AIDS And Minority Communities
Annotated Bibliography
Robin Jarvis
Health Care Law
The University of Dayton School of Law
Spring 1997
Introduction
This annotated bibliography examines some of the current
issues facing minorities with HIV or AIDS. Although these
articles are intended to give a broad view of the issues
facing minorities, most of the attention of the articles
focus on African-Americans and Hispanics because they are
the fastest growing communities under attack by the AIDS
virus. Most authors recognize that past discrimination
against these groups contribute to the current lack of
response of infected persons in these communities. The
growth of the disease is so rapid that articles that made
predictions just a few years ago have already come into
existence. Several articles focus generally on HIV in
minority communities. Other articles focus on the problems
of child-bearing women with the disease. A few articles
focus on children with the disease and one article focuses
on the remedies available to those who has a client that has
been discriminated against because of HIV or AIDS.
The following articles are included in this
bibliography:
A
Fatal Bias: AIDS And Minorities
Aids
and the Right To Health Care
Aids
And Discrimination In The United States: Reflections On The
Nature Of Prejudice In A Virus
AIDS
and Minorities
An
Argument For The Inclusion Of Children Without Medicare
Burks
v City of Philadelphia
Controlling
HIV-Positive Women's Procreative Destiny: A Critical Equal
Protection Analysis
Discrimination
On The Basis Of HIV Infection: An Economics Analysis
Discrimination:
The Difference With Aids
Distrust
Stalls AIDS fight
Introduction
To Symposium On AIDS and The Law
Legal
Redress For Disability Discrimination: Bob, Carol, Ted And
Alice Encounter Aids
Silence
Equals Death: The Response To Aids Within Communities Of
Color
The
HIV-AIDS Epidemic And The Child Welfare System: Protecting
The Rights Of Infants, Young Children, And Adolescents
Women
And Aids --Racism, Sexism, And Classism
Annotation
Lynda Richardson, Distrust
Stalls AIDS fight, (History Makes Blacks Uneasy) Cincinnati
Enquirer, May 4, 1997, at A18.
This article describes the suspicion of some
African-Americans toward treatment of AIDS by protease
inhibitors-the first class of drugs shown to reduce the
level of the virus in some patients' blood levels-because of
their belief that AIDS is a virus that "was hatched in
a government laboratory in a plot to eliminate blacks".
They believe that those who take protease inhibitors are
guinea pigs for the government. The suspicion is one that is
rooted from The Tuskegee syphilis study of 1932 to 1972 in
which the black men who had the disease were monitored by
the government but were not treated after penicillin became
available in the 1940's. These suspicions may ultimately
lead to many unnecessary deaths since the black community is
one of the populations with disproportionate HIV and AIDS.
According to the article, the National Association of People
with AIDS, the Congressional Black Caucus and other groups
are urging the federal government to publicly apologize for
the Tuskegee experiment in hopes that it will counter those
existing attitudes that interfere with the current treatment
of AIDS. [Back]
AIDS and Minorities,
Austin American-Statesman, August 13, 1996, at A8.
This author briefly examines the growth of AIDS in the
Hispanic and African American community and past ineffective
methods of reaching these communities. The author also
discusses the streams of revenue for AIDS dollars which are
said to flow in two directions: revenue for direct services
such as medical cost and revenue for preventive measures
which covers education and outreach projects. It tells of
guidelines or lack thereof for obtaining money from the
Centers for Disease Control and Prevention. It proffers
reasons why these communities have not accepted the message
of AIDS. The author states that denial, the myth of AIDS as
a gay man's disease and moral arguments have prevented
communities, as well as government agencies, from preventing
the spread of the disease. [Back]
Burks v
City of Philadelphia, 950 F. Supp. 678 (E.D. Penn. 1997)
This case demonstrates the reach of problems that can
occur in the workplace and its' potential to effect AIDS
funding in the minority community. The case involved alleged
racially discriminatory employment practices against the
city of Philadelphia's AIDS Activities Coordinating Office (AACO)
and its Director Richard Scott. The Plaintiffs alleged that
Scott intended to prevent African-Americans from advancing
to senior-level positions at AACO. They alleged that his
method was to dilute African-American power and influence in
decision-making, as well as , to steer funds from
African-American based AIDS communities to white based
counterparts. Although the defendants were granted summary
judgement with respect to a Title VI claim, the court
recognized that the claim was cognizable under Title VI, but
not in the employment context. The court stated that the
proper parties for the claim was those adversely affected
community groups or class of people who were harmed by the
shift in funding for which Scott was responsible. [Back]
Eugene Harrington, A
Fatal Bias: AIDS And Minorities, 14 SUM Hum. Rts. 34,
(1987).
