¹ Buckley, Identify all the Carriers, N.Y. Times, Mar. 18, 1986, at A27, col. 4 (quoted in Eisenberg, , The Genesis of Fear: AIDS and the Public Response to Science, LAW MED. & HEALTH CARE 243, 243-49 (1986)CrossRefGoogle Scholar.

² See infra pp. 130-40.

³ R. SHILTS, AND THE BAND PLAYED ON: POLITICS, PEOPLE AND THE AIDS EPIDEMIC 244-45 (1987).

⁴ Id. at 575-82; see Activists Say Actor Put AIDS in Focus, Boston Globe, Oct. 3, 1985, § 1, at 1, col. 1.

⁵ The AIDS manual published by the AIDS Project of Los Angeles in 1987 includes ten pages of AIDS-related books. AIDS PROJECT LOS ANGELES, AIDS: A SELF-CARE MANUAL (B. Moffet.J. Spiegel, S. Parrish & M. Helquist eds. 1987); see, e.g., D. ALTMAN, AIDS IN THE MIND OF AMERICA: THE SOCIAL, POLITICAL, AND PSYCHOLOGICAL IMPACT OF THE NEW EPIDEMIC (1986); D. BLACK, THE PLAGUE YEARS: A CHRONICLE OF AIDS, THE EPIDEMIC OF OUR TIMES (1986); J. EVERETT & W. GLANZ, THE CONDOM BOOK: THE ESSENTIAL GUIDE FOR MEN AND WOMEN (1987); A. HOFFMAN, AT RISK (1988); C.JENNINGS, UNDERSTANDING AND PREVENTING AIDS: A BOOK FOR EVERYONE (1985); E. KUBLER-ROSS, AIDS: THE ULTIMATE CHALLENGE (1987); P. MONETTE, BORROWED TIME (1987); C. PATTON, SEX AND GERMS: THE POLITICS OF AIDS (1987); B. PEABODY, THE SCREAMING ROOM (1986); D. RICHARDSON, WOMEN AND AIDS (1988); J. TINNEY, Is AIDS GOD's JUDGMENT ON HOMOSEXUALS? (1986); see also H. FIERSTEIN, SAFE SEX (1987); A. HOFFMAN, AS IS (1985); L. KRAMER, THE NORMAL HEART (1985).

⁶ See R. SHILTS, supra note 3 at 320-21; see, e.g., Now, No One is Safe from AIDS, LIFE, June, 1985; The AIDS Threat: Who's At Risk, NEWSWEEK, Mar. 14, 1988, at 42. For an analysis of British press coverage, see generally S. WATNEY, POLICING DESIRE: PORNOGRAPHY, AIDS AND THE MEDIA 77-97 (1987).

⁷ Education: Survey Shows Awareness Up: Misconceptions Stilt Remain, AIDS POL'Y & L,., Feb. 10, 1988, at 3. More than a third of those surveyed thought that it was “very likely or somewhat likely” that one could get AIDS by eating in a restaurant where the cook had the disease. See Blendon, & Donelan, , Discrimination Against People with AIDS: The Public's Perspective, 319 NEW ENG. J. MED. 1022 (1988)Google Scholar (discussing public misconceptions about HIV transmission); INSTITUTE OF MEDICINE, NATIONAL ACADEMY OF SCIENCES, CONFRONTING AIDS — UPDATE 1988, at 67 (1988).

⁸ See Fineberg, Public Health and Private Rights: Health, Social, and Ethical Perspectives, in AIDS: IMPACT ON PUBLIC POLICY 20-23 (1986); Aiken, Education as Prevention, in AIDS AND THE LAW: A GUIDE FOR THE PUBLIC 90 (H. Dalton & S. Burris eds. 1987).

⁹ Lifson, , Do Alternate Modes for Transmission of Human Immunodeficiency Virus Exist?: A Review, 259 J. A.M.A. 1353 (1988)Google Scholar.

¹⁰ See Barnes, , Toward Ghastly Death: The Censorship of AIDS Education, 89 COLUM. L. REV. 698, 699 (1989)Google Scholar. There is some cause for skepticism about the efficacy of health promotion campaigns in achieving modification of personal behavior. Efforts to discourage smoking or encourage seat belt use have met with limited success; campaigns to reduce teenage pregnancies or control sexually transmitted diseases through sex education and moral suasion have been largely unsuccessful. Bayer, , AIDS, Power, and Reason, 64 MILBANK Q. 168 (1986)Google Scholar.

¹¹ See Afraids, NEW REPUBLIC, Oct. 14, 1985, at 7.

¹² See Nickens, , AIDS, Race and the Law: The Social Construction of a Disease, 12 NOVA L. J. 1179, 1185 (1988)Google Scholar; Fineberg, supra note 8.

¹³ Massachusetts, for example, has AIDS education regulations requiring distribution of approved AIDS materials to clients at drug treatment and Sexually Transmitted Disease (STD) clinics, and to individuals receiving prenatal care or family planning services. MASS. REGS. CODE tit. 105, § 300.300 (1988). The New York State Health Department's AIDS Institute has produced a number of educational publications. See, e.g., AIDS INSTITUTE, NEW YORK STATE HEALTH DEP'T, A PHYSICIAN's GUIDE TO AIDS: ISSUES IN THE MEDICAL OFFICE (1988); AIDS INSTITUTE, NEW YORK HEALTH DEP'T, A PHYSICIAN's GUIDE TO HIV COUNSELING AND TESTING (1987).

¹⁴ ARK. STAT. ANN. § 20-15-902 (1988).

¹⁵ 1987 CONN. ACTS 389, § § 19a-121c (Reg. Sess.).

¹⁶ Id.

¹⁷ COLO. REV. STAT. § 25-4-1405(3) (1987).

¹⁸ Id.

¹⁹ MICH. COMP. LAWS ANN. § 333.5911 (West 1988).

²⁰ Id. at § 333.5913.

²¹ Id. at § 333.5915.

²² IOWA CODE § 141.1 (West 1989).

²³ Id. at § 141.2. Priorities as designated by the plan are:

1. (1) Public and professional health education;

2. (2) Testing and counseling;

3. (3) Contact counseling; and

4. (4) Public information.

Id.

²⁴ Id. at § 141.3. The program also targets individuals who are at risk for an AIDS-related condition, and all providers of health care.

