1 The effort to reduce the spread of AIDS is the U.S. government's top health priority. Message of Secretary Heckler and Letter from Commissioner Young; 15 FDA Drug Bull. 26 (1985); U.S. Public Health Service, Facts about AIDS (1984).

2 The number of cases of AIDS is based upon the national surveillance definition developed by the U.S. Centers for Disease Control (CDC) in 1982. CDC, , Update on Acquired Immune Deficiency Syndrome (AIDS)—United States, 31 Morbidity & Mortality Wkly. Rpt. 507 (1982)Google Scholar. See Jaffee, , Bregman, & Selik, , Acquired Immune Deficiency Syndrome in the United States: The First 1,000 Cases, 148 J. Infect. Dis. 339 (1983)CrossRefGoogle Scholar; Jaffee, & Selik, , Acquired Immune Deficiency Syndrome: A Disseminated Aspergillosis Predictive of Underlying Cellular Immune Deficiency, 149 J. Infect. Dis. 829 (1984)Google Scholar; Selik, , Haverkos, & Curran, , Acquired Immune Deficiency Syndrome (AIDS): Trends in the United States 1978-1982, 76 Am. J. Med. 493 (1984)CrossRefGoogle Scholar; CDC, Revision of the Case Definition of Acquired Immunodeficiency Syndrome for National Reporting—United States, 34 Morbidity & Mortality Wkly. Rpt. 373 (1985)Google Scholar; Selik, , Jaffee, , Solomon, & Curran, , CDC's Definition of AIDS, 315 New Eng. J. Med. 761 (1986)Google Scholar. The complete list of conditions used to exclude patients with those disorders representing cases of AIDS in the surveillance definition has been published recently. Adult AIDS is defined as a reliably diagnosed disease which is at least moderately indicative of an underlying cellular immunodeficiency when no known cause for reduced resistance to that disease is present. This definition was developed before HIV was identified as the causative agent. Because of the complexity of diagnosis in children, a provisional case definition for pediatric AIDS has been developed. CDC, Update: Acquired Immunodeficiency Syndrome (AIDS)—United States, 32 Morbidity & Mortality Wkly. Rpt. 688 (1984)Google Scholar. The case definition for adults was endorsed by the World Health Organization for use in countries where appropriate technologies are available. WHO, Acquired Immune Deficiency Syndrome: Meeting of the WHO Laboratory Centers on AIDS, 43 Wkly. Epidem. Rec. 333 (1985)Google Scholar; WHO, Acquired Immunodeficiency Syndrome (AIDS): WHO/CDC Case Definition for AIDS, 61 Wkly. Epidem. Rec. 69 (1986)Google Scholar. See WHO, Guidelines on AIDS in Europe (1986).

3 It is estimated that for every person who meets the CDC definition of AIDS, there are between 50 and 100 who have the infection and are capable of transmitting it. Curran, , Morgan, , Hardy, , Jaffe, , Darrow, & Dowdle, , The Epidemiology of AIDS: Current Status and Future Prospects, 229 Science 1352 (1985)CrossRefGoogle Scholar [hereinafter cited as Current Status and Future Prospects].

4 Id.

5 Until recently, the common designation for the AIDS virus was human T-lymphotropic virus type III (HTLV-III). The term human immunodeficiency virus (HIV) has been proposed by a subcommittee of the International Committee for the Taxonomy of Viruses as the appropriate name for the retrovirus. CDC, Classification System for Human T-Lymphotropic Virus Type IIII Lymphademopathy-Associated Virus Infections, 35 Morbidity & Mortality Wkly. Rpt. 334 (1986)Google Scholar. Therefore, the consensus term HIV will be used throughout this article.

6 French scientists in 1983 isolated a retrovirus, the lymphadenopathy-associated virus (LAV) from a patient with lymphadenopathy, a disease or enlargement of a lymph node. See Montagnier, , Lymphadenopathy-Associated Virus: From Molecular Biology to Pathogenicity, 103 Ann. Int. Med. 689 (1985)CrossRefGoogle Scholar; Barre-Sinoussi, , Mathur-Wagh, , Rey, , Brun-Vezinet, , Yancovitz, , Rouzioux, , Montagnier, , Mildvan, & Chermann, , Isolation of Lymphadenopathy Associated Virus (LAV) and Detection of LAV Antibodies from U.S. Patients with AIDS, 253 J.A.M.A. 737 (1985)CrossRefGoogle Scholar.

