The Decade of Supreme Court Avoidance of AIDS: Denial of Certiorari in HIV-AIDS Cases and Its Adverse Effects on Human Rights

By Closen, Michael L. | Albany Law Review, Spring 1998 | Go to article overview

The Decade of Supreme Court Avoidance of AIDS: Denial of Certiorari in HIV-AIDS Cases and Its Adverse Effects on Human Rights


Closen, Michael L., Albany Law Review


A comparison with anti-Semitism comes to mind. After the traumas of the Holocaust most of us would agree that its existence is not merely a Jewish problem, that it poses a challenge to everyone because a society that tolerates such prejudice is that much less a good and a just society. The same test, I would argue, can be applied to the way in which a society deals with a new and lethal disease, even when--especially when--those it strikes come largely from unpopular and distrusted groups.(1)

For the first time, the legal status of the nearly 1 million Americans who are HIV-positive has reached the Supreme Court.(2)

I. INTRODUCTION

The Acquired Immune Deficiency Syndrome (AIDS) epidemic of the early 1980s and its successor, the Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (HIV-AIDS) epidemic of the latter 1980s and 1990s, has been more than a disease epidemic.(3) It has spawned an epidemic of human rights abuses as well. The violations of the human rights of those living with HIV and AIDS, of those perceived to be afflicted with HIV and AIDS, and of those perceived to be at heightened risk for HIV and AIDS, have seriously hindered efforts to combat the disease.(4) An inordinate amount of time and vast financial resources have been wasted on misguided and counterproductive campaigns to fight individuals and groups of people, rather than to fight the disease.(5) Such misdirected campaigns have been particularly invidious, for as Professor Altman noted in his comments quoted above, the people most affected have "come largely from unpopular and distrusted groups."(6)

Widespread human rights breaches have caused devastating con sequences. Some people have committed suicide, a few have been murdered, and many others have died sooner than they should have.(7) Careers have been jeopardized and have been ruined.(8) Many persons living with HIV-AIDS have been needlessly ravaged by unbearable pain, horrific disfigurement, financial calamity, and callous isolation.(9) It is no exaggeration to suggest that we have witnessed a disease holocaust now approaching twenty years in duration.(10)

The description tendered thus far is not a picture of developments in some Third World country.(11) Rather, it is the United States that is being described. Worse yet, these human rights violations continue. To illustrate, some dentists and doctors still refuse to treat patients with HIV and AIDS.(12) Some shelters for the homeless still test or screen people for HIV and deny admission to those infected with HIV.(13) Also, as recently as October of 1997, the Chicago Board of Education was still screening all applicants for teaching positions for HIV-AIDS--even though such screening was unwarranted, counterproductive, and unlawful.(14) Unfortunately, many more instances could be cited.(15) And, what has been the role of the United States Supreme Court in this continuing tragedy? The short answer is that the Supreme Court must share some of the blame. From 1987, when the first petition for a writ of certiorari in an HIV-AIDS case was filed, until 1997, the Court had done absolutely nothing directly to curb the human rights abuses that have attended the HIV-AIDS epidemic.(16) Incredibly, the Supreme Court had not heard a case involving a substantive HIV-AIDS issue, although the Court had plenty of opportunities to accept one. On more than twenty-five occasions since 1987, and on at least fifteen occasions in the last three years, the Supreme Court refused to grant writs of certiorari in HIV-AIDS cases.(17) That is a shameful record.(18) Ours has been "that much less a good and a just society" because of it.(19) Not until November of 1997 did the Supreme Court finally grant a petition for certiorari in an HIV-AIDS case, captioned Bragdon v. Abbott,(20) that is scheduled for oral argument on March 30, 1998.(21)

This Article will examine the Supreme Court's record of refusals to grant review in HIV-AIDS cases from 1987 to 1997. …

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