²⁵ Id.

²⁶ see U.S. DEP't OF HEALTH AND HUMAN SERVICES, THE SURGEON GENERAL's REPORT ON ACQUIRED IMMUNE DEFICIENCY SYNDROME (1986) [hereinafter SURGEON GENERAL's REP.]; NATIONAL ACADEMY OF SCIENCES, CONFRONTING AIDS (1987) [hereinafter CONFRONTING AIDS]; REPORT OF THE PRESIDENTIAL COMMISION ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC (1988) [hereinafter PESIDENTIAL COMM'N]; Fineberg, supra note 8.

²⁷ TRIBE, L., AMERICAN CONSTITUTIONAL LAW 902 (1981)Google Scholar.

²⁸ Ingber, , Socialization, Indoctrination, or the “Pall of Orthodoxy“: Value Training in the Public Schools, 1987 U. ILL. L. REV. 15, 79Google Scholar.

²⁹ DiClemente, , Policy Perspectives on the Implementation and Development of School-Based AIDS Prevention Education Programs in the United States, 3 AIDS & PUB. POL'Y J. 14 (1988)Google Scholar.

³⁰ Id.

³¹ Board of Ed. v. Pico, 457 U.S. 853, 864 (1981).

³² Wisconsin v. Yoder, 406 U.S. 205 (1972).

³³ See Edwards v. Aguillar, 482 U.S. 578 (1987); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

³⁴ See Dent, , Religious Children, Secular Schools, 61 SO. CAL. L. REV. 863, 911 (1988)Google Scholar.

³⁵ SURGEON GENERAL's REP., supra note 26. A firestorm of controversy, however, engulfed officials in the Reagan Administration over Surgeon General Koop's proposal for early HIV education. Secretary of Education William Bennett was a vocal critic of education proposals put forward by the Surgeon General. See Barnes, supra note 10, at 708; infra notes 52- 53 and accompanying text.

³⁶ DiClemente, supra note 29, at 15.

³⁷ Id. at 14.

³⁸ Strunin, , Hingson, , Barry, & Liebling, , Should Someone With AIDS Be Allowed to Attend School? A Statewide Survey of Adolescents, 3 AIDS & PUB. POL'Y J. 17 (1988)Google Scholar [hereinafter Strunin].

³⁹ See supra note 30.

⁴⁰ Centers for Disease Control, Guidelines for Effective School Health Education to Prevent the Spread of AIDS, 37 MORBIDITY & MORTALITY WEEKLY REP. Supp. S-2 (1988)Google Scholar [hereinafter Centers for Disease Control, Guidelines for Effective School Education].

⁴¹ Id.

⁴² The states are: California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Michigan, Nevada, North Carolina, Oklahoma, Oregon, Rhode Island and Washington.

⁴³ 1988 Iowa Legis. Serv. S.F. 2157, § 135H.9e (West).

⁴⁴ 1988 WASH. LAWS 206, § 402(1).

⁴⁵ OKLA. STAT. tit. 70, § 11-103.03 (1988).

⁴⁶ ILL. REV. STAT. ch. 122, para. 863 (as amended by Public Act 85-860, 1987).

⁴⁷ LA. REV. STAT. ANN. § 17:281 (West 1989).

⁴⁸ COLO. REV. STAT. § 25-4-1405 (4) (1989) (“School districts are urged to provide every secondary school student, with parental consent, education on HIV infection and AIDS and its prevention.“).

⁴⁹ R.I. GEN. LAWS § 16-22-18 (1988).

⁵⁰ See generally Ethics and Morality in Education: A Symposium, 31 CATH. LAW. 163 (1987); see also Bayer, supra note 10.

⁵¹ See generally Ingber, supra note 28; Obremski, , Community Involvement in Public School Education, 31 CATH. LAW. 191 (1987)Google Scholar; Wagner, , ‘The Family Living Including Sex Education’ Curriculum, 31 CATH. LAW. 183 (1987)Google Scholar.

⁵² SURGEON GENERAL's REP., supra note 26.

⁵³ Barnes, supra note 10, at 708-09.

⁵⁴ Centers for Disease Control, Guidelines for Effective School Education, supra note 40.

⁵⁵ CONN. GEN. STAT. § 10-19c (1988); MICH. COMP. LAWS ANN. § 380.1169 (West 1988); 1988 Nev. Stat. 1734; FLA. STAT. § 233.0672(1) (1988); see 1987 Cal. Legis. Serv. 1374 (West) (video presentation stressing abstinence); GA. CODE ANN. § 20-2-143 (1988) (instruction on sexual abstinence as a means of preventing pregnancy, AIDS and STDs); 1987 111. Legis. Serv. 85-608 (West) (elementary and secondary school curriculum to include instruction on sexual abstinence before marriage); IND. CODE § 16-1-9-6.1 (1988) (health education should stress abstinence and mutually monogamous marriage); LA. REV. STAT. ANN. § 17-281 (West 1987) (major emphasis of sex education is to encourage sexual abstinence between unmarried persons); N.C. GEN. STAT. § 115C-81(a)(2) (1987) (emphasizing parental involvement and abstinence from sex and drugs); OKLA. STAT. tit. 70, § 11-103.3 (1988) (instruction to specifically include sexual abstinence as the only means of preventing AIDS); R.I. GEN. LAWS § § 16-22- 17, 16-22-18 (1988) (instruction to address sexual abstinence as the preferred method of preventing pregnancy and STDs); 1988 WASH. LAWS 206, § 401 (school curriculum on AIDS prevention to stress sexual abstinence).

⁵⁶ GA. CODE ANN. § 20-2-143 (1988).

⁵⁷ OKLA. STAT. tit. 70, § 11-103.3 (1988).

⁵⁸ 1988 WASH. LAWS 206, § 402(2).

⁵⁹ Id.

⁶⁰ IOWA CODE ANN. § 279.50(1) (Supp. 1988).

⁶¹ Id.

⁶² 1988 Ind. Legis. Serv., Pub. L. No. 123-1988, § 20 (West). School corporations which established advisory committees, and met and identified educational materials reflecting community standards on AIDS prior to February 15, 1988, are not required to establish councils.

⁶³ Id.

⁶⁴ See supra note 38 and accompanying text.

