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AIDS and Right of Privacy
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This guide is descriptive of the degree to which AIDS has penetrated some of the primary structures of society, especially those related to law, ethics and politics, and focuses on the implications for the right to privacy of infected individuals. Workplace rules and individual privacy concerns have both been affected by the advent of the AIDS Virus. It is is divided into two parts: first, periodical articles; second, treatises. Consult the Digest, Westlaw or other legal databases for current case law. This guide is structured to assist individuals interested in a broad overview as well as those whose research concerns are more specific. This is merely a research aid; it is not exhaustive. The period covered is from 1985 to 1996.
Abbot, Debra A. "Workplace Exposure to AIDS." 48 Maryland Law Review. Winter 1989. 212-245.
This symposium explores the relationship between employees and
employers regarding AIDS. This article suggest that the risk of
workplace exposure is too low to justify the invasion of privacy
in general.
Best, Thomas E. Harris v. Thigpen:
"Segregating HIV positive inmates in the Alabama
Correctional System." 43 Mercer Law Review. Summer
1992. 1263-1289. This is a casenote that begins with a brief
background of HIV testing and how correctional facilities have
dealt with the disease in the past. It then examines similar
cases and situations and analyzes the case itself.
Bollow, Richard C. and Daryl J. Lapp. "Protecting the
Confidentiality of Blood Donors' Identities in AIDS
litigation." 37 Drake Law Review. Spring 1988.
343-375. This article gives the strengths and weaknesses of
keeping blood donors' identities confidential with regards to the
hospital and blood bank. It addresses the issue of the extent to
which identities of volunteer blood donors can be protected given
the rising volume of AIDS litigation involving blood banks and
hospitals.
Brandt, Edward N., "Introduction: Health Care Workers and
AIDS." 48 Maryland Law Review. 1989, no. 1. 1-11.
This symposium considers the disease and its effects on the
medical profession. It offers an overview of the disease
relationship to the health care worker who both faces risk of
infection and has the primary duty to warn third persons who
might be at risk of infection.
Branham, Lynn Sanders. "Opening the Bloodgates: The Blood
Testing of Prisoners for the AIDS Virus." 20 Connecticut
Law Review. Summer 1988. 763-811. This is a discussion of the
legal questions concerning the blood testing of all prisoners for
the AIDS virus. The mains issue is the extent to which prisoners
retain a right of privacy, or should they be extended that right.
--- "California Court Bolsters AIDS Privacy
Right." 4 col in. 13 The National Law Journal. Jan
28, 1991. p 6 col 1. This is a short article that describes the
case of Estate of Urbaniak v. Newton. The case involves
hospital patients who are HIV or AIDS positive who desire to have
this information kept confidential.
--- "A Call for Mandatory HIV Testing and
Restriction of Certain Health Care Professionals." 9:2 Saint Louis University Public Law Review. (1990): 421-438. The author supports the idea of mandatory HIV testing for health care professionals who are engaged in activities of a physically
invasive nature but opposes mandatory HIV testing for the general
population. (Not Available in Law Library)
Campbell, Emily. "Mandatory AIDS testing and
privacy: A Psycholegal Perspective." 66 North Dakota Law
Review. Summer 1990. 449-494. The concept of privacy and the
constitutionality of such a testing program is discussed.
Closen, Michael L. "Mandatory Disclosure of HIV blood
test results to the individuals tested: A matter of Personal
Choice neglected." 22 Loyola University of Chicago Law
Journal. Winter 1991. 445-478. This article is concerned with
an individual's right not to know the results of medical testing
for HIV. The author argues in favor of a freedom not to be
apprised of results.
Closen, Michael L.; Connor, Susan Marie; Kaufman, Howard L.; and
Wojcik, Mark E. "AIDS in America: Death, Privacy and the
Law." 14 Human Rights. Summer 1987. 26-29, and 48-52.
This article provides a survey of relevant constitutional and
federal statutory law.
Closen, Michael L.; Connor, Susan Marie; Kaufman, Howard L.; and
Wojcik, Mark E. "AIDS: Testing democracy-irrational
responses to the public health crisis and the need for privacy in
serologic testing." 19 John Marshall Law Review.
