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HIV and the Law: A Winnable Battle

posted on Wed, Jun 29 2011 8:54 am by Corey Davis

HIV virus

Earlier this month the National Institutes of Health (NIH) issued a press release marking a sad milestone: the thirty-year anniversary of the discovery of the disease that is now known as AIDS.

The release rightly gives credit to the medical and scientific researchers who have developed drugs and protocols that have expanded the expected lifetime of many AIDS patients from weeks or months to years and sometimes decades. It also reminds us that we still have far to go: 2.6 million people became infected with HIV in 2009 alone, and in developing countries only around one third of the people who need anti-retroviral drugs (ARVs) have access to them.

Most notable, however, are the things the press release mentions briefly, or not at all. It makes passing references to HIV-related health disparities, but does not dwell on the shameful statistics: that African Americans comprise only about thirteen percent of the U.S. population but almost half of the people who contract HIV each year; that Latinos contract HIV at nearly three times the rate of whites; and that African Americans who inject drugs are ten times more likely to be diagnosed with HIV/AIDS than white injectors. Nor does it dwell on the fact that, thirty years after the virus was discovered in five young gay men, men who have sex with men still account for over 55 percent of the approximately 50,000 new HIV infections in the United States each year.

The press release also makes no mention of the role of law in creating and perpetuating these disparities. Laws and law enforcement practices hurt attempts to reduce HIV risk in many ways. The criminalization of certain sexual behaviors and prosecution for non-intentional transmission contributes to stigma and can discourage people at high-risk from seeking testing and treatment. Likewise, the continued criminalization of syringe possession and inadequate funding of syringe access programs have likely resulted in tens of thousands of preventable infections in the United States alone.

Evidence-based drug treatment, which reduces risky behavior and infection, is continually underfunded even as the jails and prisons are overflowing with low-level drug users. Expedited partner therapy helps reduce the incidence of STDs that mediate HIV risk, but outmoded laws and regulation prohibit its use in many cases. The continued existence of these laws and policies in the face of overwhelming evidence that they hinder the fight against HIV/AIDS suggests that they are not the result of benign neglect, but rather reflect an active effort to deny certain people access to tools proven to save lives.

The Centers for Disease Control and Prevention has declared HIV prevention to be a “Winnable Battle.” If this battle is to be won, we must enlist not only physicians and scientists, but also lawyers, judges and elected officials. Significant progress has been made in developing ARVs and ensuring that they are available and accessible to all of those who would benefit from them. In many cases, such progress has been slower to come in changing laws that work against that fight. For us to win this battle, that must change.

This information was developed by Corey Davis, staff attorney, for the Network for Public Health Law – Southeastern Region at National Health Law Program.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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