⁶⁵ The first amendment provides in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” U.S. CONST, amend. I. Although it is highly implausible, a claim might be raised under the establishment clause if, for example, parents or others assert that AIDS education materials promote a doctrine of secular humanism over theistic religion. See Smith v. Board of School Comm'rs of Mobile County, 827 F.2d 684 (11th Cir. 1987). It is more likely that constitutional challenges would arise under the Free Exercise Clause.

⁶⁶ 827 F.2d 1058 (6th Cir. 1987), cert, denied, 108 S. Ct. 1029.

⁶⁷ Id. at 1060.

⁶⁸ Id. at 1066.

⁶⁹ See Dent, supra note 34; see also Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1541-42 (9th Cir. 1985), cert, denied, 474 U.S. 826 (1986) (concurring opinion noting that parents’ allegations that eternal religious consequences would result from child's exposure to objectionable material “would probably be sufficient to present a free exercise question” if the child were required to read the material or to listen to classroom discussion of it).

⁷⁰ Mozert, 827 F.2d at 1074.

⁷¹ Id.

⁷² Ware v. Valley Stream High School Dist., 150 A.D.2d 14, 545 N.Y.S.2d 316, appeal denied, 74 N.Y.2d 829, 545 N.E.2d 629, 546 N.Y.S.2d 339 (1989).

⁷³ Id. at 19, 545 N.Y.S.2d at 319.

⁷⁴ Id. at 16, 545 N.Y.S.2d at 317.

⁷⁵ Id.

⁷⁶ Id. at 22, 545 N.Y.S.2d at 321.

⁷⁷ Id. at 19, 545 N.Y.S.2d at 319-20.

⁷⁸ Id. at 20, 545 N.Y.S.2d at 320. The Court of Appeals modified the Appellate Division's order, reinstating the petitioner's amended complaint challenging the AIDS curriculum. Noting that the petitioners must meet a high burden of proof to sustain their contention that the education requirement impermissibly impinges upon their free exercise of religion, the majority determined that summary rejection of their assertion of fundamental constitutional issues was inappropriate. Id. at 19, 545 N.Y.S.2d at 319.

⁷⁹ States typically excuse students from some activities which might offend their religious beliefs, such as sex education, gym and health education. Dent, supra note 34, at n.337.

⁸⁰ CONN. GEN. STAT. ANN. § § 10-19b (West Supp. 1989).

⁸¹ Florida, Georgia, Iowa and Rhode Island.

⁸² 1988 WASH. LAWS 206, § 402(4).

⁸³ COLO. REV. STAT. § 25-4-1405(4) (1987).

⁸⁴ NEV. REV. STAT. § 389.065 (1987).

⁸⁵ Strunin, supra note 38, at 20.

⁸⁶ Although some states target individuals at higher risk for infection, the statutes fail to identify these high risk groups. See, e.g., COLO. REV. STAT. § 25-4-1405(3)(e) (1987); 1988 Iowa Legis. Serv. S.F. 2157, § 135H.9(2)(d) (West). These statutes require their state departments to develop and implement HIV education and risk reduction programs for specific populations at higher risk for infection without defining those specific populations.

⁸⁷ Georgia, Hawaii, Indiana and Virginia.

⁸⁸ Such efforts will have limited effectiveness because the material will not reach couples already married, or who do not seek to marry.

⁸⁹ 1987 HAW. SESS. LAWS 98.

⁹⁰ VA. CODE ANN. § 20-14.2 (Supp. 1989).

⁹¹ 1988 Ind. Legis. Serv., Pub. L. No. 123-1988, § 22 (West).

⁹² GA. CODE ANN. § 19-3-35.1 (Supp. 1989).

⁹³ See MASSACHUSETTS SENATE COMM. ON POST AUDIT AND OVERSIGHT, DENYING ACCESS TO CARE: DISCRIMINATION AGAINST PERSONS WITH HIV INFECTION (Oct. 1989) [hereinafter DENYING ACCESS]; see also Richardson, , Physician Altitudes and Experience Regarding Care of Patients with Acquired Immunodeficiency Syndrome (AIDS and Related Disorders, (ARC)), 25 MED. CARE 678 (1987)Google Scholar; Gerbert, , AIDS and Infection Control in Dental Practice: Dentists’ Attitudes, Knowledge, and Behavior, 114 J. AM. DENTAL A. 312 (1987)Google Scholar.

⁹⁴ See infra notes 214-15 and accompanying text.

⁹⁵ See DENYING ACCESS, supra note 93.

⁹⁶ See R. SHILTS, supra note 3, at 523.

⁹⁷ See, e.g., MASS. REGS. CODE tit. 2.06(5), § 243 (1989) (specifying continuing medical education requirements for physician license renewals).

⁹⁸ Health professionals include physicians, dentists, nurses, accupuncturists, physician assistants, emergency medical technicians, therapists and hospital administrators.

⁹⁹ Appropriate participants for professional HIV education requirements might include teachers, school administrators, law enforcement officers, funeral directors and embalmers, state employees, barbers, cosmetologists and masseurs.

¹⁰⁰ Cases of AIDS have been reported in all 50 states, with almost eight percent of cases reported in 1989 from areas with a population of less than 100,000. Centers for Disease Control, Update: Acquired Immunodeficiency Syndrome — United States, 1989, 39 MORBIDITY & MORTALITY WEEKLY REP. 81, 82 (1990)Google Scholar.

¹⁰¹ Illinois, Indiana, Washington and Florida.

¹⁰² ILL. REV. STAT. ch. 127, para. 55.41 (1989).

¹⁰³ Id.

¹⁰⁴ 1988 Ind. Legis. Serv., P.L. 123-1988 32 (West). Information provided should assist the physician or dentist to instruct employees on universal precautions and select appropriate means for disposal of infectious wastes, or disinfection of contaminated waste.

¹⁰⁵ WASH. REV. CODE § 70.24.270 (1989).

¹⁰⁶ Id. at § § 18.130.020, 18.130.040.

¹⁰⁷ Id. at § 70.24.260. HIV education is a condition of certification, license issuance or license renewal.

¹⁰⁸ Id. at § 70.24.280.

¹⁰⁹ Id. at § 70.24.310. In developing the rules, the department of health must consider infection control standards and education materials available from appropriate professional associations and professionally prepared publications.

¹¹⁰ 1989 Fla. Laws 350, § 455.2226.

