NOVA Law Review, Vol. 12, No. 3 - Spring 1998, p. 969
Roger I. Abrams

Even if we cannot prevent AIDS or cure its consequences, there are things we must do to prepare ourselves for its onslaught. All of us will be affected in one way or another[3] and, while we cannot totally insulate ourselves from its impact, we can act to mitigate our losses. The frightening predictions from the medical science community compel our immediate action to prepare as best we can for the foreseeable social consequences of the disease.

Some might choose to ignore this forecast of doom. After all, most of us remember the swine flu scare that turned out to be a false prophecy.[4] But we have already witnessed the impact of AIDS.[5] We know with some certainty how prevalent it is in the population.[6] We know of no one who has survived after contracting AIDS. We know too much to ignore the present reality and the bleak future.

What then do we do? What must be the AIDS agenda? First and most obviously, we must devote a significant portion of our nation's resources to the search for a cure, although current knowledge suggests none might ever be available.[7] It is essential that we try. We cannot afford as a society to lose all hope. Modern science has produced enough miracles to justify this effort. We must also proceed in the search for a vaccine to protect our future generations from this scourge. Here there is some reason for optimism, although it may take as much as a decade before a vaccine is discovered and ready for use.[8]

Second on the agenda is education. The public must be informed about the disease and how it is transmitted. Every day we hear news stories about the pernicious effects of ignorance about AIDS. We are yet to witness the full extent of the public trauma about the disease. It may be impossible to calm all fears regarding the transmission of AIDS through casual contact, but it is certainly worth the effort to minimize the angst. Even more importantly, people should be informed how to avoid contracting AIDS. Thus, public education through the schools and use of the mass media is essential.

Confronted by a virus, the healthy body fights off the invader. The body politic also will seek to protect itself in response to the spread of AIDS by fighting off those who carry the invading threat. As a result, those civil liberties that distinguish us as a nation will be placed at risk. As Professor Paul Joseph so ably explores elsewhere in this symposium,[9] this threat to constitutional protections is significant. Our history is replete with examples of self-protection at the cost of liberty.[10]

Mandatory tests for AIDS to identify the carriers is only the initial step.[11] Some may suggest these modern day lepers be required to wear identifying symbols.[12] Still others might suggest their elimination. It will be a major accomplishment to resist burning down our village in order to save it.

A fourth item on the AIDS agenda is to begin now to address the many foreseeable legal issues presented by AIDS. We are creating new AIDS-related law every day on a case-by-case basis. Courts have ruled repeatedly that children with AIDS have the right to attend public schools.[13] AIDS may be a handicap worthy of protection under discrimination laws.[14] Legislatures and Congress must address in a systematic fashion the issues that will arise in a manner that protects the public health and safety, on the one hand, and the rights of those affected by the deadly contagion, on the other.

There is one final item on the AIDS agenda. We must be prepared to confront the reality of the loss of millions and millions of productive persons. AIDS will destroy a most valuable national asset, the talents of many of our fellow men and women. Our economy will surely suffer greatly. But we have confronted threats in the past almost as great. We lost 780,213 men in the Civil War.[15] The influenza epidemic after the First World War took 540,000 lives.[16] Both were devastating blows, but we recovered. As a matter of "civil defense," we must be ready to deal with the ailing and the dead, to comfort those who lose loved ones and steel ourselves against the next bit of bad news.

There is not much by way of good news associated with this terrible disease. It will hurt us more than we can now imagine. Our lives and our national spirit are at risk. It is important that we face this reality for we have no choice but to carry on.

Every journal of medicine is filled with AIDS research, but legal scholars and law reviews have only recently begun to address the challenging legal implications of the disease. This Symposium is an important step in that process. Certainly, it does not contain all the answers, but it fosters the dialogue. In this Symposium, the Nova Law Review has compiled a series of important articles that begin addressing the AIDS agenda. The authors have spoken clearly and forthrightly about the implications of AIDS on our collective future. While these essays may not cure even one person of the disease, they will supply some valuable information and provide some provocative ideas about the effect of AIDS on our society.

Footnotes:

* Dean and Professor of Law, Nova University Law Center. B.A., 1967, Cornell University; J.D., 1970, Harvard Law School.

