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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).

 
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Professor Vernellia R. Randall
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The University of Dayton School of Law
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Email: randall@udayton.edu

 

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