¹¹¹ Id.

¹¹² ILL. REV. STAT. ch. 122, paras. 10-22.39, 34-18.7 (1987).

¹¹³ 1988 Ind. Legis. Serv., Pub. L. No. 123-1988, § 32 (West).

¹¹⁴ WASH. REV. CODE § 70.24.290 (1989).

¹¹⁵ ILL. REV. STAT. ch. 127, para. 5541 (1989).

¹¹⁶ Id.

¹¹⁷ WASH. REV. CODE § 70.24.300 (1989).

¹¹⁸ Id. at § 70.24.370(1).

¹¹⁹ Id. at § 70.24.370(2).

¹²⁰ Centers for Disease Control, Update: Acquired Immunodeficiency Syndrome — United States, 1981-1988, 38 MORBIDITY & MORTALITY WEEKLY REP. 229, 229-36.Google Scholar

¹²¹ Id.

¹²² Id. Between 1981 and 1988, the cumulative incidence of AIDS was 3.0 times higher among African-American men and 2.8 times higher among Hispanic men than among white men. Id.

¹²³ Id. Between 1981 and 1988, the cumulative incidence of AIDS was 13.6 times higher among African-American women and 10.2 times higher among Hispanic women than among white women. Id.

¹²⁴ See Bayer, supra note 10, at 179; see generally R. SHILTS, supra note 3.

¹²⁵ See generally R. BAYER, PRIVATE ACTS, SOCIAL CONSEQUENCES: AIDS AND THE POLITICS OF PUBLIC HEALTH (1989).

¹²⁶ Becker, & Joseph, , AIDS and Behavioral Change to Reduce Risk: A Review, 78 AM. J. PUB. HEALTH 394 (1988)Google Scholar; Winkelstein, , Samuel, , Padian, , Wiley, , Lang, , Anderson, & Levy, , The San Francisco Men's Health Study III Reduction in Human Immunodeficiency Virus Transmission Among Homosexual/Bisexual Men, 1982-86, 77 AM. J. PUB. HEALTH 685 (1987)Google Scholar; McKusick, , Wiley, , Coates, , Stall, , Saika, , Morin, , Charles, , Hartsman, & Conant, , Reported Changes in the Sexual Behavior of Men at Risk for AIDS, San Francisco, 1982-84 — The AIDS Behavioral Research Project, 100 PUB. HEALTH REP. 622 (1985)Google Scholar.

¹²⁷ See Friedman, Sotheran, Abdul-Quader, Primm, Desjarlais, Kleinman, Mauge, Goldsmith, El-Sadr & Maslansky, The AIDS Epidemic Among Blacks and Hispanics, 65 MILBANK Q. 455 (1987) [hereinafter Friedman]; Greaves, The Black Communuty, in AIDS AND THE LAW: A GUIDE FOR THE PUBLIC, supra note 8, at 281.

¹²⁸ See Nickens, supra note 12, at 1188.

¹²⁹ Greaves, supra note 127; see also Friedman, supra note 127, at 455.

¹³⁰ Greaves, supra note 127, at 285.

¹³¹ Nickens, supra note 12, at 1188.

¹³² Id.

¹³³ Greaves, supra note 127, at 289.

¹³⁴ Nickens, supra note 12, at 1188; Friedman, supra note 127. In San Francisco, however, public health officials working with community members have developed a series of policy statements addressing the concerns of racial and ethnic groups and the development of education and prevention programs which can meet their needs. In contrast, representatives of minority communities have filed suit against Los Angeles County officials, charging that they have failed or refused to develop and implement education, prevention and services programs in regard to AIDS in the minority community. Bean v. Board of Supervisors, Cal. Super. Ct., Los Angeles County Mar. 18, 1987, cited in Nickens, supra note 12, at 1191 n.37.

¹³⁵ See Poggi, The Black Community Organizes to Fight AIDS, GAY COMMUNITY NEWS, Sept. 21-27, 1986, at 3. In Massachusetts, for example, telephone hotlines have been set up to provide information specifically targeted to African-American, Hispanic and Portuguese communities.

¹³⁶ Experts agree that education programs must be sensitive to the language and customs of the community if they are to be effective, incorporating the community's traditional means of passing on information. See Peterson, & Marin, , Issues in the Prevention of AIDS Among Black and Hispanic Men, 43 AM. PSYCHOLOGIST 871 (1988)Google Scholar; see also Greaves, supra note 127.

¹³⁷ Dep't of Health & Human Services Appropriations Act of 1988, Pub. L. No. 100-202, § 514, 101 Stat. 1329-289 (1988); see also, LA. REV. STAT. ANN. § 17:281 (West 1982 & Supp. 1989) (prohibiting the use of sexually explicit materials depicting male or female homosexuality for sex education courses in the public schools).

¹³⁸ Centers for Disease Control, Cooperative Agreements for Acquired Immunodeficiency Syndrome (AIDS): Health Education and Risk Reduction Programs, 51 Fed. Reg. 3427, 3431 (1988) [hereinafter Centers for Disease Control, Risk Reduction Programs]; see Barnes, supra note 10.

¹³⁹ Centers for Disease Control, Risk Reduction Programs, supra note 138, at 3431.

¹⁴⁰ In Massachusetts, legislators called for a cut-off of state funds to a non-profit AIDS organization that produced a brochure graphically identifying risky behaviors for distribution to patrons of gay bars. State funding was retained by the organization after it established that no state funds had been used to produce that brochure. See, e.g., Barnicle, I'll Tolerate Cay Sex, But Don't Demand I Accept it As Well, Boston Globe, Nov. 22, 1987, at 29 col. 1.

¹⁴¹ See Barnes, supra note 10, at 714-15 n.62.

¹⁴² Id.

¹⁴³ Restrictions on school-based HIV education curriculum pose the same problem. See supra notes 52-53 and accompanying text.

¹⁴⁴ See Barnes, supra note 10, at 715.

¹⁴⁵ Those powers not delegated to the federal government by the Constitution are reserved to the states under the tenth amendment, and constitute the states’ police powers.

¹⁴⁶ Gostin, & Curran, , Legal Control Measures for AIDS: Reporting Requirements, Surveillance, Quarantine, and Regulation of Public Meeting Places, 77 AM. J. PUB. HEALTH 214 (1987)Google Scholar.

