note 16, at 2-45.

⁹⁶ See supra pp. 40-41.

⁹⁷ For example, the seroprevalence rate in a relatively low risk population may be onetenth of one percent. Universal screening in this population will detect only one infected person for every one thousand persons tested. By contrast, ATS with the 20% seroprevalence rate will have a one in Jive detection rate. See supra note 94.

⁹⁸ Perhaps the existing program closest to universal testing is the existing program in the United States military. See supra pp. 49-50.

⁹⁹ See Ill. REV. STAT. ch. 40, para. 204 (1987) (repealed Sept. 11, 1989); Egler & Pearson, Premarital AIDS Test Law Repealed, Chicago Tribune, Sept. 12, 1989, at 1.

¹⁰⁰ Telephone interview with Jeff Johnson, Legislative Liason, Illinois Department of Public Health (Jan. 20, 1989).

¹⁰¹ See Centers for Disease Control, Recommendations for Prevention of HIV Transmission in Health-Care Settings, 36 MORBIDITY & MORTALITY WEEKLY REP. 2S, 14S (Supp. 2, 1987) [hereinafter, Centers for Disease Control, Recommendations].

¹⁰² See id.

¹⁰³ See id.

¹⁰⁴ Although theoretically the number of false positives in any low prevalence population may be proportionately low with regard to the number tested (for example, as low as five in 100,000), one study suggests that in actual practice the false positive rate may be much higher (for example, as high as one in 1,250). See INSTITUTE OF MEDICINE, supra note 15, at 293 (citing Hagen, , Meyer, & Pauker, , Routine Preoperative Screening for HIV: Does The Risk to the Surgeon Outweigh the Risk to the Patient?, 259 J. A.M.A. 1357 (1988Google Scholar)).

¹⁰⁵ See Sullivan, & Field, , AIDS and The Coercive Power of the State, 23 HARV. C.R.-C.L. L. REV. 139 (1988)Google Scholar; INSTITUTE OF MEDICINE, supra note 15, at 187.

Former Surgeon General C. Everett Koop states that quarantine has “no role in the management of AIDS because AIDS is not spread by casual contact.” U.S. DEP't OF HEALTH & HUMAN SERVICES, SURGEON GENERAL's REPORT ON ACQUIRED IMMUNE DEFICIENCY SYNDROME (1986) [hereinafter SURGEON GENERAL's REP.]; see also PRESIDENTIAL COMM'N, supra note 31, at 78 (Recommendation 6-18) (quarantine based on HIV status is unwarranted and should not be adopted).

¹⁰⁶ See Chavigny, , Turner, & Kibrick, , Epidemiology and Health Imperatives for AIDS, 4 NEW ENG. J. PUB. POL'Y 59, 67–70 (1988)Google Scholar; Francis, & Chin, , The Prevention of Acquired Immunodeficiency Syndrome in the United States, 257 J. A.M.A. 1357, 1358 (1987)Google Scholar.

¹⁰⁷ See Chavigny, Turner & Kibrick supra note 106, at 69.

¹⁰⁸ Buckley, Identify all the Carriers, N.Y. Times, Mar. 18, 1986, at A27, col. 4 (quoted in Eisenberg, , The Genesis of Fear: AIDS and The Public's Response to Science, 14 LAW MED. & HEALTH CARE 243, 243-49 (1986CrossRefGoogle Scholar)).

¹⁰⁹ See, e.g., D. ALTMAN, AIDS IN THE MIND OF AMERICA 9-16 (1986); S. SONTAC, AIDS AND ITS METAPHORS 60-65 (1988).

¹¹⁰ See Gostin, Curran & Clark, supra note 29, at 19-20.

¹¹¹ See PRESIDENTIAL COMM'N, supra note 31, at 73.

¹¹² See Forstein, supra note 26, at 165-66.

¹¹³ See id. at 19-20.

¹¹⁴ See Gostin, Curran & Clark, supra note 29, at 19-20.

¹¹⁵ For a discussion of different expectations, reactions and responses, see Gross, supra note 7, at 197-202.

¹¹⁶ See Gostin, Curran & Clark, supra note 29, at 20-21.

¹¹⁷ See SURGEON GENERAL's REP., supra note 105. For arguments for the need for universal precautions in specific settings, see Public Health Service Recommendations for Preventing Transmission of HIV Infection in Non-Health Care Settings (reprinted in INSTITUTE OF MEDICINE, supra note 15, at 317-19 (Appendix H)); Centers for Diease Control, Recommendations, supra note 101, at 15S; Centers for Disease Control, Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitus B Virus, and Other Bloodborne Pathogens in Health- Care Settings, 37 MORBIDITY & MORTALITY WEEKLY REP. 24 (1988)Google Scholar [hereinafter Centers for Disease Control, Update﹜.

¹¹⁸ See, e.g., Forstein, supra note 26, at 166.

¹¹⁹ See infra p. 78.

¹²⁰ See supra pp. 40-41

¹²¹ See Bayer, Levine & Wolf, supra note 1, at 184.

¹²² See Gostin, Curran & Clark, supra note 29, at 20.

¹²³ See SURGEON GENERAL's REP., supra note 105.

¹²⁴ For examples of such recommended precautions, see N.Y. State Dep't of Health, Acquired Immune Deficiency Syndrome: 100 Questions and Answers (reprinted in AIDS, 59 REFERENCE SHELF NO. 3 (1987)).

¹²⁵ See Bayer, Levine & Wolf, supra note 1, at 177.

¹²⁶ The United States Court of Appeals for the Eighth Circuit recently struck down a policy that required HIV testing of certain mental health agency employees in order to prevent transmission to clients with mental retardation, because the risk of this type of transmission is miniscule. See Glover v. Eastern Neb. Com. Office of Retardation, 867 F.2d 461 (8th Cir. 1989). The court held that “[m]andatory blood testing is a search and seizure that must comply with the standards of reasonableness imposed by the fourth amendment,” which requires balancing the nature and quality of intrusion on individual fourth amendment interests against the alleged governmental interests. See id. at 463 (citations omitted).

