The decade of Supreme Court avoidance of AIDS: denial of certiorari in HIV-AIDS cases and its adverse effects on human rights.

• Author: Closen, Michael L.
• Position: Symposium on Health Care Policy: What Lessons Have We Learned from the AIDS Pandemic?

A comparison with anti-Semitism comes to mind. After the traumas of the Holocaust most of us would agree that its existence is not merely a Jewish problem, that it poses a challenge to everyone because a society that tolerates such prejudice is that much less a good and a just society. The same test, I would argue, can be applied to the way in which a society deals with a new and lethal disease, even when--especially when--those it strikes come largely from unpopular and distrusted groups.(1)

For the first time, the legal status of the nearly 1 million Americans who are HIV-positive has reached the Supreme Court.(2)

I. INTRODUCTION

The Acquired Immune Deficiency Syndrome (AIDS) epidemic of the early 1980s and its successor, the Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (HIV-AIDS) epidemic of the latter 1980s and 1990s, has been more than a disease epidemic.(3) It has spawned an epidemic of human rights abuses as well. The violations of the human rights of those living with HIV and AIDS, of those perceived to be afflicted with HIV and AIDS, and of those perceived to be at heightened risk for HIV and AIDS, have seriously hindered efforts to combat the disease.(4) An inordinate amount of time and vast financial resources have been wasted on misguided and counterproductive campaigns to fight individuals and groups of people, rather than to fight the disease.(5) Such misdirected campaigns have been particularly invidious, for as Professor Altman noted in his comments quoted above, the people most affected have "come largely from unpopular and distrusted groups."(6)

Widespread human rights breaches have caused devastating con sequences. Some people have committed suicide, a few have been murdered, and many others have died sooner than they should have.(7) Careers have been jeopardized and have been ruined.(8) Many persons living with HIV-AIDS have been needlessly ravaged by unbearable pain, horrific disfigurement, financial calamity, and callous isolation.(9) It is no exaggeration to suggest that we have witnessed a disease holocaust now approaching twenty years in duration.(10)

The description tendered thus far is not a picture of developments in some Third World country.(11) Rather, it is the United States that is being described. Worse yet, these human rights violations continue. To illustrate, some dentists and doctors still refuse to treat patients with HIV and AIDS.(12) Some shelters for the homeless still test or screen people for HIV and deny admission to those infected with HIV.(13) Also, as recently as October of 1997, the Chicago Board of Education was still screening all applicants for teaching positions for HIV-AIDS--even though such screening was unwarranted, counterproductive, and unlawful.(14) Unfortunately, many more instances could be cited.(15) And, what has been the role of the United States Supreme Court in this continuing tragedy? The short answer is that the Supreme Court must share some of the blame. From 1987, when the first petition for a writ of certiorari in an HIV-AIDS case was filed, until 1997, the Court had done absolutely nothing directly to curb the human rights abuses that have attended the HIV-AIDS epidemic.(16) Incredibly, the Supreme Court had not heard a case involving a substantive HIV-AIDS issue, although the Court had plenty of opportunities to accept one. On more than twenty-five occasions since 1987, and on at least fifteen occasions in the last three years, the Supreme Court refused to grant writs of certiorari in HIV-AIDS cases.(17) That is a shameful record.(18) Ours has been "that much less a good and a just society" because of it.(19) Not until November of 1997 did the Supreme Court finally grant a petition for certiorari in an HIV-AIDS case, captioned Bragdon v. Abbott,(20) that is scheduled for oral argument on March 30, 1998.(21)

This Article will examine the Supreme Court's record of refusals to grant review in HIV-AIDS cases from 1987 to 1997. It will begin with a brief survey of the AIDS hysteria in the 1980s, along with a summary of the pervasive disregard for human rights that has continued into the 1990s.(22) Secondly, this Article will suggest the role the Supreme Court could have played as the country has confronted the political, economic, social, and legal facets of the HIV-AIDS epidemic.(23) Next, the Article compares the refusals to hear HIV-AIDS cases with the Court's historical slowness to grapple with the most sensitive issues of the day.(24) That comparison is meant for the purpose of full understanding of the Court's long silence on HIV-AIDS, rather than as justification for its default. Then, the Article identifies and explores the current standards for granting review by certiorari, along with the political, public policy, and legal strategy features of the certiorari process.(25) Lastly, it considers each of the substantive HIV-AIDS areas presented by the petitions filed with, and denied by, the Court between 1987 and 1997.(26) Interestingly, this review will include the general subject area of the HIV-AIDS case of Bragdon v. Abbott, which now has been accepted for hearing by the Court. The Article will review as many of the HIV-AIDS cases denied hearing by the Supreme Court as the author has been able to identify.(27) The conclusion will be that almost any of the twenty-eight cases legitimately could have been accepted by the Court for the purpose of substantively addressing HIV-AIDS, and at least one of the earlier cases should have been heard.(28) The failure of the Supreme Court to have done so represents utter abdication of its penultimate responsibility for a full decade.