¹⁴⁷ See W. CURRAN, L. GOSTIN & M. CLARK, ACQUIRED IMMUNODEFICIENCY SYNDROME: LEGAL AND REGULATORY POLICY (1986) (republished by U.S. Dep't of Com. 1988) [hereinafter LEGAL AND REGULATORY POLICY].

¹⁴⁸ See Burris, , Fear Itself: AIDS, Herpes, and Public Health Decisions, 3 YALE L. & POL'Y REV. 479 (1985)Google Scholar; Gostin, , Curran, & Clark, , The Case Against Compulsory Casefinding in Controlling AIDS — Testing, Screening and Reporting, 12 AM. J.L. & MED. 7 (1987)Google Scholar; Parmet, , AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 HOFSTRA L. REV. 53 (1985)Google Scholar; Sullivan, & Field, , AIDS and the Coercive Power of the State, 23 HARV. C.R.-C.L. L. REV. 139 (1988)Google Scholar.

¹⁴⁹ Prevention programs relying on HIV testing or screening are not covered. For a discussion of the criteria for such programs, see Field, Testing for AIDS: Uses and Abuses, 16 AM. J.L. & MED. 34 (1990).Google Scholar

¹⁵⁰ Most states now provide some form of voluntary notification. See infra notes 180-81 and accompanying text.

¹⁵¹ A. BRANDT, NO MAGIC BULLET: A SOCIAL HISTORY OF VENEREAL DISEASE IN THE UNITED STATES SINCE 1880 (1985).

¹⁵² Id. at 150-151.

¹⁵³ Levine, , Contact Tracing for HIV Infection: A Plea for Privacy, 20 COLUM. HUM. RTS. L. REV. 157, 161 (1988)Google Scholar.

¹⁵⁴ Grad, , Communicable Disease and Mental Health: Restrictions of the Person, 12 AM. J.L. & MED. 381, 382 (1986)Google Scholar.

¹⁵⁵ See, e.g., 28 PA. CODE § 27.22 (1987) (reporting of test results indicative of the presence of a communicable disease); N.J. STAT. ANN. tit. 8:57, § 1.10 (1985) (reporting of lab results indicating or suggesting the existence of a reportable disease or the outbreak of a disease).

¹⁵⁶ See, e.g., N.J. REV. STAT. § 26:4-15 (1988) (requires identification of cases by name, age, sex, exact location, home address and telephone number, date of onset of illness and other information as required by the department of health).

¹⁵⁷ Note, The Constitutional Rights of AIDS Carriers, 99 HARV. L. REV. 1274, 1288 (1986). There are no reported cases challenging AIDS or HIV infection reporting requirements.

¹⁵⁸ State v. Wordin, 56 Conn. 216, 228-29, 14 A. 801, 804 (1887).

¹⁵⁹ 429 U.S. 589 (1977).

¹⁶⁰ Id. at 602. In Whalen, the Court upheld a New York statute which required pharmacists to report the names and addresses of persons obtaining prescription drugs with a potential for abuse.

¹⁶¹ Id. at 600. While the constitutional right to privacy is not precisely defined, the Court identified two interests which might be implicated in the reporting of private medical information: (1) avoiding disclosure of personal matters, and (2) making important decisions independently. Id.

¹⁶² Id. at 602.

¹⁶³ Id.. at 607 (Brennan, J., concurring). Justice Brennan noted that, were the statute to amount to a deprivation of a constitutionally protected privacy interest, it could be upheld only upon a showing that it was necessary to promote a compelling state interest.

¹⁶⁴ For the purposes of national reporting, AIDS is defined as an illness characterized by the presence of one or more diseases indicating a compromised immune system, depending on the status of laboratory evidence of HIV infection. Centers for Disease Control, Revision of the CDC Surveillance Case Definition for Acquired Immunodeficiency Syndrome, 36 MORBIDITY & MORTALITY WEEKLY REP. IS (Supp. 1987).

¹⁶⁵ U.S. Public Health Service, Coolfont Report: A PHS Plan for the Prevention and Control of AIDS and the AIDS Virus, 101 PUB. HEALTH REP. 341 (1986) [hereinafter Coolfont Report); Grad, supra note 154, at 393-94.

¹⁶⁶ Grad, supra note 154, at 393-94.

¹⁶⁷ The states are: Arizona, Colorado, Delaware, Georgia, Idaho, Illinois, Indiana, Kentucky, Montana, South Carolina, Texas, Washington and Wisconsin.

¹⁶⁸ Colorado, for example, has announced its willingness to accept reports using pseudonyms. Levine, supra note 153.

¹⁶⁹ A “carrier” is an infected individual or animal that harbors a specific infectious agent in the absence of discernible clinical disease and serves as a potential source or reservoir of infection. 25 TEX. ADMIN. CODE tit. 25, § 97.1 (1986).

¹⁷⁰ See, e.g., TEX. REV. CIV. STAT. ANN. art. 4445d (Vernon 1990); N.Y. PUB. HEALTH LAW § 2102 (Consol. 1988).

¹⁷¹ Gostin & Curran, supra note 146, at 215.

¹⁷² See Richards, , Communicable Disease Control in Colorado: A Rational Approach to AIDS, 65 DEN. U.L. REV. 127 (1988)Google Scholar.

¹⁷³ See Field, supra note 149.

¹⁷⁴ PRESIDENTIAL COMM'N, supra note 26.

¹⁷⁵ See Levine, supra note 153, at 169-70.

¹⁷⁶ D. ALTMAN, supra note 5; C. PATTON, supra note 5; Note, Characterization and Disease: Homosexuab and the Threat of AIDS, 66 N.C. L. REV. 227 (1987).

¹⁷⁷ Anderson, NIH Treated Roy Cohn for AIDS, Washington Post.July 25, 1986, at C19, col. 3. Following disclosure of the medical information about Roy Cohn, the NIH determined that over 2,000 employees could have had access to the data. Note, AIDS: Balancing the Physician's Duty to Warn and Confidentiality Concerns, 38 EMORY L.J. 279, 293 (1989).

¹⁷⁸ See Whalen v. Roe, 429 U.S. 589, 600-02 (1977).

¹⁷⁹ See, e.g., TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 3.07(a) (1988) (“The Department [of Health] shall investigate the causes of communicable disease and methods of prevention.“).