Summer 1986. 835-928.
Collier Stephen. "Preventing the Spread of AIDS by
Resisting Sexual Conduct in Gay Bathhouses: A Constitutional
Analysis." 15:2 Golden State University Law Review
(Summer 1985): 301-330. This article begins with a discussion of
the privacy right, and its relationship to gay sexual intimacy in
general. It also presents an analysis of the state's authority to
limit sexual behavior in gay bathhouses.
Connolly, Walter B., Jr. and Alison B. Marshall. "An
Employer's Legal Guide to AIDS in the Workplace." 9:2 Saint Louis University Public Law Review (1990):561-585. The Author notes the obvious need to consider relevant state and federal laws which might impact on their management decisions. (Not Available in Law Library)
Cordes, Renee. "Court backs confidentiality of HIV status." 30 Trial. April 1994. 92(1). The U.S. Court of Appeals for the Second Circuit ruled In Re Claim of John Doe v. City of New York that a press release on the settlement of New York employment discrimination charges filed by an HIV positive person violated that person's right to privacy because the release contained enough information to identify him.
Davie, Suzette Lewis. "Constitutional Law - Right of
Privacy - The Privacy Interests of AIDS-Infected Blood Donors - Rasmussen v. South Florida Blood Services." 18 Cumberland Law Review. Fall 1987. 267-280. This is a casenote that addresses the issue of the right of blood donors to privacy versus the right of an individual to know whether or not he was exposed to AIDS as the result of a blood transfusion.
Doughty, Roger. "The confidentiality of HIV-related information: responding to the resurgence of aggressive public health interventions in the AIDS epidemic." 82 California Law Review. January 1994. 111-184. In this Comment, the author examines these new threats to confidentiality in light of three levels of confidentiality protection that now exist: statutory protection for HIV-specific information, statutory protection for medical information, and constitutional and common law privacy rights. The Author argues that, given the rapid pace of change in government policies surrounding HIV-related information, legal protections for confidentiality are inadequate to serve the dual function of preserving civil liberties and promoting public health. The author concludes by suggesting several ways of bolstering protections against future potential breaches of confidentiality.
Durkin, Joseph A. "Rasmussen v. South Florida Blood
Service: The Balance Between Blood, Privacy, and the Need to
Know." 20 John Marshall Law Review. Summer 1987.
823-837. This article describes the conflict between an
individual's right to confidentiality and the need of other
persons to gain information by looking at the Rasmussen
decision.
Edgar, Harold and Hazel Sandomire. "Medical privacy
issues in the age of AIDS: Legislative options." 16 American Journal of Law and Medicine. (Spring-Summer 1990): 155-222. This article surveys state legislation dealing with HIV related problems in medical privacy and antidiscrimination law.
Eisenstat, Steven. "An analysis of the rationality of
mandatory testing for the HIV antibody: balancing the
governmental public health interests with the individual's
privacy interest." 52 University of Pittsburgh Law Review. (Winter 1991): 327-382.
Gostin, Larry. "Hospitals, Health Care Professionals, and
AIDS: the 'Right to Know' the Health Status of Professionals and
Patients." 48 Maryland Law Review. (1989:1): 12-54.
This article argues that patients and health care professionals
with HIV should have autonomy and privacy rights to choose
whether to consent to an HIV test and to disclose their serologic
status.
Gostin, Lawrence O., William J. Curran, and Mary E. Clark. "The Case against Compulsory Casefinding in Controlling AIDS-testing Screening and Reporting." 12:1 American Journal of Law & Medicine. (Spring 1986): 7-53. The author argues that because the AIDS virus is fatal, it is essential that uninfected persons be protected, and that infected persons be identified. However, the identification process must be voluntary and confidential.
Hanssens, Catherine A. and John V. Jacobi. "Blood testing
of prisoners for the AIDS virus: A brief reply." 20 Connecticut Law Review. (Summer 1988): 813-834. The author contest that mandatory AIDS testing of prisoners is not only constitutionally permissible, but perhaps required.