¹²⁷ See Gostin, Curran & Clark, supra note 29, at 19.

¹²⁸ See U.S. DEP't OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE, AIDS IN CORRECTIONAL FACILITIES: ISSUES AND OPTIONS 17 (T. Hammett 3d ed. 1988) [hereinafter AIDS IN CORRECTIONAL FACILITIES].

¹²⁹ See id. at 24.

¹³⁰ See generally supra pp. 51-53.

¹³¹ See Gray, , The AIDS Epidemic: A Prism Distorting Social and Legal Principles, 4 NEW ENG. J. PUB. POL'Y 227, 230 (1988)Google Scholar.

¹³² Id. at 228.

¹³³ This position is held by, among others, the CDC, the Presidential Commission, the National Institutes of Health and the American Medical Association. See, e.g., National Institutes of Health Consensus Development Statement, The Impact of Routine HTLV-III Antibody Testing of Blood and Plasma Donors on Public Health, 256 J. A.M.A. 1778 (1986) (cited in Gostin, Curran & Clark, supra note 29, at 13); AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-5.

¹³⁴ As of August 1988, the CDC had reported 1,863 cases of AIDS associated with blood transfusions. Importantly, all but a few of these resulted from transfusions received before blood donor collection agencies began screening for HIV in March 1985. See INSTITUTE OF MEDICINE, supra note 15, at 36.

¹³⁵ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-5.

¹³⁶ See generally Gostin, Curran & Clark, supra note 29, at 13-17; Murray & Aumann, supra note 75, at 151-52 (arguing that screening blood donors is not coercive, has a realistic and acceptable goal with a clear benefit to third parties and is the least restrictive means to achieving that goal).

¹³⁷ AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-5. New York State, for example, has issued testing protocols under its authority to regulate clinical labs. See N.Y. COMP. CODES R. & REGS. tit. 10, § 58-2 (1988).

¹³⁸ See 21 C.F.R. § 606 (1989). Likewise, the Red Cross requires screening, maintains a confidential registry of positive donors, notifies donors of positive test results and refers them to appropriate counseling. Murray & Aumann, supra note 75, at 150.

¹³⁹ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-5.

¹⁴⁰ See id. at 2-6.

¹⁴¹ See PRESIDENTIAL COMM'N, supra note 31, at 80 (Recommendation 6-32). New York State, for example, has passed regulations specifically requiring HIV screening by blood banks. See N.Y. COMP. CODES R. & REGS. tit. 10, § 58-2.3 (1988).

¹⁴² Indeed, current HIV tests were designed with this trade-off in mind.

¹⁴³ See Hirsh, AIDS and the Blood Supply, in AIDS: FACTS AND ISSUES, supra note 30, at 109- 10.

¹⁴⁴ See AMERICAN RED CROSS, WHAT YOU MUST KNOW BEFORE GIVING BLOOD (Washington, D.C., 1988), reprinted in part in INSTITUTE OF MEDICINE, supra note 15, at 38-39.

¹⁴⁵ The Presidential Commission recommends that the Food & Drug Administration perform a study on the extent, purpose and effectiveness of existing blood donor registries, to assess the impact of registries on the safety of the blood supply. See PRESIDENTIAL COMM'N, supra note 31, at 80 (Recommendation 6-30).

¹⁴⁶ Because no HIV screening system can be perfect, maintaining internal records (coupled with confidentiality safeguards) may be a reasonable strategy to ensure that no further donations will be used from the same person. Nonetheless maintaining “lists” of infected individuals does always carry the risk of unauthorized disclosure.

¹⁴⁷ See supra pp. 38-40. The Red Cross has reported that of 10,000 samples found initially reactive to ELISA (that is, positive on the first test), a second ELISA narrowed the number of positives to 1,700, of which only 333 were confirmed positive by Western Blot. As a result the Red Cross decided that it would notify donors only after performing the Western Blot. See R. BAYER, supra note 2, at 96 (citing Working Group on Medical, New York Blood Center, Social and Health Policy Aspects of Screening Tests for AIDS (minutes of meetingjuly 17, 1985)).

¹⁴⁸ R. BAYER, supra note 2, at 93.

¹⁴⁹ See Gostin, Curran & Clark, supra note 29, at 13-17 (concluding that in light of the importance of confidentiality in the volunteer blood donor system, test result information should only be used within “the scope of the particular donation and future donations” — that is, to notify the donor and bar her from future donations but for no other purpose).

¹⁵⁰ For example, Colorado. See id. at 25.

¹⁵¹ PRESIDENTIAL COMM'N, supra note 31, at 124.

¹⁵² See id.

¹⁵³ See id. (Recommendation 6-22).

¹⁵⁴ In 1987 alone, over 33 states considered premarital screening statutes. See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-21.

¹⁵⁵ In May 1987, President Reagan urged all states to consider the feasibility of such programs. See id. Both President Bush and White House Chief of Staffjohn Sununu also have supported publicly premarital screening. See Epstein, supra note 44, at 478. So have current Secretary of Housing and Urban Development Jack Kemp, while a Congressman, and “drug czar” William J. Bennett, while Secretary of Education. See R. BAYER, supra note 2, at 163-66.

¹⁵⁶ poran interesting account of this episode, which politicized the AIDS debate in New Hampshire and set back the state health department's serious efforts to curb the spread of AIDS through statewide education efforts, see Epstein, supra note 44, at 475.

¹⁵⁷ See Cleary, supra note 24, at 1757; AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-21.

¹⁵⁸ However, as of 1987, 25 states have repealed such laws, based on the finding that the laws are not cost-effective. See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-24.

¹⁵⁹ Recent studies have yielded estimates of at least eighty percent. See id. at 2-11.

¹⁶⁰ See INSTITUTE OF MEDICINE, supra note 15, at 30.

¹⁶¹ See id. (citing Peterman, , Stoneburner, , Allen, , Jaffe, & Curran, , Risk of Human Immunodeficiency Virus Transmission from Heterosexual Adults with Transfusion-Associated Infections, 259 J. A.M.A. 55, 55–58 (1988)CrossRefGoogle Scholar.