This author advances the idea that there is two AIDS
epidemics occurring in America; one pertaining to the white
middle class of the gay society and one which is targeting
mostly black and Hispanic lower income communities. He puts
forth statistics to support the view that people of color
make up a disproportionate number of persons with AIDS. The
author then compares the unequal measures of prevention of
the two groups of infected persons. The white gay community
has the advantage of AIDS foundations funded by middle class
gays and focused on middle class white gay issues. Black and
Hispanic communities has spent time in denial. Adding to
this denial, according to the author, is the insensitivity
of the traditional AIDS support organizations to the special
needs of the minority. The author recognizes that this
denial coupled with basic societal problems such as less
access to adequate health care, unbalanced nutrition, and
inadequacy of health insurance will mean that medical
intervention will come much later and will probably be of a
lower quality. The author concludes by stating that behind
the sobering statistics of AIDS, both groups will be at risk
however, the minority community will be less adequately
addressed than gay individuals.[Back]
Paul Johnson, Silence
Equals Death: The Response To Aids Within Communities Of
Color, 1992 U. Ill. L. Rev. 1075, (1992).
This author focuses on homophobia and its negative impact
on the AIDS crisis for communities of color. The author
analogizes the silent killer of hypertension with homophobia
which she sees as a silent killer. She feels that the fear
and stigma of AIDS has resulted in discrimination in
employment, housing, insurance and medical care. The author
describes her personal experience of attempting to reach the
minority community through pro bono work offered to the
Massachusetts AIDS Action Committee (AAC) and the
Multi-cultural Concerns Committee within the AAC. Through
her personal experiences, she tells of the difficulty of
getting community leaders, civil rights organizations,
religious leaders, and a local African-American community
newspaper to respond to the AIDS epidemic in the minority
community. The author attributes this lack of response to
homophobia. The author believes that everyone must take
personal responsibility for the role that they play in the
silence of others. The legal issues surrounding AIDS warrant
continued discussion with attorneys, health providers, and
organizers. [Back]
Mary Dunlap, Aids
And Discrimination In The United States: Reflections On The
Nature Of Prejudice In A Virus, 34 Vill. L. Rev. 909
(1989).
This article focuses on the role of fear in prejudices
toward gay individuals, people of color, and disabled
persons by those who make law and policy with the goal of
finding new ways of addressing homophobia, racism, class
elitism and able-bodiedism.(1)
This annotation focuses on Part II of the Article which is
titled AIDS discriminates: The Reaction To Aids Can
Compound Or Diminish The Virus' Discriminatory Disposition. In
this section, the author states that gay and bisexual men
and Black and Hispanic persons constitute the overwhelming
majority of persons living with AIDS. The authors states
that the fear of contagion is stronger than the fear from
experience of loss. The author supports her view by citing
examples which demonstrate the fear of AIDS. One example is
the efforts made to prevent HIV positive students from
attending school. One study conducted by Harvard University
suggest that 29 percent of the people surveyed would favor
tabooing HIV positive persons.(2)
Another 17 percent supported banishing people with AIDS.(3)
These statistics help to demonstrate the degree of fear that
the public has against those who are HIV. [Back]
Taunya Lovell Banks, Women
And Aids --Racism, Sexism, And Classism, 17 N.Y.U. Rev.
