Department of Health and Human Services, Public Health Service, National AIDS Program Office - August 1, 1991
Larry Gostin, Executive Director, American Society of Law & Medicine, Professor of Health Law, Harvard School of Public Health, and Lane Porter, Chair, International Health Law Committee, American Bar Association

I. AIDS Education

The content and scope of AIDS education continues to be a divisive issue in America's classrooms. In the major case, Ware v. Valley Stream High School [3], New York's highest court, the Court of Appeals, held that members of the Plymouth Brethren may have a First Amendment right to be exempt entirely from AIDS education. The Court reasoned that the Brethren had a "sincere religious belief." However, the Court remanded to the lower court the question of whether the compelling state interest in providing AIDS education outweighed the Brethren's right to the free exercise of religion.

Other cases raised, but did not definitively answer, the question of whether general religious values [2, 3] or moral values [4-objecting to teaching about condoms in elementary and secondary schools] were sufficient to interfere with the content of AIDS education programs.

In another case, a class action was brought on behalf of non- profit organizations against the Chicago Transit Authority for refusing to sell them advertising space. The Authority found the condom advertisement inappropriate and "too Black-oriented."

A second aspect of litigation, one that is still unresolved, tries to require public health and education authorities to provide adequate AIDS education. One suit which was subsequently dismissed [1] sought greater education efforts in minority communities.

II. Protection of the Blood Supply

Litigation against blood suppliers and health care facilities relating to the transfusion of HIV contaminated blood continues to escalate. The suits are predominantly based upon claims of strict product liability and negligence. The strict liability claims have, for the most part, failed (e.g., 6,7,17,26). Most states have blood shield statutes that define blood transfusions as a service, not a product. Thus, blood suppliers in most states cannot be held strictly liable for transfusing contaminated blood. Nor can a health care facility be held strictly liable when it transfuses contaminated blood supplied by a blood bank [17]. However, a plaintiff may be able to sue under strict liability theory in a state where the transfusion occurred before the state added HIV to its blood shield statute [16, 26]. Even when courts find that blood shield statutes cannot be applied retrospectively, they can nonetheless refuse to apply strict liability theory [16, 26]. This is based upon the strong public policy of not holding blood suppliers strictly liable [38].

These rulings make negligence the primary claim of plaintiffs. The few successful suits that have been brought involved the failure of blood suppliers to test in the few weeks after a test was commercially available, but before it was in widespread use (see the ALP I). In one case a jury awarded $12 million for failure to test a unit of blood the day the test became available. The case was complicated by the continuing failure of the hospital to test and the hospital's refusal to allow a directed donation [21]. In another large damage case a judge set an award of $26.9 million to a child who contracted HIV from a transfusion. The transfusion was given without the parent's consent [131].

The federal Court of Appeals for the Eighth Circuit refused to hold a supplier liable for failure to test back inventory [7]. The supplier followed the FDA's recommendation to test all blood as soon as testing supplies were commercially available. But testing existing inventory would have been expensive and time consuming, and was not the standard of care in the industry.

The court in Quintana v. United Blood Services [15] helped to explain the applicable standard of care in blood supplier negligence cases. The court rejected a "professional medical standard of care." Instead, it said that a defendant's conduct should be measured against what a reasonable and prudent blood bank could or should have done under the same or similar circumstances.

Most negligence cases applying this standard of care have found in favor of blood suppliers [e.g., 12-14]. Before the advent of a commercially available blood test for HIV, suppliers could only screen blood through surrogate testing (e.g. HBV) or donor self deferral based on sexual orientation, IV drug use, or other factors. The Quintana [15] court held that the supplier was not negligent in failing to use surrogate tests and self deferral because it was complying with the industry standard of care.

Many claims for inadequate self-deferral (both before and after suppliers were routinely testing their supplies) have been brought [e.g. 7, 18, 19]. Appellate courts are likely to allow these claims to come to trial and to be decided by a jury [18, 23]. The jury will have to find as a matter of fact whether the suppliers' educational and donor questionnaire forms were sufficiently detailed so as to establish an effective set of guidelines for donor self deferral. Thus, the fact that a screening test was not available will not hold suppliers immune from liability if the plaintiff can prove negligence in failing to adequately guide self-deferral [20, 25]. Indeed, some courts have already found liability for inadequate self-deferral prior to the advent of HIV screening tests [24].

An area for increased litigation in the future involves claims for negligence in failing to warn patients of the risk of a contaminated transfusion [28, 32, 124, 152-154 (In several of these cases plaintiffs also allege that they should have been informed about their right to autologous or directed donation)]. In Ray v. Cutter Laboratory [8] an internal memorandum by the in-house counsel of Cutter Laboratory was accidentally disclosed to plaintiff's attorneys. The memorandum suggested in 1982 that users of Factor VII and XI should be warned of the risks of AIDS. The court held that the accidental disclosure of the memorandum constituted a waiver of the attorney-client privilege. The court indicated that this could alter the outcome of future HIV liability litigation premised on the duty to warn. But courts may well ask the question whether a reasonable patient would refuse surgery if informed of the risk of contracting HIV through transfused blood. In Knight v. Dep't of the Army [128] a federal district court held that a patient would not prevail in a duty to warn suit because a reasonable patient would have consented to a coronary bypass even with the risk of receiving a contaminated transfusion. [For a similar case still pending, see 146.]

Other duty to warn cases involve claims that suppliers or hospitals failed to adequately conduct a look back program. Here, plaintiffs argue that they were not warned, or not warned in a timely manner, that they had received contaminated blood [48].

In trying to establish negligence, plaintiffs in Moore v. Armour Pharmaceutical [129] tried to subpoena Centers for Disease Control (CDC) officials. The court ruled that CDC officials could not be subpoenaed. Every government department or agency gets numerous requests for testimony which takes away from valuable government activities.

The controversy over whether a plaintiff is entitled to know the identity of a blood donor through discovery still concerns the courts. The majority of appellate courts to consider the matter have held that a plaintiff cannot compel a supplier to disclose the identity of a donor [41, 42]. The public policy of ensuring a voluntary blood donor system militates against disclosing the identity of donors.

Many courts have, however, required blood suppliers to disclose their internal policies and procedures for collecting, processing and distributing blood, as well as donor cards [41, 49]. More importantly, many courts have required donors to provide a deposition. In most cases the courts issue a protective order so that the donor's identity is not disclosed [43-45]. Courts reason that plaintiffs do have a valid interest in questioning the donor to ensure a fair trial [45]. For example, if plaintiffs allege a failure to adequately self-defer, they will want to ask the donor about the time period during which he or she was screened by the supplier.

