Health Law and Policy Commons^™

Toward Accessing Hiv-Preventative Medication In Prisons, Scott Shimizu

Northwestern University Law Review

The Eighth Amendment is meant to protect incarcerated individuals against harm from the state, including state inaction in the face of a known risk of harm. While the Eighth Amendment’s protection prohibits certain prison disciplinary measures and conditions of confinement, the constitutional ambit should arguably encompass protection from the serious risk of harm of sexual assault, as well as a corollary to sexual violence: the likelihood of contracting a deadly sexually transmitted infection like HIV. Yet Eighth Amendment scholars frequently question the degree to which the constitutional provision actually protects incarcerated individuals.

This Note draws on previous scholarship on cruel …

How The Conviction And Sentencing Of "Tiger Mandingo" Modernized Missouri's Hiv-Related Statutes In 2021, Ryan Jay Mcelhose

Journal of Law and Health

Michael Johnson or “Tiger Mandingo” as he referred to himself on social media, engaged in sexual acts with six different men, all of whom claimed that Michael lied about living with human immunodeficiency virus (HIV). As a result, the State of Missouri charged him with recklessly infecting a partner with HIV exposing or attempting to expose another with HIV. With contradictory trial testimony, no genetic fingerprint testing, and little to no questioning of his sexual partners’ credibility, the jury found Michael Johnson guilty of five felony counts which resulted in a 30-year prison sentence. Ultimately the Missouri Court of Appeals …

International Rights Affecting The Covid–19 Vaccine Race, Samantha Johnson

University of Miami Inter-American Law Review

The impact of the COVID–19 pandemic has been felt world-wide, and despite having several vaccines in the market at this point, there are still issues of accessibility for certain countries. International intellectual property law has been a breeding ground for the exploration of intellectual curiosity and creation as it provides strong protections to creators. These strong protections have allowed for the monopolization of certain goods, such as vaccines, under the concept of patents. While patents are important to incentivize pharmaceutical companies to create life–saving medicines, these protections have also become a barrier for access to medicines, especially in less–developed countries. …

Hiv No Longer A Death Sentence But Still A Life Sentence: The Constitutionality Of Hiv Criminalization Under The Eighth Amendment, Lauren Taylor

Georgia Law Review

When the HIV/AIDS epidemic began in the 1980s in the United States, there was mass confusion and hysteria regarding HIV transmission and prevention, leading many states to enact HIV criminalization statutes to prosecute persons living with HIV who either exposed another person to HIV or put someone in danger of being exposed to HIV. Yet, almost forty years later, these statutes are still used to criminalize and control the behaviors of people living with HIV, and in some cases, impose lengthy prison sentences hinging on the possibility of exposure. These HIV criminalization statutes and subsequent criminal cases often do not …

Law, Criminalisation And Hiv In The World: Have Countries That Criminalise Achieved More Or Less Successful Pandemic Response?, Matthew M. Kavanagh, Schadrac C. Agbla, Marissa Joy, Kashish Aneja, Mara Pillinger, Alaina Case, Ngozi A. Erondu, Taavi Erkkola, Ellie Graeden

O'Neill Institute Papers

How do choices in criminal law and rights protections affect disease-fighting efforts? This long-standing question facing governments around the world is acute in the context of pandemics like HIV and COVID-19. The Global AIDS Strategy of the last 5 years sought to prevent mortality and HIV transmission in part through ensuring people living with HIV (PLHIV) knew their HIV status and could suppress the HIV virus through antiretroviral treatment. This article presents a cross-national ecological analysis of the relative success of national AIDS responses under this strategy, where laws were characterised by more or less criminalisation and with varying rights …

Sex, Crime, And Serostatus, Courtney K. Cross

Washington and Lee Law Review

The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis—especially in the South, where HIV-specific criminal laws are enforced with the most frequency.

People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they …

Intellectual Property As A Determinant Of Health, Ana Santos Rutschman

All Faculty Scholarship

Public health literature has long recognized the existence of determinants of health, a set of socio-economic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …

Drivers Of Health Policy Adoption: A Political Economy Of Hiv Treatment Policy, Matthew M. Kavanagh, Kalind Parish, Somya Gupta

Georgetown Law Faculty Publications and Other Works

Why do some countries rapidly adopt policies suggested by scientific consensus while others are slow to do so? Through a mixed methods study, we show that the institutional political economy of countries is a stronger and more robust predictor of health policy adoption than either disease burden or national wealth. Our findings challenge expectations in scholarship and among many international actors that policy divergence is best addressed through greater evidence and dissemination channels. Our study of HIV treatment policies shows that factors such as the formal structures of government and the degree of racial and ethnic stratification in society predict …

Multilateralism, Pushback, And Prospects For Global Engagement?, Michael Donald Kirby The Honourable