In 1984, U.S. researchers isolated a similar retrovirus, designated human T-lymphotropic virus Type III (HTLV-III). Gallo, , Saladhuddin, , Popovic, , Shearer, , Kaplan, , Haynes, , Palker, , Redfield, , Oleshe, , Safai, , White, , Foster, & Markham, , Frequent Detection and Isolation of Cytopathic Retrovirus (HTLV-III) from Patients with AIDS and at Risk for AIDS, 224 Science 500 (1984)CrossRefGoogle Scholar; Popovic, , Sarndagharan, , Read, & Gallo, , Detection, Isolation, and Continuous Production of Cytopathic Retroviruses (HTLV-III) from Patients with AIDS and Pre-AIDS, 224 Science 497 (1984)CrossRefGoogle Scholar. AIDS-associated retroviruses (ARV) have also been identified in patients with AIDS in San Francisco. Levy, , Hoffman, , Kramer, , Landis, & Shimabukuso, , Isolation of Lymphocytopathic Retroviruses from San Francisco Patients with AIDS, 225 Science 840 (1984)CrossRefGoogle Scholar. Although there is some variation between HTLV-III, LAV and ARV, see Benn, , Rutledge, , Folks, , Gold, , Baker, , McCormick, , Feorino, , Piot, , Quinn, & Martin, , Genomic Heterogeneity of AIDS Retroviral Isolates from North America and Zaire, 230 Science 949 (1985)CrossRefGoogle Scholar, they are believed to be the same agent. Landesman, , Ginzburg, & Weiss, , The AIDS Epidemic, 312 New Eng. J. Med. 521 (1985)CrossRefGoogle Scholar. An increasing body of epidemiological data supports the hypothesis that these retroviruses are the disease causing agent of AIDS. Levy, & Shimabukuro, , Recovery of AIDS-Associated Retroviruses from Patients with AIDS or AIDS-Related Conditions and from Clinically Healthy Individuals, 152 J. Infect. Dis. 734 (1985)CrossRefGoogle ScholarPubMed; Gallo, & Wong-Staal, , Human T-Lymphotropic Retrovirus (HTLV-III) as the Cause of the Acquired Immunodeficiency Syndrome, 103 Ann. Int. Med. 679 (1985)CrossRefGoogle Scholar.

7 See Francis, & Petricciani, , The Prospects for and Pathways Toward a Vaccine for AIDS, 313 New Eng. J. Med. 1586 (1985)CrossRefGoogle Scholar. Substantial effort to develop drugs and biological agents for use against the AIDS virus is currently being exerted. Barnes, , New Funds for AIDS Drug Centers, 233 Science 414 (1986)Google Scholar.

8 See Sarngadharan, , Popovic, , Bruch, , Schupbach, & Gallo, , Antibodies Reactive with Human T-Lymphotropic Retrovirus (HTLV-III) in the Serum of Patients with AIDS, 224 Science 506 (1984)CrossRefGoogle Scholar [hereinafter cited as Antibodies Reactive]. A reactive result to an ELISA test indicates that the person has been exposed to HIV and has mounted an immunologic response, such as producing serum antibodies. However, a positive result does not necessarily mean that the person currently harbors the virus. See infra text accompanying notes 11-22. An ELISA test reacts to the presence of antibodies in the patient's blood, showing a more intense color as larger quantities of antibody are present in the serum. A positive reaction is recorded where the observed intensity exceeds a cutoff value set by the manufacturer producing the test. If the cutoff is set low, the chances of detecting an HIV infected person with weak antibodies are high. At the same time such a low threshold increases the chances of a false positive result. A recent statement by the National Institutes of Health (NIH) expressed concern that laboratories have interpreted test results differently, particularly where they are informed of previous ELISA test results. NIH notes that there are alternative versions of the ELISA test, and that multiple ELISA tests should use distinct members of this group of tests. National Institutes of Health Consensus Development Conference Statement, The Impact of Routine HTLV-III Antibody Testing of Blood and Plasma Donors on Public Health, 256 J.A.M.A. 1778 (1986)CrossRefGoogle Scholar [hereinafter cited as National Institutes of Health Statement]. The Western Blot test, a more expensive ($100 compared with $2-3) and technically more difficult test, can be performed. This test identifies antibodies and proteins of a specific molecular weight. Another supplemental test is the immunofluorescence assay (IFA).