¹⁶² Id.

¹⁶³ See Pardian, , Marquis, , Francis, , Anderson, , Rutherford, , O'Malley, & Winkelstein, , Maleto-Female Transmission of Human Immunodeficiency Virus, 258 J. A.M.A. 788 (1987)Google Scholar; INSTITUTE OF MEDICINE, supra note 15, at 30; Sullivan & Field, supra note 105, at 139, 141 n.4.

¹⁶⁴ The rationale that premarital screening programs can help prevent perinatal transmission in the future is undermined in those instances when a woman who decides to marry is already pregnant, or a couple already has decided to have no children. See Cleary, supra note 24, at 1759. Many other couples, however, will not already be expecting a child and will plan to have a family.

¹⁶⁵ See id. at 1757-58.

¹⁶⁶ See supra p. 56 (discussing the Illinois experiment).

¹⁶⁷ See Cleary, supra note 24, at 1760.

¹⁶⁸ Id. Based on an estimate of $6 for an ELISA series, $50 for a Western Blot and average additional counseling costs of $25 per person. These figures, of course, represent only part of the economic costs of maintaining a quality assured, large-scale program. Moreover, the authors acknowledge that testing costs vary widely. In Massachusetts, for example, the Red Cross charges $15 for an HIV screening panel, which consists of an ELISA followed by a Western Blot when positive. By contrast, one commercial laboratory in the same area of the country reportedly charges $47.50 for an ELISA, and $121 for a Western Blot. Id. at 1759.

¹⁶⁹ See id. at 1760.

¹⁷⁰ For that reason the author of a letter in the Chicago Tribune misses the mark when he writes:

Letter from Robert Beatty, Chicago Tribune, Jan. 18, 1989, at 16, col. 5. The author's misconception that the results of the AIDS tests are likely to be accurate is popularly shared. This is one reason it is possible for politicians to promote such measures by playing on popular ignorance, even when all who understand how AIDS testing works are opposed to such testing.

¹⁷¹ Data from screening of donated blood indicate that the proportion of blood samples from a low-risk population that are repeatedly positive on an EIA test is between 170 and 337 per 100,000. [citation omitted]. Using these rates, the number of persons in the premarital population described in Table 1 who would have repeatedly positive results on the EIA test would be between about 6,500 and 12,900. These numbers are consistent with our estimate of approximately 9,000 individuals with positive EIA results (Table 4).

There are several striking results in Table 4. First, only 15% (1,325/8,973) of individuals with positive EIA tests are infected. Also, the absolute number of truepositive tests is small; a screening program involving more than 3.8 million people would detect only slightly more than 1,300 infected persons. At the same time, a small number of infected individuals would test negative.

Cleary, supra note 24, at 1759-60 and Table 4.

¹⁷² Id. at 1760.

¹⁷³ See id.

¹⁷⁴ See id. at 1761.

¹⁷⁵ Texas has enacted a law requiring premarital testing if the seropositive rate among the general population increases to 0.83%. See AIDS: A PUBLIC HEALTH CHALLENGE supra note 16, at 2-21. Other states, including Pennsylvania and Rhode Island, have mandated formal studies for the adequacy and feasibility of premarital screening. See Gostin, , Public Health Strategies for Confronting AIDS, 261 J. A.M.A. 1621, 1625 (1989)Google Scholar.

¹⁷⁶ LA. REV. STAT. ANN. § 9:230 (West Supp. 1990) (repealed 1988).

¹⁷⁷ Egler & Pearson, Premarital AIDS Test Law Repealed, Chicago Tribune, Sept. 12, 1989, at 1, col. 5.

¹⁷⁸ See ILL. REV. STAT., ch. 40, para. 204 (1987).

¹⁷⁹ See id.

¹⁸⁰ Telephone interview with Jeff Johnson, supra note 100.

¹⁸¹ Id.

¹⁸² Id. Individuals rather than the state bear the costs of testing.

¹⁸³ Id. The Chicago Tribune estimated the cost at $228,000 per positive test result. Repeal the Premarital AIDS Test Law, Chicago Tribune, Jan. 6, 1989, at 18, col. 1. (editorial).

¹⁸⁴ Telephone interview with Jeff Johnson, supra note 100.

¹⁸⁵ Tne average decrease per county was 22.5%. Sixty-three of the 102 counties reported a decrease greater than 20%, 17 of which experienced a decrease of more than 50%. Telephone interview with Debbie Lowe, Administrative Assistant to the Administrator of the AIDS Activity Section of the Illinois Department of Public Health (Jan. 20, 1989).

¹⁸⁶ Telephone interview with Jeff Johnson, supra note 100.

¹⁸⁷ See Papajohn, & Mount, , Illinois Wedding Licenses Soar After Repeal of AIDS Test Law, Chicago TribuneGoogle Scholar, Oct. 11, 1989, at 2-2, col. 3.

¹⁸⁸ The Illinois statute requires that a physician perform the test but does not provide the physician. See ILL. REV. STAT., ch. 40, para. 204(b) (1989). The Louisiana statute explicitly required that the costs of the tests be paid by the applicants. See LA. REV. STAT. ANN. § 9:230 (West Supp. 1990) (repealed 1988).

¹⁸⁹ While the average cost per test was $35, the Illinois Department of Health has anecdotal information that physicians were charging as much as $125 for testing and certification. Telephone interview with Jeff Johnson, supra note 100. The cost-free HIV testing sites in Illinois do not remove the problem. Individuals are required to obtain physician certification of testing, notification and, if required, counseling. Free testing sites do not have physicians available to perform such services. Telephone interview with Debbie Lowe, supra note 185. This barrier could amount to an unconstitutional infringement on the right to marry. See Zablocki v. Redhail, 434 U.S. 374 (1978).

