Article by Michael Closen, Robert Gamrath, and Dem Hopkins
The HIV-AIDS epidemic has resulted in the significant proliferation of proposed and adopted legislation. Mandatory premarital HIV testing constitutes an alarming product of this legislative frenzy. Statutes of this nature reflect the fear, lack of compassion, and outright misunderstanding shared by both the general public and its elected representatives regarding people living with HIV-AIDS and those perceived as having HIV-AIDS.
More than thirty states considered premarital screening legislation in the 1980s, and Illinois and Louisiana enacted and enforced mandatory premarital HIV-testing statutes. Both Missouri and Texas adopted conditional mandatory premarital HIV-screening laws. However, mandatory HIV testing is an ineffective and counterproductive response to the epidemic. Consequently, Illinois and Louisiana repealed their premarital testing statutes. Unfortunately, that does not end our concern. The Texas law remained on the books until it was repealed in 1991, but two bills for mandatory premarital HIV-testing were introduced in Texas in 1993. In addition, the Missouri law remains on the books. Mandatory premarital HIV-testing legislation was reintroduced in the Louisiana legislature in 1993. Similar legislation has recently been introduced in at least eleven other states: in Oklahoma and Washington in 1992; in Georgia, New York, Pennsylvania, Rhode Island, South Carolina, and Wisconsin in 1993; and in Indiana, Massachusetts, and New Jersey in 1994. It is probable that such legislation will again confront the Illinois legislature. Additionally, a 1993 decision of the Hawaii Supreme Court may signal the beginning of approval of same-sex marriages in the United States. In light of the fact that gay men continue to be one of the two groups with the largest incidence of HIV-AIDS and because a few cases of female-to-female sexual transmission of HIV recently have been reported, there may be an increased number of misguided efforts to implement mandatory premarital HIV testing of applicants for same-sex marriage certificates.
State legislators have proposed two principal types of premarital HIV-testing statutes. First, and much less frequently proposed, are statutes that would withhold a marriage license from individuals infected with HIV. Parenthetically, a curious Utah statute in effect until September of 1993 prohibited and declared void any marriage to an AIDS-infected person. Second, and far more common, are statutes that require premarital HIV testing but do not condition the issuance of a marriage license on the test results. Although this article will consider both kinds of mandatory premarital HIV-testing statutes, it will focus primarily upon laws which fall into the latter category.
Mandatory premarital HIV-testing statutes are suspect on both constitutional and public policy grounds. When a mandatory pre-marital HIV-testing statute is enacted, at least two state and federal constitutional issues arise. First, issues arise due to the fundamental nature of the right of marriage, as encompassed within the right of privacy. Politicians, the chief proponents of mandatory premarital HIV testing, contend that such statutes are justified for the purpose of preventing the spread of HIV. Conversely, lawyers and health care professionals, the chief opponents of mandatory premarital HIV testing, contend that mandatory premarital HIV-testing statutes do not achieve the desired prevention purpose, and therefore, such statutes unnecessarily infringe upon an individual's fundamental right of marriage. They recognize that HIV testing is beneficial for research purposes, but believe that HIV testing must be voluntary in order to achieve this purpose.
Second, there is a Fourth Amendment issue. The Fourth Amendment protects individuals against unreasonable searches and seizures. Proponents of mandatory premarital HIV testing assert that the tests are reasonable searches and seizures because they protect society at large. However, opponents of these tests suggest the absurdity of this argument. By testing individuals contemplating marriage, only a fraction of society is screened, and it is a societal segment not even at heightened risk of HIV infection.
Also, an individual's Fourth Amendment expectation of protection against unreasonable searches and seizures far outweighs the government's interest in premarital HIV testing. Being subjected to a mandatory blood test is a substantial intrusion of one's person. A syringe has to break the skin and be inserted to a depth sufficient to find a vein and to allow withdrawal of a quantity of blood. Since human involvement is required, there is a risk of human error. Hence, the syringe could strike a nerve and cause paralysis, or the syringe could be contaminated and cause infection. A mistake might be committed resulting in the reuse of a syringe, and if the first person whose blood was drawn is infected with HIV, the second person mistakenly stuck with the used needle would be at risk of contracting HIV. In the fall of 1993, for example, during a demonstration of flu shot administration on a national television talk-show, a doctor mistakenly reused the syringe he had previously used on one of the show's hosts to inject the other host, sparking quite an uproar about the potential risk of HIV transmission to the cohost on whom the needle was reused.
Over time, mandatory premarital HIV testing would subject hundreds of thousands, if not millions, of people to this intrusion. The benefit that the government would receive from such testing would be minimal. The number of people who would test positive would be trivial compared to the total number of people tested. The spread of HIV would be neither prevented nor even substantially impeded.
