Privacy

By Anastasia Toufexis

It is a new terror of the '80s: in Minneapolis a 29-year-old male prostitute who had known for at least two years that he had been infected with the AIDS virus continued to have sexual relations with his clients, mostly married bisexual men. Today fear of such reckless behavior is driving many states -- Minnesota, Colorado, South Carolina and Hawaii among them -- to consider drastic solutions: temporary detention, forced isolation, even jail for so- called recalcitrant carriers. It is not an idle threat. Last month in Pensacola, Fla., a judge ordered a 14-year-old infected with the virus locked up in a local hospital's psychiatric ward for more than a week after hearing evidence that he persisted in sexual activity. The youth was then sent to a state mental health facility.

Harsh, yes. But many see such treatment of hazardous AIDS carriers as justified. Explains Stanford Law Professor Thomas Grey: "It's the same as locking up someone who is going around stabbing people." Agrees Dr. David Cohn, a Denver public-health official: "When Patrick Henry said, 'Give me liberty or give me death,' he wasn't talking about AIDS." Still, it is now clear that the more the disease spreads, the more the civil liberties of its victims are likely to suffer. Necessarily, public well-being takes precedence over individual rights, notes Larry Gostin, Harvard professor of health law and a board member of the American Civil Liberties Union. "The danger," he says, "lies in using public health the same way some use national security -- as an overvague justification with no proof that it will do any good."

Contagious disease, from cholera to gonorrhea, has traditionally been fought with an array of weapons: education, vaccination, quarantine, testing for infection, reporting those infected as well as tracing and notifying others who have been exposed. Today general AIDS information programs are getting under way, but no vaccine exists. Mass confinement and quarantine are dismissed as impractical, even impossible. It is the last three options that are provoking heated controversy, as the uproar over testing shows.

Critics of the emerging U.S. policy -- which so far requires AIDS tests of military and foreign service personnel, federal prisoners and immigrants seeking residency -- contend that compulsory screening violates good health tactics as well as privacy rights because it leads people to evade help and sends the disease underground. They note that despite assurances of confidentiality, such promises are regularly breached. Says June Osborn, dean of the School of Public Health at the University of Michigan: "Advertent or accidental public disclosure of positive tests has led to loss of insurance, marriage, family ties and even domicile -- in short, everything necessary for life and the pursuit of happiness."

Others believe societal benefits from rigorous screening and tracing outweigh the invasion of some individuals' privacy. Sometimes a "concern for civil liberties has led us astray," argues Ethicist Ronald Bayer of the Hastings Center think tank, who is a strong advocate of contact notification. "Obviously this is no panacea; the case is strongest where the level of infection is still quite low. But it seems to me that the right to know is also a civil right."

Colorado's defense for its tough stance on AIDS takes this argument even further. Since last month physicians have been required by law to violate the doctor-patient relationship by reporting the names of those who test positive for the virus; the state then makes an active effort to inform sexual contacts. There is legal precedent for such measures. In a 1977 decision, the U.S. Supreme Court upheld a New York State law that called on pharmacists to turn in the names of customers with prescriptions for narcotics popular in the drug underworld.

Another recent decision has raised questions about the social vulnerability of high-risk AIDS groups. Last year the court ruled that state sodomy laws -- which have been around since 1662 -- do not unconstitutionally invade individual privacy. Notes Attorney Gostin: "The decision left the door wide open to states which already have an irrational prejudice against gays and are hysterical about AIDS to introduce more coercive measures against homosexuals." Some observers even foresee attempts to control fertility in black and Hispanic communities where intravenous-drug abuse and AIDS are rampant. "I am certain there will be a lot of calls for sterilization of infected women," says Ethicist Bayer.

"The democratic principles at risk here are every bit as serious as the health issues," notes Michigan's Osborn. Agrees Dr. David Musto, a medical historian at Yale: "We need to deal with these issues now while we can still be somewhat rational about them. This is the calm before the hurricane."

With reporting by Christine Gorman/New York and Dennis Wyss/San Francisco