Hard, Vallori K. "Mandatory Disclosure of AIDS Status by
Health Care Workers." 21 Western State University Law
Review. Fall 1993. 295-319. This paper reviews current
information regarding AIDS and HIV and examines the issue of AIDS
and HIV in the health care setting, including relevant
legislation and case law.
Heaney, Gretta J. "The Constitutional rights of
informational privacy: does it protect children suffering from
AIDS?" 14 Fordham Urban Law Journal. (Fall 1986):
927-969. This article addresses the issue of whether or not
children enjoy the same right of privacy regarding the
distribution of information about themselves, as do adults. The
author concludes that a child's right of privacy outweighs the
right of the public to know.
Hermann, Donald H.J. "Criminalizing Conduct Related to
HIV Transmission." 9:2 Saint Louis University Public Law
Review. (1990): 351-378. The conclusion expressed in this
article is that general criminal statutes are inappropriate
vehicles for controlling the spread of the disease, while
carefully-drawn, HIV-specific statutes might well be more useful
in dealing with criminal HIV transmission behavior.(Not Available
in Law Library)
Hermann, Donald H.J. and Rosalind D. Gagliano. "AIDS,
Therapeutic Confidentiality, and Warning third Parties." 48 Maryland Law Review. (1989:1) 55-76. This article considers aspects of state and federal laws authorizing exceptions to confidentiality, and then considers the effects of such rulings.
Hogan, Grace Kathleen and Nicole Wertz. "Privacy, privilege and the right to know: disclosure of AIDS/HIV status in the physician-patient relationship." 11 St. John's Journal of Legal Commentary, Summer 1996. 805-841. The physician-patient relationship is highly respected in American society. Our legal system similarly recognizes the importance of this relationship by affording the physician-patient privilege. This privilege, however, is not absolute. The qualified nature of the privilege reflects the realization that even this relationship must occasionally yield to the public welfare.
Isaacman, Scott H. "The Other Side of the Coin:
HIV-Infected Health Care Workers." 9:2 Saint Louis
University Public Law Review. (1990): 349-494. Concerned with
the possible consequences of HIV infected health care workers,
the author examines the risks posed, the response of health care
institutions, and the associated political responses at the
federal and state levels. A level of risk analysis is made, and a
sample hospital policy guide is presented.(Not Available in Law
Library)
Kimmey, James R. "AIDS: As the Epidemic Evolves, the
Controversies Do Not." 9:2 Saint Louis University Public
Law Review. (1990): 343-350. The author notes how the growing
AIDS problem has brought to light powerful questions relating to
the public policy response to the disease. Education, HIV
testing, needle exchanges, and privacy of individuals are
considered, as well as a brief discussion of policy implications.
(Not Available in Law Library)
Kirsh, Marla S. "AIDS: Anonymity in Donation
Situations-Where Public Benefit Meets Private Good." 69 Boston University Law Review. Jan 1989. 187-212. Well organized into four separate parts, this Note considers whether or not blood donors have a constitutional right to remain anonymous. The author concludes that in order to maintain a safe and adequate blood supply it is necessary to keep blood donors' identities confidential.
Labowitz, Kenneth E. "Beyond Tarasoff:AIDS and the
Obligation to Breach Confidentiality." 9:2 Saint Louis
University Public Law Review. (1990): 495-517. The Tarasoff
case, holding a psychotherapist responsible for failing to warn a
third party of the threat posed by one of his patients, is at the
basis of the author's claim that health care workers must ensure
notification of third parties as to their potential risk of
infection by that patient. (Not Available in Law Library)
Levine, Matthew L. "Contact tracing for HIV infection: a
plea for privacy." 20 Columbia Human Rights Law Review. (Fall 1988): 157-201. The author addressed some of the key practical and legal considerations in the implementation and design of contact notification procedures, with a good deal of emphasis placed on the need for confidentiality.
Levy, Susan J. "The Constitutional Implications of
Mandatory Testing for Acquired Immunodeficiency
Syndrome-AIDS." 37 Emory Law Journal. Winter 1988.
217-248. This Comment responds to the issue of mandatory testing
of AIDS in the United States. The author considers mandatory
testing to be a severe intrusion into individuals' lives by the
government.
