Race, Health Care and the Law 
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Access and AIDS/HIV Infection

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Vernellia R. Randall
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The University of Dayton School of Law
Spring 1998

Introduction This topic is of great importance today because recently there have been many discoveries and innovations in the treatment of the HIV/AIDS virus. The treatments have begun to lower the deaths caused by AIDS for the first time since the outbreak occurred. However, the latest statistics clearly show that whites are disproportionately receiving these benefits while minorities are lagging far behind. There have been many reasons put forth for this gap in health care and many proposals to help shrink it. 

Some authors have argued that the problem is one of funds. Minorities in this country do not generally have the same insurance that whites have which would pay for the expensive treatments that they need to fight the virus. Many individuals are calling for a new universal health care system which would provide the same treatments to all individuals in this country regardless of financial situations. 

Another reason presented for the gap is education. The argument is that many of the minorities in this country who have AIDS/HIV are poor and uneducated. As a result, they do not have the same access to prevention techniques and they are not aware of new treatments when they develop. To remedy this it has been suggested that outreach programs be put in place to help make them aware of the disease and different options that are available to them. 

A final reason set forth for this gap is the distrust that many minorities have of the government and new treatments and vaccines that are being developed. In the past the government has treated minorities very unfairly and with the Tuskegee experiment they even killed many people who were seeking their help. Because of actions like this many minorities do not trust modern medicine. As a result, there are many who will not participate in new experimental drug studies. Therefore, the medical community needs to rebuild their trust and get them to try these new treatments. 

All of these problems need to be addressed to get minorities on the same track as whites toward battling this virus. Many authors have good and novel ideas to help solve this problem. Because of the front page status that AIDS has in our world today this is clearly a topic which is not going to go away in the near future.

The following articles are included in this bibliography:

A Decade of a Maturing Epidemic: An Assessment and Directions for Future Public Policy, 5 Notre Dame J.L. Ethics & Pub. Pol'y 7 (1990). 

AIDS Among Children, 45 Morbidity and Mortality Weekly Report 46 (1996). 

AIDS Deaths Drop Further, 46 Morbidity and Mortality Weekly Report 46 (1997). 

AIDS Drug Regimens That Are Worth Their Costs, 279 The Journal of the American Medical Association 160 (1997). 

AIDS and Access to Care: Lessons for Health Care Reformers, 3 Cornell J.L. & Pub. Pol'y 7 (1993). 

An Argument for the Inclusion of Children Without Medicare, U. Louisville J. Fam. L. 567 (1995). 

Bridging the health care gap, Washington Post, April 28, 1998, at Z06 

Childbearing and Contraceptive-Use Plans Among Women at High Risk for HIV Infection-- Selected U.S. Sites, 1989-1991, 41 Morbidity and Mortality Weekly Report 135 (1992). 

Controlling HIV-Positive Women's Procreative Destiny: A Critical Equal Protection Analysis, 2 Seton Hall Const. L. J. 643 (1992). 

HIV Infection among women and Children and Anti-discrimination Laws: An Overview, 77 Iowa L. Rev. 1313 (1992). 

Minority Aids Council Institutes New Campaign Methods, Philadelphia Tribune, March 25, 1997, at 3D. 

Syphilis study leaves legacy of medical distrust - Researchers find black Americans are leery, now, of AIDS treatments, Austin American-Statesman, April 21, 1997, at A2.


Annotations Raymond O'Brien, An Argument for the Inclusion of Children Without Medicare, U. Louisville J. Fam. L. 567 (1995). 

The author here points out that the AIDS disease is shifting from one in which the victims are white, middle class homosexuals to women, and especially minority women. In the future these women will be the single most infected group with HIV along with their children. The author states that infants born with AIDS almost always are products of women who have suffered discrimination, racism, and poverty. Because of this there is little public outcry or support for these children and women. 

The author here is proposing coverage by Medicare of children, because of the racism in the treatment of infected persons, and the lack of access to health care and treatments that clearly occurs to minority children. The author believes that factors such as racism and discrimination clearly effect the treatment that especially minority children receive and by expanding Medicare to include them they will get proper treatment. 