¹⁸⁰ In a provider referral program, partner notification is carried out by trained public health personnel, relying on information voluntarily disclosed by the infected individual.

¹⁸¹ Centers for Disease Control, Partner Notification for Preventing Human Immunodeficiency Virus (HIV) Infection — Colorado, Idaho, South Carolina, Virginia, 37 MORBIDITY & MORTALITY WEEKLY REP. 393 (\988), reprinted in 260 J. A.M.A. 613 (1988) [hereinafter Centers for Disease Control, Partner Notification].

¹⁸² See, e.g., COLO. REV. STAT. § 25-4-1405 (1989); see generally LEGAL AND REGULATORY POLICY, supra note 147.

¹⁸³ See Centers for Disease Control, Partner Notification, supra note 181.

¹⁸⁴ Levine, supra note 153, at 165.

¹⁸⁵ Gostin, , Public Health Strategies for Confronting AIDS: Legislative and Regulatory Policy in the United States, 261 J. A.M.A. 1621, 1626 (1989)Google Scholar; see Gostin, & Ziegler, , A Review of AIDS-Related Legislative and Regulatory Policy in the United States, 15 LAW MED. & HEALTH CARE 5 (1987)Google Scholar.

¹⁸⁶ Treatment which may prolong survival or delay onset of symptoms is available. Zidovodine (AZT) has been associated with prolonged survival, a reduction in the frequency and severity of opportunistic infections and a delay in progression to AIDS in patients with ARC. Fischl, , Prolonged Zidovodine Therapy in Patients with AIDS and Advanced AIDS-Related Complex, 262 J. A.M.A. 2409 (1989)Google Scholar.

¹⁸⁷ See Rutherford, , Contact Tracing and the Control of Human Immunodeficiency Virus Infection, 259 J. A.M.A. 3609-10 (1988)CrossRefGoogle Scholar. 188 Centers for Disease Control, Partner Notification, supra note 181.

¹⁸⁹ CALIFORNIA DEP't OF HEALTH SERVICES, ACQUIRED IMMUNE DEFICIENCY SYNDROME IN CALIFORNIA: A PRESCRIPTION FOR MEETING THE NEEDS OF 1990, 29-30 (1986).

¹⁹⁰ Levine, supra note 153, at 166.

¹⁹¹ Centers for Disease Control, Partner Notification, supra note 181.

¹⁹² In North Carolina, the Commission for Health Services has revised proposed mandatory contact disclosure rules after vocal opposition from civil rights groups and gay activists. The revised rules call for voluntary contact tracing, with a requirement that provider referral be encouraged. North Carolina Eases Rules on Listing Sexual Contacts, 2 AIDS Pol'y & Law (BNA) No. 26, at 7 (Jan. 13 1988).

¹⁹³ Levine, supra note 153, at 168-70.

¹⁹⁴ See D. ALTMAN, supra note 5; D. BLACK, supra note 5.

¹⁹⁵ See Richards, supra note 172.

¹⁹⁶ In Washington D.C., a list containing the names of individuals who had been tested for HIV was stolen from a health clinic. Levine, supra note 153, at 169 n.57; see supra note 177.

¹⁹⁷ 53 Fed. Reg. 3554 (1988). Partner notification procedures are to be consistent with CDC guidelines, which provide that individuals who are HIV positive should be instructed in how to notify their partners and refer them for counseling and testing. Centers for Disease Control, Public Health Service Guidelines for Counseling and Antibody Testing to Prevent HIV Infection and AIDS, 36 MORBIDITY & MORTALITY WEEKLY REP. 509 (1987)Google Scholar.

¹⁹⁸ Centers for Disease Control, Partner Notification, supra note 181, at 613.

¹⁹⁹ Id. at 614.

²⁰⁰ Id. at 613.

²⁰¹ ILL. REV. STAT. ch. 111 1/2, para. 7405 (1987).

²⁰² ILL. ADMIN. CODE tit. 77, § 693.40(b) (1988).

²⁰³ Id. The regulations do not spell out the nature of the “strong encouragement” to be used.

²⁰⁴ Contacts made more than 12 months before would fall outside the provisions of the program although they too may have been infected and may in turn infect others.

²⁰⁵ 1988 Iowa Leg. Serv. S.F. 2157, § 135H.6 (West).

²⁰⁶ Nondisclosure of referral individual names, while appropriate, will not guarantee anonymity if that individual is the contact's only sexual or needle-sharing partner.

²⁰⁷ CAL. HEALTH & SAFETY CODE § 199.25 (West 1988).

²⁰⁸ Id.

²⁰⁹ Although screening programs have been proposed for these settings, a thorough review of that option is beyond the scope of this article.

²¹⁰ Centers for Disease Control, Education and Foster Care of Children Infected with Human TLymphotrophic Vims Type III'/Lymphadenopathy-Associated Virus, 34 MORBIDITY & MORTALITY WEEKLY REP. 517, 518 (1985)Google Scholar [hereinafter Centers for Disease Control, Education and Foster Care﹜; Centers for Disease Control, Classification System for Human Immunodeficiency Virus (HIV) Infection in Children Under 13 Years of Age, 36 MORBIDITY & MORTALITY WEEKLY REP. 225 (1987)Google Scholar.

²¹¹ CDC Statistics on AIDS Cases, Associated Press Medical News Service, Aug. 25, 1988.

²¹² See infra notes 216-18 and accompanying text.

²¹³ Gostin & Ziegler, supra note 185, at 9.

²¹⁴ Note, Fear and Loathing in the Classroom: AIDS and Public Education, 14 J. LECIS. 87, 94 n.43 (1987); Matthews, & Neslund, , The Initial Impact of AIDS on Public Health Law in the United States-1986, 257 J. A.M.A. 344, 345 (1987)Google Scholar.

²¹⁵ See, e.g., Fears Isolate Some AIDS Kids, Associated Press Medical News Service, Sept. 22, 1988.

²¹⁶ Centers for Disease Control, Education and Foster Care, supra note 210.

²¹⁷ See generally Lifson, supra note 9; see also Kass, Schoolchildren with AIDS, in AIDS AND THE LAW: A GUIDE FOR THE PUBLIC, supra note 8. While AIDS in adults is primarily transmitted sexually, 76% of children with the disease were infected perinatally; 18% were infected by transfusions with contaminated blood or blood products. Note, supra note 214.