For the record, it should be noted that the Supreme Court has granted writs of certiorari since 1986 in a number of cases in which HIV-AIDS has been tangentially involved.(29) There were three such cases in the 1980s.(30) In 1986, the Court upheld the Georgia antisodomy statute in a prosecution of a man for private, consensual, homosexual sex, in Bowers v. Hardwick.(31) In its brief to the Supreme Court, Georgia justified its statute, in part, as a method of preventing the spread of diseases, like HIV-AIDS.(32) The five-member Supreme Court majority did not address the HIV-AIDS point. However, the four dissenting justices did allude to HIV-AIDS without ever referring expressly to "HIV" or "AIDS." As the dissent said, "[n]othing in the record before the Court provides any justification for finding the activity forbidden by [the anti-sodomy law] to be physically dangerous, either to the persons engaged in it or to others."(33) The Bowers opinion contains no direct reference to HIV-AIDS. However, there is a footnote reference to HIV-AIDS in the 1987 case of School Board v. Arline.(34) Arline involved a school teacher with tuberculosis who had been removed from her teaching position because of her medical condition.(35) As the Court put it, the issues in the case were "whether a person afflicted with tuberculosis, a contagious disease, may be considered a handicapped individual within the meaning of [sections] 504 of the [Federal Rehabilitation] Act, and, if so, whether such an individual is `otherwise qualified' to teach elementary school."(36) The seven-member majority concluded

that a person suffering from the contagious disease of tuberculosis can

be a handicapped person within the meaning of [sections] 504 of the

Rehabilitation Act of 1973, and that respondent Arline is such a

person. We remand the case to the District Court to determine whether

Arline is otherwise qualified for her position.(37)

The majority opinion contains this footnote about AIDS:

The United States argues that it is possible for a person to be simply

a carrier of a disease ... without having a "physical impairment" or

suffering from any other symptoms associated with the disease. The

United States contends that this is true in the case of some carriers

of the Acquired Immune Deficiency Syndrome (AIDS) virus. From this

premise the United States concludes that discrimination solely on the

basis of contagiousness is never discrimination on the basis of a

handicap. The argument is misplaced in this case, because the handicap

here, tuberculosis, gave rise both to a physical impairment and to

contagiousness. This case does not present, and we therefore do not

reach, the questions whether a carrier of a contagious disease such as

AIDS could be considered to have a physical impairment, or whether

such a person could be considered, solely on the basis of

contagiousness, a handicapped person as defined by the Act.(38)

The Arline case went on to become a great impetus for the drafting and adoption of the Americans with Disabilities Act (ADA), and also has become an important constitutional case expressing calm and compassion for people with disabilities, including HIV-AIDS.(39) The Supreme Court quoted Senator Jesse Helms's views of AIDS and other evils in a footnote to the 1989 obscenity case of Fort Wayne Books, Inc. v. Indiana.(40) As Helms proclaimed, at "a time in our history when pornography and obscene materials are rampant, we are also experiencing record levels of promiscuity, venerel [sic] disease, herpes, acquired immune deficiency syndrome (AIDS), abortion, divorce, family breakdown, and related problems."(41) There was no other mention of HIV-AIDS in the case.

The Supreme Court has already decided several cases in the 1990s having tangential relevance and references to HIV-AIDS. The Court issued a writ of certiorari in the 1992 case of American National Red Cross v. S. G.,(42) initially filed by a medical patient who contracted HIV-AIDS allegedly due to an HIV-infected blood transfusion.(43) However, the case solely turned on the procedural ground of whether there was state or federal jurisdiction (a question that had divided the lower courts).(44) In its opinion, the Supreme Court noted that certiorari was granted "to answer this difficult and recurring...