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HIV and AIDS continue to kill throughout the world. Although progress has been made towards a cure, transmissions rates are still soaring both in the United States and abroad. The day may not be too far off when governments take proactive measures to fight the spread of the disease. Yet such public health initiatives often severely restrict individual liberties. Thus, possible efforts to prevent HIV transmission offer a ripe opportunity to discuss, in constitutional terms, where the power of the state ends and individual liberty begins.
The hypothetical constitutional conflict I imagine begins with a state law that criminalizes unprotected sex when a male participant is HIV-positive. The law reads: "It is unlawful for any person, who is knowingly HIV-positive, to have sexual intercourse without the use of a condom by the male partner, regardless of the male partner's HIV status." In short, when at least two persons have sexual intercourse, the male must wear a condom, if one of the persons involved knows him or herself to be HIV-positive. After this law takes effect, a man who knows himself to be HIV-positive goes to a bar and meets a young woman, who has recently confirmed that she does not have HIV. The two return to the woman’s residence and have unprotected sex. Six months later, the woman tests positive for HIV. She approaches the man with whom she had sexual intercourse six month prior and tells him of her HIV-positive status. The man admits to being HIV-positive when the two had sexual intercourse. The woman, aware of the new state law, calls the police, and the man is arrested. He freely admits that he failed to wear a condom when the two had sexual intercourse and that he knew he was HIV-positive at the time. The police obtain medical records that demonstrate that the man did have HIV six months ago and that he knew he was HIV-positive then. The man is convicted under the state law.
The man, now the defendant, challenges the conviction, asserting that the law is unconstitutional for two reasons. First, the state law violates his constitutional right to privacy; what the man chooses to do and not do when engaged in sexual relations lies beyond the government’s proper scope of power. Second, by requiring him to wear a condom during sexual intercourse, the state contravenes his fundamental right to procreate; if the man must wear a condom during sexual intercourse, it is very unlikely that a woman will conceive his child. The State responds by arguing that its aim of protecting public health supercedes any claim of individual rights by the defendant.
I begin with the State’s argument. The State’s power to protect public health derives from its "police power", its authority to make laws that relate to matters completely within its territory. Indeed, the Court has recognized the authority of the State’s police power since Gibbons v. Ogden (1824). The Court, has further asserted since Jacobson v. Massachusetts (1905) that the authority of a State’s police power is particularly strong when it aims to regulate public health and safety, strongest when the physical wellbeing of its citizens is directly at risk. Jacobson provides a close analog to the present case: The issue at dispute there was whether the State could, consistent with the Constitution, compel all of its citizens to receive a smallpox vaccination. The Court ruled that it could; the State can encroach upon individual privacy and even invade the individual’s body when the health of the public is threatened. Justice Harlan writes that the State has the authority to "enact quarantine laws and health laws of every description... According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect public health." The Court acknowledged that the Massachusetts vaccination statute was a "reasonable regulation" for the elimination of the public health threat of smallpox.
The Court continued by arguing that claims of the right to be free from restraint are not absolute: "[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be... wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good." The Court argued that public health represents one of these "manifold restraints." "Persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state." Public health constitutes such a motive for creating restraints on individual liberty because disease can destroy the political community. "Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members."
The Court’s conclusion is powerful. It noted that we live in a society of "liberty regulated by law." While recognizing that individual liberty should remain an important goal of democratic government, it argued that claims of individual liberty must be contravened on occasion when the very existence of the community is at risk. There can be no liberty without life. "There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government... to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint...as the safety of the general public may demand." In short, individual liberty may be curtailed when the source of that liberty, the political community, comes "under pressure of great dangers."
