The Court at the Epicenter of a New Civil Rights Struggle: HIV/AIDS in the New York Court of Appeals

Article excerpt

"Very often, ordinary people found that the policies put in force during an epidemic-the quick burial of corpses in lime in mass graves, confiscation of the property of the dead, closings of markets, establishment of quarantining-posed far greater threats to their world of lived experience and expectation than the disease itself"

-Sheldon Watts1


When the Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)2 first emerged on the American scene in the early 1980s,3 little was known about the disease except that it was incurable, fatal, and transmissible. The specter of such a horrifying new "plague,"4 whose routes of IMAGE FORMULA9transmission were largely misunderstood or unknown,5 imbued the disease with the power instantly to stigmatize those living with the virus.6 By a disastrous twist of fate, moreover, AIDS disproportionately struck first in communities already laboring under the weight of society's prejudices: the gay community, intravenous drug users, and communities of color.7 As one early commentator explained: "It is one of the cruelest ironies of the epidemic that its impact is greatest among those already stigmatized: gay men and intravenous drug users (many of IMAGE FORMULA11whom are black or brown)."8

AIDS thus created, almost overnight, a new class of individuals subject to widespread and often virulent prejudice and discrimination:

Since the first cases of AIDS identified in the 1980s were overwhelmingly among gay men, people of color, and intravenous drug users, AIDS got off to a bad start. The bigotry of many people, and even of some religious leaders, found new opportunities in AIDS issues to fight unpopular groups. Additionally, when the alarming objective medical characteristics of AIDS (that it is incurable, fatal, and transmissible) were thrown into the mix, more people were swept up in the hostility toward AIDS and toward those it infected.9

Individuals living with HIV and AIDS have experienced discrimination in every facet of life, including such areas as housing, education, employment, health care, and insurance.10 IMAGE FORMULA15People with AIDS, suspected of having AIDS, and sometimes even suspected of being at heightened risk for AIDS were fired from their jobs, denied access to public school classrooms, deprived of custody and visitation with their children, refused services of a variety of kinds, derided and defamed throughout society, and otherwise discriminated against. Violent physical attacks on people with AIDS including school children, gays, prisoners, and others were not uncommon.11

Opinion polls have consistently revealed widespread and profound prejudice against individuals living with HIV and AIDS. A December 1985 poll taken by the Los Angeles Times revealed, for example, that "most Americans favor some sort of legal discrimination against homosexuals as a result of AIDS."12 In that same poll, 51% favored banning people with AIDS from having sex; 51% favored quarantine for people living with AIDS; 48% wanted people living with AIDS to carry special identification cards; and 15% favored tattooing people living with AIDS.13 In a survey of 53 opinion polls conducted between 1983 and 1988, Harvard School of Public Health researchers reported that 29% favored tattooing people living with HIV and AIDS; 25% would refuse to work near someone living with AIDS and believed that employers should have the right to fire someone for IMAGE FORMULA17this reason alone; and 17% said that those with AIDS should be treated as those with leprosy once were-by being sent to "far-off islands."14

Tragically, this ignorance and discrimination continues. In a recent survey conducted by the Centers for Disease Control, nearly one in five Americans polled felt that people living with HIV "have gotten what they deserve. …