McNamara, Joan N. "Protecting HIV Confidentiality After Urbaniak v. Newton: Will California's Constitution Provide Adequate Protection?" 29 California Western Law Review. Spring 1993. 471-493. This Note discusses the Urbaniak decision, investigates broad privacy protection, and concludes with recommendations for clear statutory protection.
Messitte, Peter J. "A Judicial Perspective on AIDS."
31 col. in. 10 The National Law Journal. Sept 5, 1988. p.13 col 1. This article discusses the fact that AIDS is not an issue that judges should be unprepared for. He compares AIDS and the issues surrounding the disease with other similar problems in
America.
Nanula, Peter J. "Protecting Confidentiality in the
Effort to Control AIDS." 24 Harvard Journal on
Legislation. Winter 1987. 315-349. This Comment emphasizes
the importance of protecting the confidentiality of potential and
confirmed AIDS carriers. The author provides possible sources of
legal protection of confidentiality and a model statute covering
the changes that he suggests.
Pines, Deborah. "Segregation of Inmate Held
Unconstitutional; Damages May Be Due HIV-Positive Prisoner."
14 col in. 206 New York Law Journal. Nov 19, 1991. p 1 col
5. This is a news article describing a case involving a prisoner
who was segregated from other inmates after testing positive for
HIV.
Price, Monroe E. "Searching For a New Paradigm; The AIDS
crisis Presents the Issue of Balancing Individual Freedoms With
the Necessity of Centralized Government Action." il 72 col
in. 11 The National Law Journal. August 7, 1989. p 13 col
1. This is an editorial that explains how AIDS effects the
relationship between the individual and the state.
Rabin, Judith A. "The AIDS Epidemic and Gay Bathhouses: a
Constitutional Analysis." 10:4 Journal of Health Politics
Policy and Law. (Winter 1986): 729-747. The author argues
that although the government has the power to close the baths in
the name of public health, it should not do so without careful
and conscious balancing against the privacy rights infringed upon
by its actions.
Reidinger, Paul. "Testing, Testing: Drug, AIDS Tests
Upheld." 75 ABA Journal. Feb 1989. 96 (1). This brief
article describes cases in which courts ruled that the risk
involved with HIV and AIDS is much greater than the prospect of
discrimination towards carriers of the disease.
Rothenberg, Karen H. "The AIDS Project: Creating a Public
Health Policy- Rights and Obligations of Health Care
Workers." 48 Maryland Law Review. (1989:1): 95-211.
The project represents the results of a consideration regarding
public policy towards AIDS by an interdisciplinary (law,
medicine, social work) group of students. Various policy
recommendations are offered.
Ryland, Sonya. "AIDS and Right to Privacy." 16:2 Southern University Law Review. (Fall 1989): 393-405. A number of privacy cases are discussed and the development of the AIDS crisis is traced.
Samar, Vincent J. "Privacy and AIDS." 22 University
of West Los Angeles Law Review Annual. 1991. 1-17. The author
stresses the point that if each person has a general right to
privacy, then each person should have the right not to be
intruded upon in respect to their HIV status. He calls this right
RNIH(the Right to Non-Intrusion on HIV status).
Schulman, David I. "AIDS Workplace Law and Policy: a
Systematic Analysis." 9:2 Saint Louis Public Law Review. (1990): 543-560. This article begins with a discussion of privacy, and other rights and concludes with model guidelines for developing AIDS workplace policies. (Not Available in Law Library)
Schultz, Gene P. and Charles A Parmenter. "Medical Necessity, AIDS, and the Law." 9:2 Saint Louis University Public Law Review. (1990): 379-420. This article looks at the states' obligation to provide Medicare coverage to AIDS sufferers and concludes that where a state Medicaid plan covers prescription drugs, it must provide drug support to AIDS patients. (Not Available in Law Library)
Shaffer, Anne. "Liability for Transmission of AIDS in the
Hospital Workplace: A Critique of Mandatory AIDS testing of
hospital patients." 90 West Virginia Law Review.
Winter 1987. 652-671. The author looks at both sides of the issue
of mandatory AIDS testing for hospital patients. He attempts to
find a balance between individuals' rights and the public's
interest in controlling the AIDS virus.
