The Supreme Court refuses to confront HIV/AIDS.

• Author: Closen, Michael L.

SINCE THE FIRST official recognition of AIDS in 1981, nearly 500,000 people in the U.S. have developed the disease. About 40,000 individuals die of AIDS-related consequences each year, and another 1,000,000 or more are infected with HIV, but remain asymptomatic. Every day, more people in this country become infected with HIV, more people develop AIDS, and more people die of complications associated with it.

HIV/AIDS has become a significant issue in the legal system as well. The initial reactions to HIV/AIDS in many quarters neither were reasoned nor compassionate. Prejudice and mistreatment were commonplace and often severe in their consequences. Over time, more than 12,000 statutory provisions and regulations referring expressly to HIV/AIDS have been adopted at all levels of government, and this legislative and executive frenzy shows no sign of abating. Almost every area of law has been impacted by HIV/ AIDS, and more than 1,000 law-suits relating to the condition have been filed. Yet, with all the media attention, education efforts, and activity in the legal system directed at HIV/AIDS, the circumstances for those infected with it remain difficult, as many of them continue to suffer from unwarranted prejudice and discrimination.

Even criminal court judges sometimes have fallen prey to the temptation to stereotype. A few Alabama judges decided not to allow HIV/ AIDS-infected arrestees into their courtrooms to enter guilty pleas, but conducted those plea proceedings by telephone with the defendants who remained at the jail facility. The uproar about that policy made national headlines. In Maryland, a felony-murder conviction was reversed and the case remanded for a new trial because the defendant was escorted by guards who wore rubber gloves in the courtroom in the presence of the jury. The trial judge had authorized the guards to wear the gloves because the defendant might have AIDS, but the Court of Appeals concluded this may have prejudiced the jury against the defendant.

In an Illinois case involving an HIV-infected defendant, the trial judge during sentencing made comparisons of HIV sufferers to "rabid dogs, mad dogs, and lepers," dwelling on the danger of allowing the defendant to "run through the crowd at will." In vacating the sentence and remanding the case to another judge for resentencing, the Illinois Appellate Court concluded that "it appears to us that the trial judge relied on unfounded fear and prejudice relating to HIV infection and on speculation and conjecture." If judges fall prey to this kind of HIV/AIDS bigotry, how can ordinary citizens be expected to deal with the enormous pressures and considerable fears relating to the disease in rational and humane fashion? Should the U.S. Supreme Court have the responsibility to provide some guidance to judges, legislators, other government agents, and the nation on a matter of such magnitude?

While there can be no doubt that HIV/AIDS is one of the most important issues of our time, the Supreme Court will not deal with it. Six times the Court has been presented with HIV/AIDS cases, and six times cetiorari (review of a lower court's ruling) has been denied. One of the effects of the Court's steadfast refusal to grant certiorari in an HIV/AIDS case is that the legal and societal circumstances surrounding the epidemic have worsened. Fundamental human rights have suffered. On the other hand, an articulate and compassionate opinion from the court of highest authority in the U.S. could have made things better for people living with HIV/AIDS, for those perceived to have HIV/AIDS, and for the rest of society.

The first HIV/AIDS case was presented to the Supreme Court in 1989. In Eastern Nebraska Community Office of Retardation v. Glover, the issue was the constitutionality of mandatory HIV testing of certain staff members, including some health care workers, at a residential facility for the mentally challenged. State authorities had decided to require HIV testing of some of the staff even though none of those employees performed any invasive medical procedures. The justification advanced for the testing was the fact that, once in a while. there was an altercation between a patient and an employee, and those in charge expressed concern about whether HIV might be transmitted to a patient if an employee were infected with it. The Federal District Court in Nebraska held the testing program to be unconstitutional under Fourth Amendment search and seizure analysis, and the Circuit...