Racism and access to health care clearly have profound impact on the treatments that minority children receive. This program would help eleviate some of the major problems that minorities face today in getting AIDS treatments. However, it also faces some big problems. For example, who is going to pay for this expansion of Medicare. Medicare already costs hundreds of billions of dollars, the likelihood that it would be expanded is slim. Additionally, cost and access is only one of the problems minorities face. Many of those infected are uneducated about the disease itself and unaware of the treatment options that are available. There is also a distrust of the medical community in the black community itself. While this program would address some concerns that the minority community faces there are other important ones that go unaddressed. 

SOURCE: 46 Pages, Included Bibliography. 

Abigail Trafford, Bridging the health care gap, Washington Post, April 28, 1998, at Z06 

The author in this article puts forth several statistics to show that there is a difference between the health care that minorities receive in this country and that which whites receive. The author directly points to the incidence of AIDS in the minority community. Currently 50 percent of all new Aids cases involve racial and ethnic minorities, although they only make up 25 percent of the population. 

The article states that the new surgeon general, David Satcher, worries about this because liberty and the pursuit of happiness will remain elusive goals for minorities without the first essential life. To combat this problem the CDC is testing outreach programs in 30 cities to target prevention and early detection. 

Clearly a discrepancy exists between minority and white health care in this country. Traditional health care systems are not closing this gap. Therefore, new and innovative techniques to educate and treat minorities are needed to close the gap that exists. Many of the individuals in these cities will never find out about treatments and prevention unless we take it to them. This is a sound way to do it. 

SOURCE: No Bibliography, 2 pages. 

M. Fordice et al., Childbearing and Contraceptive-Use Plans Among Women at High Risk for HIV Infection-- Selected U.S. Sites, 1989-1991, 41 Morbidity and Mortality Weekly Report 135 (1992). 

In this study a group of women who were of childbearing age and were at high risk for HIV infection were interviewed and studied. Of the 736 women interviewed 507 (69%) were members of racial minorities. 

In the editorial note of this article the author states that special efforts should be made to reach minority women, because they are disproportionately affected by the AIDS epidemic. This should be done through federally funded community-health centers. This will improve access to these women and HIV-prevention and family-planning services can be extended. 

One of the saddest parts of the AIDS epidemic is the babies who are born with the HIV virus. These children must suffer the effects of the disease through no fault of their own. Pre-pregnancy and pre-natal education and treatment should receive a top priority in the fight against AIDS for minorities and non-minorities, because an innocent life is also affected. However, the problem with the author's argument is that she wants the clinics to be federally funded. We are in a time of cutting spending, therefore it is probably unlikely that she will be able to get funding for this program. 

SOURCE: 9 Pages, Includes Bibliography 

David Rose, AIDS Drug Regimens That Are Worth Their Costs, 279 The Journal of the American Medical Association 160 (1997). 

For the first time in 15 years that AIDS related illness and death has decreased. However, there has been an increased tendency in AIDS related illness for blacks, hispanics, and homosexual women. The author states that the reasons for this are the hesitancy of these groups to be tested and the high cost of AIDS drugs. To confront the issue of the high cost of drugs the author points out that the cost per quality-adjusted life year (QALY) is $29,000 for AIDS treatments. The QALY for breast cancer treatment is $22,000, for coronary bypass surgery $26,000, and for renal dialysis $46,000. These standard therapies are widely considered worth their costs. While these new AIDS treatments are expensive they clearly fall within the accepted range of medical care. As a result, cost is no reason to deny treatment. 

Because of the media it seems that AIDS treatments are astronomically more expensive than the treatments for other diseases. This study shows that this is not true. If insurance companies and the government are willing to pay for these other treatments then they should pay for the treatments that will treat this disease too. Especially when it is disproportionately affecting one segment of the population like this is. This is important factual information which should be made known to the public. It provides a strong argument for expanding medical coverage to include AIDS treatments. 

SOURCE: 2 Pages, Included Bibliography. 

Michael T. Isbell, AIDS and Access to Care: Lessons For Health Care Reformers, 3 Cornell J.L. & Pub. Pol'y 7 (1993). 

The author of this article points to studies regarding the offering of new AIDS treatments to different segments of the population. For example, one study showed that doctors offered 97 percent of white gay males AZT when it became available, while doctors offered it only 58 percent of the time to non-white intravenous drug users. The author contends that these differences can not be explained by variations in health care coverage. 

