Do Prisoners Have a Right under the Eighth Amendment to HIV Testing on Demand?
Couvillon, Kristi M., Texas Journal on Civil Liberties & Civil Rights
This paper examines whether prisoners have a right to human immunodeficiency virus (HIV) testing on demand, as part of the Eighth Amendment requirement that prison officials provide prisoners with adequate medical care.1 There is a dearth of case law regarding a prisoner's right to HIV testing upon demand. No Supreme Court case has held that prisoners do (or do not) have this right. In addition, only two reported federal cases have discussed this issue.2 One such case from the Sixth Circuit, Doe v. Wigginton, held in 1994 that an inmate was not deprived of his Eighth Amendment rights when his request to be tested for HIV was denied.3 However, almost ten years have passed since this case was decided, and no reported case has cited this decision either favorably or unfavorably.4 The other federal district court case could not be decided on Eighth Amendment grounds, because the plaintiff appeared to have no standing regarding denial of an HIV test upon demand.5
Testing upon demand becomes more crucial for inmates as more developments arise in the field of medical care for HIV. A positive test result for HIV allows physicians to begin performing crucial immune system monitoring to determine the best time to begin medical therapies to decrease the effects of HIV on the body.6 In addition, diagnosing HIV in prisoners during their period of incarceration, as opposed to forcing prisoners to wait until they are back in the community to get tested, allows them to take advantage of the newer anti-retroviral drugs sooner. These drugs often greatly lower the amount of HIV in the bloodstream.7 The improvements in medical science, which help HIV patients to lead longer and healthier lives, have placed a new importance on early diagnosis of HTV.8
Existing case law establishes that prisoners have a constitutional right to obtain adequate medical treatment and care.9 This paper will examine the development of the theory entitling prisoners to adequate medical care regardless of their ability to pay for it. In addition, this paper will assert that the right to receive HIV testing on demand is covered by the right to receive adequate medical care. This assertion is backed by an analysis under the two-pronged test of Estelle v. Gamble, the landmark case where the Supreme Court established a prisoner's right to receive adequate medical care.10 In addition, the Supreme Court has noted that the "standards of decency" regarding treatment of prisoners are evolving, "mark[ing] the progress of a maturing society."11 The Court noted at the beginning of the Twentieth Century that Eighth Amendment factors are "progressive" and "acquire meaning as public opinion becomes enlightened by a humane justice." 12 While no case has yet held that prisoners have a right to HFV testing on demand, this paper contends that we have evolved to a point where this right should be recognized under the current standards of decency in our society.
II. HISTORY OF PRISONERS' RIGHT TO ADEQUATE MEDICAL CARE UNDER THE EIGHTH AMENDMENT
Requiring the government to provide its prisoners with adequate medical care originates from the Eighth Amendment's13 prohibition of "cruel and unusual punishments."14 The notion of setting limits on punishment in proportion to the crime or offense developed within the common-law tradition of England during the Middle Ages.15 This concept was integrated into the Magna Carta and was also incorporated into the English Declaration of Rights of 1689.16 This Declaration was the first document using the phrase "cruel and unusual punishments."17 The Eighth Amendment of the United States Constitution adopted this phrase in the Bill of Rights, which became law in 1787.18
However, the courts have only recently interpreted the Eighth Amendment to impose an affirmative duty on the government to provide adequate medical care for prisoners.19 This recent interpretation of the Eighth Amendment reflects the fact that the clause forbidding cruel and unusual punishments attains new meaning as society becomes "enlightened by a humane justice. …