Indiana Journal of Global Legal Studies

In this article, the author draws on long engagement with multilateralism, both in domestic jurisdiction and international institutions. He describes the growth of post-War United Nations activities and the increasing impact of international law, including on universal human rights. He records international initiatives on global problems like HI V/AIDS and in individual countries, such as Cambodia and North Korea. He then describes recent examples of '"pushback" against multilateralism, especially on the part of the United States, the United Kingdom, some European countries, and Australia. He concludes with illustrations and reasons why the global community should remain optimistic about multilateralism, despite …

Hiv Is Not A Crime, There Should Be No Jail Time, Bacilio Mendez Ii

GGU Law Review Blog

By way of personal, activist narrative, this blog post will provide broad context to the post-Stonewall legal landscape and the gay rights (now, the LGBTQ+) movement. The stage set, the writer will inform the audience of specific injustices brought upon persons living with HIV, during modern times, in the United States, simply based on their serostatus and offer solutions and actions that readers can take themselves.

This article includes links to State-by-State Statutory Information and several embedded video interviews, as well as an extensive bibliography.

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney K. Cross

Washington Law Review

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts—even acts that carry low to no risk of infection—can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

Complicated Lives: A Look Into The Experience Of Individuals Living With Hiv, Legal Impediments, And Other Social Determinants Of Health, Margaret B. Drew, Jason Potter, Caitlin Stover

Faculty Publications

Those living with HIV continue to have challenges that extend well beyond their medical needs Public misconceptions surrounding HIV transmission and treatment have resulted in systemic and pervasive discrimination against those living with the disease. Common misconceptions include overly optimistic perceptions of the modern state of medical treatment, leading the uninformed to conclude that people living with HIV are minimally impacted by the disease, and misunderstandings regarding how the disease is transmitted from person-to-person, leading to stigma and social prejudice. Because of these misconceptions, three professors from the University of Massachusetts Dartmouth formed a community partnership to determine the unmet …

Hiv Law And Policy In The United States: A Tipping Point, Scott Skinner-Thompson

Publications

The fight to effectively treat and stop the spread of the human immunodeficiency virus (HIV) has made meaningful progress both in the United States and globally. But within the United States that progress has been uneven across various demographic groups and geographic areas, and has plateaued. While scientific advances have led to the development of medicine capable of both treating and preventing HIV, law and policy dictate who will have ready access to these medicines and other prevention techniques, and who will not. Law and policy also play a crucial role in determining whether HIV will be stigmatized, discouraging people …

The Risks Of Criminalizing Covid-19 Exposure: Lessons From Hiv, Naomi K. Seiler, Anya Vanecek, Claire Heyison, Katherine Horton

Human Rights Brief

No abstract provided.

Hb 217 - Needle Exchange Program, Alexandra L. Armbruster, J. Bryan Watford

Georgia State University Law Review

The Act authorizes certain nonprofit organizations and hospitals to operate clean needle exchange programs. These programs allow individuals who inject drugs to exchange their needles for clean, unused needles. The purpose of these programs is to prevent the spread of HIV, Hepatitis C, and other infectious diseases associated with the repeated use and sharing of needles. The Act further authorizes the Department of Public Health to regulate the registration of organizations that will participate in these programs and protects employees of those organizations from being charged with crimes or offenses associated with selling, lending, giving, or exchanging needles.

Tensions And Exclusions: The Knotty Policy Encounter Between Sexual And Reproductive Health And Rights And Hiv, Susana T. Fried, Aziza Ahmed, Luisa Cabal

Faculty Scholarship

The International Conference on Population and Development or ICPD (Cairo, 1994) provided a global policy framework centred on reproductive rights instead of population control. Global standards on sexual and reproductive health and rights (SRHR) and on HIV rapidly expanded throughout the 1990s.1 Considerable activist mobilisation in both arenas advanced health issues as politically salient decision-making venues where human rights and health advocacy were urgently needed, rather than scientific and technical showcases.

The ICPD, quickly followed by the Fourth World Conference on Women (1995), stressed that reproductive rights are anchored in governments’ human rights obligations and development commitments, including to …

Drugs' Other Side Effects, Craig J. Konnoth

Publications

Drugs often induce unintended, adverse physiological reactions in those that take them—what we commonly refer to as “side-effects.” However, drugs can produce other, broader, unintended, even non-physiological harms. For example, some argue that taking Truvada, a drug that prevents HIV transmission, increases promiscuity and decreases condom use. Expensive Hepatitis C treatments threaten to bankrupt state Medicaid programs. BiDil, which purported to treat heart conditions for self-identified African-Americans, has been criticized for reifying racial categories. Although the Food & Drug Administration (“FDA”) has broad discretion under the Food, Drugs, and Cosmetics Act (“FDCA”) to regulate drugs, it generally considers only traditional …

