American Civil Liberties Union Briefing Paper Number 13
AIDS AND CIVIL LIBERTIES
Ever since the emergence of AIDS in the early 1980s, our nation has been
struggling to cope with this terrible disease. But the widespread fear
stirred by the AIDS crisis has made the careful development of public
policy difficult. There have been unwise calls for the curtailment of
individual rights and liberties, and people with AIDS have often faced
irrational discrimination -- job firings, exclusions from school, and
denials of access to health care.
The ACLU believes that Americans can conquer this disease without
surrendering their basic rights of citizenship. Proposals for coercive
responses to AIDS must be closely scrutinized so that the AIDS crisis does
not become a pretext for violating those rights. Public policy must be
based on medical facts and realities, not on ignorance and prejudice, and
the least restrictive measures possible must be used to achieve public
The ACLU is helping to meet the challenge of AIDS through its national
_AIDS Project_, which guides state ACLU affiliates in implementing a
program of litigation, policy advocacy and public education. For example,
ACLU court victories have extended the protections of existing disability
discrimination laws to people infected with the AIDS virus, and have
struck down a compulsory testing program as an infringement on
constitutional rights. Intensive ACLU lobbying helped persuade Congress
to bring people with disabilities, including people with AIDS, under the
protections of federal housing law, and to adopt the landmark Americans
with Disabilities Act, which extends federal protections against
discrimination to the private sector. The ACLU also advocates government
programs to distribute condoms and provide clean hypodermic needles to
intravenous (IV) drug users, and government-operated facilities at which
people can voluntarily receive anonymous HIV tests.
The ACLU is working to raise public awareness of the facts about AIDS and
has urged others to do the same: Health departments, school systems,
employers, civic groups and the mass media must all provide unrestricted
AIDS information -- especially to minorities on whom the epidemic has had
a disproportionate impact. All of these measures combined can maximize
the public's protection against AIDS.
Here are the ACLU's answers to some questions frequently asked by the
public about AIDS, and about AIDS and civil liberties.
What is "HIV" and what is "AIDS"?
HIV is the Human Immunodeficiency Virus, which, upon entering a human
body, interferes with the proper functioning of that body's immune system.
Once HIV has destroyed a person's immune system to such an extent that
certain infections develop, he or she is diagnosed as having Acquired
Immune Deficiency Syndrome, or AIDS (typically, this process takes several
years). Thus, HIV encompasses a range of conditions, with AIDS being its
final stage. More and more, doctors and public health officials are
referring to AIDS as HIV disease.
What are the facts about how HIV spreads?
HIV enters the blood stream, according to current medical knowledge,
through direct exchanges of blood or blood products, or exchanges of semen
and vaginal secretions during sexual intercourse. Thus, some sexual
activities, drug users' sharing of needles, and transfusions of infected
blood account for virtually all of the known cases of HIV transmission.
In rare instances, HIV has been detected in saliva, but it is not
transmitted that way. HIV is not spread by kissing, touching, sharing
bathroom or kitchen facilities, or through normal workplace contact. Nor
can the virus be spread through insect bites.
Can HIV disease be cured?
No cure for HIV disease has yet been found. However, the drug zidovudine,
or "AZT", has been shown to prolong the lives of many infected people.
Other drugs, called prophylactics, can help prevent certain HIV symptoms
from developing. And increasingly, drugs are being developed to treat
particular infections to which people with HIV are prone. The combination
of AZT, prophylactics and other treatments is helping to extend and
improve the lives of the HIV-infected, especially those who receive good
medical care in the early stages of the illness.
Doesn't HIV mainly afflict gay men and drug addicts?
No. Although it is true that in the United States most AIDS cases have
involved gay men and IV drug users, a person's sexual orientation, race or
drug use does not determine his or her vulnerability to HIV infection.
_Anyone_ can contract HIV through exchanges of blood or other bodily
fluids. Such exchanges can occur through needle sharing, transfusions, or
sexual activities engaged in by two men, two women, or a man and a woman.
