Los Angeles Lawyer, September 1988, Reprinted by permission
David I. Schulman^*

AIDS authors often write about their altered notion of time, how everything is either "before AIDS" or "after AIDS." Paul Monette, in Borrowed Times: An AIDS Memoir, refers to "living on the moon" while caring for his mate. Los Angeles attorney Roger Horwitz.¹

For the vast majority of Americans, the prospect of learning about AIDS is terrifying. But as those who have "lived on the moon" will tell, learning about it through personal experience is much, much worse.

The caller said he'd been on disability leave from the art supply store where he had worked for two years. Although the owner was gay and gave lots of money to AIDS Project Los Angeles, he wanted to fire the man calling the Los Angeles City Attorney's AIDS Discrimination Unit.

"I have AIDS but my doctor said I can return to work. My employer is trying to fire me because he said no one could afford the group health plan premiums if I stay on."

"Would you like to return to work if we can intervene and arrange it?" the deputy city attorney asked him.

"Hell no. He's caused me enough grief already. I want to sue him?"

"In that case," the deputy continued, "you'll need to find yourself private counsel. The city's AIDS discrimination law permits us to seek injunctive relief on your behalf, but only private attorney's can file damage claims. Would you like a referral to the bar association's AIDS lawyer referral service?"

"No thanks, I have a friend who's a lawyer. He said he'd handle it."

"All right. Give me a call if you need any further information."

Six weeks later, the man's friend called the city attorney's office. "He doesn't know what to do. His lawyer was just diagnosed with AIDS and tried to commit suicide. Can you help?"

Writer Susan Sontag notes that "nothing is more punitive than to give a disease a meaning -- that meaning being invariably a moral one."²

UCLA medical ethicist Judith Wilson Ross writes about the destructive ways AIDS metaphors can become mixed with reality. A society making "war" on AIDS, she points out, may soon see those with the disease as "the enemy." If AIDS is seen as "punishing" those who are infected, perhaps they must be "deserving" of punishment. If AIDS is "equated" with death, she says, then society may seek to distance itself from the infected by treating them as if they were already dead.³

Lawyers have a special duty to resist destructive thinking about AIDS.

The actual challenges the epidemic poses are really quite enough. AIDS is an acute crisis layered atop a whole series of chronic social problems, there is a temptation to attribute them to AIDS, as if the resolution of these issues -- drug abuse or inequitable health care delivery, for example -- had been effective until AIDS upset society's stability.

The tremendous challenges posed by AIDS cannot be solved without clear thinking. But lawyers are as vulnerable as anyone to the immense, primitive feelings about AIDS that interfere with clear thought. AIDS is associated with people perceived as belonging to marginal groups -- gays, the mentally ill and intravenous drug users, many of whom are black or Hispanic. It is the eighties metaphor for helplessness and a horrid death. And it arose after a time when all Americans had thought science had guaranteed an epidemic-free future.

Forty years ago, Albert Camus foresaw the critical need for clear thinking in such times when he wrote in The Plague:

"All I maintain is that on this earth there are pestilences and there are victims, and it's up to us, so fr as possible, not to join forces with the pestilences. That may sound simple to the point of childishness. I can't judge if it's simple, but I know it's true. You see, I'd heard such quantities of arguments, which very nearly turned my head and turned other people's heads enough to make them approve of murder, and I'd come to realize that all our troubles spring from our failure to use plain clean-cut language."⁴

Resisting Ancient Impulses

Epidemics have always threatened the ties that bind communities together, for they obstruct and can halt society's normal functions. The afflicted drop out of the work force, removing their contributions to society, instead, they require medical care, food, shelter and companionship.

Panic further threatens the social fabric as survivors place their individual survival needs over their social obligations to cooperate with others in the tasks at hand. Relationships collapse, people abandon relatives, hysteria spreads, looting occurs.⁵

When disorder and panic threaten the ties that bind, law has always been used to externalize the panic onto already stigmatized groups, victimizing some so the rest might band together -- from leprosy and the Leviticus codes of the Bible, to the Black Death and thirteenth century feudal edicts, to syphilis and early twentieth century American public health measures.