¹⁹⁰ See Wilkerson, Pre-Nuptial AIDS Screening Taxes Illinois Health System, N.Y. Times, Jan. 26, 1988, at Al, col. 3. The Presidential Commission concludes that “for freedom from exposure to HIV, long-term mutual monogamy remains the best prevention short of abstinence.” PRESIDENTIAL COMM'N, supra note 31, at 15.

¹⁹¹ See Gostin, supra note 175, at 1625.

¹⁹² See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-26.

¹⁹³ See Medical Examination of Aliens, 52 Fed. Reg. 31,540, 32,540 (1987).

¹⁹⁴ See DEP't OF DEFENSE, MEMORANDUM ON POLICY, supra note 70.

¹⁹⁵ The immigration program is certainly not entrenched. The Presidential Commission, because of the failings of current federal immigration policy regarding HIV screening, urged reevaluation of the policy after the first year's experience with it.

¹⁹⁶ See supra pp. 40-43.

¹⁹⁷ Testing of refugees, on the other hand, is paid for by the U.S. Government. The cost has been estimated to be $4,000,000 annually. See Medical Examination of Aliens, 52 Fed. Reg. 32,540, 32,541 (1987).

¹⁹⁸ The seropravelance rate of refugees has been estimated at one in 4,000. See AIDS Limbo, Washington Post, Apr. 26, 1988, at 5, col. 3. That figure is based on the detection rate from refugee testing in the first quarter of 1988, when 17,000 refugees were screened and six tested positive for HIV. For refugees, a positive test results in deportation. See 42 C.F.R. § 34.6 (1987).

¹⁹⁹ For the latest Department of Defense policy on mandatory screening, see DEP't OF DEFENSE, MEMORANDUM ON POLICY, supra note 70; see also ARMY REG. 600-110, supra note 70 (disclosing, among other things, the asserted purposes of the mass screening: to protect infected individuals from health risks and to protect others from infection; to avoid the “disruptive effect” of having infected personnel in the military; and to preserve the safety of military blood supplies).

²⁰⁰ See Centers for Disease Control, Trends in Human Immunodeficiency Virus Infection Among Civilian Applicants for Military Service— United States, October 1985-March 1988, 37 MORBIDITY & MORTALITY WEEKLY REP. 677 (1988)Google Scholar; Centers for Disease Control, Prevalence of Human Immunodeficiency Virus Antibody in U.S. Active-Duty Military Personnel, April 1988, 37 MORBIDITY & MORTALITY WEEKLY REP. 461 (1988)Google Scholar. For active duty personnel, there is a need to perform periodic retesting. The seroprevalence rate cited for active-duty personnel reflects the rate among current members of the armed forces, and therefore is lower than in the screening program overall, because personnel who were antibody positive were somewhat more likely to have left the service than those who tested negative. See id.

²⁰¹ Quality AIDS Testing, Hearing Before the Subcomm. on Regulation and Business Opportunities of the House Comm. on Small Business, 100th Cong., 1st Sess., 78-79 (1987) (prepared statement of Col. Donald S. Burke, Walter Reed Army Institute of Research).

²⁰² See DEP't OF DEFENSE, MEMORANDUM ON POLICY, supra note 70.

²⁰³ Telephone interview with Dr. Michael Peterson, Senior Policy Analyst in Preventive Medicine, Dep't of Defense (Jan. 6, 1989).

²⁰⁴ See, e.g., CAL. CIV. CODE § 4201.5 (West 1983); GA. CODE ANN. § 19-3-35.1 (Supp. 1989); VA. CODE ANN. § 20-14.2 (Supp. 1989).

²⁰⁵ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-26.

²⁰⁶ See Cleary, supra note 24, at 1761.

²⁰⁷ See id.

²⁰⁸ See, e.g., IND. CODE ANN. § 31-7-3-3.5(d) (West Supp. 1989); GA. CODE ANN. § 19-3- 35.1(c) (Supp. 1989).

²⁰⁹ See Shaffer, , Liability for Transmission of AIDS in the Hospital Workplace: A Critique of Mandatory AIDS Testing of Hospital Patients, 90 W. VA. L. REV. 652, 654 (1988)Google Scholar.

²¹⁰ See Gostin, , Hospitals, Health Care Professionals, and AIDS: The “Right to Know” the Health Status of Professionals and Patients, 48 MD. L. REV. 12, 13 (1989)Google Scholar.

²¹¹ The general consensus is that blood testing not only is an ineffective means of preventing occupational transmission of HIV, but also may interfere with better preventive measures, such as universal precautions. See PRESIDENTIAL COMM'N, supra note 31, at 32.

²¹² See Centers for Disease Control, Recommendations, supra note 101 (emphasizing the need for health care workers to consider all patients as potentially infected and to adhere rigorously to universal precautions); Centers for Disease Control, Update, supra note 117.

²¹³ See Shaffer, supra note 209, at 670 (quoting Centers for Disease Control, Update: Human Immunodeficiency Virus in Health Care Workers Exposed to Blood of Infected Patients, 36 MORBIDITY & MORTALITY WEEKLY REP. 285, 287 (1987)).

²¹⁴ According to the CDC, in a hypothetical hospital population of 10,000 with a seroprevalence rate of 1.0%, as many as 110 patients will be HIV infected, and three to four patients will escape detection. In areas with a higher seroprevalence rate, such as 5%, as many as 550 patients will be infected and seventeen or eighteen would remain undetected by current testing strategies. See Centers for Disease Control, Recommendations, supra note 101, at 135.

²¹⁵ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 7, at 2-31, 32.

²¹⁶ See PRESIDENTIAL COMM'N, supra note 31, at 32.

²¹⁷ See Hagen, Meyer & Pauker, supra note 104 (concluding that because the risk of transmission during surgery is of the same magnitude as the risk by sexual transmission in the heterosexual population, the social costs in terms of confidentiality concerns and false positive results outweigh the benefit of screening); see infra pp. 94-97.

²¹⁸ See Hagen, Meyer & Pauker, supra note 104, at 1357.

