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Only within the last two decades have HIV and AIDS become largely visible in the United States and across the globe. It may appear that there is virtually a void in legislation dealing with HIV and AIDS because of the relatively recent increase in public awareness. Perhaps, though, this lack of legislation should not be surprising considering the fact that almost no other specific illnesses are the target of direct legislation. The rights of patients are often the topic of new laws; however, exact diseases or disorders are not usually expounded upon in these broader forms of legislation.
The situation involving the possible transmission of HIV to Kimberly Bergalis from her dentist provoked many calls for specific legislation requiring medical professionals to be tested for HIV. Additionally, some suggest that if a health care provider tests HIV positive that he or she should be required to disclose this information to all involved patients. Since there is no preexisting legislation on mandated HIV testing for health care professionals, one must apply broader, more ambiguous interpretations of the Constitution in order to mount cases both for and against the implementation of required HIV testing [Notre Dame J. of Law]. The Amendments of the Constitution that are most applicable to the debate over required HIV testing are the Fifth and Fourteenth Amendments, which contain elements of the right to equal protection, and the fourth amendment, which contains elements of the right to privacy. The Fifth Amendment involves the role of the federal government, as opposed to the Fourteenth Amendment which addresses the role of state governments [Notre Dame J. of Law]. An excerpt from the Fourteenth Amendment of the Constitution is given below:
"…No state shall…deny to any person within its jurisdiction the equal protection of the laws."
(The Constitution of the United States of America can be viewed in its entirety at http://www.publicadministration.net/resources/the-united-states-constitution/ )
The Fourteenth Amendment states rather clearly that citizens have the right to equal protection, but the Fifth Amendment does not express this right in such an explicit manner. However, Supreme Court rulings have cited the Fifth Amendment as a source of the right to equal protection through due process in various cases [Notre Dame J. of Law].
An American citizen's fundamental right to privacy is supplied by the Fourth Amendment. This amendment, as stated below, is traditionally known as the Search and Seizure Amendment.
"The right of
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The federal government and many individual states have mandatory HIV testing of convicted sex offenders and IV drug users. Additionally, many states have extended required HIV testing to include all prisoners of the state. The legal justification upholding laws requiring HIV testing in these situations is that the courts deem these individuals as posing a vested interest to the state as a high risk of further transmission of HIV. Health care workers have not been deemed as a high risk group for transmitting HIV, thus far. For this reason, at this time mandatory HIV testing of health care providers has been held unconstitutional as a form of illegal search and seizure under the Fourth Amendment [Notre Dame J. of Law]. The right to privacy was also the constitutional basis of Griswold v. Connecticut (1965), declaring artificial contraception acceptable for married couples and was the basis of Roe v. Wade (1973), allowing some forms of abortion [American Life League].
Although there is currently no legislation mandating HIV testing for health care providers, this topic has been and continues to be the source of much contention. Those arguing for mandatory testing claim that a patient's right to full disclosure about his or her treatment includes the risks of treatments. This school of thought holds that health care providers infected with HIV pose a risk to the patient, and therefore, should be required to disclose their HIV diagnosis to their patients. The courts, thus far, have sided with opponents of mandatory HIV testing for health care providers, upholding their right to privacy on the grounds that these individuals do not pose a significant risk of transmitting HIV. Inevitably, the debate over mandatory HIV testing of health care workers will continue as our nation advances the manner in which it aims to control the spread of HIV infection.