"Allan Brandt, the renowned Harvard historian of medicine and science, writes "[I]n July 1918, Congress allocated more than $1 million for the detention and isolation of veneral carriers. During the war more than 30,000 prostitutes were incarcerated in institutions supported by the federal government.

"[T]he program of detention and isolation, it should be noted, had no impact on rates of veneral disease, which increased dramatically during the war. Although this story is not well known, it is not unlike the internment of Japanese-Americans during World War II."⁶

The wartime internment of Japanese-Americans in itself, is a particularly painful reminder of the power of this ancient impulse to focus panic onto already stigmatized groups. Little more than 45 years ago, the United States Supreme Court, in Korematsu v. United States, upheld the constitutionality of the internment despite arguments that it was fundamentally in conflict with the principle of equal rights for all.⁷

Lawyers must remind everyone in this time of AIDS that the principle of equal rights has become more firmly embedded in American society. Civil rights thinking has evolved since the Second World War. This development is not the product of special interests intent upon fracturing the whole, as some suggest.

Rather, America's maturing understanding of civil rights has become a remarkable bulwark against the ancient impulse to victimize others. Since the great racial struggles began 35 years ago, civil rights law has become a process that teaches Americans how to be civil even when they are frightened- -indeed, especially when they are frightened.

AIDS reminds people of epidemics past, of times when individuals battled one another for scarce resources, of times when, as Camus observed, "officialdom can never cope with something really catastrophic."⁸ The fundamental role for lawyers during this epidemic is to assure Americans that the type of officials described by Camus are part of the past, that equal protection and due process are not merely "remedial measures . . . hardly adequate for a common cold."⁹

The role of law in the AIDS epidemic must be as remarkable as the role of science. For the first time, science can plumb the molecular depths of the cause of a new epidemic in its early stages. Law, for the first time, has rich principles and values which resist the primal impulse of societies to fracture in times of stress.

Lawyers must remind Americans of an archaic form of the word "remember." To "re-remember" is to bring all members back into the whole. Civil rights for the first time, enables citizens to re-remember those who are unpopular, those who are disenfranchised, even those who are frightening: remember that in today's democratic society, all are members of the whole.

The Discovery of HIV

One June 5, 1981, the Centers for Disease Control (CDC) in Atlanta published a report received from Dr. Michael Gottlieb several weeks earlier bout five men he had recently treated in Los Angeles.¹⁰ Commenting on the report, the editors of the CDC's Morbidity and Mortality Weekly Report noted:

"Pneumocystis pneumonia in the United States is almost exclusively limited to severely immuno- suppressed patients. The occurrence of pneumo- cystosis in these 5 previously health individuals without a clinically apparent underlying immuno- deficiency is unusual."¹¹

One month later, following reports from physicians in New York of an unexpected outbreak of Kaposi's sarcoma, rare malignancy, the CDC requested that "Physicians . . . be alert for Kaposi's sarcoma, PC pneumonia, and other opportunistic infections associated with immunosuppression . . . ."¹² Official responses to the AIDS epidemic had begun.

Neither Gottlieb nor the New York physicians could establish any basis for their patients' immune deficiencies. They hd not been taking immune suppression drugs nor did they suffer from genetic defects that can cause such problems. The deficiencies, which left these individuals fatally without immunity to opportunistic infections and cancers so rare that they caused their physicians to report their occurrence to the federal center for tracking the nation's health, seemed to have been acquired. The question epidemiologists at the CDC had to answer was, "from what?"