Many of the discovery cases involve negligence, not on the part of the blood supplier, but rather on the part of a third party who was negligent. This might include a driver in an accident or a physician in performing a medical procedure. In Doe v. U.S. [127] a jury awarded more than a million dollars against a naval surgeon who was negligent with the patient's post operative bleeding, resulting in a transfusion. The U.S. District Court held that the physician's negligent act was a cause "in fact" of the patient's contracting HIV. [See also 132, 142.]

III. Epidemiologic Surveillance

The leading case concerning the classification of HIV in public health law is New York State Society of Surgeons v. Axelrod [50]. Four New York medical societies brought suit to compel the State Commissioner for Health to designate HIV/AIDS as a sexually transmissible disease. This would have the effect of authorizing isolation, mandatory testing and contact tracing. New York's highest court, the Court of Appeals, reviewed public health evidence which showed that a voluntary approach to HIV was equally, if not more, effective than a compulsory approach. In any case, the Commissioner had broad discretion to classify public health problems and to devise a strategy. The Commissioner had not exercised his discretion unreasonably or arbitrarily in formulating a public health strategy to combat the HIV epidemic in New York.

As the Axelrod case illustrates, the medical profession is divided as to whether informed consent for HIV tests should always be required. If consent is obtained for the testing of blood, should additional consent be required for all tests performed on that blood? Most states have HIV specific statutes which do require consent for HIV tests, usually in a written form. In Doe v. Dyer-Goode [51], the court said that, in the absence of a specific statute, no common law duty exists to obtain informed consent for an HIV test on blood already drawn. The court said it is uncertain that a needlestick is invasive enough to require informed consent. The blood obtained "is simply a by-product" and one additional blood test performed cannot constitute a violation. The court also refused to find negligence as there was no duty to obtain consent or offer counseling. This judicial position does not take into account the fact that the Centers for Disease Control (CDC) recommends pre-test counselling and consent. In states which adopt a "reasonable patient" standard it is likely that an HIV test is material information that a reasonable patient would want to know about in advance.

The federal district court for the Eastern District of Pennsylvania casts doubt on the Dyer Goode decision [126]. The plaintiff's blood was tested for HIV without his consent when he applied for life insurance. He consented to a physical examination and a blood-profile, but not specifically an HIV test. The test was positive and the lab sent the results to an information bureau for insurance companies. The court rejected the insurance company's motion to dismiss the plaintiff's claim of battery because he clearly alleged that the company exceeded the consent provided by the plaintiff. The insurance company does owe an applicant a general duty to avoid causing harm [126].

IV. State Restrictions of Persons

Isolation and quarantine are powers exercisable by a public health department to prevent serious health risks to the public. Isolation of persons with HIV is rarely utilized because the infection is not transmitted casually. A few public health departments, however, have utilized isolation of patients who pose a threat to the public due to their sexual or needle sharing behavior.

The South Carolina Department of Mental Health served an "Order of Quarantine" on a mental patient on the basis of unsubstantiated information that she was HIV positive and was engaging in high risk behavior. The Order confined the patient to her home. She was unable to pay her electric bills and left her home after the electricity was shut off. She was served a second "Order of Quarantine" committing her to a Department of Mental Health facility without a known release date. The federal district court refrained from ruling on a habeas corpus application, preferring the case to be decided in state court. The state court action is pending [53].

In another case, the Mississippi Health Department issued a "quarantine order" prohibiting an HIV-infected person from having sex without informing his partner, or from soliciting sex. The person was convicted under a public health offense that made it a felony to violate the quarantine order. He was sentenced to two years in the state penitentiary, where he probably will be put into an isolation ward and receive counselling [59].

A. The Criminal Law

In the AIDS Litigation Project I (ALP I), numerous cases were reported where the traditional criminal law was used to prosecute persons who risked transmission of HIV. This AIDS Litigation II Project shows no decline in the use of the criminal law. Persons infected with HIV are being prosecuted on charges of attempted murder and/or assault with a deadly weapon for having had sex without disclosing their serological status [55].

Other infected persons are being charged with similarly serious offenses for biting [54, 60, 63, 64, 66] spitting [68, 69], splattering their blood [58], or throwing their feces [61]. The courts continue to wrestle with the question of whether the mouth, saliva, and/or teeth can constitute deadly weapons. While one Federal Court of Appeals in ALP I found them to be deadly weapons, the courts in this update appear split on the issue. The Court in Brock v. State [54] ruled that the mouth could be a dangerous or deadly weapon if "used in a manner likely to cause death or serious injury." In this case, it was highly unlikely for a bite to cause such injury. Another court found that a penis, semen, and other bodily fluids infected with HIV were not deadly weapons [55].

Many courts have convicted persons with HIV for serious charges such as attempted murder and aggravated assault. In Haines [58], originally reported in ALP I, the appellate court reinstated three counts of attempted murder for splattering police officers with his blood. The Court reasoned that the state need only prove the defendant believed he had done all that was necessary to murder, and not that murder was actually possible. In Smith [60] the defendant was convicted of attempted murder and sentenced to 25 years for biting a guard. In Scroggins [64] a conviction of aggravated assault with ten years imprisonment was imposed under a similar set of facts. Weeks [68] was convicted of attempted murder and sentenced to life imprisonment for spitting at a prison guard. The prosecution produced expert witnesses who testified that HIV contaminated saliva is a deadly weapon.

In ALP I we observed that surprisingly few cases had been brought under public health offenses, which are often specific to HIV. These statutes make it a crime to have sex or some other type of defined exposure such as spitting, biting, etc. knowing the persons is infected with HIV. In this update numerous cases emerged where those new offenses were used [56, 59, 62, 65, 67]. Many of the cases involved conviction of prostitutes [56, 59, 67] who sometimes received considerable sentences of imprisonment [56-- 4 years house arrest, 65--could receive up to 15 years, not a prostitute].

B. Prejudice to the Fairness of the Trial

The AIDS Litigation Project I reported a number of cases where judges adopted special and visibly different precautions for parties infected with HIV. In this update a few additional cases are reported in which persons allege prejudice to the fairness of the trial. Wiggins [71] was reported in ALP I and is now reversed on appeal. The appellate court held that Wiggins' conviction was prejudiced by the fact that the trial judge ordered the guards to wear rubber gloves and ordered the jury not to touch trial exhibits for their own protection. But in other cases courts held there was no prejudice when sacks marked "CAUTION AIDS" were left in full sight of the jury [72]; or when false statements were made that the defendant had AIDS [73].

The American Civil Liberties Union (ACLU) and other organizations filed a complaint with the Judicial Inquiry Commission against three Alabama judges. The judges allegedly refused to admit HIV-positive persons into their courtroom; they took pleas and passed sentences by phone for HIV-positive offenders, and made discriminatory statements against homosexuals [74].