²¹⁹ Experience with Hepatitis B suggests that only those health care workers who perform certain types of invasive procedures may be at risk of infecting patients. See Centers for Disease Control, Recommendations, supra note 101, at 155; see also PRESIDENTIAL COMM'N, supra note 31, at 33; Gostin, HIV-infected Physicians and the Practice of Seriously Invasive Procedures, HASTINGS CENTER REP., Jan.-Feb. 1989, at 32.

²²⁰ See Centers for Disease Control, Recommendations, supra note 101, at 155.

²²¹ See Hagen, Meyer & Pauker, supra note 104, at 1358.

²²² See id. (citing Boston Globe, Sept. 24, 1987, at 25, col. 5).

²²³ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-31.

²²⁴ The fact that some health care workers equate HIV positive status with certain lifestyles or behaviors of which they disapprove can add to substandard treatment of seropositive patients. See PRESIDENTIAL COMM'N, supra note 31, at 136.

²²⁵ The risk of infection with Hepatitis B after puncture by a single contaminated needlestick is ten to thirty times greater than the risk of contracting HIV through similar exposure. See id. at 32.

²²⁶ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-30, 31.

²²⁷ See id. at 2-33.

²²⁸ See id.

²²⁹ See Centers for Disease Control, Recommendations, supra note 101, at 25.

²³⁰ See Schaffer, supra note 209, at 668.

²³¹ See INSTITUTE OF MEDICINE, supra note 15, at 174-75.

²³² See Centers for Disease Control, Recommendations, supra note 101, at 155.

²³³ New York, for example, has issued regulations concerning the implementation of universal precautions and infection control in health care and hospital settings. See N.Y. COMP. CODES R. & REGS. tit. 10(c), § 405.11 (1988).

²³⁴ See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 59-61.

²³⁵ See id. at 65-72.

²³⁶ See id. at 44.

²³⁷ Alabama, Colorado, Georgia, Idaho, Iowa, Missouri, Nebraska, Nevada, New Hampshire, Oklahoma, West Virginia and Wyoming. Colorado has since abandoned its policy of screening all new state correctional admissions, which had been adopted against the advice of its public health department. Conversation with Thomas Vernon, supra note 80.

²³⁸ Following a recommendation by President Reagan to test all inmates in federal prisons, the Federal Bureau of Prisons implemented a policy to test all incoming inmates, to screen all inmates who initially test negative at six-month intervals and to screen all negative inmates prior to release. See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-8. Although the Federal Bureau of Prisons continues to test all inmates prior to release, it reassessed its earlier policy of mass screening and now tests only a ten percent sample of incoming inmates for study purposes, who are retested at three-, six-, twelve- and eighteen-month intervals. See PRESIDENTIAL COMM'N, supra note 31, at 135.

²³⁹ MICH. COMP. LAWS ANN. § 791.267 (West Supp. 1989); R.I. GEN. LAWS 42-56-37 (1988).

²⁴⁰ See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 66 (reporting that 92fo of screening states had less than four AIDS cases).

²⁴¹ New Mexico and South Dakota.

²⁴² See id.

²⁴³ See U.S. DEP't OF JUSTICE, NAT'L INSTITUTE OF JUSTICE, UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES 43 (T. Hammett ed. Pre-Publication Copy Jan. 1989) [hereinafter UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES].

²⁴⁴ C. KNOX, OREGON DEPARTMENT OF CORRECTIONS RESPONSE TO HIV INFECTION AND AIDS IN STATE CORRECTIONAL SETTINGS 24 (1988), cited in UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 43; see also supra notes 238, 241 (examples of the current about-face in policy).

²⁴⁵ Hudson v. Palmer, 468 U.S. 517, 524 (1984) (noting that prisoners retain only those rights not inconsistent with imprisonment itself or the objectives of incarceration).

²⁴⁶ See, e.g., Dunn v. White, 880 F.2d 1188, 1196 (1 Oth Cir. 1989) (upholding Oklahoma's testing policy on the justification of gathering information).

²⁴⁷ See AIDS IN COR.

²⁴⁸ See id. at 97.

²⁴⁹ See id; id. at 103 (discussing inmate law suits requesting that testing and segregation be implemented in order to protect them from HIV infection).

²⁵⁰ See id. at 69.

²⁵¹ This figure is based on 70 responding federal, state and local correctional systems, including all 50 state systems and the Federal Bureau of Prisons. See UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 1, 16-30.

²⁵² The high incidence of AIDS among inmates in New York State is not surprising. New York State has 34% of all AIDS cases in the United States, and most inmates in the New York State system reportedly come from New York City, which has an AIDS rate roughly three times that of Los Angeles. NEW YORK STATE COMMISSION OF CORRECTION, ACQUIRED IMMUNE DEFICIENCY SYNDROME: A DEMOGRAPHIC PROFILE OF NEW YORK STATE INMATE MORTALITIES 1981-1987, at 7 (R. Gido & W. Gaunay 3d ed. Oct. 1988) [hereinafter A DEMOGRAPHIC PROFILE].

²⁵³ A study by the New York State Commission of Correction provides a demographic profile of inmates with AIDS who have died. “The typical AIDS inmate mortality in the New York State correctional system was an Hispanic or black, single, male, 34 years of age, with a history of intravenous drug abuse prior to incarceration.” Ninety-five percent of inmates in the New York sample had a history IV drug abuse, while only 11 % admitted to a homosexual, bisexual or transsexual orientation. See id. at 2.

²⁵⁴ See Centers for Disease Control, Human Immunodeficiency Virus Infection in the United States: A Review of Current Knowledge, 36 MORBIDITY AND MORTALITY WEEKLY REP. S-6, 7-8 (1987) [hereinafter Centers for Disease Control, A Review of Current Knowledge].

²⁵⁵ These programs are defined as mandatory, identity-linked testing of all incoming inmates, current inmates or releases. Such policies do not exist in states like New York with the largest numbers of AIDS cases. See UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 23.

²⁵⁶ All are under three and one-half percent, except for female inmates in the Federal Bureau of Prisons which revealed a five and two-tenths percent seroprevalence rate. See id. at 23-24.