²¹⁸ See Jason, , McDougal, & Dixon, , HTLV-III/LAV Antibody and Immune Status of Household Contacts and Sexual Partners of Persons with Hemophilia, 255 J. A.M.A. 212 (1986)Google Scholar; Friedland, , Saltzman, & Rogers, , Lack of Transmission of HTLV-III/LAV Infection to Household Contacts of Patients with AIDS or AIDS-Related Complex with Oral Candidiasis, 314 NEW ENG. J. MED. 344 (1986)Google Scholar; Fischl, , Evaluation of Heterosexual Partners, Children and Household Contacts of Adults with AIDS, 257 J. A.M.A. 640 (1987)Google Scholar.

²¹⁹ Organizations and others assisting the CDC in developing the guidelines included the Conference of State and Territorial Epidemiologists, the Association of State and Territorial Health Officers, the National Association of County Health Officers, The Division of Maternal and Child Health (Health Resources and Services Administration), the National Association of Elementary School Principals, The National Association of State School Nurse Consultants, the National Congress of Parents and Teachers, the Children's Aid Society and the parent of a child with AIDS. Centers for Disease Control, Education and Foster Care, supra note 210, at 519- 20.

²²⁰ Id.

²²¹ Id.

²²² Id.

²²³ See infra notes 226-30 and accompanying text.

²²⁴ See generally Note, supra note 214; Note, A Legal Guide for the Education of Legislators Facing the Inevitable Question: AIDS: The Problem is Real— What Do We Do﹜ 13 J. CONTEMP. L. 121, 139- 45 (1987).

²²⁵ See, e.g., Thomas v. Atascerdo Unified School Dist., 622 F. Supp. 376 (CD. Cal. 1987); Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524 (M.D. Fla. 1987); but see Martinez v. School Bd. of Hillsborough County, Fla., 675 F. Supp. 1574 (M.D. Fla. 1987) (holding that a six-year-old mentally handicapped child could be barred from special education classes as a special risk to classmates because she was incontinent and unable to control her bowel and bladder movements); Note, Equal Opportunities: Protecting the Rights of AIDS-Linked Children in the Classroom, 14 AM. J.L. & MED. 376, 410 (1989).

²²⁶ District 27 Comm. School Bd. v. Board of Ed. of New York, 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986).

²²⁷ Id.

²²⁸ Subsequently, it was determined that the child did not have AIDS, but rather HIV infection.

²²⁹ District 27, 130 Misc. 2d at 401, 502 N.Y.S.2d at 328.

²³⁰ Id. at 413, 502 N.Y.S.2d at 335.

²³¹ 29 U.S.C. § 793 (1982). The Act prohibits discrimination against qualified handicapped individuals by federal agencies, contractors or subcontractors doing more than $2500 in business with the federal government, and programs receiving federal financial assistance.

²³² District 27, 130 Misc. 2d at 414, 502 N.Y.S.2d at 335.

²³³ Note, supra note 224, at 141.

²³⁴ District 27, 130 Misc. 2d at 415-16, 502 N.Y.S.2d at 337.

²³⁵ 408 U.S. 273 (1987).

²³⁶ The Court expressly refrained from dealing with the issue of asymptomatic carriers, although by its reasoning the Court suggests that they too should be considered handicapped when they encounter discrimination because of the attitudes of others. See Leonard, AIDS in the Workplace, in AIDS AND THE LAW: A GUIDE FOR THE PUBLIC, supra note 8, at 2-13.

²³⁷ Doe v. Dolton Elem. School Dist. No. 148, No. 87 Civ. 8713 (N.D. 111. June 23, 1988), reviewed in Pupil Would Be “Regarded” As Handicapped Under Rehabilitation Act, Judge Says, 3 AIDS Pol'y & Law (BNA) No. 14, at 1, 2 (July 27, 1988).

²³⁸ Id.

²³⁹ Id. at 2.

²⁴⁰ See supra text accompanying note 232.

²⁴¹ San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

²⁴² Brown v. Board of Ed., 347 U.S. 483, 489 (1959).

²⁴³ pyler v Doe 457 U.S. 202, 221 (1982) (overturning a Texas statute permitting school authorities to exclude children of illegal aliens from public schools).

²⁴⁴ Brown, 347 U.S. at 492-94; see Doe v. Dolton Elem. School Dist. No. 148, No. 87 Civ. 8713 (N. D. 111. June 23, 1988), reviewed in Pupil Would be “Regarded” As Handicapped Under Rehabilitation Act, Judge Says, 3 AIDS Pol'y & Law (BNA) No. 14, at 1, 2 (July 27, 1988).

²⁴⁵ Note, supra note 214, at 98; see, e.g., Pyler, 457 U.S. at 221.

²⁴⁶ Doe v. Dolton, No. 87 Civ. 8713 (N. D. 111. June 23, 1988).

²⁴⁷ See Ware v. Valley Stream High School Dist., 150 A.D.2d 14, 545 N.Y.S.2d 316, appeal denied, 74 N.Y.2d 829, 545 N.E.2d 629, 546 N.Y.S.2d 339 (1989).

²⁴⁸ See Note, supra note 214, at 96-100.

²⁴⁹ Id. at 100-04. Because the risk of transmission in the school setting is “apparently nonexistent,” automatic exclusion of all infected children is not necessary or warranted as a public health prevention measure.

²⁵⁰ T. HAMMETT, AIDS IN CORRECTIONAL FACILITIES: ISSUES AND OPTIONS 21 (2d ed. 1987).

²⁵¹ Id.

²⁵² Id. at 23.

²⁵³ Id.

²⁵⁴ Wagner, AIDS and the Criminal Justice System, in AIDS AND THE LAW: A GUIDE FOR THE PUBLIC, supra note 8, at 177, 185.

²⁵⁵ Vaid, Prisons, in AIDS AND THE LAW: A GUIDE FOR THE PUBLIC, supra note 8, at 235, 244. To date, only Vermont supplies prisoners with condoms.

²⁵⁶ For a thorough review of screening issues, see generally Field, supra note 149.

²⁵⁷ Gostin & Ziegler, supra note 185.

²⁵⁸ Vaid, supra note 255; Wagner, supra note 254, at 187. Colorado abandoned screening of prison inmates in the spring of 1989, adopting instead the non-routine testing of inmates upon medical or other indications. Conversation with Thomas Vernon, Colorado Commissioner of Public Health (May 1989).