C. Compulsory Testing of Criminal Defendants

Policy questions surrounding the testing of persons charged with sexual assaults are fraught with difficulty. The victim seeks a right to know if the alleged assailant is HIV-positive. The test result may ease her burden of worry and provide knowledge about the need for early treatment. The defendant, on the other hand, claims a right to privacy. His right is protected principally by the Fourth Amendment's proscription against unreasonable search and seizure. In its drug testing cases [Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 109 S.Ct. 1402; National Treasury Employees Union v. Von Raab 489 U.S. 656 109 S.Ct. 1384], the Supreme Court said that when the state has a "special need" beyond that of ordinary law enforcement then the privacy rights of the person must be weighed against compelling state interests.

In recent years many states have enacted statutes that authorize or require HIV testing of certain defendants. Some statutes are limited to persons charged with violent sexual assaults, while others cover a much wider range of behavior such as biting and spiting.

California laws are particularly illustrative and have been subject to constitutional attack. For example, Proposition 96 provides for mandatory testing in cases where HIV may have been transmitted to a sex crime victim, prison official, fire fighter, or emergency medical technician. It also requires testing for anyone charged with interfering with a police officer. The court in Johnetta [76] upheld the constitutionality of Proposition 96. The Court agreed that the statute may not reveal data that furthers a public interest but, "it is not for the courts to judge the wisdom of legislation."

In Love v. Superior Court [77] a California statute authorizing mandatory testing for persons convicted of soliciting acts of prostitution was similarly ruled constitutional. The ACLU is currently challenging the California Hait Act which authorizes HIV testing in those cases where a police officer may have been exposed to blood [78].

Courts in other states, however, have refused to find testing laws constitutional [79, 85]. A court struck down an Illinois law which allowed the testing of convicted prostitutes. The Court found that the public health goal of determining whether prostitutes were HIV-positive at the time of the offense could not be reached [79].

Most other cases concerned the constitutionality or lawfulness of judicial decisions to test defendants in the absence of a specific state statute. Many courts allowed such testing with little apparent differentiation being made between defendants--such as to the nature of the offense or whether the defendant was charged or actually convicted. The Roberts court [75] held that forced blood tests were "routine in today's society", and that the government had an interest in protecting victims.

People v. Durham [80] is a perplexing case because it arose from a New York City Police Department Laboratory position that the lab will "not, as matter of policy, analyze" a semen sample when there is an indication it may be contaminated with HIV. The court pointed to three reasons for the constitutionality of testing a defendant charged with sexual assault. The defendant himself had raised the possibility of AIDS; the legislature allowed for it; and the defendant did not claim a particular health or religious reason for not having the test. Additionally, the court said, the victim has a right to know the serostatus of her attacker.

Some cases appeared to go beyond the usual set of facts. In In re Anonymous [81] a test was performed on a man who bit police officers. The test was performed while he was tied to a wheelchair. The New York Court of Appeals rejected the defendant's motion without comment. Other courts upheld testing of persons charged with attempted murder for the biting of a police officer [66, 83].

In Barrows [84] an appellate court reversed an earlier court decision upholding the testing of a defendant convicted for masturbating in a public bathroom on a charge of moral turpitude.

The critical need for enlightened public health and judicial policy is illustrated by People v. Darby [70]. A defendant accused of raping a 17 year old student pleaded guilty to the charge. A plea bargain was arranged whereby the defendant agreed to submit to an HIV test in exchange for a reduction in sentence from 8-25 years to 5-15 years.

V. State Regulation of Public Places

Most courts have shown little hesitation in upholding the constitutionality of government regulation or even closure of bathhouses [ALP I, 108]. The courts' view is premised on the theory that danger to the public health is created which results from sexual activity in these bathhouses. In some states, however, counties may need specific authority from the state legislature before issuing regulations [109]. Several new cases are pending in which municipal authorities are trying to close [112] or require a license to operate [113] a bathhouse.

Regulation of adult book and video stores requires a balancing of the First Amendment freedom of expression and the state interest in preventing sexual activity within a closed booth. Many municipalities are trying to regulate adult stores by imposing licensing requirements and by ensuring that video booths are visible, well-illuminated and not obscured by any curtain or door [114-116]. Courts have upheld regulation of adult stores provided that the action is not excessive or punitive.

The Eighth Circuit Court of Appeals in Doe v. Minneapolis [115] provides perhaps the clearest statement on the constitutionality of such regulation. The regulation's constitutionality depends upon several factors. The ordinance must: (i) be content neutral because it does not censor certain ideas; (ii) serve a significant government interest in reducing the spread of HIV; (iii) be narrowly tailored to serve the valid governmental interest in controlling the spread of HIV; and (iv) allow alternative channels of communication of sexually explicit material by permitting customers to view the material at home or in an open booth [see also 114].

Ellwest Stereo Theatre v. Boner [116] shows how government can go too far in its regulatory scheme. The Court upheld the requirement of a license for persons operating the adult establishment and the requirement to submit to an inspection. However, a license could not be withheld from applicants who have been convicted; a license could not be required of all employees; the license fee could not exceed the expense of issuing licenses; and the government could not burden the operator with onerous license renewal requirements. The Ellwest decision that it was unconstitutional to ban totally nude entertainment was given before the Supreme Court ruling in Barnes v. Glen Theatre, Inc, 1991 WL 106079. In Barnes, the Court held that an Indiana statute prohibiting complete nudity in public places furthered a substantial government interest in "protecting societal order and morality." The Court noted that the statute made an incidental limitation on expressive activity, but said the purpose of the statute was to bar public nudity, not erotic messages, and it did not violate the First Amendment.

VI. State Regulation of Products, Fraud, etc.

In March of 1988 the Food and Drug Administration (FDA) began notifying home testing kit applicants that their applications would not be approved unless the kits were intended for professional use only. In the following year, the Federal Trade Commission brought charges of deceptive practices against three defendants who falsely represented that their home testing kits received FDA approval and that the Surgeon General recommended HIV testing for everyone in the United States [117].

On April 25, 1990, the FDA announced that it would begin accepting applications for approval of home testing kits. In May of 1990 a settlement was reached between a pharmaceutical company and the FDA; the FDA agreed to decide within 120 days whether the plaintiff could market a home testing kit [115].

States also moved to ensure high quality laboratory standards. New Jersey closed one laboratory for dumping untreated blood (some of which was HIV-positive) and for altering test results [122].

Research and treatment were also the subjects of law suits. A temporary restraining order was issued against ACT UP when the group sought release of a protocol designed to test AZT's effectiveness in infants [120]. In Lyphomed [121] a pharmaceutical company filed suit against another company for distributing pentamidine without authorization.

