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social sciences

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AIDS Law  
page: 1  2  

Fear of potential liability for transmitting HIV through transfusions eventually led to substantial changes in the regulation of the blood industry, although resistance to change by industry leaders undoubtedly contributed to the spate of transfusion AIDS cases during the mid-1980s. Lawsuits stemming from fear of contracting AIDS generated a significant new body of judicial precedents in the area of "emotional distress" claims, and prompted some courts to adopt unprecedented concepts of legal causation.

Several states amended their criminal codes to provide severe penalties for the knowing transmission of HIV, although there was no proof that such laws would have any significant effect on the spread of the virus, and the number of actual prosecutions was small, tending to focus almost exclusively on heterosexual men accused of infecting large numbers of women.

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Public Health Law

In the realm of public health law, the need to respond to public concerns about the spread of HIV helped to stimulate a much-needed modernization of public health laws and regulations at all levels of government, with newly-enacted confidentiality protection for medical information and much more careful specification of the limited circumstances where isolation or quarantine could be imposed on public health grounds.

An overhaul of the "medical exclusion" provisions of U.S. immigration law in 1990 provided hope for a rational policy for dealing with HIV-infected immigrants, refugees, and asylum-seekers, but the results were mixed, as HIV infection was deemed by the Secretary of Health and Human Services to be a medical condition of public health consequence, mainly due to the expense of treatment, so infected persons were barred from permanent immigration to the U.S.

However, grounds were contained in the statute for compassionate treatment of infected refugees and asylum applicants. (The AIDS developments were occurring at a time of significant ferment in immigration law, which included a repeal of the traditional exclusion of "sexual deviants" that had been used to detect, exclude, and deport gay people in some instances.)

Insurance and Public Benefits Law

Administrators and courts had to determine how AIDS, an unanticipated new phenomenon, would be dealt with under insurance and public benefits laws. Pressures stemming from the AIDS epidemic led to new principles governing insurance underwriting expressed in rulings by state insurance commissioners, and led courts to push the boundaries of health insurance policy coverage for "experimental" treatments.

Testing for HIV as part of the process of selling insurance was eventually prohibited in most states for sales of health insurance policies, although it was generally permitted for sales of life insurance policies. The AIDS epidemic also helped to stimulate a new system of "viatical" transactions, under which HIV-infected holders of life insurance policies sold the right to collect their benefits to "viaticators" in exchange for the discounted face value of their policies, in order to be able to use the money thus obtained for expenses generated by their illness. This practice died out, however, when new medications radically extended the life expectancies of many HIV-infected people.

A combination of legally-informed lobbying and public pressure by attorneys and AIDS activists led to significant changes in the legal regime governing the testing and development of new pharmaceuticals, making new treatments available much more quickly than had been the norm prior to the late 1980s.

Academic Law

The variety of challenging legal issues resulting from the epidemic led many law schools to establish special courses on AIDS law by the end of the 1980s, when the first law school text on the subject was published. (A third edition of that text was published in 2002, documenting the rapid development of the law over the space of little more than a decade.)

Although some of the academic interest in AIDS law had faded by the beginning of the twenty-first century, as many of the interesting legal questions had been answered, the law journals and the courts continued to cope with new applications of the legal principles of AIDS law to the changing face of the epidemic.

In addition, hostility by conservative federal judges to the Americans With Disabilities Act resulted in rulings that appeared to weaken the protection for people with HIV that had been intended by Congress when the Act was passed. Thus, the future direction of AIDS law was not secure in the early years of the new century.

Arthur S. Leonard

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social sciences >> ACLU LGBT & AIDS Project

For more than four decades, the ACLU has been at the forefront of litigation and education designed to secure glbtq rights on a variety of fronts.

social sciences >> Gay & Lesbian Advocates & Defenders (GLAD)

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social sciences >> National Center for Lesbian Rights

Founded in 1977 as the Lesbian Rights Project, the National Center for Lesbian Rights is a public interest law firm committed to advancing the civil and human rights of glbtq people through litigation, advocacy, and education.


Adams, William E., Jr., Mary Anne Bobinski, Michael L. Closen, Robert M. Jarvis, and Arthur S. Leonard. AIDS Cases and Materials. 3rd ed. Durham, N. C.: Carolina Academic Press, 2002.

Gostin, Lawrence, and Lane Porter, eds. International Law & AIDS: International Response Current Issues, and Future Directions. Chicago: American Bar Association, 1992.

Jarvis, Robert M., Michael L. Closen, Donald H.J. Hermann, and Arthur S. Leonard. AIDS Law in a Nutshell. 2nd. ed. St. Paul, Minn.: West Publishing Co., 1996.


    Citation Information
    Author: Leonard, Arthur S.  
    Entry Title: AIDS Law  
    General Editor: Claude J. Summers  
    Publication Name: glbtq: An Encyclopedia of Gay, Lesbian, Bisexual,
Transgender, and Queer Culture
    Publication Date: 2004  
    Date Last Updated March 1, 2004  
    Web Address  
    Publisher glbtq, Inc.
1130 West Adams
Chicago, IL   60607
    Today's Date  
    Encyclopedia Copyright: © 2002-2006, glbtq, Inc.  
    Entry Copyright © 2004, glbtq, inc.  


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