²⁵⁷ There programs are defined as mandatory testing of all identifiable members of certain “risk groups,” such as IV drug users and male homosexuals. See id. at 23.

²⁵⁸ Out of seven reporting jurisdictions, two reported 31 % to 34% seroprevalence rates, and the rest were between 0% and 4.5%. See id. at 26.

²⁵⁹ See id. at 16.

²⁶⁰ See id.

²⁶¹ Defined as anonymous studies in which no identifying information is associated with test results. See id. at 23.

²⁶² See id. at 15.

²⁶³ See A DEMOGRAPHIC PROFILE, supra note 252, at 13. Most of the inmates who were tested reportedly resided in New York City at the time of their arrest. Again, seroprevalence rates within the New York state prison population are believed to be among the highest in the nation. For example, one estimate suggests that the true rate of infection is about 30% of the roughly 35,000 inmates incarcerated. See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 64.

²⁶⁴ See A DEMOGRAPHIC PROFILE, supra note 204, at 38.

²⁶⁵ See id. at 24.

²⁶⁰ Conversation with Thomas Vernon, supra note 80.

²⁶⁷ Brewer, Transmission of HIV-1 Within a State-wide Prison System, AIDS, Oct. 1988, at 88, cited in UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 28.

²⁶⁸ C.R. HORSBURGH, JR., SEROCONVERSION TO HIV IN PRISON INMATES (submitted for publication in 1989), cited in UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 29-30.

²⁶⁹ See UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 16. Survey responses were received from 70 federal, state and local correctional systems in the United States, including all 50 state departments of corrections and the Federal Bureau of Prisons.

²⁷⁰ Gostin, & Curran, , AIDS Screening, Confidentiality, and the Duty to Warn, 77 AM. J. PUB. HEALTH 361, 364 (1987)Google Scholar.

²⁷¹ Of course, the assumption that segregation could even be accomplished given current strained correctional facilities and resources is doubtful at best.

²⁷² See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 65.

²⁷³ See Moss, AIDS in Prisons — To Test or Not?, A.B.A. J., Jan. 1989, at 17, 18.

²⁷⁴ See id.

²⁷⁵ See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 67.

²⁷⁶ See PRESIDENTIAL COMM'N, supra note 31, at 135 (Recommendation 9-77).

²⁷⁷ AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 67.

²⁷⁸ See, e.g., Glick v. Henderson, 855 F.2d 536 (8th Cir. 1988) (requesting testing and segregation of inmates); Harris v. Thigpen, 727 F. Supp. 1564 (M.D. Ala. 1990) (challenging testing and segregation policies).

²⁷⁹ See, e.g., Glick, 855 F.2d at 539 (rejecting inmates’ claims); Dunn v. White 880 F.2d 1188, 1197 (10th Cir. 1989) (upholding prison's testing policy); Lewis v. Prison Health Servs., No. 88-1247 (E.D. Pa. Sept. 13, 1988) (upholding segregation policy). For fuller discussion of relevant case law, see AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 103-05; UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 47-50.

²⁸⁰ See Moss, supra note 273, at 17; see, e.g., LaRocca v. Dalsheim, 120 Misc. 2d 697, 467 N.Y.S.2d 302 (1983) (refusing to grant healthy inmates’ request that traffic into facility be enjoined until entrants could be screened and declared free of AIDS. Note that this case was decided before antibody tests became available); Jarrett v. Faulkner, 662 F. Supp. 928 (S.D. Ind. 1987) (rejecting inmate claims that eighth and fourteenth amendment rights were infringed by prison's failure to screen all inmates for AIDS virus and segregate homosexuals); Click, 855 F.2d at 536 (upholding the district court's dismissal without prejudice of inmate suit charging prison officials, under 42 U.S.C. section 1983, with failure to protect inmates from exposure to AIDS by failure to implement mandatory testing and segregation policies).

²⁸¹ See, e.g., Powell v. Department of Corrections, 647 F. Supp. 968 (N.D. Okla. 1986) (dismissing an inmate's claim that his segregation from the general prison population based on a positive antibody test violated his constitutional rights).

²⁸² 697 F. Supp. 1234 (N.D.N.Y. 1988).

²⁸³ See id. at 1243.

²⁸⁴ It could have pointed as well to other negative effects that such involuntary segregation can have on inmates placed with the infected population, and to the CDC recommendation that HIV carriers not be segregated based on their test status alone.

²⁸⁵ See Harris v. Thigpen, 727 F. Supp. 1564 (M.D. Ala. 1990), cited in Moss, supra note 273, at 17; UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243.

²⁸⁶ Mass testing also might have implications on the complex issue of potential liability of correctional officials for AIDS transmission among inmates. Many correctional systems fear liability for transmission of HIV to inmates. See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 104-05. Some inmates allege in the lawsuits they filed that they contracted AIDS while under the system's care. See id. at 105. While mass testing could reflect an effort to protect against transmission, it could also have the effect of increasing liability in some circumstances. For example, if a system attempted to test all inmates and identify “clean” and “infected” sub-populations, an inmate in the former group who contracted the virus from someone who tested false negative could claim reliance on the system's classification scheme. Of course, any suit seeking damages for alleged contracting of HIV in prison would face difficult problems of proof. Nonetheless, mass testing policies may not be helpful to correctional systems attempting to insulate themselves from legal responsibility.

²⁸⁷ See UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 47.

²⁸⁸ See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 71-72.

²⁸⁹ See PRESIDENTIAL COMM'N, supra note 31, at 135 (Recommendation 9-74).

²⁹⁰ See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 72-73.

²⁹¹ Cf. id. at 28.

²⁹² See UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 46.

²⁹³ See infra pp. 100-02.

²⁹⁴ For example, Texas and Iowa have such policies. See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 73.

²⁹⁵ Correctional systems can be held liable for failing to adequately protect prisoners from assault. See, e.g., Goka v. Bobbitt, 862 F.2d 646, 649-50 (7th Cir. 1988); Martin v. White, 742 F.2d 469, 474-75 (8th Cir. 1984).