VII. Private Tort Actions

The section on private tort actions presents a highly diverse number of law suits which shows how socially divisive the HIV epidemic has become.

A. Negligence

A Baltimore television station was sued for libel after it criticized a for-profit business venture providing HIV testing. The company provides ID cards to those customers who have tested negative for HIV. The U.S. Court of Appeals for the Fourth Circuit upheld the summary judgment in favor of the television company because it did not make any false material statement and did not mention the investors in the testing company [123].

A U.S. District Court held that a laboratory has a legal duty to the patient to reasonably perform an HIV test [125]. The laboratory incorrectly reported that a life insurance applicant was HIV-positive. The Court ruled that the factual question whether the laboratory breached its duty of care should be decided at trial. The Court did not find an intentional infliction of emotional distress in sending an incorrect blood test result because it was not an extreme or outrageous act. [For another case showing the personally tragic outcome of an incorrect HIV test, see 133].

Other courts have concurred that in carrying out HIV tests, companies have a general duty to avoid causing harm to the patient [126].

Tort litigation among sexual partners is also expanding with the HIV epidemic. Courts have continued to allow private tort actions based on the premise that a partner negligently or intentionally transmitted a venereal disease [130, 150. See also 168]. However, a person is not liable for transmitting HIV if she should not reasonable have known she was infected [134].

In Brown v. Shapiro [140], the plaintiff was artificially inseminated with HIV-contaminated semen. The semen was tested but the results were not made available until two weeks after the procedure. A jury awarded damages, but the plaintiff could not collect them because the jury found no negligence.

Persons with HIV/AIDS are even civilly sued for biting. The West Virginia Supreme Court is reviewing a negligence case where a security guard was awarded $1.9 million for being bitten by a person with AIDS.

An illustration of just how stigmatic an AIDS diagnosis continues to be is presented in McCune v. Neitzel [135]. The Nebraska Supreme Court upheld a jury ruling awarding damages for slander when Neitzel told people in their small town that McCune had AIDS. McCune lost his job and had to re-locate after this information was spread. In Doe v. Price [156] a funeral director did not embalm the body of a person who died of AIDS. Instead, the body was left in the local mortuary for four days [see also 167].

A few cases of accidental needle stick injuries have been litigated in court. The Prego case [137] involved a physician who alleged that the hospital was negligent in leaving a contaminated needle in the bed sheets. Dr. Prego settled her case for an undisclosed sum of money.

In another health care case [147, 148] a medical student accidentally stuck an HIV contaminated needle into a nurse who was assisting him. The nurse is suing the medical student. The student filed a petition to obtain legal backing from the state and county government since he was a student at the State University at the time.

Some cases involved needlestick injuries outside the health care system. in Doe v. Hyatt Hotels [178] a New York attorney sued the hotel for negligence after being stuck by a needle left in his room. The case is pending. In Doe v. Cedars Medical Center [151] a janitor sued the hospital after being stuck with a discarded needle.

Patients who contract HIV are claiming the right to prompt notification so they can seek early treatment. Physicians and hospitals are susceptible to lawsuits for failing to promptly notify patients [143, 158].

Many of the negligence cases turn on the technical issue about the timeliness of the action. The question of when the statute of limitations begins to run is of critical importance and is the subject of a great deal of litigation [e.g., 123, 125, 126, 136- 138]. A number of these cases involved alleged negligence in relation to blood transfusions [e.g. 145, 155].

B. Confidentiality Versus the "Right to Know"

A majority of states have HIV-specific confidentiality statutes. Doe v. Roe [141] describes one state statute which clearly protects the confidentiality of HIV related information. However, the statute does allow disclosure pursuant to a court order, except if the evidence is being introduced only to show proof of character.

A key policy question, still unresolved in law, is to what extent a physician has a duty to warn third parties about his or her patient's communicable disease. In DiMarco v. Lynch Homes- Chester County [160] a Pennsylvania Court held that a physician has a duty to inform a non-patient, non-married sexual partner of a patient's communicable disease. The case involved a sexual partner who contracted hepatitis B, but the court cited AIDS as another example of the principle.

C. Workers' Compensation and Other Benefits

Workers' compensation can have a significant impact on litigation involving risks of transmission of HIV. Questions have arisen about whether a worker contracted his or her infection at work [162]. In some test cases, the plaintiff must first prove he or she is not eligible for workers' compensation [163]. In pursuing a claim for workers' compensation, the question of how confidential the information would be kept becomes an issue [164].

D. Contracts and Wills

Disputes continue over the estate of persons who have died of AIDS. Often these disputes are between families and homosexual lovers [166, 169]. Many of these disputes could be avoided if persons with AIDS received appropriate legal advice about planning their estate.

VIII. Administration of Justice in the Courts

A. Confidentiality of Court Proceedings

Because of the stigma still attached to HIV in some segments of society, plaintiffs may wish to seal the record in AIDS litigation. Courts recognize the stigma the public attaches to persons with AIDS and may even allow anonymity [170]. However, the right of the public and the press to examine all civil and criminal proceedings provides an overriding justification for open proceedings. Accordingly, the courts have usually refused to seal the record [170, 171].

B. Expedited Trial

Plaintiffs with AIDS often seek to expedite judicial proceedings since they have a terminal condition. They argue that in their cases delayed justice may result in no justice at all [172, 173].

C. Prejudice to the Trial

In ALP I several cases were reported where judges allowed the use of rubber gloves and other "precautions." Persons with AIDS claimed that such visible displays prejudiced their trials. In Minnesota v. Santos [174], a U.S. District Court upheld a trial court decision to force the defendant to wear leg irons and to allow court officials to wear rubber gloves. The court reasoned that the defendant had a "propensity to run" and had "misconduct," and because of his "apparent status" as being HIV-positive.

IX. Family Law

The mere fact that a parent tests positive for HIV does not constitute grounds for diminution in parental rights. Provided the parent is still capable of providing the care and nurturing required by the child, he or she can continue to maintain custodial rights [176, 179]. Nor does the simple fact that the parent is homosexual or capable of transmitting infection sufficient to deny custody [177]. Still, some courts continue to believe that it may not be in the child's best interests to be with a homosexual parent. In J.P. v. P.W. [178] the court held that a homosexual father may visit his daughter only when supervised by a "responsible adult," and that overnight visits were "impractical."

X. Confidentiality

A. The Media

Courts have given the media considerable leeway in presenting information about persons living with HIV/AIDS. An article reporting that plaintiff Dorsey, also known as Englebert Humperdinck, had AIDS was not defamatory even though the information was unconfirmed [181]. The newspaper simply reported a claim made in a legal affidavit. California law confers an absolute privilege to publish a "fair and true" report of statements made in the course of judicial proceedings. Even a county sheriff who informed the press about an "AIDS prisoner" could not be held liable [183]. The courts regarded the prisoner as a "public figure" because he was involved in a public controversy about AIDS in prison.