In the months that followed, reports flowed in regarding similar cases of unexplained immune deficiencies resulting in Kaposi's sarcoma (KS) and exotic opportunistic infections such as pneumocystis (PCP), cytomegalovirus, toxoplasmosis and candidiasis. On September 24, 1982, the CDC published its first "Update on Acquired Immune Deficiency Syndrome (AIDS)."¹³ Following a statistical report, the editors concluded:

"CDC defines a case of AIDS as a disease, at least moderately predictive of a defect in cell- mediated immunity, occurring in a person with no known cause for diminished resistance to that disease. Such diseases include KS, PCP. However, this case definition may not include the full spectrum of AIDS manifestations, which may range from absence of symptoms . . . to non-specific symptoms . . . to specific diseases that are insufficiently predictive of cellular immunodeficiency to be included in incidence monitoring . . . Absence of a reliable, inexpensive, widely available test for AIDS, however, may make the working case definition the best currently available for incidence monitoring."¹⁴

Like police following up an all-points bulletin, CDC epidemiologists investigated each reported case of AIDS, searching for clues and patterns. By November 5, 1982, they announced:

"The etiology of the underlying immune deficiencies seen in AIDS cases is unknown. One hypothesis consistent with current observations is that a transmissible agent may be involved. If so, transmission of the agent would appear most commonly to require intimate, direct contact involving mucosal surfaces, such as sexual contact . . . or through parenteral spread such as occurs among intravenous drug abusers and possibly hemophilia patients . . . Airborne spread and interpersonal spread through casual contact do not seem likely [for] . . . these patterns [of transmission] resemble the . . . modes of spread of hepatitis B (a blood-borne virus)."¹⁵

Finally, on December 10, 1982, CDC researchers established a link that established conclusively the emerging blood-borne transmission pattern:

". . . a 20-month old infant . . . developed unexplained cellular immunodeficiency and opportunistic infection. This occurred after multiple transfusions, including a transfusion . . . from the blood of a male subsequently found to have the acquired immune deficiency syndrome (AIDS)."¹⁶

Six months later, in June 1983, a French research team at the Pasteur Institute in Paris led by Dr. Luc Montagnier announced the isolation of a new retrovirus from the lymph nodes of a man with AIDS.¹⁷ On April 23, 1984, Dr. Robert Gallo of the National Institutes of Health and Secretary Margaret Heckler of the Department of Health and Human Services announced that the Americans, too, had isolated the new retrovirus.¹⁸ Its name was eventually agreed upon as HIV, the human immunodeficiency virus.

HIV infects the T-4 helper cell, master coordinator of the immune system, the body's internal defense against infection. It insinuates itself into the cell's genetic structure, where it may lie dormant for years. Eventually, however, it alters the cell's replicative process, causing the cell to produce new HIV virus at one thousand times the rate of normal cell replication.

This replicative function destroys the T-cell, freeing thousands of new HIV to infect thousands of new T-cells. Dropping T-cell levels signal a faltering immune system, leaving infected individuals prone to a variety of ailments.

HIV also infects the macrophage cells of the central nervous system. Jay Levy of the University of California, San Francisco, described the breadth of neurological problems HIV can cause as "equivalent to the table of contents in a neurology textbook."¹⁹ These can range from short term/long term memory loss to psychomotor dysfunction to dementia through to virtually any other cognitive impairment.

HIV is insidious, for it can lie dormant for years. Yet during this time, asymptomatic infected individuals are infectious, able to transmit the virus to others as readily as those who present clinical signs of disease. For some time, researchers had hoped that the percentage of infected individuals eventually presenting disease complications would remain low.

Now, longitudinal studies of sufficient length indicate that most, if not all, infected with HIV will eventually suffer either immunologically or neurologically based health problems, oftentimes both. How many will ultimately develop full-blown AIDS is still unknown. Some fear all. Sixty- five thousand Americans have progressed to full-blown AIDS. Upwards of one and a half million are infected with HIV.

HIV is transmitted by direct blood-to-blood contact. Most transmission occurs during intimate sexual contact or the sharing of intravenous drug use equipment. It also occurs from mother to fetus in utero or during the birth process. The fourth transmission mode from infected blood products used in transfusion or by hemophiliacs, has largely been eliminated in the West, since antibody screening since 1985 has re-established a safe blood supply.