L. & Soc. Change 351 (1989/1990).
This author focuses on the reproductive choices of those
women who have AIDS and how society will handle them.
According to the author, the majority of these women are
poor and/or women of color. Nationwide more than seventy
percent of women with AIDS are African-Americans or Latino.(4)
The author describes in detail the various screening
methodologies and testing methods but she focuses on routine
screening proposals. Routine screening is conducted in
situations where there is consent or a presumption of
consent. A woman may allow blood to be drawn but may not
have actual knowledge that a HIV test may be performed on
that blood. Routine prenatal HIV screening has been enacted
in a few states. This brings up several concerns. First,
whether this practice should be continued without informed
consent and pre-test screening. Second, whether women who
test positive should be counseled to abort their unborn
children. To date there are no formal policies to instruct
the woman to abort however, there are no laws prohibiting it
either.
The author then briefly discusses the history of racist
medicine in this country. She describes past practices of
the use of sterilization by the government focused on women
of color. In part IV, she critiques the policies for
stemming perinatal transmission of HIV. The author speaks of
prenatal screening in general and as it relates to HIV. She
describes the current practice of not requiring routine or
mandatory testing for health-threatening detectable
conditions such as sickle cell disease or Tay-Sachs. She
cites the testing of sickle cell in the 1970's to
demonstrate the discrimination that can result against
African-Americans. The author she examines the pros and cons
of HIV testing programs and explores ways that testing can
be addressed. In part V, the author speaks on privacy
protection and how the courts has recognized it. Part VI
examines other legal issues such as how the right to privacy
applies to minors, whether Fourth Amendment protection can
be used to challenge compulsory HIV prenatal proposals that
may be directed at minority women and how HIV screening of
women may result in loss of child custody. Next. the author
by argues for legislation that recognize race and class
issues involved in HIV screening and directive counseling.
She concludes by stating what the parameters for the
legislation should be.[Back]
Raymond O'Brien, Discrimination:
The Difference With Aids, 6 J. Contemp. Health L. &
Pol'y 93(1990).
This author takes a hard look at the discrimination of
homosexuals, Blacks and Hispanics as it has occurred in the
past and how it is occurring today. He puts forth the idea
that AIDS is different from most other diseases because it
"invites the deepest ethical, moral, and legal
questions". Aside from these questions, there is the
added burden on groups who are already discriminated
against. This author believes that this discrimination
against these groups may be affecting the cost of the
disease. Part I focuses on discrimination involving
homosexuals. Part II of this article focuses on
discrimination involving Blacks and Hispanics. In this
section, the author recounts the history of constitutional
and legislative enactments which has been passed concerning
the rights of racial minorities. The author then contrast
that history with the current practice of subtle racism
which is present today effecting such areas as education and
health care. The author demonstrates the impact this
discrimination has on these minorities by detailing the
reduction in federal appropriations for children, reductions
in Medicaid, unavailability of health care and the financial
cost treatment which will be unavailable to these groups. In
Part III, the author describes how AIDS discrimination will
effect employment , education, health care and privacy
issues. The authors makes suggestions for the President's
Commission and concludes by focusing on the need to change
societal attitudes about AIDS. [Back]
Kenneth Vogel, Discrimination
On The Basis Of HIV Infection: An Economics Analysis 49
Ohio St. L.J. 965 (1989).
This is an excellent overview article. It accents the
discrimination which those with AIDS endure through examples
in Part I. Part II describes the disease and when it was
first recognized. This section also details statistics which
show the rapid growth of the disease while comparing the
statistics of the United States with the rest of the world.
