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Ever since the emergence of AIDS in the early 1980s, our nation has
been struggling to cope with this terrible disease. But the
widespread fear stirred by the AIDS crisis has made the careful
development of public policy difficult. There have been unwise calls
for the curtailment of individual rights and liberties, and people
with AIDS have often faced irrational discrimination -- job firings,
exclusions from school and denials of access to health care.
The ACLU believes that Americans can conquer this disease without
surrendering their basic rights of citizenship. Proposals for
coercive responses to AIDS must be closely scrutinized so that the
AIDS crisis does not become a pretext for violating those rights.
Public policy must be based on medical facts and realities, not on
ignorance and prejudice, and the least restrictive measures possible
must be used to achieve public health goals.
The ACLU is helping to meet the challenge of AIDS through its
national AIDS Project, which guides state ACLU affiliates in
implementing a program of litigation, policy advocacy and public
education. For example, ACLU court victories have extended the
protections of existing disability discrimination laws to people
infected with the AIDS virus, and have struck down a compulsory
testing program as an infringement on constitutional rights.
Intensive ACLU lobbying helped persuade Congress to bring people with
disabilities, including people with AIDS, under the protections of
federal housing law, and to adopt the landmark Americans With
Disabilities Act, which extends federal protections against
discrimination to the private sector. The ACLU also advocates
government programs to distribute condoms and provide clean
hypodermic needles to intravenous (IV) drug users, and government-
operated facilities at which people can voluntarily receive anonymous
The ACLU is working to raise public awareness of the facts about AIDS
and has urged others to do the same: Health departments, school
systems, employers, civic groups and the mass media must all provide
unrestricted AIDS information -- especially to minorities, on whom
the epidemic has had a disproportionate impact. All of these
measures combined can maximize the public's protection against AIDS.
Here are the ACLU's answers to some questions frequently asked by the
public about AIDS, and about AIDS and civil liberties.
** What is "HIV" and what is "AIDS"?
HIV is the Human Immunodeficiency Virus, which, upon entering a human
body, interferes with the proper functioning of that body's immune
system. Once HIV has destroyed a person's immune system to such an
extent that certain infections develop, he or she is diagnosed as
having Acquired Immune Deficiency Syndrome, or AIDS (typically, this
process takes several years). Thus, HIV encompasses a range of
conditions, with AIDS being its final stage. More and more, doctors
and public health officials are referring to AIDS as HIV disease.
** What are the facts about how HIV spreads?
HIV enters the blood stream, according to current medical knowledge,
through direct exchanges of blood or blood products, or through
exchanges of semen and vaginal secretions during sexual intercourse.
Thus, some sexual activities, drug users' sharing of needles,
transfusions of infected blood and prenatal transmission account for
virtually all of the known cases of HIV transmission. In rare
instances, HIV has been detected in saliva, but it is not transmitted
HIV is not spread by kissing, touching, sharing bathroom or kitchen
facilities, or through normal workplace contact. Nor can the virus
be spread through insect bites.
** Can HIV disease be cured?
No cure for HIV disease has yet been found. However, the drug
Zidovudine, or "AZT," has been shown to prolong the lives of many
infected people. Other drugs, called prophylactics, can help prevent
certain HIV symptoms from developing. And increasingly, drugs are
being developed to treat particular infections to which people with
HIV are prone. The combination of AZT, prophylactics and other
treatments is helping to extend and improve the lives of the HIV-
infected, especially for those who receive good medical care in the
early stages of the illness.
** Doesn't HIV mainly afflict gay men and drug addicts?
No. Although it is true that in the United States most AIDS cases
have involved gay men and IV drug users, a person's sexual
orientation, race or drug use does not determine his or her
vulnerability to HIV infection.
_Anyone_ can contract HIV through exchanges of blood or other bodily
fluids. Such exchanges can occur through needle sharing,
transfusions, or sexual activities engaged in by two men, two women,
or a man and a woman. Studies of the epidemic's international impact
indicate that sexual intercourse between men and women is probably
the leading transmitter of HIV world-wide.