Services And Resources For People Living With Hiv/Aids In The Southcoast Of Massachusetts: “Can’T Get There From Here!”, Jason Potter Burda, Margaret B. Drew, Caitlin M. Stover

Faculty Publications

Fall River and New Bedford, two diverse and economically challenged cities in the Southcoast region of Massachusetts, are areas of substantial concern in the effort to reduce HIV incidence and to provide effective services for people living with HIV/AIDS in the Commonwealth. In these two communities, HIV disparately impacts marginalized populations, with particularly high infection and prevalence rates among men who have sex with men and injection drug users in comparison to other Massachusetts localities. This project used community engaged research principles to conduct a community assessment guided by the social determinants of health. The primary goal of this study …

Regulating Human Germline Modification In Light Of Crispr, Sarah Ashley Barnett

University of Richmond Law Review

No abstract provided.

Criminal Laws On Sex Work And Hiv Transmission: Mapping The Laws, Considering The Consequence, Aziza Ahmed, Sienna Baskin, Anna Forbes

Faculty Scholarship

Lawmakers historically justify the mobilization of criminal laws on prostitution and HIV as a means of controlling the spread of disease. Over time, however, public health research has conclusively demonstrated that criminal laws on prostitution and HIV significantly impede the ability of sex workers to access services and to live without the stigma and blame associated with being a transmitter of HIV. In turn, mainstream public health approaches to sex work and HIV emphasize decriminalization as a way to improve the lives of sex workers in need of care, treatment, and services. Our current legal system, which criminalizes both prostitution …

Conviction Nixed, But No Wrongful Imprisonment Suit For Poz Man, Arthur S. Leonard

Other Publications

No abstract provided.

Adjudicating Risk: Aids, Crime, And Culpability, Aziza Ahmed

Faculty Scholarship

The AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response.¹ Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics,² it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic.³ In the United States, the data is startling⁴ : 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men.⁵ In 2016, the CDC found that one …

Law And Politics, An Emerging Epidemic: A Call For Evidence-Based Public Health Law, Michael Ulrich

Faculty Scholarship

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be …

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

University of Miami Law Review

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …

A Dangerous Situation – The Knowing Transmission Of Hiv In An Out-Of-Body Form And Whether New York Should Criminally Punish Those Who Commit Such An Act, Griffin C. Kenyon

Pace Law Review

In June 2013 the New York State Court of Appeals held that the saliva of a defendant afflicted with the Human Immunodeficiency Virus ("HIV”) does not constitute a dangerous instrument so as to support a conviction for aggravated assault. Despite this holding, the question remains whether the administration of HIV in an out-of-body form to another individual qualifies for dangerous instrument treatment so as to subject greater criminal liability under the New York State Penal Law (“Penal Law”). Another question remains – should New York punish those who knowingly transmit HIV to another individual? If so, should the punishment be …

When Condoms Fail: Making Room Under The Aca Blanket For Prep Hiv Prevention, Jason Potter Burda

Faculty Publications

Given the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known as “PrEP”), has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for daily use by high-risk HIV-negative individuals to prevent infection. Despite an effectiveness above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. In this Article, I …

The Threat Lives On: How To Exclude Expectant Mothers From Prosecution For Mere Exposure Of Hiv To Their Fetuses And Infants, Shahabudeen K. Khan

Cleveland State Law Review

There is a renewed interest in HIV/AIDS issues given that better treatment is available. The Department of Justice (DOJ), Civil Rights Division, recently published best practice guidelines to reform HIV-specific criminal laws to conform to modern science. The DOJ’s latest guidelines urge states to “reform and modernize” the laws to reflect modern science. There is a lot of unfinished work regarding the ineffectiveness and stigma associated with HIV criminal transmission laws as a whole. These laws are “no good” and counterintuitive in the fight against this unfortunate disease. There have been calls to repeal these laws in their entirety. That …

Anticipating Hiv Vaccines: Sketching An Agenda For Public Health Ethics And Policy In The United States, James M. Dubois, Amanda Hine, Michele Kennett, Kayla Kostelecky, Joseph Norris, Rachel Presti, Kathryn Raliski, Jessi Roach, Adam Ruggles

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

Faculty Scholarship

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …

Criminalizing The Transmission Of Hiv: Consent, Disclosure, And Online Dating, Alexandra Mccallum

Utah Law Review

Ever since Human Immunodeficiency Virus (HIV) was first recognized as a widespread public health problem, policymakers and legal scholars have considered how criminal law should be used to influence the sexual behavior of people with HIV. Surely, HIV is a problem that affects the general health, safety, and welfare of citizens. Thus, as most cases of HIV are transmitted through sexual conduct, states can regulate this conduct pursuant to their police powers. Generally, states that criminalize the transmission of HIV through sexual conduct provide an exception for HIV-positive individuals who disclose their status and obtain consent5 from their partners. However, …