The author further dispels most of the myths on how the
disease is contracted by showing the limited numbers of
situations in which there is a possibility that an
individual can contract the disease. He tells of the
clinical symptoms of the disease and describes the growth of
the disease among those who are Black and Hispanic. Part III
focuses on the social cost of discrimination against those
with AIDS. The author first looks at employment
discrimination. He gives examples of those who has unfairly
lost their jobs as a result of AIDS. The result of this type
of discrimination, according to the author, causes the work
place to be inefficient because the investment in training
is loss, there is a lack of productivity and the individual
workers loses relative to other workers who are similarly
situated. Additionally there may be social cost in the
situation where a member of a group is consistently denied
social benefits.
The author also analyzes the effect of discrimination in
education. He details examples where children have been
excluded from school due to their HIV infection and the
social cost connected with this type of behavior. For
example, students can lose the benefits of formal education
thereby impairing developmental interpersonal relationships
He compares this situations with the situations of the past
where blacks were excluded from schools. Next, the author
then examines the Insurance Issues associated with AIDS such
as risk distribution. In part IV the author concludes by
suggesting remedies for the gay community and IV drug users.
examines remedies.[Back]
Joelle S. Weiss, Controlling
HIV-Positive Women's Procreative Destiny: A Critical Equal
Protection Analysis, 2 Seton Hall Const. L.J. 643
(1992).
This is a hard to read article which begins with a
reflection on the growth of women with AIDS especially those
of the Black and Hispanic communities. The result of that
growth is HIV positive women conceiving HIV infected
children. In part III of the article, the author explores
past, present, and future exploitation of women's
procreative autonomy. She cites cases and experiences of
minorities were sterilization has occurred without consent
of the woman. In part IV, the author speaks of situations
which may promote continuing child bearing of HIV infected
children even though the woman is made aware of the risk. In
part V, the author details equal protection analysis as it
relates to jury discrimination, school desegregation,
disparate impact as a violation of Congressional Statutes,
housing discrimination and voting rights. The author then
uses past equal protection analysis to argue for strict
scrutiny instead of the intermediate-level scrutiny that is
usually applied. Part VI focuses on the failure of Equal
Protection to provide real sex equality. In this section,
the author argues that pregnancy-related classifications
alone constitute purposeful discrimination. The author
concludes by stating that AIDS transcends all discriminatory
areas and that singling out women with AIDS based upon their
reproductive capacity should be against the Fourteenth
Amendment Equal Protection Clause. [Back]
Henry Waxman, Introduction
To Symposium On AIDS and The Law, 49 Ohio St. L.J. 877
(1989).
Henry Waxman, a Democratic Congressman from California
and Chairman of the House Subcommittee on Health and the
Environment, introduces a symposium on AIDS and the law. In
this article, the author emphasizes the duty of lawyers to
educate the public, political representatives, and the
courts about the facts of the disease. The author compares
the death of those in Viet Nam with the death of those dying
from AIDS by stating that the death of those with AIDS will
pass those of Viet Nam. By implication, he shows that the
losses from AIDS will have a similar impact on society. He
expresses concern that the spread of AIDS will deeply change
middle-class America in areas that they take for granted
such as: medical care, insurance, education, employment, and
privacy. He believes that lawyers, those working in medicine
and public health can work together to prevent these issues
from dividing the country. He advocates education of the
public in both academic and workplace settings. Next, he
recognizes that once education takes place, routine health
and legal services will have to be provided. With this in
mind, he urges lawyers to equip themselves to handle AIDS
issues as they provide tax planning or family law. He
suggests that lawyers use methods which look beyond the AIDS
epidemic and plan for health and legal systems that will
serve Americans better.[Back]
Taunya Lovell Banks, Aids
and the Right To Health Care 4 Issues L. & Med. 151
(1988).
This article examines the physicians legal and ethical
duty to provide health care to those with AIDS. The
commentator states that there are many Hispanics and African
Americans who will not be treated for AIDS because of their
lack of the ability to pay for medical cost and their
resistance to receive medical counseling. These unfortunate
barriers to health care are compounded by the physicians
ability, in most cases, to choose their patients. She brings
to the readers attention the various methods that interfere
with the patients potential loss for medical treatment of
AIDS by not conferring a duty to treat those with AIDS.