Sometimes press reports can be hurtful such as the report that Gary Grodin died of AIDS [186]. His children had not previously known his cause of death, and they experienced embarrassment and discrimination at school.

B. Unauthorized Disclosure

Court cases continue to reveal breaches of confidentiality in law enforcement [187], schools [188], the workplace [189], the health care system [191, 192], and among friends and sexual partners [190]. The courts are often willing to find a constitutional, statutory or common law right to privacy. For example, in Doe v. Barrington [187] a federal district court found a constitutional right to privacy that was breached by the disclosure by a police officer that an arrestee had AIDS. The information was disclosed to neighbors who were told to wash with disinfectants. The neighbors removed their children from school, and contacted other parents and the media incorrectly telling them that the arrestee's children were infected. His children were shunned at school, the landlord refused to provide maintenance service, and the parents threatened a school boycott. In Urbaniak v. Newton [189] a patient voluntarily disclosed his HIV status to a nurse so that she would be careful sterilizing reusable metal probes. The medical report disclosed his status to the insurance company who then denied him benefits. In Little Bird v. Chase [191] a doctor on the Indian Free Clinic disclosed a patient's HIV status to his dentist. The dentist canceled all further visits leaving him in great pain. He was denied treatment by all other dentists at the clinic.

C. "Right to Know"

The conflict between the right to privacy and the right to know in the HIV epidemic has been debated both in the legislature and the courts. The "right to know" a person's HIV status has been claimed, inter alia, by police [195], health care workers [197], and insurance companies. Sometimes workers have sustained a percutaneous exposure to blood and they wish to know if it was contaminated with HIV [195, 197]. These cases, in absence of a statute, are as yet unresolved. In re Lacy [196] Allstate Insurance was granted the right to see the file of a state coroner in order to determine if the deceased had lied on his life insurance application about his IV drug use and HIV status.

XI. Discrimination

In ALP I we reported a voluminous number of cases where discrimination was alleged before courts and human rights commissions. ALP I reported that, while most cases involved discrimination in employment and schools, a clear trend toward discrimination in the health care system was discernible. That trend continues, although many cases of discrimination in all sectors are reported.

Since ALP I, the Americans with Disabilities Act was enacted. That Act is implemented in stages beginning January 1992. It could have a powerful effect on caselaw developments. A. Education

A new accommodation between the interests of parents and HIV- infected children at school has emerged. The Fourth Circuit Court of Appeals upheld a new policy which allows an infected child to stay in school. The community is informed that an HIV-infected child is in school, but the name of the child is not revealed. The number of staff at the school informed of the child's condition is kept to a minimum.[198].

Most courts reviewing education cases hold that children living with HIV/AIDS have the right to attend school either under the Federal Rehabilitation Act (which prohibits discrimination against persons with disabilities) or the Individuals with Disabilities Education Act (which requires states to provide free appropriate education in the least restrictive environment) [198- 200, 202]. Still, sometimes litigation delays are so long that the child has died before being given the right to attend school [199], or the court requires a particular condition such as use of a separate bathroom [198] or building a glass cubicle [199]. In Martinez [200], reported in ALP I, a federal district court removed the requirement of a glass cubicle after the child had learned not to suck her thumb and was being toilet trained.

B. Employment

Discrimination is evident within a wide range of employment settings ranging from legal services [204], the military [205] and private industry [206, 213, 214, 224], to more personal services such as sales [207, 225, 231], food workers [203, 208-210, 212, 222, 230, 234] teachers [223] and health care workers. Courts cases have also been filed against federal programs such as the Job Corps [218].

Courts have re-affirmed clearly that all stages of HIV disease from asymptomatic infection to full blown AIDS is a disability within relevant state and federal disability law [204, 206, 222]. The West Virginia Supreme Court, for example, held that all stages of HIV disease are handicaps [223, 224, 234, 235]. The court said that even at the earliest stages, HIV impairs the immune system. The court found, most importantly, that HIV "limits socialization" which is a major life activity.

Some state courts, however, continue to construe their statutes as not covering perceived disabilities [208] or not covering asymptomatic infection [210]. This could, for example, preclude recovery in the case where a person was fired because she worked at the AIDS Foundation. Since she was not herself disabled she could not sue under the state disability act [213].

Some state disability statutes require persons alleging discrimination to bring the case to the state human rights commission before bringing it to court. If persons living with HIV/AIDS do not first exhaust their administrative remedies, they may be foreclosed from any claim [212].

Despite the narrow reading of some state disability statutes, most persons discriminated against have a potential remedy. Many state courts and human rights commissioners have issued awards or have overseen generous financial and equitable settlements [222- 226, 232]. For example, in Racine Education Ass'n v. Rouse Unified School District [223--updated since ALP I], the court upheld a teachers' association challenge of a school district policy to exclude staff members with AIDS and to automatically place them on a leave of absence without pay. Other courts have awarded back pay as well [209].

The courts often were prepared to pierce the veil of the alleged reasons for the discriminatory treatment and search for the real reasons. Courts rejected arguments that other employees feared the employee with AIDS [204]. This "was clearly a non-job related excuse...The employer's obligation not to discriminate against a handicapped person is not circumvented by the employees' unreasonable fears of that person."

In several cases, courts or human rights commissioners were impressed with the employee's "exemplary" behavior [207, 221]. A court found discrimination even where the employee lied by saying he needed time off to attend a manufacturer's meeting when, in fact, it was time off for treatment. Since he had exhibited no disloyalty or untruthfulness except regarding his medical condition, he should not be discriminated against. Courts were generally sympathetic to the need for reasonable accommodations including flexible schedules and time off [219, 229]. A person's fitness for work was the paramount consideration [227].

C. Housing Discrimination

Housing for persons infected with HIV represents one of the most important needs, and rights, of persons living with HIV/AIDS. Housing needs range from simple shelter to needs for nursing, care, support, treatment, and even foster care. For example, in Christopher v. Barry [239] a 15 year old ward of the District of Columbia was placed in St. Elizabeths Hospital pending a placement in a foster home. Despite court orders to place him immediately in a foster home, he remained in the hospital for six months [239].

Sometimes even government programs specifically designed for persons with disabilities discriminate against persons living with HIV/AIDS. In Moreau v. Kemp [240], a federal district court held that Housing and Urban Development (HUD) was wrong to refuse funding on the grounds that persons with AIDS are not handicapped. The court held that persons with AIDS or AIDS Related Complex (ARC) are handicapped for the purposes of HUD-funded housing.