Subsequent cases have affirmed the holding in Jacobson, giving states broad powers when public health is at risk. In Zucht v. King (1922), the Court upheld a San Antonio law that required all school children within the city to be vaccinated for a number of diseases before matriculating at public schools. The city of San Antonio, the Court agreed, has the authority to make vaccination laws, if the State delegates such power to municipalities. The Court in Zucht cited Liberman v. Van de Carr, which held that states and cities have a great degree of legal discretion if the issue the proposed law seeks to resolve is "highly dangerous to the health of the community." Only "an affirmative showing that the power (of the state or city) has been exerted in an arbitrary and oppressive manner" makes a public health law unconstitutional. However, what constitutes "arbitrary and oppressive" was left undefined by the Court.
The central holding of Jacobson still survives today. It was most recently upheld in federal district court in the case of Hanzel v. Arter (1985). States and municipalities thus continue to have broad powers to curtail individual liberty and desires when the public health is threatened.
The mandatory condom law for HIV-positive individuals, the State would argue, meets the Jacobson standard that reads: "If a statute purporting to have been enacted to protect the public health... has no real or substantial relation to [that end]... or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts" to strike it down as unconstitutional.
That the mandatory condom law has a real and substantial relation to the protection of public health, the State would argue, is beyond question. Over 400,000 Americans are known to have died from AIDS since 1981 and that number grows every day. It is estimated that nearly 900,000 Americans currently have HIV; therefore, even if not one more American were to contract the virus, almost a million and a half of our citizens will be dead from AIDS within a generation. As the virus is primarily transferred through sexual intercourse and given that attempts to encourage abstinence have largely met with failure, condoms provide the safest way for individuals to have sexual intercourse without transmitting the HIV virus; no other device or technology protects both partners from transmission as effectively. Were every HIV-positive individual, male and female, to always practice "protected sex", infection rates would drastically fall. Thus, state-mandated use of condoms by individuals who know themselves to be HIV-positive bears a real and substantial relation to the protection of public health.
The State would also argue that the mandatory-condom law does not contravene a right granted by fundamental law. Legitimate public health goals often curtail even the most basic liberties. The Court notes in Jacobson that an individual may "be held in quarantine against his will... until... the danger of the spread of the disease among the community at large has disappeared." A laundry list of the liberties and rights scuttled by a state-mandated quarantine demonstrates that the mandatory-condom law does not invade upon the rights of citizens to so nearly as drastic a degree. A quarantine, which the Court has found time and again to be a constitutional means of protecting the public health, severely limits freedom of movement, association, speech and religion (worship). Indeed, a quarantine prevents an individual from working, participating in public affairs, and going about basic daily tasks. It essentially incarcerates an individual without a law being broken. Therefore, if quarantines do not infringe upon a right granted by fundamental law, even with the restrictions on basic human liberties they entail, it is difficult to find a characteristic of the mandatory-condom law that offends any such right.
At this point, I will turn to the plaintiff’s case. The plaintiff would argue that the mandatory-condom law violates one particular right granted by fundamental law, namely, the right to procreate. Additionally, the plaintiff would argue that to uphold the state law would overturn the roots of the right of privacy doctrine.
The right to privacy has a strong foundation in case law. In Griswold v. Connecticut, Eisenstadt v. Baird, NAACP v. Alabama and Roe v. Wade, the Court has recognized a right of privacy as a critical protection against government intrusion, stemming from the First, Third, Fourth, Fifth, and Ninth Amendments. Griswold v. Connecticut provides the closest analog to the mandatory-condom law and makes a compelling case for an overriding right of privacy.
Griswold declared a Connecticut law that criminalized the use of contraception unconstitutional. Noting the existence of "penumbras" around guarantees in the Bill of Rights that give those guarantees "life and substance", the Court argued that the government has no right to control the behavior of individuals in so personal and intimate a sphere as sexual relations. Although there is no explicit constitutional guarantee of privacy, these penumbras suggest a commitment to privacy; the First Amendment reflects a commitment to freedom and privacy in one’s associations, while the Third and Fourth Amendments reflect a belief in keeping the home’s of citizens free from intrusion. Case law also supports a claim of privacy in one’s personal and intimate associations. In Boyd v. U.S., the Court argued that there must exist a protection from governmental intrusions that affect "the sanctity of a man’s home and the privacies of life." Additionally, the Court in Griswold quotes Mapp v. Ohio, which notes that the Fourth Amendment creatse "a right to privacy, no less important than any other right carefully and particularly reserved to the people."