To combat this problem the author proposes that several steps be taken. First, that the United States institute a single tier universal health care system. Second, that health care be progressively financed to reduce out-of-pocket expenses. Third, the health care system should be drastically simplified by reducing third-party payers, standardizing claim forms, and instituting mandatory electronic billing. Finally, it must maximize the patients ability to choose providers. 

The authors plan certainly would improve access to AIDS treatments and physicians. It is beneficial in that it would reduce many of the high out-of-pocket expenses that AIDS patients face today when their insurance runs out. However, the problem with the author's plan is going to be instituting it. This system would generate huge costs for the state and federal governments. It would probably require an increase in taxes. This is a step that most people in our country do not want to take. They probably do not want their taxes raised to help people who cannot afford proper treatments. The plan is good. but probably has no chance of being initiated. 

SOURCE: 36 Pages, Included Bibliography 

Author Unknown, Aids Among Children, 45 Morbidity and Mortality Weekly Report 46 (1996). 

As of September 30, 1996 there were 7472 children reported with AIDS. Of these children 82 percent are of non-white racial/ethnic groups. The author states that this disparity probably reflects socioeconomic access to and use of medical services, or differences in behaviors associated with HIV transmission risks among women. To combat this problem the author proposes implementing comprehensive integrated-service delivery programs to ensure that women have access to HIV counseling and voluntary testing, and to services for related needs. For example, antiretroviral therapy, substance-abuse treatment, and support services. 

Clearly this plan would help reduce the number of babies born with HIV in the minority community. However, this program would have to implemented in areas where this women are located or many of them would not be able to get the treatment. Also, there are cost concerns with a program like this. Probably the government would have to pay for it. Many in the government probably would not want this expense. 

SOURCE: 6 Pages, Included Bibliography. 

Joelle Weiss, Controlling HIV-Positive Women's Procreative Destiny: A Critical Equal Protection Analysis, 2 Seton Hall Const. L. J. 643 (1992). 

Women and minorities are disproportionately affected by the AIDS virus. Women are the fastest growing HIV-infected group, and AIDS disproportionately kills black and hispanic women. The author states that the research, prevention, and treatment of AIDS in the United States has almost exclusively been directed at white men. Because of the number of women who have AIDS the CDC and many state and local governments have advocated that HIV positive women do not bear children. 

The author argues that there is a strong likelihood that the federal, state and local governments will soon implement laws to prohibit the reproduction of HIV positive women. The author argues that any such classification would be race, gender, and class based and would violate the Equal Protection Clause. She argues instead that the government should focus on attacking the disease's cause by equalizing treatment and prevention. 

I agree with the author that laws should not be constructed which take away a woman's right to become pregnant. I also agree that we need to have more equal access to AIDS treatments and prevention in this country. However, I do feel that women who are HIV positive should be encouraged not to become pregnant. Simply for the reason that the child may contract the disease. I think there is a clear line between counseling and coercion and the former should occur. 

SOURCE: 56 Pages, Included Bibliography 

M.J. McCollum, Minority Aids Council Institutes New Campaign Methods, Philadelphia Tribune, March 25, 1997, at 3D. 

In 1996 there was a 13 percent drop in AIDS deaths. However, there was a 21 percent drop in the white community, and only a 2 percent drop in the black community. There was a 10 percent drop in the hispanic community. In response to this problem the minority AIDS council established a toll free line through which callers can receive brochures on how HIV works, medical advances, and treatment options. The director of the Minority Aids Council states that while this may help, the real problem for minorities is access to the health care system. This lack of access is preventing minorities from getting the new drug therapies. To solve this he believes we need a universal health care system, where drug treatment is available to all. This would greatly reduce the level of HIV transmission. 

The actions taken by the Minority Aids Council are good initial steps. Any system of education is good for the minority community and is much needed. Clearly a universal health care system would be beneficial, because logically it should decrease the number of AIDS deaths in the minority community just as it has in the white community. However, you have a cost problem with a universal health care system. And as we saw with President Clinton's attempt there is a lack of support for this kind of system. Therefore, a universal system while it would be beneficial does not seem likely. 

SOURCE: 2 pages, No Bibliography. 