Other examples of government restrictions challenged in court are the zoning restrictions in the city of Fairfield, Connecticut, used to exclude a group home for persons with AIDS [245]. In other cases, neighbors tried to prevent persons with AIDS from living in a group home [245].

Sometimes the discrimination was not blatant but involved harassment or embarrassment of tenants [241].

One court specifically rejected a claim of a landlord that persons with AIDS pose a danger or disruption in the home [244].

In re Terence Cardinal Cooke Health Center [247] a religious affiliated health care provider did not wish to provide counseling on contraception as required by state regulations.

In many cases courts do not allow housing discrimination or the case is settled favorable to the plaintiff [248].

In ACT UP v. Walp [249] a symbolic issue was litigated. ACT UP planned a protest at the Pennsylvania governor's inauguration. ACT UP was denied access to the visitor's gallery at the House of Representatives when the gallery was locked to all visitors. A federal district court held that this violated ACT UP's First Amendment rights, but the court would not grant injunctive relief for procedural reasons. The wearing of "ACT UP" T-shirts, though symbolic, is protected speech. Since the authorities admitted the closure was directed against ACT UP, their action was content related.

D. Public Accommodations, Commercial Establishments

The leading case here is Jasperson v. Jessica's Nail Clinic [250], updated since ALP I. The plaintiff was not given a pedicure because employees overheard that he had AIDS. Jessica claims that she could not force her employees to give him a pedicure even though she had seen bleeding in only 1 of 10,000 pedicures. The court held that the standard of review was not "any risk" but a "significant risk." The court observed that the tremendous discrimination against persons with AIDS is a "real and pressing concern."

Similarly, courts have held that a drug treatment facility cannot discriminate against a person with AIDS in its admissions [253]. In other cases (still pending) a person claimed he was turned away from a weekend retreat because he had AIDS [252], and another person claimed he was denied an interview when the interviewer found out he had AIDS [254].

E. Health Care

1. Failure to adequately treat or care for HIV-infected patients

Disability law prohibits health care professionals from discriminating against persons with HIV/AIDS in their care or treatment. However, it does not give any particular group a "right to treatment." Still a few cases seem to suggest some limited right of access to care. The leading case is Weaver v. Reagon [255] where the Eighth Circuit held that the Missouri Medicaid Program could not deny coverage for AZT to AIDS patients who are eligible for Medicaid and for whom physicians have certified that AZT is medically necessary treatment. Hospitals cannot rely on FDA approval statements as their eligibility requirement. In Dallas Gay Alliance v. Parkland Memorial Hospital [256] AIDS patients challenged a hospital which maintained a waiting list for AZT and pentamidine. Since this case was reported in ALP I the hospital dismantled the waiting list and the suit was dropped. A case for reimbursement of AIDS care was brought by the city of San Francisco against the state of California [270]. The state claims the treatments were unnecessary or too expensive and they lacked documentation of the need for hospital care.

Most cases in this area involve claims that health care providers refused to treat patients, referred them, or treated them badly because they were infected with HIV. Refusals to treat occurred on a wide variety of medical specialties including invasive procedures such as surgery [257, 267] and non-invasive therapy such as psychiatry [261] and chiropracty [262]. In Parks [284] a person disabled by an AIDS-related stroke sought vocational rehabilitative services. The Virginia Department of Rehabilitative Services has an explicit policy refusing to provide services to persons with AIDS. The case is pending.

In many cases, patients with AIDS claimed that providers simply refused to treat them [e.g., 262]. In others, patients claimed an invidious pattern of referral, particularly when providers verbally expressed reservations and discomfort about testing persons with AIDS [272]. Some providers defended their actions by saying that it was unfair and risky to perform elective procedures [257, 267]. The question arises as to what is "elective." In Glantz v. Vernick a patient was denied "elective" ear surgery despite suffering "severe, prolonged, pain."

Two areas of discrimination continue to be of concern: nursing homes and dentists' offices. In ALP I we reported a generalized policy in some areas against admitting persons with AIDS into nursing homes. This policy was apparent in several cases reported in ALP II [264, 265, 266]. A New York trial court held that the state Department of Health has jurisdiction to require nursing home care. A consent agreement states that nursing homes "will no longer reject all patients who are HIV-positive and will begin training all their staff on how to care for HIV-positive patients" [264]. In other cases, the nursing homes pledged no more discrimination and provided a financial settlement [265, 266]. Sometimes nurses out right refused to provide care and in other cases they simply delayed [259].

A number of cases involved dentists refusing to provide treatment [263, 269, 271, 283]. In some cases patients were left in severe tooth pain. In a case before the Department of Human Rights and Minority Business in Washington, D.C., a patient with AIDS complained that no dentist within an entire group dental plan would provide treatment. The patient was informed that he would have to have dental work performed outside the plan at his own expense [303].

Some cases involved poor treatment rather than treatment refusals such as isolating persons with AIDS and using gloves, gown and masks [258]. One dentist examined the patient's mouth from a distance of two feet and refused to touch him [263]. In another case, a health care worker simply assumed a patient was HIV- positive because he was a homosexual. The patient alleged he was subjected to an HIV test without consent, was denied access to psychiatric services, and was arbitrarily placed on blood and body fluid precautions. He also alleges that his employer was notified [280, see also 281].

In Baby Angel v. Koch [268] five specialized needs "boarder babies" were kept in New York City hospitals, not because they needed hospital care, but because they had nowhere to go. The case awaits trial.

A significant gap in coverage under the federal and state disability law is presented in several areas. The gap concerns whether private physicians' and dentists' office are public accommodations for the purposes of disability law. In Elstein [260] the New York Appellate division held that the State Division of Human Rights has authority to define a doctor's office as a place of public accommodation. A trial court in New York held that a private dentist's office was not a public accommodation [272], while another case is still pending in a different jurisdiction [269].

This gap will be filled when the Americans with Disabilities Act is implemented. That law specifically includes private medical and dental offices as places of public accommodation.

2. Refusal to provide premises to professionals providing services to persons with HIV/AIDS

Discrimination appears to be directed not only at AIDS patients themselves but also at professionals who are offering them care. In Association of Relatives and Friends of AIDS Patients [273] plaintiffs (ATAPS) were denied a zoning permit for a hospice for AIDS patients. The court found "discriminatory intent" because of heavy lobbying and local opposition to the hospice and because of selective enforcement of the zoning ordinance. The discrimination, moreover, denied persons with AIDS a place to live. [Other cases involved opposition to nursing homes for people with AIDS--275].

One court went so far as to allow punitive damages when defendants broke an agreement to provide office space after discovering it would be used to provide treatment for persons with AIDS [274].