** To stop the spread of HIV, shouldn't the government require all
citizens to be tested?
No. Compulsory, mass testing would have few advantages and many
* Testing cannot inhibit the spread of HIV since testing itself does
not change behavior. Only an intensive HIV-prevention campaign that
includes voluntary testing, but that emphasizes counseling and
education to achieve behavioral change, can effectively curtail the
spread of HIV.
* Forced testing would tend to drive people underground, away from
the health care system's counseling and educational services.
* Mass testing programs would cost millions of dollars that would be
better spent on finding a cure for HIV, and on educating people about
how to protect themselves against infection.
* Since HIV tests are not entirely reliable, and are least reliable
when administered to large numbers of people, they are of limited
value. Mandatory testing would cause millions of Americans to suffer
from being falsely identified as infected, while many infected
persons would be falsely informed that they were not infected.
* Finally, forced testing would infringe upon constitutional rights
because the government does not have a compelling interest in
administering tests that are of limited value.
Instead of coercive measures such as mandatory testing, our
government should provide free, anonymous HIV tests, administered
with a guarantee of confidentiality and non-discrimination, to
encourage individuals to voluntarily seek this personal health
** But why shouldn't the government provide lists of people who test
positive for HIV?
Official lists of people who test positive for HIV would be of no
public health value and would cause severe repercussions for the
named individuals. Once the government had compiled such data, its
mere existence would open the way to widespread abuse of people's
rights. Insurance companies, employers, school systems and others
would immediately seek access to the data, leaving people with HIV
disease vulnerable to discrimination.
Official HIV lists would infringe on an individual's constitutionally
protected right to privacy, and fear of having their privacy invaded
would deter many people from being tested. Confidentiality is
necessary to ensure the success of health officials' efforts to raise
public awareness about HIV.
** Does the law protect the rights of people with HIV disease?
Almost all existing state and federal laws that protect people with
disabilities from discrimination in employment, housing and public
accomodations cover people with HIV disease. Typically, these laws
also protect people who are related to, or associate with, people who
HIV-infected people are protected under the Rehabilitation Act of
1973 from discrimination by entities that receive federal funding,
and under the federal Fair Housing Act from discrimination in
housing. In 1990, Congress expanded these protections with the
Americans With Disabilities Act, which protects the disabled --
including the HIV-infected -- from discrimination in the private
workplace (as of July 1992) and in places of public accomodation (as
of January 1993). The latter include the offices of all health care
providers; hotels, restaurants, movie theaters, convention centers
and health spas; food and clothing stores, and any business that
sells or rents items; dry cleaners, banks, travel agencies and any
business that provides commercial services; museums, parks, and
schools; homeless shelters, adoption agencies or programs, and all
social service facilities.
** How do these anti-discrimination laws work?
Typically, disability laws protect a person with HIV disease if that
person does not pose a "significant risk" to the health and safety of
others. Since HIV is not casually transmitted, the possibility is
extremely slim that an infected individual would pose a significant
risk on the job, in housing, or in a public facility.
In addition, most of the laws require employers to make "reasonable
accomodations," when they can do so without undue burden, to help a
disabled person perform his or her job. For example, an employer
might permit flexible work schedules for HIV-infected persons.
** But shouldn't employers be able to fire people with HIV disease?
No. Since HIV disease cannot be spread through the kind of casual
contact that occurs in most workplaces, infected persons do not pose
a significant risk in such settings. Disability laws, therefore,
protect them from medically unjustified discrimination.
** Don't HIV-infected health care workers pose enough of a risk to
their patients to be prohibited from working?
No. In the history of the HIV epidemic, only one health care worker,
a dentist, is known to have transmitted HIV to patients, and in that
case transmission is believed to have resulted from inadequate
infection control procedures. Thousands of HIV-infected health care
workers have performed millions of different procedures on patients
without any evidence of transmission, indicating that the risk of
transmission from health care provider to patient is extremely
The ACLU believes that because the risk of such transmissions is so
small, health care workers should not be subject to mandatory HIV
tests, limited in their job duties, or required to divulge HIV
infection to their patients. Instead, to address the minute risk of
transmission in health care environments, the government should
promote strict adherence to infection control procedures.