1. "By the end of 1991, an estimated 170,000 cases of AIDS will have occurred with 179,000 deaths within the decade since the disease was first recognized." Surgeon's General Report in Acquired Immune Deficiency Syndrome at 6 (1987). Many millions of Americans will die before the spread of the disease is halted.

2. Medical researchers explain that AIDS is potentially incurable by virtue of how the disease works in the body: [AIDS] invades the body and kills the white blood cells, known as T-helper cells that are primarily responsible for preventing infectious diseases. Consequently, diseases that rarely afflict people with healthy, functioning defense systems prove fatal to people inflicted with HIV.... No treatment permanently reverses the suppression of the immune system; no vaccine prevents infection." Green, The Transmission of AIDS, in AIDS AND THE LAW 28, 29 (1987). See also Landesman and Vierra, Acquired Immunity Deficiency Syndrome AIDS: A Review, ARCH. INTERNAL MED. 2307, 2307 (1983); and Jaret, The War Within, NAT L GEOGRAPHIC, June 1986, at 702.

3. Based on current projection of loss of life, few extended families will be unscathed by the disease. It is clearly foreseeable that someone you know will die from AIDS. As Professor Robert Jarvis explains in "Global Impact of AIDS," 12 Nova L. Rev. 979, the worldwide effect of the epidemic will be dreadful.

4. See Wecht, The Swine Flu Immunization Program: Scientific Venture or Political Folly?, 3 AM. J. LAW & MED. 425 (1977).

5. A number of prominent artists and actors have already died of the disease,including Rock Hudson, Liberace, and choreographer Michael Bennett. FORT LAUDERDALE NEWS/SUN-SENTINEL, October 12, 1987, Col. 4.

6. See Rothstein, Screening Workers for AIDS, in AIDS AND THE LAW 132-34 (1987).

7. See supra note 2 and accompanying text.

8. See Osborne, The AIDS Epidemic: Discovery of a New Disease, in AIDS AND THE LAW 25-26 (1987).

9. See Joseph, 12 NOVA L. REV. 1083 (1988).

10. Civil liberties suffer especially at times of war. See generally L. TRIBE, AMERICAN CONSTITUTIONAL LAW 179 n. 39 (1978) (Discussing President Lincoln's suspension of the right of habeas corpus during the Civil War) and Korematsu v. U.S., 323 U.S. 220 (1944) (permitting placement of Japanese-Americans in isolation camps during wartime). The AIDS epidemic may well have a warlike impact on our society.

11. See Several authors, Testing for Drug Use in the American Workplace: A Symposium, 11 NOVA L. REV. 291-823 (1985).

12. See Pagano, Quarantine Considered for AIDS Victims, CAL. LAW., March 1984 at 17; Wasson, AIDS Discrimination Under Federal Statute, and Local Law After Arline, 15 F.S.U.L. REV. 221, 265 (1987); Senak, The Lesbian and Gay Community in AIDS AND THE LAW 294-95 (1987); Note, The Constitutional Rights Of AIDS Carriers, 99 HARV. L. REV. 1274, 1281-84 (1986).

13. See, e.g., In re District 27 Community School Bd. v. Bd. of Educ., 502 N.Y.S. 2d 325 (Sup. Ct. 1984); Bd. of Educ. v. Cooperman, 209 N.J. Super. 174, 507 A.2d 253 (App. Div. 1986); Bogart v. White, No. 86-144 (Ind. Cir. Ct., 1986). See also Kass, Schoolchildren With AIDS, in AIDS AND THE LAW (1987). See generally, THE WALL STREET JOURNAL, October 7, 1987, 2, Col. 2 at 37.

14. See Chalk v. U.S. Dist. Ct., 832 F.2d 1158 (9th Cir. 1987) (job discrimination against AIDS victims prohibited by handicap laws); Leonard, Employment Discrimination, 10 U. DAYTON L. REV. 681, 689-96 (1985); Note, AIDS: Does It Qualify as a Handicap Under the Rehabilitation Act of 1973?, 6 NOTRE DAME L. REV. 572 (1986).

15. THE WORLD ALMANAC 219, 227 (1987).

16. Id. at 479

Copyright (c) 1988 - Nova Law Review. Reproduced with permission.
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