Studies of the epidemic's international impact indicate that sexual
intercouse between men and women is probably the leading transmitter of
To stop the spread of HIV, shouldn't the government require
all citizens to be tested?
No. Compulsory, mass testing would have few advantages and many
disadvantages. <>Testing cannot inhibit the spread of HIV since testing
itself does not change behavior. Only an intensive HIV- prevention
campaign that includes voluntary testing, but that emphasizes counseling
and education to achieve behavioral change, can effectively curtail the
spread of HIV. <>Forced testing would tend to drive people underground,
away from the health care system's counseling and educational services.
<>Mass testing programs would cost millions of dollars that would be
better spent on finding a cure for HIV, and on educating people about how
to protect themselves against infection. <>Since HIV tests are not
entirely reliable, and are least reliable when administered to large
numbers of people, they are of limited value. Mandatory testing would
cause millions of Americans to suffer from being falsely identified as
infected, while many infected persons would be falsely informed that they
were not infected.
Finally, forced testing would infringe upon constitutional rights because
the government does not have a compelling interest in administering tests
that are of limited value.
Instead of coercive measures such as mandatory testing, our government
should provide free, anonymous HIV tests, administered with a guarantee of
confidentiality and non-discrimination, to encourage individuals to
voluntarily seek this personal health information.
But why shouldn't the government maintain lists of people
who test positive for HIV?
Official lists of people who test positive for HIV would be of no public
health value and would cause severe repercussions for the named
individuals. Once the government had compiled such data, its mere
existence would open the way to widespread abuse of people's rights.
Insurance companies, employers, school systems and others would
immediately seek access to the data, leaving people with HIV disease
vulnerable to discrimination.
Official HIV lists would infringe on an individual's
constitutionally-protected right to privacy, and fear of having their
privacy invaded would deter many people from being tested.
Confidentiality is necessary to ensure the success of health officials'
efforts to raise public awareness about HIV.
Does the law protect the rights of people with HIV disease?
Almost all existing state and federal laws that protect people with
disabilities from discrimination in employment, housing and public
accommodations cover people with HIV disease. Typically, these laws also
protect people who are related to, or associate with, people who have
HIV-infected people are protected under the Rehabilitation Act of 1973
from discrimination by entities that receive federal funding, and under
the federal Fair Housing Act from discrimination in housing. In 1990,
Congress expanded these protections with the Americans With Disabilities
Act (ADA), which protects the disabled -- including the HIV-infected --
from discrimination in the private workplace (as of July 1992) and in
places of public accommodation (as of January 1993). The latter include
the offices of all health care providers; hotels, restaurants, movie
theaters, convention centers and health spas; food and clothing stores,
and any business that sells or rents items; dry cleaners, banks, travel
agencies and any business that provides commercial services; museums,
parks and schools; homeless shelters, adoption agencies or programs, and
all social service facilities.
How do these anti-discrimination laws work?
Typically, disability laws protect a person with HIV disease if that
person does not pose a "significant risk" to the health and safety of
others. Since HIV is not casually transmitted, the possibility is
extremely slim that an infected individual would pose a significant risk
on the job, in housing, or in a public facility.
In addition, most of the laws require employers to make "reasonable
accommodations," when they can do so without undue burden, to help a
disabled person perform his or her job. For example, an employer might
permit flexible work schedules for in HIV-infected persons.
But shouldn't employers be able to fire people with HIV disease?
No. Since HIV disease cannot be spread through the kind of casual contact
that occurs in most workplaces, infected persons do not pose a significant
risk in such settings. Disability laws, therefore, protect them from
medically unjustified discrimination.
Don't HIV-infected health care workers pose enough of a risk
to their patients to be prohibited from working?
No. In the history of the HIV epidemic, only one health care worker, a
dentist, is known to have transmitted HIV to patients, and in that case
transmission is believed to have resulted from inadequate infection
control procedures. Thousands of HIV-infected health care workers have
performed millions of different procedures on patients without any
evidence of transmission, indicating that the risk of transmission from
health care provider to patient is extremely slight.