²⁵⁹ Wagner, supra note 254, at 187.

²⁶⁰ Meyer, & Pauker, , Screening for HIV: Can We Afford the False Positive Rate?, 317 NEW ENG. J. MED. 238, 238-41 (1987)CrossRefGoogle Scholar; see also Field, supra note 149.

²⁶¹ T. HAMMETT, supra note 250, at 26.

²⁶² Vaid, supra note 255, at 243.

²⁶³ Because HIV infection is not transmitted through casual contact, segregation is not ordinarily necessary to protect others from exposure. Where it is medically necessary to separate an infected individual for his or her protection, or where the individual's acts put others at risk for infection, segregation may be appropriate on a case-by-case basis.

²⁶⁴ Vaid, supra note 255, at 241.

²⁶⁵ 607 F. Supp. 9 (S.D.N.Y. 1984).

²⁶⁶ See Note, AIDS in Prisons: Are We doing the Right Thing?, 23 NEW ENG. J. CRIM. & Div. COMMITMENT 269 (1987).

²⁶⁷ Gerberding & U.C.S.F. Task Force on AIDS, Recommended Infection Control Policies for Patients with Human Immunodeficiency Virus Infection, 315 NEW ENG. J. MED. 1562 (1986); Centers for Disease Control, Human Immunodeficiency Virus in Health Care Workers Exposed to the Blood of Infected Patients, 36 MORBIDITY & MORTALITY WEEKLY REP. 285 (1987)Google Scholar.

²⁶⁸ AMERICAN HOSPITAL ASSOCIATION, SPECIAL COMMITTEE ON AIDS/HIV INFECTION, AHA REPORT: AIDS/HIV INFECTION: RECOMMENDATIONS FOR HEALTH CARE PRACTICES AND PUBLIC POLICY 2 (1988) [hereinafter AHA REPORT].

²⁶⁹ Id. at 3.

²⁷⁰ Universal precautions are protective barriers (gloves, masks and protective eye gear) and practices designed to avoid exposure to potentially infected blood or other body fluids.

²⁷¹ AHA REPORT, supra note 268, at 2.

²⁷² Id. at 10.

²⁷³ Breo, Dr. Koop Calk for AIDS Tests Before Surgery, Am. Med. News, June 26, 1987, at 1; Surgeon Calls for Screening of All Hospital Patients, Boston Globe, Mar. 31, 1988, at 32, col.l [hereinafter Surgeon Calls for Screening].

²⁷⁴ AMERICAN MEDICAL ASSOCIATION HOUSE OF DELEGATES, REPORT YY (A-87), PREVENTION AND CONTROL OF AIDS: AN INTERIM REPORT (1987) [hereinafter AMA INTERIM REPORT]; see also AMERICAN MEDICAL ASSOCIATION, REPORT LLL (A-88): PROGRESS ON THE PREVENTION AND CONTROL OF AIDS (1988).

²⁷⁵ TEX. REV. CIV. STAT. ANN. art 4419b-l, § 9.02(g) (Vernon 1987); COLO. REV. STAT. § 25-4-1405(8) (1987). The statute allows testing without the patient's knowledge and consent “where the health of a health care provider … is immediately threatened by exposure to HIV in blood or other bodily fluids.” Id.

²⁷⁶ AHA REPORT, supra note 268, at 7.

²⁷⁷ Some commentators have suggested that screening could be used for the purpose of determining whether to perform an elective procedure. Surgeon Calls for Screening, supra note 273. Avoiding procedures for nontherapeutic reasons, such as fear of exposure, “would be inconsistent with the mission of the hospital,” and may violate legal and ethical obligations to provide proper patient care. AHA REPORT, supra note 268, at 9.

²⁷⁸ See, e.g., MASS. GEN. L. ch. 111, § 70F (1987).

²⁷⁹ See Klein, , Phelan, , Freeman, , Schable, , Friedland, , Trieger, & Stiegbigel, , Low Occupational Risk of Human Immunodeficiency Syndrome Among Dental Professionals, 318 NEW ENG. J. MED. 86, 89 (1988)Google Scholar [hereinafter Klein].

²⁸⁰ See AMA INTERIM REPORT, supra note 274.

²⁸¹ See Denying Access, supra note 93.

²⁸² AHA REPORT, supra note 268, at 8.

²⁸³ Centers for Disease Control, Recommendations for Prevention of HIV Transmission in Health Care Settings, 36 MORBIDITY & MORTALITY WEEKLY REP. 2S (1987) [hereinafter Centers for Disease Control, Recommendations for Prevention].

²⁸⁴ Id.

²⁸⁵ Health Care Law § 20.07(2) (1988).

²⁸⁶ Joint Advisory Notice: Protection Against Exposure to Hepatitis B Virus (HBV) and Human Immunodeficiency Virus (HIV), 52 Fed. Reg. 41,818 (Oct. 30, 1987).

²⁸⁷ Centers for Disease Control, Recommendations for Infection Control Practices for Dentistry, 35 MORBIDITY & MORTALITY WEEKLY REP. 237 (1985)Google Scholar [hereinafter Centers for Disease Control, Recommendations for Infection Control﹜.

²⁸⁸ Centers for Disease Control, Recommendations for Prevention, supra note 283; Centers for Disease Control, Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus, and Other Blood Borne Pathogens in Health Care Settings, 37 MORBIDITY & MORTALITY WEEKLY REP. 377 (1988)Google Scholar.

²⁸⁹ Klein, supra note 279, at 88.

²⁹⁰ Id. at 89.

²⁹¹ Centers for Disease Control, Update: Acquired Immunodeficiency Syndrome and Human Im munodeficiency Infection Among Health Care Workers, 37 MORBIDITY & MORTALITY WEEKLY REP. 229, 233 (1988)Google Scholar.

²⁹² See Centers for Disease Control, Recommendations for Prevention, supra note 283; AHA REPORT, supra note 268.

²⁹³ Centers for Disease Control, Recommendations for Infection Control, supra note 287, at 239.

²⁹⁴ Id.

²⁹⁵ The same reasoning would apply to physicians and other health care workers who, in the course of practice, could put patients at risk for infection by failing to implement appropriate precautions.