Lynda Richardson, Syphilis study leaves legacy of medical distrust - Researchers find black Americans are leery, now, of AIDS treatments, Austin American-Statesman, April 21, 1997, at A2. 

The author states that many in the black community today are suspicious and refusing to take medication for the treatment of AIDS. While health-care experts scoff at this they realize that black's suspicions are rooted in fact. From 1932 to 1972 the Tuskegee syphilis experiment occurred during which hundreds of poor blacks were denied treatment although it was available in the 1940's. The author states that the problem for many blacks is not health care access or money, but the shadow of the Tuskegee experiment. 

There can be no doubt that an injustice occurred in the Tuskegee experiment, and that that experiment is still having an impact on many blacks today. However, it is important to remember that probably not even close to a majority of blacks would turn down treatment because of these suspicions. The real problem is access and cost for most HIV positive minorities, and while the medical community should try and build up trust with blacks we should focus on access. 

SOURCE: 2 Pages, No Bibliography. 

Larry Gostin, A decade of a maturing Epidemic: An Assessment and Directions for Future Public Policy, 5 Notre Dame J.L. Ethics & Pub. Pol'y 7 (1990). 

This author notes that up to 32 percent of new AIDS cases are caused by intravenous drug use. Further, noted is the fact that minorities are disproportionately affected by AIDS particularly among intravenous drug users. The author argues that this epidemic should take priority over the drug war that is being waged. To combat this problem the author proposes a two step plan. First, is an outreach program to encourage users to come forward for education, counseling, and treatment. The second step requires the government to allow access to sterile needles, to reduce the reliance of drug users on "dirty" needles. 

The argument for access to sterile needles is a common one and one which has just recently received national attention. Clearly having free access to needles will reduce the number of times that an unclean needle is shared. However, this seems to be a lesser of two evils argument. Because it appears that the government may be helping and even encouraging drug use by providing this paraphernalia. This is a step which our government has not been prepared to take and one which I agree with. Education and treatment is very important in our battle against AIDS, but I believe that supplying hypodermic needles is going to far. 

SOURCE: 19 Pages, Included Bibliography 

Marlene Cimons, AIDS Deaths Drop Further, 46 Morbidity and Mortality Weekly Report 46 (1997). 

AIDS deaths have been falling dramatically. The sharpest decrease has been among white males, while the number of deaths fell less for women and minorities. The reason given is because new treatments cost about $15,000 a year, a sum out of reach for most without insurance. This has been compounded by the fact that many health clinics that serve poor and minority communities have been closing. The director of the Aids Action Council says that because there is not equal access in this country AIDS will continue to ravage minority communities and women. 

There is a clear theme that the access to AIDS treatments are not equal in this country and that as a result people of color and women are continuing to suffer disproportionately. The only way to solve this problem and equal out the reduction in death rates is to educate women and minorities and make access equal. To due this education and access are both needed. 

SOURCE: 5 pages, Included Bibliography 

Josephine Gittler, HIV Infection among women and Children and Anti-discrimination Laws: An Overview, 77 Iowa L. Rev. 1313 (1992). 

The author in this article argues that anti-discrimination laws should apply to people who have AIDS. Currently the number of women and children who have AIDS is large and growing. Minorities many of whom are poor presently account for nearly three-fourths of this population. These individuals are already discriminated against in this country on the basis of race and color. Having AIDS is a second problem they have to overcome. Because of the prejudice there is in our country today they should be able to apply anti-discrimination laws to AIDS discrimination just as they would to discrimination based on their race. This would involve allowing them to use the Americans with Disabilities Act, Rehabilitation Act of 1973, and Title I, II, and III provisions. 

The author's plan to combat discrimination is wise. We already have these laws in place and discriminating based on an illness is no different than discrimination based on color. They are both factors that the individual cannot change. The one concern I have in this case is that AIDS presents a danger to unsuspecting individuals in some cases unlike race. For example, a hospital may deny a surgeon privileges if they have AIDS for fear of infecting a patient. In this case the doctor should not be able to sue the hospital for discrimination, because the concern of the hospital is for patient safety. They are not taking the action for discriminatory purposes. While it would be good to apply anti-discrimination laws to AIDS infected individuals there should be some limitations. 

SOURCE: 69 Pages, Included Bibliography.

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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu


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