9 The U.S. Public Health Service has issued guidelines recommending that voluntary serological testing for HIV should be routinely offered to all persons at increased risk when they enter a health care facility. The high risk groups recommended by CDC for serological testing are extensive: (1) homosexual and bisexual men; (2) present or past intravenous (IV) drug abusers; (3) persons with clinical or laboratory evidence of infection; (4) persons born in places such as Haiti, or Central African countries where heterosexual transmission is thought to play a major role; (5) male or female prostitutes and their sex partners; (6) sex partners of infected or increased risk persons; (7) all persons with hemophilia who have received clotting factor products; and (8) newborn infants of high-risk or infected mothers. CDC, Additional Recommendations to Reduce Sexual and Drug-Abuse Related Transmission of HTLV-III/LAV, 35 Morbidity & Mortality Wkly. Rpt. 152 (1986)Google Scholar. These guidelines reach considerably beyond any other federal recommendations which have been characteristically limited in scope and application. See CDC, Acquired Immune Deficiency Syndrome (AIDS): Precautions for Clinical and Laboratory Staffs, 31 Morbidity 8C Mortality Wkly. Rpt. 577 (1982)Google Scholar; CDC, Acquired Immunodeficiency Syndrome (AIDS): Precautions for Health Care Workers and Allied Professionals, 32 Morbidity & Mortality Wkly. Rpt. 450 (1983)Google Scholar; CDC, Provisional Public Health Service Inter-Agency Recommendations for Screening Donated Blood and Plasma for Antibody to the Virus Causing Acquired Immunodeficiency Syndrome, 34 Morbidity & Mortality Wkly. Rpt. 1 (1985)Google Scholar; CDC, Recommendations for Preventing Transmission of Infection with Human T-Lymphotropic Virus Type-III/Lymphadenopathy-Associated Virus in the Workplace, 34 Morbidity 8C Mortality Wkly. Rpt. 682 (1985)Google Scholar; CDC, Recommendations for Assisting in the Prevention of Perinatal Transmission of HTLV-III/LAV and AIDS, 34 Morbidity 8C Mortality Wkly. Rpt. 721 (1985)Google Scholar. The extensive list of risk groups recommended for future testing represent millions of Americans. See Sivak & Wormser.HwD Common is HTLV-III Infection in the United States?, 313 New Eng. J. Med. 1352 (1985); Hardy, , Allen, , Morgan, & Curran, , The Incidence Rate of Acquired Immunodeficiency Syndrome in Selected Populations, 253 J.A.M.A. 215 (1985)CrossRefGoogle Scholar; Carlson, Bryant, Hibnrichs, Yamamoto, Levy, Yee, Higgins, Levine, Holland, Gardner 8c Pederson, , AIDS Serology Testing in Low- and High-Risk Groups, 253 J.A.M.A. 3405 (1985)Google Scholar.

The strategic implications of carrying out the guidelines have not been carefully thought out. The currently available alternative test sites, which provide for anonymous testing in many states, are not designed for large-scale population testing. Many health care institutions would have to develop a technical and operational capacity to administer the ELISA and confirmatory tests. These include public and private clinics treating IV drug abusers, hemophiliacs, persons with sexually transmitted diseases, and prostitutes. Even these clinics would not reach major parts of the homosexual and IV drug abuse communities.

10 In most U.S. jurisdictions, physicians must inform patients of information which is “material” to a reasonable person's decision whether to allow a medical procedure. See, e.g., Harnish v. Childrens Hospital Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 506 (1972); Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), cert, denied, 409 U.S. 1064 (1972). Physicians should not assume that permission to draw blood for unspecified clinical testing of a patient implies permission to administer an ELISA test. The test results may be psychologically invasive to the patient, and, if disclosed, could be detrimental to his or her interests. Knowledge that the test is to be performed is “material” to the patient; the physician, therefore, should seek permission to perform the test.

11 See generally A. Brandt, No Magic Bullet: A Social History of Venereal Disease in the United States Since 1880 (1985).

12 Programs can either screen people with the primary purpose of identifying members of a population who are seropositive, or they can screen tissue products such as blood, with the primary purpose of protecting the recipients of those products from suspected contamination. Screening donated tissue is voluntary; however, once tissue is donated, screening becomes mandatory. See infra text accompanying notes 26-49.