Moreover, mandatory premarital HIV-testing statutes are subject to further attack on public policy grounds. Specifically, a major confidentiality and privacy concern surrounds such testing. Proponents of mandatory testing attempt to minimize the issue of possible compromise of confidentiality and invasion of privacy. Their contention is that the results and identity of tested individuals can be disseminated as widely as appropriate and that statutory and common-law safeguards for confidentiality and privacy rights will adequately protect test subjects. This position reflects the lack of understanding and lack of compassion many people possess regarding individuals with HIV-AIDS and individuals perceived to have HIV-AIDS. Opponents of mandatory premarital HIV testing have a better understanding of the problems surrounding confidentiality and privacy.
The HIV tests are not fully accurate and can produce false results. The possible disclosure of HIV information subjects those tested to the risk of tremendous stigmatization and discrimination. Furthermore, the information may be used to manipulate an individual who has been tested.
Several key circumstances explain, although they do not justify, why HIV-AIDS has provoked such widespread hysteria and panic, resulting in discrimination. Initially, HIV-AIDS was associated with two unpopular groups: gay men and intravenous drug users. Prostitutes and promiscuous individuals came to be added to the list, and finally, it was discovered that HIV-AIDS disproportionately impacts people of color. Even as time has passed, the negative stereotyping about people with HIV-AIDS and people in so-called “risk groups” has continued. Unfortunately, there also continue to be regular references to HIV-AIDS as God's retribution on sinful people who deserve what happens to them.
Additionally, the fact that HIV-AIDS is a deadly, incurable, viral disease has provoked terror. Its viral nature means that HIV is transmissible. Although transmissibility is frightening enough, the public often confuses transmissibility with contagiousness, a designation which suggests a condition far more readily spread. More fear stems from the public's continued skepticism about the routes of transmission because they do not accept that enough is known about HIV-AIDS to state all possible modes of transmission. Its incurable nature also indicates a lack of complete understanding of HIV-AIDS because it is popularly thought that a cure or vaccine is impossible with diseases that are not comprehended.
Its deadly nature elevates HIV-AIDS to the group of the most feared diseases in history, such as the bubonic plague, yellow fever, and smallpox. And like those other diseases, HIV-AIDS can be horrifyingly painful and disfiguring as it kills. The public has witnessed the withering deaths of Rock Hudson, Ryan White, Kimberly Bergalis, Arthur Ashe, and others on television and in the print media. It is no wonder that there has been some hysteria and panic.
Some of the public's fear of HIV-AIDS is attributable to recent developments that have operated to maintain the hysteria and panic, keeping them from subsiding at the expected pace. For instance, the case of HIV transmission from Florida dentist David Acer to Kimberly Bergalis came to light in 1990, and Dr. Acer's transmissions to five of his other dental patients have been revealed in the years since. Further, there have been recent reports of complications and frustrations with our understanding of the virus, such as the rapid mutations in the structure of HIV and the long-term ineffectiveness of AZT, the premiere HIV-AIDS drug.
Our successes in prolonging the lives of people with HIV-AIDS and in recognizing HIV-AIDS, which may have a duration of as long as 15 to 20 years from time of infection to death, to be in the nature of a chronic disease have some serious negative implications as well. Because we keep people with HIV-AIDS alive longer, they suffer a more difficult dying process and more opportunistic conditions have the time to afflict them. Because people with HIV-AIDS live longer, they remain infected and infectious for a very long time, thereby posing a continuing threat of transmission.
Finally, both the cost and extent of HIV-AIDS remain frightening. The most recent data show that the average annual cost of medical care of a person with HIV-AIDS exceeds $100,000 and that HIV-AIDS is now the leading cause of death of men ages 25 to 44 years old. Considering all these factors, it is no wonder that there continues to be hysteria and panic.
The authors have always opposed mandatory premarital HIV testing, and this article presents our reasons. First, this article provides a background of the national HIV-AIDS policy and the ways in which mandatory premarital HIV testing conflicts with that policy. This conflict is the catalyst for many of the problems that result from mandatory premarital HIV-testing statutes. Second, as an example, this paper examines the experience of our home state of Illinois regarding its mandatory premarital HIV-testing experiment. Third, the article analyzes possible constitutional objections to mandatory premarital HIV testing. Fourth, the article considers the public policy implications about confidentiality and privacy. Finally, we conclude with a plea to repeal the last premarital HIV-testing statute on the books, a Missouri statute, and to desist from proposing and adopting such legislation in any other state.
About the Author
Michael Closen. Professor of Law, John Marshall Law School. J.D., University of Illinois.
Robert Gamrath. Associate, Rosenthal, Murphey, Coblentz & Janega. J.D., John Marshall Law School.
Dem Hopkins. LL. M. Candidate, Health Law Institute, DePaul University. J.D., John Marshall Law School.
Citation
69 Tul. L. Rev. 71 (1994)