3. HIV-infected health care professionals: testing and limitation on the right to practice

In ALP I we reported two important federal cases involving testing of health care workers. In Glover v. Eastern Nebraska Office of Retardation a requirement by a mental retardation facility to test its staff for HIV was found unconstitutional because the risk of transmission of HIV was low, "approaching zero." The District Court in Leckelt v. Bd. of Comm'rs of Hosp. Dist. No. 1, however, upheld a hospital's decision to require a nurse to be tested because the hospital reasonably believed he was HIV-infected. Since ALP I the Fifth Circuit Court of Appeals has upheld the District Court's decision in Leckelt [276]. The Fifth Circuit reasoned that Leckelt was dismissed for failure to comply with hospital policies, not because he was perceived to be HIV- infected.

Since Glover and Leckelt, the U.S. Public Health Service (PHS) and the U.S. Congress have been actively examining the question of testing and practice restrictions for health care professionals performing invasive, exposure prone procedures. The PHS has issued guidelines and, at time of writing, the Senate has passed two bills which effectively require testing for professionals involved in invasive procedures.

A New Jersey trial court in Behringer v. Medical Center recently upheld a hospital policy that required HIV-infected professionals performing invasive procedures to obtain the patient's consent. Other hospital policies requiring health care workers infected with HIV to get specific informed consent from each patient prior to performing invasive procedures are pending [277]. But, the U.S. Department of Health and Human Services (DHHS), Office for Civil Rights ruled that a hospital could not dismiss an HIV-infected surgical technician without offering him another position or providing him with an internal review [278]. The technician assisted surgeons in holding open chest cavities, holding organs, and providing surgeons with medical instruments.

Many cases of infected professionals did not involve invasive procedures at all. Cases were brought by pharmacists and by general internists claiming that they were fired or unfairly treated because of their HIV status [279-285].

Courts and human rights commissions usually adopt a standard of "significant risk" in assessing whether an HIV-infected professional can work. The key factor, as clarified by the CDC guidelines, is whether the professional is engaged in invasive procedures where the risks of transmission are higher. Thus, courts and human rights commissions are more likely to uphold reasonable restrictions on the practice of exposure prone invasive procedures [Behringer] and strike down testing and restrictions for non-invasive procedures [279, 285]. A critical question becomes how the term "invasive" should be defined. The Leckelt court adopted an expansive definition which implicitly included IV equipment used by nurses. The appropriately more narrow definition in current CDC guidelines will become useful in guiding future courts.

F. Insurance

A potentially unresolvable conflict exists between insurers and persons with HIV. Insurance companies often regard HIV as an uninsurable condition, while people at risk for infection with HIV may seek some financial security in the form of life, health, or disability insurance. The result is an escalating number of court cases around the validity of insurance policies.

Most of the insurance cases involve alleged misstatements by the applicant. These statements are either about the applicant's HIV status [286], some other status which may be indicative of HIV such as HBV or herpes infection [287, 302], or even some completely unrelated condition such as a back condition [290]. The standard for insurance misrepresentation given by one court was that the statement must be either fraudulent or material. There was no requirement that the applicants' misrepresentation be intentional [290]. The case concerned a person who purchased a disability policy. He was unaware of his HIV status. Four months later he tested positive for HIV and purchased a second disability policy. The company refused to pay for either policy and the court upheld the company decision.

The Eleventh Circuit Court of Appeals came to a somewhat different decision in William Penn Life Ins. v. Sands [286]. After one insured dies and the beneficiary tested positive for HIV, the company refused to pay death benefits and rescinded both life insurance policies. Neither applicant knew of his infection at the time of the application. The Court acknowledged that under applicable state law a material misstatement would provide a basis for rescinding the policy even if the applicant could not have known that his statements were inaccurate. A truthful response to a question based on the applicant's "knowledge and belief," however, cannot be considered a misrepresentation. The company was required to honor both policies.

One plaintiff alleged that the insurance company tested him without consent [288]. There appeared to be fewer cases alleging testing without consent than in ALP I. One reason for this may be that it has become more settled law that insurance companies may require testing so there is no need for testing without the patient's knowledge. For example, a New York court held that the Superintendent of Insurance exceeded his authority in banning the use of HIV testing for individual and small group health insurance [294].

Several insurance companies appeared to go to some lengths in trying to avoid insuring persons who might be infected with HIV. In Murphy v. State Farm [289] the company denied coverage of a widow and her two children after her husband died of AIDS. A federal district court held that, even though the company used medically incorrect underwriting standards, it was within its rights to deny coverage. The court ruled that the company had no duty to contract with the applicant.

The National Gay Rights Advocates and the Great Republic Insurance [297] settled a case for a total of $185,000 when the company used sexual orientation in its underwriting decisions. Yet, within days of the settlement, the company announced it would be canceling 14,000 Californians. The company was sued again by a person with AIDS claiming breach of contract [300].

In Cheney v. Bell Nat'l Life [293] a company refused to pay a benefit based upon a clause in the contract exempting accidental death from a disease. The Maryland Supreme Court found in favor of the company saying that transfusion of HIV-contaminated blood to a person with hemophilia was an accidental death.

In Bradley v. Empire Blue Cross a person in an advanced stage of AIDS asked the company to pay for a bone marrow transplant from his identical twin. The company refused to pay on the basis that it is an investigational procedure. The Court ordered the company to pay but by that time it was too late. The patient had developed an eye infection preventing the transplant.

Several cases involved insurance benefits provided by employers and concerned the rights of employers under ERISA and COBRA [291, 292, 296, 298]. McGann v. H & H Music Co. [292] is an important case where an employer switched insurance plans to reduce the cap on AIDS-related benefits from $1 million to $5,000. A federal district court held that the employer had a right to change the plan and the employee had no right to health benefits whose terms never change. The employer had suffered serious losses from other AIDS claims. The company complied with ERISA by supplying employees with written notices of the revision in their plans. The case has been appealed to the Fifth Circuit.

In Doe v. Cooper Investment [296] a settlement was reached after an employer fired a person with AIDS because he would present such a burden to the health plan. The plaintiff was told he would have to pay all the premiums to continue coverage and later his policy was canceled altogether.

XIII. Special Populations: Prisons

A. State's Duty to Protect Guards and Inmates: Testing, Screening and Segregation

The medical and social problems posed by the HIV epidemic tend to become magnified in the prison setting. Policies that have been discussed and implemented in many correctional systems include testing and segregation from uninfected inmates. Yet, ten years into the epidemic there is not a settled view as to whether these policies are beneficial to the public health or whether they are constitutional.