13 See City of Cleburne, Texas v. Cleburne Living Center, 105 S. Ct. 3249 (1985).

14 Excluding borderline results, the range of sensitivity of the test has been shown to be 93.4 to 99.6% and the range of specificity 98.6 to 99.6%. Antibodies Reactive, supra note 8; Petricciani, , Licensed Tests for Antibody to Human T-Lymphotropic Virus Type III: Sensitivity and Specificity, 103 Ann. Int. Med. 726 (1985)CrossRefGoogle Scholar [hereinafter cited as Licensed Tests]; Schorr, , Berkowitz, , Cumming, & Sandler, , Prevalence of HTLV-III Antibody in American Blood Donors, 313 New Eng. J. Med. 384 (1985)Google Scholar; Weiss, , Goedert, , Sarngadharan, & Bodner, , Screening for HTL-VIII (AIDS agent) Antibodies: Specificity, Sensitivity and Applications, 253 J.A.M.A. 221 (1985)CrossRefGoogle Scholar.

15 See Levy, , Hoffman, , Kramer, , Landis, & Shimabukuo, , Isolation of Lymphocytopathic Retroviruses from San Francisco Patients with AIDS, 225 Science 840 (1984)CrossRefGoogle Scholar.

16 See, e.g., Rogni, Tegtmeier, Levy, Kaminsky, Lewis, Spero, Bontempo, Handwerk-Leber, Bayer, Zimmerman & Britz, AIDS Retrovirus Antibodies in Hemophiliacs Treated With Factor VIII or Factor IX Concentrates, Cryoprecipitate, or Fresh Frozen Plasma: Prevalence, Seroconversion Rate, and Chemical Correlations, 67 Blood 592 (1986); AWain, , Prevalence of HTLV-III/LAV Antibodies in Patients with Hemophilia and in Their Sexual Partners in France, 315 New Eng. J. Med. 517 (1986)Google Scholar; Evatt, , Gomberts, , McDougal, & Ramsey, , lncidential Appearance of LAV-HTLV-III Antibodies in Hemophiliacs and the Onset of the AIDS Epidemic, 312 New Eng. J. Med. 483 (1985)CrossRefGoogle Scholar.

17 See, e.g., Enstrom, , AIDS Among Homosexual Men in California, 8487 Lancet 975 (1986)CrossRefGoogle Scholar; Weber, , Wadsworth, , Rogers, , Mashtael, , Scott, , McManus, , Berrie, , Jeffries, , Harris, & Pinching, , Three-Year Prospective Study of HTLV-III/LAV Infection in Homosexual Men, 8491 Lancet 1179 (1986)CrossRefGoogle Scholar; Stevens, , Taylor, , Zang, , Morrison, , Harley, , Rodriguez, de Cordoba, Bacino, , Ting, , Bodner, , Sarngadharan, , Gallo, & Rubinstein, , Human T-Cell Lymphotropic Virus Type III Infection in a Cohort of Homosexual Men in New York City, 255 J.A.M.A. 2167 (1986)CrossRefGoogle Scholar.

18 See, e.g., CDC, Antibodies to a Retrovirus Etiologically Associated with Acquired Immune Deficiency Syndrome (AIDS) in Populations with Increased Incidences of the Syndrome, 33 Morbidity & Mortality Wkly. Rpt. 377 (1984)Google Scholar.

19 See Landesman, , Ginzburg, & Weiss, , The AIDS Epidemic, 312 New Eng. J. Med. 521 (1985)CrossRefGoogle Scholar; Antibodies Reactive, supra note 8; Licensed Tests, supra note 14.

20 See Bayer, , Levine, & Wolf, , HIV Antibody Screening: An Ethical Framework for Evaluating Proposed Programs, 256 J.A.M.A. 1768 (1986)CrossRefGoogle Scholar; Levine, & Bayer, , Screening Blood: Public Health and Medical Uncertainty, AIDS: The Emerging Ethical Dilemmas, 15 Hastings Ctr. Rpt. 8 (1985)CrossRefGoogle Scholar (Special Supplement); Marwick, , Use of the AIDS Antibody Test May Provide More Answers, 253 J.A.M.A. 1694 (1985)CrossRefGoogle Scholar; Osterholm, , Bowman, , Chopek, , McCullough, , Korlath, & Polesky, , Screening Donated Blood from Plasma for HTLV-III Antibody: Facing One More Crisis, 312 New Eng. J. Med. 1185 (1985)CrossRefGoogle Scholar.

