This article surveys proposals for public health statutes and regulations to control the spread of the human immunodeficiency virus (HIV). The data were collected by the Harvard School of Public Health in pursuance of a contract for the U.S. assistant secretary for health and by the Intergovernmental Health Policy Project at George Washington University. The intention is to provide a representative overview of legal and policy alternatives, not to offer a comprehensive account of statutes and proposals in all jurisdictions.

The AIDS epidemic has refocused attention on public health law, raising anew questions about the application, effectiveness, and constitutionality of various disease control measures. State and local legislatures have considered a broad range of measures designed to control the spread of AIDS. Virtually every state legislature has debated AIDS-related bills; between January 1 and April 15, 1987, more than 360 AIDS-related bills were introduced in the United States. Thus far, approximately twenty-eight states have enacted AIDS-related legislation.

Expectations of a vaccine to prevent acquired immunodeficiency syndrome (AIDS) are rising. Not only are the prospects for an effective immunogen improving, but immunization appears to hold the greatest promise for halting the spread of infection and disease. Identification of the causal agent—the retrovirus called HTLV-IIII, LAV, or generically, HIV (human immunodeficiency virus)—has provided the direction and limited the options for containing the disease.

Prevention is, of course, critical where the disease must be presumed to be fatal in all cases. Although there is no clear evidence that any single exposure-to HIV will result in infection or disease, prudence dictates that all exposures be considered potentially infectious and, ultimately, disease-producing until more is known. Public education or, more specifically, behavior modification, intended to reduce or eliminate unsafe sexual contact and the sharing of syringes and needles by users of illicit intravenous (IV) drugs, is perhaps the only effective means of prevention that currently exists.

Public health is fundamentally about the values of community, the shared interests in life, health, and security. How the community perceives disease is not solely an issue of medical knowledge, but a function of the interrelated economic, social, and moral beliefs of the society. Our response to particular diseases will be colored to some extent by our image of the individuals or groups most directly affected by that disease.

Acquired immunodeficiency syndrome (AIDS) clearly poses a considerable threat to public health. The disease is thus far medically uncontrollable, and always fatal. The grim prognosis for persons with AIDS has intensified the urgency of developing a program to control and prevent the spread of the syndrome.

Given the pain, incapacity, and death that afflict persons with AIDS, it is not surprising that those exposed to HIV or those who have developed AIDS may sometimes feel themselves wronged and entitled to legal damages. There are two main areas of potential AIDS-related litigation: liability related to medical malpractice and liability related to transmission, whether via contaminated blood or blood products, needle-sharing, childbirth, or sexual intercourse.

This article will examine the precedents, arguments, and possible defenses in these areas and in relationship to a variety of potential defendants.

A cause of action for medical malpractice in AIDS-related diagnosis may arise in several ways: failure to diagnose, failure to inform a patient of a diagnosis, failure to provide proper counseling and treatment when patients test positive for HIV antibodies, and failure to report AIDS diagnoses to health authorities or at-risk sexual partners.

AIDS is spread by acts, not by casual exposure. As AIDS spreads further, some are urging that those acts, including sexual acts, be treated as crimes. Indeed, two AIDS carriers have already been charged with crimes for risking sexual transmission of AIDS to others. In one case, the United States Army has court-martialed an infected soldier, Pfc. Adrian Morris, Jr., charging that when he had sex with two other soldiers, he committed the crime of “aggravated assault.” Aggravated assault requires use of a “dangerous weapon or other means of force likely to produce death or grievous bodily harm.” What was the “weapon” in his case? The sexually transmittable AIDS virus itself. In the other case, the Los Angeles district attorney has charged an AIDS carrier, Joseph Markowski, with attempted murder for selling his blood and for having sex with another man while infected.

Throughout history, disease has been associated with bigotry and prejudice. Since biblical times the leper has been shunned and treated as an outcast. In the Middle Ages, the arrival of the plague brought with it violent social upheaval and persecution of the Jews. In the earlier part of this century, prostitutes thought to have venereal disease were quarantined en masse.

Given this sorrowful history, it is not surprising that the AIDS epidemic has brought with it mistreatment of persons associated with AIDS, the term I shall use for people who either have or are thought to have AIDS, AIDS-related complex (ARC), or antibodies to the virus that causes the disease. Indeed, considering that AIDS is a sexually transmitted disease that has in this country primarily afflicted homosexual men and intravenous (IV) drug abusers, it is perhaps surprising that overt acts of prejudice have not been more common.

The role of the Centers for Disease Control (CDC) in the development of recommendations and guidelines on acquired immunodeficiency syndrome (AIDS) evolves from a tradition that originates in the earliest editions of the Morbidity and Mortality Weekly Report (MMWR). In 1961 responsibility for the Public Health Service's MMWR was transferred to CDC from the National Office of Vital Statistics. During the first decade that CDC published it, the MMWR continued the tradition of providing detailed statistics on reportable communicable diseases and unusual occurrences of disease or outbreaks of illness. Only rarely did editorial comments on the data appear. However, as early as 1962 the MMWR became the vehicle the Public Health Service used to publish the recommendations of the surgeon general's Oral Poliomyelitis Vaccine Advisory Committee, the predecessor of the current Immunization Practices Advisory Committee. This practice of publishing immunization and other public health recommendations in the MMWR has continued.