Mandatory HIV Testing of Pregnant Women: Public Health Policy Considerations and Alternatives
Nicholson, Erin, Duke Journal of Gender Law & Policy
Laws requiring mandatory Human Immunodeficiency Virus (HIV) testing for pregnant women have been contemplated by state legislatures since a ground breaking 1994 study showed that treating these women with antiretroviral drugs during pregnancy could decrease the chance of passing the disease to their children. (1) Approximately 477 HIV-positive pregnant women participated in the AIDS Clinical Trial Groups 076 (ACTG 076) study which showed a near sixty-seven percent decrease in transmission of HIV from mother to child when the mother was given zidovudine (AZT) during the last two trimesters of pregnancy and the child received AZT for the first six weeks after birth. (2) Shortly after the results of the study were released, mandatory HIV testing of pregnant women gained the support of the American Medical Association (3) and was defended by most of the physicians on the Committee for the Care of Children and Adolescents with HIV Infection. (4)
The Ryan White Care Act, (5) passed in 1990, originally made federal monetary support for state AIDS programs partially contingent on the patient's informed consent. In 1996, the Act was amended to make funding contingent on the state's efforts to test ninety-five percent of pregnant women, or else show that their numbers of newborn HIV cases were falling. (6) Despite this pressure to make testing mandatory (or near mandatory), not a single state has gone so far as to order HIV testing for every pregnant woman. (7)
Arguments for and against mandatory testing for pregnant women seem to fall into one of three categories: (1) legal arguments, (2) ethical considerations, or (3) health policy. To make the distinction among these three does not mean that they are exclusive of each other. More often than not, an argument will overlap at least two of these groups. But for purposes of organization, it is helpful to consider both mandatory HIV testing and its alternatives from within these categories.
Examples of legal concerns surrounding the practice of mandatory testing include constitutional issues such as due process, equal treatment, informed consent, reasonable search and seizure, reproductive rights and privacy rights. When inquiring into the "legality" of imposing mandatory HIV tests, it is important to look at past precedent in other cases of related issues, but also to recognize the present state of legal uncertainty due to the fact that courts have yet to rule on this particular issue.
The ethical considerations of mandatory testing often go hand-in-hand with many of the legal issues. Is it right to compel a pregnant woman to have an HIV test? Is it right to allow a fetus to go untreated for a fatal disease if the treatment is proven and readily available? Would testing discriminate unjustly against particular racial or socioeconomic groups? Is it ethical compel a pregnant woman to get an HIV test, and then allow her to decline treatment for herself and her baby if she tested positive for the virus?
While legal and ethical considerations are very important to the debate about mandatory HIV testing, they often lie at the edges of the discussion. Perhaps because the issue has yet to officially go before the courts or ethics boards, the main grounds for argument have been based in public and health policy, rather than law and ethics. Another reason that health policy will continue to be the most prevalent grounds for the debate is because as states and medical organizations decide what health measures should be taken to decrease the spread of AIDS (whether it be testing or prevention measures, education, etc.), their focus will likely be on whether the laws or policies will meet their goals. This type of utilitarian thinking certainly has both legal and ethical underpinnings, but really emphasizes the question: "Will this work?" rather than: "Is this right?" or "Is this legal?"
When applied to the problem of testing pregnant women, health policy looks at more than just whether or not mandatory testing will limit the spread of HIV to newborns. …