Exhaustive transmission studies repeatedly prove what CDC researchers in 1982 already strongly suspected, that HIV is not transmitted other than by direct blood-to-blood contact. Households where HIV-infected people reside have been scrutinized and contacts with fellow household members quantified - members of shared towels, toothbrushes, unwashed dishes, and bedsheets - recurrent contact far more intimate than in any public setting.

Never has another household member become infected, save where there was blood-to-blood contact. Hospital workers caring for HIV-infected individuals have been similarly studied. Never have they become infected, save where there was blood-to-blood contact.

Always, the transmission patterns have mirrored ones long-studied and understood, those of hepatitis B, with but one difference - the likelihood of HIV transmission in a given instance is far less. This is because the blood concentration of HIV is 25 to 50 times les than hepatitis B.

Clinicians have made great strides in managing the infections and cancers that arise from HIV infection. As a result, HIV life-expectancy has lengthened. However, the underlying process of HIV infection and its effects are a different matter. The prospects of preventing infection through vaccine or controlling HIV replication are dim, at best.

HIV is now thought to have been endemic in remote central African villages for generations, for remarkably similar low level rates of infection are being found. The world-wide explosion of HIV infection has occurred because of the twin modern phenomenon of urbanization and international travel. Sexual activities with many partners and drug abuse patterns are similar throughout the cities of the world. Air travel brings the inhabitants of each within a few hours of the inhabitants of any other.

Discrimination Laws and Public Health

Civil rights will not provide easy answers to the agonizing policy questions presented by AIDS. But civil rights cannot give way to the demands of public health, as some insist, for both civil rights and public health laws seek to ensure the vitality of the body politic.

The City of Los Angeles pioneered the notion that AIDS discrimination laws are public health measures. It enacted the nation's first AIDS discrimination law on August 14, 1985.²⁰ Led in the effort by Councilman Joel Wachs, the Los Angeles City Council. Mayor Tom Bradley and City Attorney James Hahn provided critical leadership at a time when no other legislative or executive body was prepared to enact into law what scientists had known for so long - that HIV could not be casually transmitted.

Los Angeles's action was a powerful public health response for two reasons. First, its core holding that those with HIV should be treated like anyone else, since HIV cannot be transmitted in casual settings, signaled a critical truth for citizens to learn. Second, it enhanced the atmosphere of trust and understanding necessary for effective public health intervention by stemming the rising tide of public misunderstanding about AIDS.

City officials anticipated the central recommendations of the Presidential Commission on the Human Immunodeficiency Virus Epidemic by almost three years. Admiral James D. Watkins, chair of the commission, declared that discrimination was the "foremost obstacle to progress" in fighting AIDS.²¹

"If the nation does not address this issue squarely. It will be very difficult to solve most other HIV-related problems. People simply will not come forward to be tested, or will not supply names of sexual contacts for notification, if they feel they will lose their jobs and homes based on an HIV- positive test. So, once those with HIV are treated like anyone else with a disability, then we will find that what is best for the individual is also best for the public health."²²

The commission focused upon discrimination as the central issue in slowing the epidemic, strengthening the argument that local AIDS discrimination laws are critical public health measures. In its final report, submitted to President Reagan on June 24, the commission highlighted the critical need for the local involvement such measures bring.

"In addition to strong federal anti- discrimination legislation, state and local legislation is needed to provide the local administrative procedures and courts as an altern- ative to federal litigation for enforcement of the rights of the HIV-infected. Local government officials are able to utilize ongoing relationships in the community for rapid resolution of discrimination complaints. Rapid resolution is needed as the infected individual may well die in the time interval that a typical case is processed."²³

Passed in the wake of actor Rock Hudson's announcement that he had AIDS, Los Angeles's law gained immediate and widespread attention. Network news programs covered the event and the New York Times ran an approving editorial.²⁴ In the months that followed, West Hollywood, San Francisco, Berkeley and Oakland passed similar measures.²⁵

Later, other California cities followed suit²⁶ and many states, including California,²⁷ have reinterpreted their physical handicap protections to include people infected with HIV. Most importantly, a series of federal court rulings have held HIV infection to be a protected handicap under federal law.²⁸

Los Angeles fashioned the ordinance upon the familiar principles of physical handicap law, enabling attorneys unfamiliar with the arcana of HIV to nonetheless share a familiar vocabulary - reasonable accommodation, otherwise qualified bona fide occupational qualification. This was no small comfort in the wake of the first tidal wave impact of AIDS upon the legal system. The language of the ordinance also enabled citizens to recognize the city's action within a familiar social framework.