²⁹⁶ See AIDS IN CORRECTIONAL FACILITIES, supra note 128, at 73.

²⁹⁷ See id.

²⁹⁸ See id. at 45.

²⁹⁹ PRESIDENTIAL COMM'N, supra note 31, at 135 (Recommendation 9-73).

³⁰⁰ See C. KNOX, supra note 244, at 9-11.

³⁰¹ See J. Davis, Prisoner-based Seroprevalence Survey for Antibody to HIV (Jan. 14, 1988) (memorandum) (cited in UPDATE 1988: AIDS IN CORRECTIONAL FACILITIES, supra note 243, at 45).

³⁰² See id.

³⁰³ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-18.

³⁰⁴ “Prostitutes” refer to female prostitutes only, since male prostitutes are classified by the CDC as homosexual or bisexual men. See Centers for Disease Control, A Review of Current Knowledge, supra note 254, at 5-6, 8.

³⁰⁵ Id.

³⁰⁶ See Altman, U.S. Study Examines Prostitutes and AIDS Virus, N.Y. Times, Mar. 27, 1987, § 1, at 14, col. 1.

³⁰⁷ See Lambert, AIDS Among Prostitutes Not as Prevalent as Believed, Studies Show, N.Y. Times, Sept. 20, 1988, at B5, col. 2.

³⁰⁸ See id.

³⁰⁹ See Centers for Disease Control, A Review of Current Knowledge, supra note 254, at 8.

³¹⁰ See id. at 34.

³¹¹ See id.

³¹² See id. at 8.

³¹³ See id.

³¹⁴ See Rosenberg, & Weiner, , Prostitutes and AIDS: A Health Department Priority?, 78 AM. J. PUB. HEALTH 418 (1988)Google Scholar. The authors conclude that HIV infection is nearly absent among prostitutes who do not use drugs. Moreover, HIV infection in prostitutes follows a different pattern than other sexually transmitted diseases, suggesting that sexual activity alone does not place prostitutes at high risk.

³¹⁵ See J. RICHARDSON, WOMEN AND AIDS 43 (1988) (cited in Stephens, U.S. Women and HIV Infection, 4 NEW ENG. J. PUB. POL'Y 381, 396 (1988).

³¹⁶ Stephens, supra note 315, at 395.

³¹⁷ See DELACOSTE, F. & ALEXANDER, P., SEX WORK: WRITINGS BY WOMEN IN THE SEX INDUSTRY 254 (1987)Google Scholar.

³¹⁸ Lambert, supra note 307.

³¹⁹ See id.

³²⁰ See id.

³²¹ Chavigny, Turner & Kibrick, supra note 106, at 69-70.

³²² See generally W. ROWE & C. RYAN, AIDS, A PUBLIC HEALTH CHALLENGE: STATE ISSUES, POLICIES & PROGRAMS (1987).

³²³ See NEV. REV. STAT. ANN., § § 201.354, 201.356 (Mitchie Supp. 1988).

³²⁴ See id. at § 201. 358.

³²⁵ See id. at § 41.1397.

³²⁶ See ILL. ANN. STAT. ch. 38, para. 1005-5-3(g) (Smith-Hurd Supp. 1989).

³²⁷ See id.

³²⁸ See Narvez, Newark Moves to Test for AIDS Virus, N.Y. Times, Mar. 2, 1988, § 2, at 5, col. 6.

³²⁹ See id.

³³⁰ See Centers for Disease Control, Recommendations, supra note 101, at 85.

³³¹ See J. RICHARDSON, supra note 315, at 44.

³³² See Decker, Prostitution as a Public Health Issue, in AIDS AND THE LAW, supra note 11, at 86.

³³³ HARVARD AIDS INSTITUTE, MONTHLY REP., NATIONWIDE STUDY INVESTIGATES PERINATAL TRANSMISSION OF HIV 10 (Sept. 1989) [hereinafter HARVARD AIDS INSTITUTE] (stating the estimate of 30%). Several years ago an estimate of 50%, then 40%, was more commonly cited.

³³⁴ See Black, & Levy, , The HIV Seropositive State and Progression to AIDS: An Overview of Factors Promoting Progression, 4 NEW ENC. J. PUB. POL'Y 97, 99 (1988)Google Scholar.

³³⁵ See id. at 99-100; HARVARD AIDS INSTITUTE, supra note 333.

³³⁶ See HARVARD AIDS INSTITUTE, supra note 333.

³³⁷ See Centers for Disease Control, A Review of Current Knowledge, supra note 254, at 7.

³³⁸ See id.

³³⁹ See id.

³⁴⁰ See ATLANTA INFORMATION SERVICE, AIDS WEEKLY SURVEILLANCE REPORT, AIDS REFERENCE GUIDE § 101, at 1 (Jan. 1989).

³⁴¹ See Lambert, Study Finds Antibodies for AIDS in 1 in 61 Babies in New York City, N.Y. Times, Jan. 13, 1988, at Al, col. 2; see also Craven, , Human Immunodeficiency Virus in Intravenous Drug Users: Epidemiology, Issues, and Controversies, 4 NEW ENG. J. PUB. POL'Y 347, 355 (1988)Google Scholar.

³⁴² See Centers for Disease Control, Acquired Immunodeficiency Syndrome (AIDS) Among Blacks and Hispanics-United States, 35 MORBIDITY & MORTALITY WEEKLY REP. 655 (1986)Google Scholar (cited in Craven, supra note 341, at 355).

³⁴³ See FLA. STAT. ANN. § 384.31 (West 1989).

³⁴⁴ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-28.

³⁴⁵ 410 U.S. 113 (1973).

³⁴⁶ See id. at 163-64.

³⁴⁷ See Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3056-58 (1989).

