Bay Windows - Local News, March 1,2001
Peter Cassels, Bay Windows Staff

In what activists described as an important ruling, the Massachusetts Supreme Judicial Court issued an opinion Feb. 15 upholding the state's stringent confidentiality law protecting the right not to divulge a person's HIV status. In a Feb. 21 decision, the U.S. Supreme Court took away the right of state employees to seek recourse against discrimination under the Americans with Disabilities Act (ADA). However, in many cases, those employees are still able to file suit under state laws which bar such discrimination.

In Commonwealth of Massachusetts v. Luis Ortiz, Justice Martha Sosman overturned a Jan. 25 order of the Springfield District Court that a criminal defendant inform police whether he is HIV-positive.

In University of Alabama v. Garrett, the U.S. Supreme Court ruled 5-to-4 that employees of the state of Alabama may not recover money damages in two separate cases regarding the state's failure to comply with Title I of the ADA.

The Lambda Legal Defense and Education Fund had filed a friend-of-the-court brief arguing that the ADA was the U.S. Congress's appropriate response to exclusion of people with disabilities from state employment, facilities and services, and saw the ruling as a continuing attempt by the Supreme Court to undercut the law's effectiveness.

Gay & Lesbian Advocates & Defenders (GLAD) of Boston was one of 19 other civil-rights groups that joined Lambda in filing the brief. ``This is an expected but extremely disappointing decision," GLAD attorney Bennett Klein told Bay Windows. ``But it relates only to a narrow and specific class of lawsuits -- those filed by state employees against state government under federal law."

Klein said the decision does not in any way affect lawsuits under the ADA against private employers or against public accommodations such as medical offices or other businesses. Neither does it affect ADA claims by employees of municipal governments. And, he added, virtually every state, including all of those in New England, has state laws that protect and allow state employees to sue their own governments for disability discrimination. However, in some states the remedies may not be as effective as those provided by the ADA.

``There are many important issues affecting people with HIV that have been in front of the Supreme Court on 5-4 decisions," Klein explained. ``This decision shows us how deeply divided the Court is and how one additional appointment to the Court can significantly affect the landscape for civil rights for better or for worse."

The Massachusetts Supreme Judicial Court order upholding the state's HIV confidentiality law stemmed from a Jan. 22 incident in which Springfield police responding to a domestic disturbance at an apartment found Luis Ortiz covered in blood and wielding a large butcher knife. According to court documents, despite orders to drop the weapon, Ortiz advanced on the officers, still brandishing the knife. One of the officers drew his service revolver and shot Ortiz twice. Police reported that Ortiz continued to resist and, while subduing him, officers were exposed to his blood. The officers contended that they did not have sufficient time to take measures to protect themselves from exposure.

During Ortiz's arraignment, the prosecutor filed a motion to disclose medical information that asked the Springfield District Court to order Ortiz to provide ``any or all medical conditions from which he suffers or has been diagnosed in the past relating to infectious disease(s)."

The prosecutor provided no medical evidence but told the court that the arresting officers had concerns about their exposure to the defendant's blood and that information on his HIV status was needed to determine any medical treatment the officers might require. The judge presiding at the arraignment agreed, but stayed the order when Ortiz's attorney said he would file an interlocutory appeal. Justice Sosman heard the appeal Feb. 14.

According to GLAD, which filed a friend-of-the-court brief on behalf of itself and the AIDS Action Committee of Massachusetts, the case marks the first time an appellate court has addressed the issue of whether any exceptions to the state's HIV confidentiality law were implied in the language of the statute.

``[The case] is really important because the court summarily rejected any argument that the Legislature left room for important exceptions," Klein told Bay Windows. ``If this decision had come out any other way, it would have created a big hole in our HIV confidentiality."

In her ruling, Justice Sosman indicated that the law reflects the Legislature's judgment that the ``absolute" confidentiality of a person's HIV status is the best way to protect public health. With no AIDS cure or vaccine available, Klein explained that the public health strategy to control the epidemic has been to encourage individuals to be tested for HIV and counseled about how to prevent HIV transmission to others. ``Because of the stigma and discrimination associated with HIV, the privacy of HIV status has been critical to encouraging individuals to come forward for testing, counseling and care."

The statute prevents health care providers from testing a person for HIV or disclosing HIV status without written consent. Law enforcement agencies and others had argued in civil and criminal cases that there should be exceptions implied in the law based on what they believe are urgent or overriding circumstances, Klein explained. ``In other situations, such as this case, the district attorney argued that the law didn't apply at all because it provides that only health care workers cannot disclose information and no health care provider was involved," he said. ``The court squarely rejected that argument and said it was a meaningless distinction because the only way a person knows his HIV status is through the provision of health care."

Klein emphasized there has never been a case of HIV transmission to a public safety or law enforcement officer. ``While the concerns of the police officers here are understandable, public health officials in this case agreed that knowledge of the defendant's HIV status...would not have been of benefit..." ### USEFUL LINKS AIDS Action Committee of Massachusetts Gay and Lesbian Advocates and Defenders Lambda Legal Defense and Education Fund Supreme Court's University of Alabama v. Garrett decision (Must have PDF reader to read decision.)
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