For the most part courts have upheld the judgement of correctional officials on whether or not they choose to screen. Many courts have upheld correctional decision to screen and/or segregate. One federal district court said prisoners had no fundamental right to reside in the general prison system, and segregation protects other inmates [329].

Perhaps the most ardent defense of screening and segregation was supplied by a federal district court in Alabama in Harris v. Thigpen [313]. Prisoners in the Alabama correctional system challenged the constitutionality of a state law requiring all incoming and outgoing prisoners to be tested for HIV. They also challenged the practices of the state Department of Corrections including segregation of HIV-positive inmates, denying inmates access to educational and vocational programs, as well as adequate medical and psychological care.

The Court upheld screening and segregation as reasonable measures necessary to protect guards and other inmates from exposure. The Court said inmates claim privacy rights that "do not exist." By committing crimes they have forfeited their "right to be left alone." The Court found that HIV-positive inmates "selfishly assert their rights to expose other inmates to their problems..." The inmates, moreover, have no right to hearing prior to segregation.

A particularly clear statement of why compulsory testing is not unconstitutional was provided by the Tenth Circuit [324]. The Court held that a prisoner's right to decline to submit to an HIV test is outweighed by the prison system's interest in determining the number of infected persons in the system, limiting the spread of the disease, and treating infected individuals.

The Ninth Circuit held that prison officials must show that testing is "reasonably related to legitimate penological interests." General protestations of concern are insufficient to justify testing [312].

Courts are just as inclined to uphold correctional decisions not to screen or segregate. Several cases were brought by HIV- negative inmates claiming the right not to be housed with infected persons [314, 316-318, 328, 330, 331]. Although some of these cases are pending it is unlikely they will be reviewed favorably. Even cases where individuals claimed they were isolated in the same cell as a person with AIDS and were exposed to tuberculosis were not upheld [328]. The key issue is exposure to HIV and many courts now recognize the lack of casual transmission [326].

Cases involving testing and segregation are also likely to discuss the privacy rights of inmates [322], a subject discussed in the next section. Other cases of segregation also allege a denial of access to adequate medical care, vocational training, and decent conditions. These claims, usually made under the Eighth Amendment, are also discussed below.

B. Civil Rights of Inmates

1. Disclosure of serological status: privacy and confidentiality

Privacy claims arise in a wide array of cases. In some cases prison officials disclose the inmates serological status without consent [321, 323]. Inmates argue this disclosure causes severe mental anguish, depression, humiliation and harassment [319]. In other cases, the inmate's HIV status is disclosed because he is singled out in some way such as by requiring him to wear a hygiene suit which completely enveloped him [319]. In other cases, privacy is violated when the health department is asked to disclose to prison officials the results of an HIV test the inmate was told would be voluntary and confidential [320].

Courts have ruled that wrongful identification of a person with AIDS can breach his or her right to privacy [319, 320, 343, 344].

2. Inadequate medical treatment: cruel and unusual punishment

The standard for review of claims alleging inadequate medical care and inhuman conditions reported in ALP I was that authorities must have shown a gross indifference to the needs of prisoners. This narrow standard was limited still further by the Supreme Court in Wilson v. Seiter, 111 S.Ct. 2321 (1991). The Supreme Court ruled that Eighth Amendment claims must show that the correctional officer actually intended the inadequate treatment alleged. The Court said that the "deliberate indifference" standard applied in Estelle v. Gamble, 429 U.S. 97, to claims involving medical care applies to prisoner challenges to conditions of confinement. This will be a hard standard for prisoners to meet. The cases reported in ALP II all preceded the Supreme Court decision and must be read in this light. It is unlikely that many would be able to succeed under this more narrow standard.

Prisoners with AIDS who were subject to segregation or isolation have alleged singularly inadequate medical treatment and conditions. Most cases alleged inadequate medical care for AIDS and other conditions, as well as denial of access to a wide range of prison facilities and privileges such as exercise, television, attendance at religious services, employment and work release, treatment of drug and alcohol dependency, inhumane housing conditions, and discriminatory treatment [329, 332, 333, 337]. Some prisoners claimed that poor conditions resulted in pain, injury, and premature death [341].

The lack of medical attention alleged in some cases appeared to place prisoner's health at risk. Cases included the failure to see a doctor while suffering from chronic hepatitis and cirrhosis of the liver, together with pneumocystis carinii pneumonia (PCP) [338]; a prisoner was not given medical attention, food, or water and lost consciousness [336]; and a prisoner was not diagnosed as having AIDS and died without receiving medical treatment for AIDS- related conditions [340].

Some prisoners claimed the right to AZT [339, 342]. In one case, the prisoner received the AZT and a transfer after filing his court case [339].

While most cases claiming inadequate conditions and treatment have failed, a federal Court in New York held that evidence existed to demonstrate a deliberate indifference to medical needs relating to a wide range of serious AIDS and non-AIDS-related conditions [338]. Because the court saw "deliberate" inattention it would raise to the level envisaged by the Supreme Court in Wilson v. Seiter.

A federal District Court in Connecticut issued a comprehensive consent decree under which prisoners with HIV/AIDS would no longer be segregated and would receive guaranteed access to religious counseling, laundry and cleaning services, medical and mental health care, and improved housing facilities [334].

XIV. Special Populations: Military

A key concept in discrimination cases arising in the military is that persons in the military are excluded from the protection of the Federal Rehabilitation Act [345]. Still, cases of discrimination have been brought [347, 348]. In Brisbois v. Marsh [348] an HIV-positive soldier was housed in a special wing known as the "HIV hotel" or the "leper colony." The issue in the case (still pending) is whether the Army is liable for illegal quarantine under the Military Code.

The Military Courts continue to uphold the lawfulness of "safe sex" orders given to HIV-positive personnel [349]. The Military Courts similarly uphold charges of aggravated assault stemming from sex without informing the partner of his serological status [350].

We also report a number of contaminated blood transfusion cases in the military. The decisions are broadly in line with those occurring in civilian courts.

XV. Homeless Persons

Persons living with HIV/AIDS who are also homeless present a pressing social problem, and a few court cases illustrate that problem. In William v. Dist. of Human Services [358] homeless persons with AIDS asked the court to invalidate a New Jersey Department of Human Services regulation which automatically terminated housing benefits after five months. The Court upheld the regulation, but only if the state could demonstrate that the person in need would receive alternative housing services.

In ALP I we reported Mixon v. Grinker [359] where the court issued a preliminary injunction providing plaintiffs with interim housing pending trial. Three homeless men infected with HIV, and the Coalition for the Homeless contend that New York City shelters are occupied by people with infectious diseases and to house persons with AIDS there is a public health danger. The New York Court of Appeals ruled that the Coalition has standing to continue this suit.

910801
ALAW0006