AIDS and Quarantine in the United States This pap

AIDS and Quarantine in the United States

This paper will examine the constitutional power of the states and the federal government to resist the spread of AIDS, specifically through mandatory testing for HIV and quarantining those persons who have AIDS or are HIV-positive.

The power of the states to mandate compulsory testing for HIV is derived from their inherent powers to govern, also known as their "police powers," which provide the ability to promulgate reasonable laws necessary to preserve public order, health, safety, welfare, and morals. With regards to the public health, state authority is only limited by the extent to which the federal government has legislated in the particular area (in which case the federal laws will "preempt" the state laws) and to the extent that the state laws interfere with constitutionally protected substantive and procedural rights.

Two areas of concern arise in the context of mandatory testing for HIV: reasonable search under the Fourth Amendment and Equal Protection under the Fourteenth Amendment. Under the Fourth Amendment, a government action constitutes a search if 1) a person exhibits a subjective expectation of privacy in the thing being searched, and 2) this expectation is reasonable and recognized by society as a whole. It is fairly obvious that a person has a reasonable and widely recognized expectation of privacy in his own blood and other bodily fluids while they are still in his body. Under the Fourth Amendment, searches ar

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y those rights which are related to the right to vote, the right to use the courts, and the right of interstate migration are fundamental. Obviously, none of these rights are affected, so a court could be expected to use a rational basis test. The authority for a state to establish a quarantine is generally well established, with a tradition going back many years in Anglo-American law. In 1796, Congress authorized the President to direct federal officials in aiding the execution of quarantines and assisting the states in the enforcement of health laws. However, with the increasing emphasis now placed upon individual rights and freedoms, the quarantine is considered viable strategy in controlling communicable diseases only when it serves a legitimate state objective (prevent or diminish the spread of the disease) and the quarantine is likely to reduce the transmission of the disease. As with mandatory testing, the power to quarantine is derived from the states' police powers. Again, the states are only limited by federal preemption and constitutional guarantees of certain substantive and procedural individual rights. With regards to preemption, the federal government has so far only chosen to regulate the quarantine of individ

Category: Medical - A