The ACLU believes that because the risk of such transmission is so small,
health care workers should not be subject to mandatory HIV tests, limited
in their job duties, or required to divulge HIV infection to their
patients. Instead, to address the minute risk of transmission in health
care environments, the government should promote strict adherence to
infection control precautions.
Shouldn't school children with HIV disease be kept home?
No. There is no evidence that other children are endangered by contact
with an HIV-infected child in school.
Have the courts enforced these principles in cases involving
discrimination against people with HIV disease?
Generally, they have. Most legal challenges to discrimination brought by
persons with HIV disease in state or federal court have been successful.
Three ACLU cases exemplify that success:
<> In California, a federal court ordered a school to reinstate a teacher
whom officials had removed from the classroom after discovering he had
<> In Florida, a county government agreed to rehire an HIV-infected worker
and pay him $190,000 as compensation for the two years he had been
<> In Nebraska, a federal court declared unconstitutional a state agency's
requirement that employees of a state home for the mentally disabled
submit to mandatory HIV tests.
The ACLU has also won court challenges to the exclusion of HIV- infected
persons from housing, public accommodations and nursing homes.
Wouldn't the distribution of clean hypodermic needles and
condoms promote drug use and promiscuity?
It is very difficult, if not impossible, to imagine that masses of people
yearn to shoot illegal drugs but are deterred by the unavailability of
clean needles and syringes. Moreover, to acknowledge the prevalence of
HIV infection among IV drug users and yet refuse to implement programs
known to be effective in reducing that community's risk of infection is
unconscionable. Forty-seven percent of the participants in a needle
exchange program studied in San Francisco said that they stopped sharing
needles, or at least cleaned their paraphenalia, as a result of the
As for condom distribution, it does not encourage or discourage sexual
activity; it merely provides an alternative to unsafe sex and, thus, is a
vital health precaution.
Should laws be enacted to punish those who deliberately try
to spread HIV disease?
Such laws are not needed, and would be unwise, for several reasons. <>
Conscious attempts to spread HIV disease are exceedingly rare, and
existing criminal laws are sufficient for prosecuting the rare infected
individual who knowingly and deliberately infects another person. <> Laws
criminalizing HIV transmission could severely undercut public health
efforts to promote HIV awareness. Such laws, instead of deterring people
from high risk behaviors, might cause people to shun voluntary HIV tests
and treatment out of fear of being prosecuted for "deliberately" spreading
HIV. <> Lastly, new laws in this area would encourage prosecutors to
aggressively press claims of deliberate transmission, and would encourage
police to invade privacy and conduct surveillance of intimate sexual
activity in search of evidence to support such claims.
Should suspected or convicted rapists be forced to take HIV
No. Forced HIV testing, even of those convicted of a crime, infringes on
constitutional rights and can only be justified by a compelling
governmental interest. No such interest is present in the case of a
rapist and his victim because the result of a rapist's HIV test, even if
accurate, will not indicate whether the rape victim has been infected.
What rape victims want to know is whether _they_ have been infected, which
can only be known if _they_ are tested.
The government should focus on providing free and confidential HIV testing
to rape victims, and on guaranteeing treatment for those infected by a
Shouldn't the government censor education about HIV on the
ground that it's obscene?
Certainly not. Scientific, nonjudgmental information about human sexual
behavior is not obscene, and the need for such education is made all the
more urgent by the HIV crisis. The ACLU has brought suits against
government restrictions on the content of HIV education materials.
Education for prevention is the most effective response to HIV, aside from
intensive medical research and access to health care for all. It is
critical that we establish programs, accessible to everyone, that educate
and counsel people on the avoidance of sexual or drug-use practices known
to spread the disease.
The majority of Americans support sex education: A 1985 Harris poll found
that 85 percent of those surveyed thought sex education should be taught
in the schools. As former Surgeon General Everett Koop has stated, "Many
people, especially our youth, are not receiving information that is vital
to their future health and well-being because of our reticence in dealing
with the subjects of sex, sexual practices and homosexuality." He added:
"This silence must end."
A C L U
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