** Shouldn't school children with HIV disease be kept home?
No. There is no evidence that other children are endangered by
contact with an HIV-infected child in school.
** Have the courts enforced these principles in cases involving
discrimination against people with HIV disease?
Generally, they have. Most legal challenges to discrimination
brought by persons with HIV disease in state or federal court have
Three ACLU cases exemplify that success:
* In California, a federal court ordered a school to reinstate a
teacher whom school officials had removed from the classroom after
discovering he had AIDS.
* In Florida, a county government agreed to rehire an HIV-infected
worker and pay him $190,000 as compensation for the two years he had
* In Nebraska, a federal court declared unconstitutional a state
agency's requirement that employees of a state home for the mentally
disabled submit to mandatory HIV tests.
The ACLU has also won court challenges to the exclusion of HIV-
infected persons from housing, public accomodations and nursing
** Wouldn't the distribution of clean needles and condoms promote
drug use and promiscuity?
It is very difficult, if not impossible, to imagine that masses of
people yearn to shoot illegal drugs but are deterred by the
unavailability of clean needles and syringes. Moreover, for the
government to acknowledge the prevalence of HIV infection among HIV
drug users and yet refuse to implement programs known to be effective
in reducing that community's risk of infection is unconscionable.
Forty-seven percent of the participants in a needle exchange program
in San Francisco said that they stopped sharing needles, or at least
cleaned their paraphernalia, as a result of the program.
As for condom distribution, it does not encourage or discourage
sexual activity; it merely provides an alternative to unsafe sex and,
thus, is a vital health precaution.
** Should laws be enacted to punish those who deliberately try to
spread HIV disease?
Such laws are not needed, and would be unwise, for several reasons.
First, conscious attempts to spread HIV disease are exceedingly rare,
and existing criminal laws are sufficient for prosecuting the rare
infected individual who knowingly and deliberately infects another
person. Second, laws criminalizing HIV transmission could severely
undercut public health efforts to promote HIV awareness. Such laws,
instead of deterring people from high risk behaviors, might cause
people to shun voluntary HIV tests and treatment out of fear of being
prosecuted for "deliberately" spreading HIV. Lastly, new laws in
this area would encourage prosecutors to aggressively press claims of
deliberate transmission, and would encourage police to invade privacy
and conduct surveillance of intimate sexual activity in search of
evidence to support such claims.
** Should suspected or convicted rapists be forced to take HIV
No. Forced HIV testing, even of those convicted of a crime,
infringes on constitutional rights and can only be justified by a
compelling governmental interest. No such interest is present in the
case of a rapist and his victim because the result of a rapist's HIV
test, even if accurate, will not indicate whether the rape victim has
been infected. What rape victims want to know is whether _they_ have
been infected, which can only be known if _they_ are tested.
The government should focus on providing free and confidential HIV
testing to rape victims, and on guaranteeing treatment for those
infected by a rapist.
** Shouldn't the government censor education about HIV on the ground
that it's obscene?
Certainly not. Scientific, nonjudgmental information about human
sexual behavior is not obscene, and the need for such education is
made all the more urgent by the HIV crisis. The ACLU has brought
suits against government restrictions on the content of HIV education
materials. Education for prevention is the most effective response
to HIV, aside from intensive medical research and access to health
care for all. It is critical that we establish programs --
accessible to everyone -- that educate and counsel people on the
avoidance of sexual or drug-use practices known to spread the
The majority of Americans support sex education: A 1985 Harris poll
found that 85 percent of those surveyed thought sex education should
be taught in the schools. As former U.S. Surgeon General Everett
Koop has stated, "Many people, especially our youth, are not
receiving information that is vital to their future health and well-
being because of our reticence in dealing with the subjects of sex,
sexual practices, and homosexuality." He added: "This silence must
Published by the Department of Public Education
American Civil Liberties Union
132 West 43rd Street.
New York, NY 10036
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