³⁴⁸ The Pennsylvania enactment which was passed in November 1989, leaves the decision with the pregnant woman (and her husband) for the first 24 weeks of pregnancy (rather than the first two trimesters — the system under Roe). See Chicago Tribune, Nov. 15, 1989, at 10. The bill that the Florida legislature considered and rejected in October 1989, would have left the decision to the pregnant woman for the first 20 weeks of pregnancy. See Houston, Lawmakers in Florida Reject Abortion Limits, L.A. Times, Oct. 12, 1989, at A2, col. 6.

³⁴⁹ See, e.g., Webster, 109 S. Ct. at 3040.

³⁵⁰ Indeed whether a child born to a seropositive mother is an AIDS carrier cannot be accurately determined until approximately 15 months after birth. See infra p. 99.

³⁵¹ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-28.

³⁵² One report indicates that one of 18 live births in 1983 were to women who received late or no prenatal care. See id.

³⁵³ See Field, Controlling the Woman to Protect the Fetus, 17 LAW MED. & HEALTH CARE 114, 125 (1989)Google Scholar.

³⁵⁴ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-28.

³⁵⁵ For more detailed discussion of these and related issues, see Field, supra note 353.

³⁵⁶ Edgar & Sandomire, supra note 59.

³⁵⁷ See AIDS: A PUBLIC HEALTH CHALLENGE, supra note 16, at 2-28.

³⁵⁸ Centers for Disease Control, Education and Foster Care of Children Infected with Human TLymphotrophic Virus Type III/Lymphoadenopath-Associated Virus, 34 MORBIDITY & MORTALITY WEEKLY REP. 517, 517-21 (1985)Google Scholar.

³⁵⁹ See Id.

³⁶⁰ See id.

³⁶¹ See Lambert, AIDS Test to be Offered to Foster Babies, N.Y. Times, June 13, 1987, at 29-30, col. 2.

³⁶² See Daley, Foster Care and AIDS: Joy and Pain, N.Y. Times, May 7, 1988, at 29-30, col. 2.

³⁶³ See Goldstein, Helping Children With AIDS, N.Y. Times, July 10, 1988, § 12, at 8, col. 4.

³⁶⁴ See Cooper, , AIDS in Children: An Overview of the Medical, Epidemiological, and Public Health Problems, 4 NEW ENG. J. PUB. POL'Y 121, 124 (1988)Google Scholar.

It is the mother, then, who is tested indirectly by the test administered upon her newborn. Some have found in this fact a justification for testing the mothers themselves, during pregnancy, even over their protest. Edgar & Sandomire, supra note 59. Most parents, however, will retain decisionmaking power over their infant's medical treatment even after birth, so the argument in text does not apply to all newborns or even all whose parents are in high risk groups. Moreover, the PKU analogy which that article puts forward to support HIV testing of all newborns is not persuasive; apart from any question of whether parents would be permitted to object to PKU testing, HIV testing is determinatively different because: (1) the testing carries much less potential harm for the person tested than does an HIV test; (2) a positive result makes possible a cure, as is not the case with AIDS; and (3) only the newborn is tested with PKU and not the mother.

More fundamentally, even in circumstances when the newborn might be subject to HIV testing over the parents’ objection at birth, the circumstances would not warrant testing the mother-to-be during pregnancy. The assumed benefit to the newborn that is used to support neonatal testing is the only permissible justification. In particular, the testing is not justifiable when the purpose is indirectly to test the mother and to inform her or others of her HIV status.

Benefit to the newborn does not necessitate testing the mother during pregnancy, be cause no known benefit to the newborn would flow from the mother's condition being known prior to the birth. Therefore, a conflict between the interests of the fetus and those of the mother on this issue does not even exist, and it would be an extremely inappropriate occasion to open up the “Pandora's box” of controlling the woman to protect the fetus. In fact, today such testing usually cannot be ordered even if interests of the fetus are thereby compromised. See Field, supra note 353, at 114.

Of course, if it is apparent that neonatal testing will be compelled over the mother's objection, that fact may persuade the mother-to-be to consent to undergo testing to find out her HIV status at an earlier time. In that way, the forced testing of infants in foster care, or of infants whose parents are not their guardians, or even the routine testing of all newborns which Edgar and Sandomire suggest, would impact upon the interest of the mother in deciding for herself whether to undergo HIV testing and whether to disclose the result.

³⁶⁵ See Field, supra note 353, at 114.

³⁶⁶ See id.

³⁶⁷ See supra note 7.

³⁶⁸ For example, he could test negative but be in the window period between infection and development of detectable antibodies; or he could test positive but nonetheless have failed to transmit the virus.

³⁶⁹ If the purpose of testing is to determine whether the assailant may have transmitted the virus, the victim also should be tested immediately after the offense, in order to show that he or she was not already infected. If the victim tests seropositive at that stage, there is no necessity to test the attacker.

³⁷⁰ See Victims, Perpetrators of Rape Urged Not to Undergo Testing, 3 AIDS POL'Y & L. 3, 9 (1988).

³⁷¹ Cf. id. at 3, 4 (noting that testing seriously threatens the confidentiality of assault victims and may cause additional stress to the victim).

³⁷² See TEX. CODE CRIM. PROC. ANN. art. 21.31 (Vernon 1989).

³⁷³ See COLO. REV. STAT. § 18-3-415 (Supp. 1989).

³⁷⁴ See id.

³⁷⁵ See ILL. REV. STAT. ch. 38, para. 1005-5-3(g) (Smith-Hurd Supp. 1989).

³⁷⁶ See 1987 Or. Laws 600.

³⁷⁷ See WASH. REV. CODE ANN. § 24.340 (West Supp. 1989).

³⁷⁸ Conversation with Representative Gary Proud, New York State Legislature, in Saratoga Springs, New York (May 12, 1989).

³⁷⁹ Conversation with Eugene Mathews, Legal Counsel, Center for Disease Control, United States Public Health Service, in Atlanta, Georgia (May 11, 1989).

³⁸⁰ Edgar & Sandomire, supra note 59.

³⁸¹ See supra pp. 47-48.

³⁸² See Gostin, supra note 210, at 15-18.

³⁸³ pora fuller discussion, see id.