Several examples include: the Hippocratic oath, which
confers a duty to treat those who are the doctors patients
but, has no express duty to treat whose who are not his
patients. Second, the legal system only recognizes a
physicians relationship with a patient if a contractual
relationship exist. In some cases, states have tried to
improve access to health care for AIDS related issues by
getting private nonprofit hospitals to carry a larger
percentage of charity cases or face having their tax
exemptions taken away. Additionally, new anti-discrimination
statutes has been enacted in some cities even though they
seem to apply to those AIDS patients who have the ability to
pay for medical services. Since there continues to be no
constitutional right to health care a uniform approach is
not on the horizon. The author concludes by stating that
piecemeal approaches to the issue of AIDS and health care
access is unfortunate.[Back]
Rev. Raymond C. O'Brien, An
Argument For The Inclusion Of Children Without Medicare,
33 U. Louisville J. Fam. L. 567 (1995)
This author argues for health care coverage for children,
who are not covered under employment plans, by the Medicare
system because of unique qualifications such as
discrimination, racism and poverty. At the heart of this
argument is AIDS and other diseases. The author recognizes
that an increasing number of teenage girls will attain HIV,
but focuses more on infants born with AIDS because of their
infected birth mothers. The author refers to these infants
as the "ultimate minority".(5)
Part III of this article focuses on racism toward
African-Americans and Hispanics and how it can effect the
AIDS epidemic. Because the majority of infected children in
the United States are African-American or Hispanic, the
author advocates using racial and ethnicity for targeting
prevention efforts. This goal may be unrealistic because of
inefficient access to HIV screening, diagnosis, and
preventative health care.[Back]
Abigail English, The
HIV-AIDS Epidemic And The Child Welfare System: Protecting
The Rights Of Infants, Young Children, And Adolescents,
77 Iowa L. Rev. 1509 (1992).
Part VI of this article addresses health care for
children and adolescents with HIV Infection. The author
states that children, adolescents, and women with HIV do not
have enough primary or specialized health care. She details
recent changes in law that may help address the problem such
as recent expansions in Medicaid for pregnant women and
children and major reforms to the Early and Periodic
Screening Diagnosis and Treatment Program. Additionally, the
author states that funding of the Ryan White Care Act, while
not coming close to the amount that Congress authorized, can
be used to expand services for women and children with HIV
infection. The other parts of this article focuses on the
epidemic as it relates to issues that face those who are
social workers.[Back]
Penn Lerblance, Legal
Redress For Disability Discrimination: Bob, Carol, Ted And
Alice Encounter Aids, 24 Golden Gate U. L. Rev. 307
(1994).
The objective of this article is to demonstrate various
ways that HIV discrimination occurs in everyday life. The
author shares personal stories of those who has been
discriminated against because of HIV in situations such as
mandatory testing and disclosures, demands by law
enforcement to submit to testing, the right to privacy, and
employment discrimination . The author then explores federal
and state legal remedies which may be used for each form of
discrimination as applied to the facts of each case. In the
Appendix of the article is a checklist which can be used by
any attorney exploring the possibility of bringing
litigation because of AIDS discrimination. [Back]
Footnotes
1. Mary Dunlap, Aids And
Discrimination In The United States: Reflections On The
Nature Of Prejudice In A Virus, 34 Vill. L. Rev. 909,
911 (1989).
2. Id. at 915.
3. Id.
4. Taunya Lovell Banks, Women And
AIDS-Racism, Sexism, and Classism 17 N.Y.U. Rev. L.&
Soc. Change 351 (1989/1990).
5. Rev. Raymond C. O' Brien, An
Argument Fr The Inclusion Of Children Without Medicare,
33 U. Louisville J. Fam. L. 567, 579 (1995). |