Other AIDS discrimination laws, whether AIDS-specific or part of a general physical handicap scheme, are similarly structured. They protect people wrongly thought to be infected with HIV, as well as those actually infected, since handicapped rights protections seek to prohibit the irrational injury of anyone because of prejudice about physical disabilities.

Physical handicap protections begin with the fundamental assumption that society, in its decisions about jobs and services, wishes to treat people as distinct individuals, unimpaired by others' irrational beliefs and prejudices. If one is otherwise qualified, one is entitled to fair and equal access to employment or service despite one's handicap. If reasonable accommodation is necessary, others must provide it. If absence of the handicap is a bona fide occupational qualification or one's handicap presents an unreasonable risk to the safety of others, one may be barred.

For example, a wheelchair-bound person who can type and answer phones cannot be fired as a secretary. The employer or service provider cannot refuse to reasonably accommodate the wheelchair in the facility. Yet a wheelchair would bar one from a right to a spot in a chorus line and an air- borne illness might bar one from the right to be present around others.

In early court decisions, the power to regulate public health was held to flow from the state's police powers to ensure safety and security. As a result, courts merely required that there be a rational basis to most public health measures. As science became more precise, public health means and ends came under increasing scrutiny.²⁹

As early as the case of Jew Ho v. Williamson³⁰ in 1900, however, courts began to hold that mere rationality was insufficient to justify the intrusive effects of governmental public health measures. In Jew Ho, San Francisco public health officials imposed a quarantine around Chinatown after an outbreak of plague in the area. However, the boundaries were gerrymandered to include the homes of Chinese living outside the area and exclude Caucasians living inside. While the health authorities argued that this action was rationally related to the likely association patterns affecting transmission, the court held otherwise, saying that this was an "administration of law with an evil eye and an unequal hand."³¹

Few public health matters have been litigated since the 1920s because the effect of many medical breakthroughs has been to eliminate the need for drastic actions. AIDS, however, will bring such matters back before the courts. Anticipating a new round of constitutional rulings on AIDS-related matters, commentators have sought to determine the appropriate standard of scrutiny courts should bring to such issues.³²

Harvard's Larry Gostin and William Curran argue³³ that many such measures should be subjected to the more flexible equal protection doctrine which has begun to emerge in recent years, notably City of Cleburne Texas v. Cleburne Living Center.³⁴ They conclude:

"[S]tricter scrutiny will be applied to public health measures which affect liberty, autonomy, or privacy of human beings. These measures should not be promulgated without searching examination as to public health need, specificity of the targeted population, and adherence to the principle of the least restrictive alternative."³⁵

No one argues that public health laws should ever give one the right to place others at unreasonable risk to their health. But the standards for evaluating public health risks must be closely examined, for they should not be based on "vague, undifferentiated fears . . . of some portion of the community" or on "irrational prejudice."³⁶ Otherwise, ostensibly sound rationales for discrimination may mask prejudices.

"All I maintain is that on this earth there are pestilences and there are victims, and it's up to us, so fr as possible, not to join forces with the pestilences. That may sound simple to the point of childishness. I can't judge if it's simple, but I know it's true. You see, I'd heard such quantities of arguments, which very nearly turned my head and turned other people's heads enough to make them approve of murder, and I'd come to realize that all our troubles spring from our failure to use plain clean-cut language."⁴

Early Intervention

AIDS discrimination laws provide for traditional discrimination remedies. Injunctive court orders can be sought by government or private attorneys to halt discriminatory practices.³⁷ Private attorneys can also seek damages for their clients.³⁸ Government attorneys are empowered to seek injunctive relief but not damages. The rationale for this policy is the appropriateness of using taxpayer money to seek equitable relief for citizens with the assumption that contingent fee arrangements ensure an adequate likelihood of representation in damage claims.