Speigel, Charles. "Privacy, Sodomy, AIDS and the Schools:
Case Studies in Equal Protection." 1986 Annual Survey of
American Law. April 1987. 221-253. This article examines both
the Baker v. Wade and the Hardwick v. Bowers
decisions. The author analyzes the AIDS crisis with regards to
consensual homosexual behavior, equal protection laws, and the
right to privacy.
Strader, J. Kelly. "Constitutional Challenges to the
Criminalization of Same-Sex Sexual Activities: State Interest in
HIV-AIDS Issues." 70 Denver University Law Review.
Winter 1993. 337-357. The author proposes constitutional
challenges to state sodomy laws focusing on the right to
privacy.
Summers, Terry. "Federal Court Invalidates AIDS
policy." 57 UMKC Law Review. Winter 1989. 369-384.
This Note concerns the court decision of Glover v. Eastern
Nebraska Community Office of Retardation. The author examines
the decision, which involves mandatory AIDS testing as an
unreasonable search and seizure.
Terzian, Lincoln A. "AIDS - Confidentiality - Individuals
infected with Acquired Immune Deficiency Syndrome (AIDS) Through
Blood Transfusions May Obtain Limited Disclosure of Donor's
Identity During Pretrial Discovery." 22 Seton Hall Law
Review. Summer 1992. 999-1034. This article discusses the Snyder v. Mekhjian decision which deals with limited discovery of a blood donor's identity.
Van Dam, M. Nicole. "The Scarlet Letter 'A": AIDS in
a Computer Society." 10:2 Computer Law Journal April
1990: 233-264. This article discusses the prudence of developing
an AIDS database given the current state of computer-matching as
well as the minimal safeguards available to limit access to such
a database.
Weber, Wenda A. "AIDS: legal issues in search of a
cure." 14 William Mitchell Law Review Summer 1988:
575-652. The Author points out the the fact that cases dealing
with other diseases have little precedential value given that
"AIDS is unlike any other disease previously
encountered." Therefore, this disease requires a legal
analysis that deals with it specifically.
Weissman, Joanna L. and Mildred Childer. "Constitutional
Questions: Mandatory Testing for AIDS Under Washington's AIDS
Legislation." 24 Gonzaga Law Review. Spring 1989.
433-473. This comment proposes possible constitutional problems
posed by new AIDS legislation.
Zarembka, Arlene and Katherine M. Franke. "Women in the
AIDS Epidemic: A Portrait of Unmet Needs." 9:2 Saint
Louis University Public Law Review. (1990): 519-541. The
author argues here that Black and Hispanic women especially are
subject to discriminatory behavior in the AIDS-sensitive
political and social environment.
Abt, Clark C. and Kathleen M. Hardy, eds. AIDS and the
Courts. Abt Books Inc. Cambridge. 1990.
(KF 3803 .A54 .A93)
Dalton, Harlon L. and Burris, Scott-eds. AIDS and the Law:
A Guide for the Public. Yale University Press. New Haven.
1987.
(KF 3803 .A54 .A95)
Dornette, William H. L.-ed. AIDS and the Law. Wiley Law
Publications. New York. 1987.
(KF 3803 .A54 .A94)
Rapoport, David and John Parry-eds. Legal, Medical and
Governmental Perspectives on AIDS as a Disability. The
American Bar Association. Washington, D.C. 1987.
(KF 3803 .A54. L4)
Rennert, Sharon. AIDS and Persons with Developmental
Disabilities: The Legal Perspective. American Bar
Association. Washington, D.C. 1989.
(KF 3803 A54 .A95)
Reubenfeld, Abby Rose, ed. AIDS Benchbook The National
Judicial College, American Bar Association. Reno. 1991.
(KF 3803 A54 .A93)
Sloan, Irving J. AIDS Law: Implications for the Individual
and Society. Oceana Publications, Inc. New York. 1988.
(KF 3803 .A54 .S59)
Strama, Brenda T. ed. AIDS and Governmental Liability.
American Bar Association. Chicago. 1993.
(KF 3803 A54 .A954)
Sullivan, Barry AIDS: The Legal Issues. American Bar
Association. Washington, D.C. 1988.
(KF 3803 A54 .A945)