However, the conclusion of the Court’s opinion in Griswold points out that if a law such as the one under consideration here were to be upheld, the essential holding in Griswold would have to be overturned. "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marital relationship." State, the plaintiff would argue in the present case, asks the Court to let stand a law that would allow the police to search marital bedrooms (or any bedroom for that matter) for telltale signs of the use of condoms. The idea of police entering a house during an intimate moment between individuals in order to ensure the use of condoms is no less repulsive than their entering to ensure their absence. Indeed, state intrusion into bedrooms and houses during coitus may be the only way for the law to successfully function; otherwise, the police may be faced with situations of "he said, she said" ex post facto. In short, state intrusions, the plaintiff would argue, during sexual intercourse are not more constitutional now than they were in Griswold; to ensure the use or absence of condoms during intercourse calls for too personal an invasion for our polity to tolerate. To let the mandatory-condom law stand would be to pull the rug out from under the Court’s concerted effort to protect the privacy of individuals in their intimate associations.
State would respond that there is a critical distinction between the law reviewed in Griswold and the mandatory-condom law. The law in Griswold had only a moral aim; no public health goal motivated the passage of law. The mandatory-condom law, however, has a public health aim. The difference is crucial: The Court found the Connecticut law in Griswold repulsive due to its aim. It authorized unacceptable invasions of privacy simply to enforce the state’s notions of proper moral conduct. Connecticut had no sufficient political reason for invading individual privacy; the state merely wanted to control personal behavior, which had little effect on the body politic of Connecticut. The mandatory condom law does not seek to regulate self-regarding behavior: Sexual intercourse, however private and personal, is not self-regarding when there exists the strong possibility that a fatal disease will be transmitted as a result of the intercourse. When two or more individuals engage in unprotected sexual intercourse and one of hte individuals is HIV-positive, their act retards the public health goal of minimizing HIV infection rates. For every person that contracts HIV, it becomes increasingly more likely that yet another individual will be stricken with the virus. No privacy is absolute: Privacy claims, though, are particularly weak when the conduct argued to be free from state intrusion threatens the very health and existence of the political community. It is therefore consistent to both uphold the Griswold decision and the mandatory-condom law.
Plaintiff, however, would continue to argue that even if the Court does find the mandatory-condom law consistent with Griswold, it still contravenes a right granted by fundamental law, namely a right to procreate. One of the side-effects of using a condom to prevent the transmission of HIV and other diseases is the significant decrease in the possibility of conception. Therefore, all HIV-positive individuals who faithfully obeyed the state law would be all but prevented from procreating.
The Court, Plaintiff would argue, has given profound weight to the individual’s right to procreate. In Skinner v. Oklahoma, the Court reviewed a state law that required the sterilization of certain repeat offenders. The Court stated clearly that procreation is "fundamental to the very existence and survival of the race... We are dealing here with legislation which involves one of the most basic civil rights of man." Indeed, the mandatory-condom law amounts to de facto sterilization: Those who obey the law could have regular sexual intercourse for years and never conceive a child. The law thus prevents certain individuals from engaging in perhaps the most primary human activity: the creation of a child. It is hard to imagine a greater restriction on existence.