Staff at the Los Angeles City Attorney's Office and at the San Francisco and New York human rights commission - the first three offices with full time AIDS discrimination units - along with other attorney's pioneering AIDS litigation soon learned the critical importance of early intervention and mediation of complaints. Impact litigation is essential in strategically appropriate cases to establish needed case law and send a message to those who would not otherwise comply with applicable legal standards.

But AIDS-related cases, unlike other discrimination cases, are particularly ill-suited to the adversarial process. The stress involved in litigation is difficult enough for anyone. However, it is particularly difficult for people infected with HIV, since stress profoundly affects the immune system: people with HIV are advised that their major lifestyle change should be a reduction in stress.

Furthermore, protracted litigation, even with expedited court procedures, often takes too long for people who are ill. John Chadbourne, the real party in interest in the landmark California case of DFEH v. Raytheon,³⁹ died in January 1985, 25 months before the Fair Employment and Housing Commission issued its ruling that AIDS was a covered handicap under California law, and 39 months before a Santa Barbara Superior Court judge upheld the ruling on appeal.⁴⁰

Chadbourne knew full well that he might not live to see his case resolved, but believed that his fight to establish the legal rights of people with AIDS added meaning and value to his life. Most cases, however, are not impact litigation cases, and plaintiffs must consider the harsh realities of protracted litigation.

The negotiating postures in AIDS discrimination cases are different. AIDS complainants in the typical employment-related case are often prepared to settle if their health coverage is guaranteed, whereas others can wait until a full damage settlement is reached. Furthermore, HIV-infected people often cannot risk the further stigma and discrimination to which litigation threatens to expose them, even with the confidentiality safeguards available to litigants.

Marjorie Rushforth, lead attorney in Chalk,⁴¹ revealed at an AIDS and civil rights pane discussion⁴² that within two hours after filing John Doe papers in the case, an Orange County Register reporter had determined the name of her client by an analysis of the facts that were pleaded as a necessary part of the complaint. It had not been too difficult to determine which male special education teacher in the Orange County school district had just returned from a medical leave of absence.

Moreover, the employment protection provision of California's municipal ordinances have been thought extremely vulnerable to challenges asserting that they are preempted by state law.⁴³ Arguments that they are important local public health measures may overcome such challenges. Plaintiff's attorneys, however, have been bound by the legal consideration that such measures might be overturned on preemption grounds. Furthermore, they have had to carefully weight the impact that such a ruling might have on the public. A procedural ruling sustaining a preemption challenge most likely would be misinterpreted by the public as a substantive ruling on the merits of AIDS discrimination protections, creating confusion and mistrust about AIDS protections.

Finally, the opportunity for litigation is further curtailed for government offices, since their enforcement powers are limited to injunctive relief actions.⁴⁴ Such actions not only require a higher burden of proof than an action for damages: they also require a fact situation suitable for a prohibitive order - an order often made unnecessary through negotiation and, in the case of personal services, particularly difficult to obtain.

The problems faced by HIV-infected complainants are no secret to defense attorneys in AIDS discrimination cases. However, most complaints occur because of fear about AIDS and ignorance about its impact upon law. Attorneys in the public and private sectors who have pioneered AIDS legal thinking have found opposing counsel desperate for rational and thorough information about AIDS.

When, upon receipt of a complaint, such information is provided through early intervention and mediation efforts, accords can be reached and positive policies implemented, for AIDS discrimination complaints are really signals that it is now time for a respondent to grapple with AIDS.

Early intervention and education, however, are critical to the success of such settlements. So are the landmark guidelines provided by such cases as Arline, Chalk and Chadbourne.

The presidential commission called for precisely these approaches in its recommendations for federal,⁴⁵ state and local anti- discrimination protections,⁴⁶ for aggressive mediation and education efforts to implement them;⁴⁷ and for adequate confidentiality protections.⁴⁸

Beacons of Stability and Continuity

Any attorney, now, may be called upon to face the painful and bewildering world of AIDS and the law. Standards of practice and reference guides, however, have begun to emerge to enable any practitioner to become another beacon of stability and continuity in the face of the panic and instability HIV brings (see page 24).

The abuse traditionally heaped upon lawyers for the combative role they play in society must not obscure the equally traditional role lawyers have always played in preserving public values. The challenge AIDS presents to all lawyers today is strikingly similar to the challenge faced by scientists, that the traditional competitiveness of each give way to new regard to their relationship to society.

The Journal of Acquired Immune Deficiency Syndromes, in its inaugural edition, announced that it would have three co-editors, representing the three broad areas of AIDS research - epidemiology, the basic sciences, and the clinical sciences. The editors noted that this unusual step had been taken in order to address the unique complexities of the epidemic. They concluded their editorial with the sobering wish that ". . . the information sharing possible in this new [j]ournal will bring us to a time when we can be truly optimistic about the control of the epidemic."⁴⁹

In similar fashion, all lawyers must permit their professional counsel to be shaped by the epidemic's demands. They can learn from one practitioner who, fully aware of the range of tactical considerations in favor of his client, insisted that competent representation included compassionate understanding.

A 27-year old woman with a degenerative neurological condition could no longer live on her own despite regular visits from a social worker and a home health aide. The intermediate care facility that had accepted her for placement refused to admit her when it learned she was HIV-infected.

She filed a complaint with the city attorney's office, which investigated the matter and contacted the facility's attorney. This attorney was thoroughly familiar with AIDS legal issues.

He could have advised his client to contest the matter as a defense tactic, the women would have eventually won the legal battle for admittance but she would have lost her war to find a safe environment quickly.

Instead, this practitioner aggressively educated his client about the legal duties involved. He insisted that measures be taken to implement HIV-related procedures and arranged placement for the woman within a matter of days.

That attorney had learned what Camus' protagonist, the plague doctor Rieux, had come to learn in the quarantined town of Oran. Speaking to the journalist Rambert, Rieux disputed the journalist's contention that his dedication and effort were heroic:

"However, there's one thing I must tell you: there's no question of heroism in all this. It's a matter of common decency. That's an idea which may make some people smile, but the only means of fighting a plague is - common decency."⁵⁰

FOOTNOTES

*Deputy City Attorney David Schulman heads the AIDS Discrimination Unit in the office of Los Angeles City Attorney James K. Hahn.

1. P. Monette, BORROWED TIME: AN AIDS MEMOIR, 83(1988).

2. S. Sontag, ILLNESS AS METAPHOR, 57(1979).

3. Ross, "Ethics and the Language of AIDS," AIDS ETHICS AND PUBLIC POLICY (C. Pierce and D. Vandeveer, eds. 1988); Ross, "An Ethics of Compassion: A Language of Division, Working Out the AIDS Metaphor," AIDS PRINCIPLES, PRACTICES & POLITICS(I. Corless and M. Pitman-Lindeman, eds. 1988).