Several other cases suggest that basic human activities are worthy of constitutional protection. In Meyer v. Nebraska, the Court noted that the Due Process Clause grants all citizens of the United States a right "to engage in any of the common occupations of life... to marry, establish a home, and bring up children." The Court argued that not only does the Due Process Clause ensure that the Bill of Rights protect every United States citizen, but also that rights not specifically enumerated in the Constitution, yet still critical to a free society, are protected as well. The thrust of the Court’s argument is simple: Even if the Bill of Rights were to be strictly enforced, our society could still not be considered free if individuals were unable to engage in basic human activities like procreation. Also important was the Court’s ruling in Eisenstadt, which held that it is imperative that the state not abridge "the right of the individual, married or single, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Finally, in the case of Planned Parenthood v. Casey, the Court also made clear that the decision to have or not have a child lies beyond the sphere of legitimate governmental control. In Casey, the Court quoted Eisenstadt and added that "these matters [procreation decisions], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." The Court even explicitly noted that there are constitutional protections for individuals who wish to procreate. "Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."
The essential thrust of these various analyses by the Court is clear: Although there may not be an explicit right to procreate, the Due Process Clause must be viewed as protecting certain basic human activities from governmental interference.
Plaintiff would maintain that the right to procreate fits under the Jacobson standard, thus eliminating a state’s claim to abrogate the right. A right to procreate appears very differently than rights that are traditionally breached by the State when the public health is at risk. Quarantines restrict freedom of movement, association, speech and often religion. Mandatory vaccines invade personal space and contravene a right to bodily integrity. These public health measures, however, do not interfere with more basic and primal human activities — the kind of activities that must be beyond governmental control if we are to consider ourselves free and other political rights of value. In short, if the right to procreate does not fall under the Jacobson standard of a right granted by fundamental law, it is very likely that no right exists that can meet the standard.
State would respond, very credibly I argue, that Plaintiff’s argument does not obtain. First, the rights Plaintiff lists as those granted by fundamental law are far too broad and the inclusion of a right to procreate is similarly unwarranted. Public health measures, especially quarantines, have either interfered with or completely abridged a right to make a living, speak with whom one wants, or make a child with whom one wants. A better interpretation of Jacobson would argue that normal public health measures cannot be enacted at the cost of significant intrusion into the rights of individuals. What the Court in Jacobson seems to be arguing is that individuals with a relatively minor illness like the common cold cannot be systematically exterminated in the name of public health. That is why the standard has two prongs: First, it requires that the statute be reasonably related to its end; and second, that the end does not contravene any right granted by fundamental law. The second prong clearly indicates that it is important for states to ensure that the costs of achieving the end of public health, i.e. the abrogation of individual rights, not outweigh the benefits of a healthy community. The emphasis on reasonableness suggests that the greater the threat to public health, the greater incursions the state may make on individual rights. This approach is more consistent with the intent of the Court: It is reasonable to conclude that greater threats to public health require more drastic measures, measures that may more significantly restrict individual rights. Therefore, the state must show that the law is reasonably related to its end and that the law will, on the whole, improve community health and protect individual rights.
Allowing HIV-positive individuals to procreate serves neither the end of public health nor the right to procreate or engage in basic human activities. First, unprotected sex between two individuals, one of whom is HIV-positive, creates a situation in which two or more individuals might become infected: The HIV-negative partner and the offspring of the union. Also, as stated before, given that there is still no cure, the only way to defeat HIV is to destroy the possibility of transmission, which protected sex accomplishes better than anything else, barring abstinence. Additionally, we do not protect basic human activities and fundamental rights by permitting behavior that threatens the political community’s existence. It is difficult to make a living, procreate, associate with others, vote and worship when one is lying in a hospital bed, dying from a disease that an AIDS-weakened immune system could not fight off. The transmission of HIV precludes the enjoyment of many rights as increasingly more individuals live AIDS-shortened lives. The first end of the human community is survival; in comparison, rights and freedoms from governmental intrusions are luxuries.
In conclusion, I have fleshed out what I believe to be the most compelling arguments for each side in the constitutional conflict I constructed. After reviewing State’s claim to make broad public health statutes and Plaintiff’s claim to privacy and procreation, I find the mandatory-condom law constitutional. Rights to privacy and procreation, however strong, are not absolute and are particularly weak when their very source, the political community, is threatened.
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