4. A. Camus, THE PLAGUE 236(Vintage Books ed. 1972).

5. See generally: W. McNeill, PLAGUES AND PEOPLE (1976).

6. Brandt, "AIDS: From Social History to Public Policy," 14 LAW MED. & HEALTH CARE 231, 233 (1986).

7. Korematsu v. U.S., 319 U.S. 432, 87 L.Ed 1497, 63 S.Ct. 1124 (1943).

8. Camus, supra n.4 at 117-18.

9 Id.

10. Pneumocystis Pneumonia--Los Angeles, 30 MORBIDITY AND MORTALITY WEEKLY REPORT (hereinafter cited as MMWR) 250(1981).

11. Id.

12. Kaposi's Sarcoma and Pneumocystis Pneumonia Among Homosexual Men -- New York City and California. 30 MMWR at 305.

13. Update on Acquired Immunodeficiency Syndrome (AIDS) - United States, 31 MMWR 507(1982).

14. Id.

15. Acquired Immunodeficiency Syndrome (AIDS) Precautions for Clinical and Laboratory Staffs, 31 MMWR at 577.

16. Possible Transfusion Associated Acquired Immunodeficiency Syndrome (AIDS)--California, 31 MMWR at 652.

17. Shilts, AND THE BAND PLAYED ON: POLITICS, PEOPLE AND THE AIDS EPIDEMIC, 319(1987).

18. Id. at 450-51.

19. L.A. Times, Dec. 12, 1986, Section E at 1 (NEXIS).

20. L.A. MUN. CODE Section(s) 45.80 et. seq. (1985)

21. American Medical News, June 17, 1988, at 1, col. 4.

22. Id. at 32, col. 1.

23. REPORT OF THE PRESIDENTIAL COMMISSION ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC (1988)(hereinafter cited as REPORT OF THE PRES. COMM) 124.

24. N.Y. Times, Aug. 18, 1985, Section 4, at 18.

25. West Hollywood, San Francisco, Berkeley, and Oakland.

26. Including Santa Monica, San Diego, and Laguna Beach.

27. Department of Fair Employment and Housing v. Raytheon Company (real party in interest, estate of John Chadbourne) FEHC Dec. No. 87-12(1987), aff'd. Raytheon Company v. Fair Employment and Housing Commission, Santa Barbara Superior Court Case No. 167995 (Apr. 22, 1988).

28. School Board of Nassau County v. Arline, 107 S.Ct. 1913 (1987)(holding that persons with contagious diseases are protected by the physical handicap civil rights provisions of the Federal Rehabilitation Act of 1973); Chalk v. U.S. District Court, 840 F.2d 701 (9th Cir. 1988)(holding that Arline, id., protects people with AIDS); Doe v. Centinela Hospital, No. CV 87-2514 PAR (PX)(June 30, 1988)(holding that HIV-infected, asymptomatic individuals are protected by the Federal Rehabilitation Act as individuals perceived as handicapped when discriminated against because of irrational fears of contagion). Thomas v. Atascadero Unified School District, 662 F. Supp. 376 (C.D. Cal. 1987).

29. See generally, Dolgin, AIDS: Social Meanings and Legal Ramifications, 14 Hofstra L. Rev. 193, 204-07 (1985) and Gostin and Curran, "Legal Control Measures for AIDS: Reporting Requirements, Surveillance, Quarantine, and Regulation of Public Meeting Places," 77 PUB HEALTH & THE LAW 214 (1987).

30. Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900).

31. Id. at 24 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

32. E.g. Dolgin, supra, n. 29.

33. Gostin and Curran, supra n. 29.

34. City of Cleburne Texas v. Cleburne Living Center, 105 S.Ct. 3249 (1985).

35. Gostin and Curran, supra n. 29 at 217 (footnote omitted).

36. 105 S.Ct. at 3258-59.

37. L.A. MUN. CODE Section 45.90(B)(2).

38. L.A. MUN. CODE Section 45.89.

39. Supra n. 27.

40. Id.

41. Chalk, supra n. 28.

42. Panel Discussion on AIDS and Civil Rights, Whittier College of Law Symposium (March 4, 1988).

43. See, e.g. Los Angeles City Attorney Report No. R-85-0711 at 1.2 (Aug. 13, 1985).

44. L.A. MUN. CODE Section 45.90(B)(2).

45. REPORT OF THE PRES. COMM. Recommendations 9-1 - 9-8 at 121-24.

46. Id. Recommendations 9-9 at 124.

47. Id. Recommendations 9-10, 9-11 at 124, Recommendations 9-12 - 9-15 at 124-25 (regarding community responses); Recommendations 9-16 - 9-23 at 125-26 (regarding schools); Recommendations 9-24 - 9-27 at 126 (regarding health care settings).

48. Id. Recommendations 9-28 - 9-35 at 127-28.

49. Haseltine, Volberging, and Blattner, Editorial, ACQ. IMM. DEF. SYNDR. 1 (1988).

50. Camus, supra n.4 at 154.

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