21 False positives are test results which show an immunologic response to HIV when in fact there is no such response.

22 See Antibodies Reactive, supra note 8.

23 See Licensed Tests, supra note 14.

24 This statistic is based upon the range reported in Licensed Tests, supra note 14 and Antibodies Reactive, supra note 8. In one study, out of every 100 individuals screened in a healthy population and found to be seropositive on an initial ELISA test, twenty were repeatedly reactive and only four were Western Blot positive. Schorr, , Berkowitz, , Cumming, , Katz, & Sandler, , Prevalence of HTLV-III Antibody in American Blood Donors, 313 New Eng. J. Med. 384 (1985)Google Scholar [hereinafter cited as American Blood Donors], The range of false positives is estimated to be between 0.17 and 0.89% of the total population tested. Licensed Tests, supra note 14. As to the definitions of ELISA and Western Blot, see supra note 8.

25 National Institutes of Health Statement, supra note 8.

26 This is a recommendation already made by the World Health Organization (WHO). WHO, The Acquired Immunodeficiency Syndrome (AIDS), Memorandum from a WHO Meeting, 63 BULL. WHO 667 (1985)Google Scholar. WHO, Acquired Immunodeficiency Syndrome (AIDS), WHO Meeting and Consultation on the Safety of Blood Products, 61 Wkly. Epidem. Rec. 138 (1986)Google Scholar.

27 Anonymous, AIDS in the U.K., 8464 Lancet 1103 (1985)Google Scholar.

28 Office of Biologies, National Center for Drugs and Biologies, Food and Drug Administration, Recommendations to Decrease the Risk of Transmitting Acquired Immune Deficiency Syndrome (AIDS) from Plasma Donors, March 24, 1983.

29 CDC, Provisional Public Health Service Inter-Agency Recommendations for Screening Donated Blood and Plasma for Antibody to the Virus Causing Acquired Immunodeficiency Syndrome, 34 Morbidity & Mortality Wkly. Rpt. 1(1985).

30 See Dep't. of Health and Human Services, Food and Drug Administration, General Biological Products Standards, Additional Standards for Human Blood and Blood Products—Serologic Test for Antibody to Human T-Lymphotropic Virus Type III (HTLVIII), Proposed Rule, 51 Fed. Reg. 6362-68 (1986) (to be codified at 21 C.F.R. Parts 606, 610, 640) [hereinafter cited as Proposed Rule].

31 National Institutes of Health Statement, supra note 8.

32 Proposed Rule, supra note 30.

33 Under the proposed rules, blood collection centers can issue their products in “dire emergencies” before the results of a serologic test are available. A “dire emergency” is defined as a life-threatening situation where the patient's need for the product is so acute as to preclude the completion of testing before administration of the product. Proposed Rule, supra

34 Proposed Rule, supra note 30, at 6365.

35 Current Status and Future Prospects, supra note 3.

36 Id.

37 Macklin & Friedland, AIDS Research: The Ethics of Clinical Trials, 14:5-6 Law, Med. & Health Care 273-80 (Dec. 1986).

38 Matthews, & Neslund, , The Initial Impact of AIDS on Public Health Law in the United States—1986, 257 J.A.M.A. 344 (1986)CrossRefGoogle Scholar.

39 See, e.g., Martin v. Southern Baptist Hospital, 352 So. 2d 351 (La. App. 1977).

40 See,e.g., Borchelt v. Irwin Memorial Blood Bank, S.F. Super. Ct. No. 8193, 1(16) AIDS Pol. & Law 1 (1986) (involving “administrative error” of defendant blood bank in using blood from donor who did not fill out questionnaire completely); Allen v. Irwin Memorial, S.F. Super. Ct. No. 863602, 1(18) AIDS Pol. & Law 4 (1986).

41 See supra note 34. Once the CDC issued guidelines in January, 1985, failure to conform to the guidelines would be prima facie grounds for a negligence action.

42 See, e.g., Cal. Health & Safety Code § 1606 (West 1963).

43 Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 (1954); Shepard v. Alexian Brothers Hospital, 33 Cal. App. 3d 606, 109 Cal. Rptr. 132 (1973).

44 Miles Laboratories, Inc. v. Superior Court, 175 Cal. App. 3d 509, 220 Cal. Rptr. 590 (1985).

45 See,e.g.,Perlmutter, 308 N.Y. 100, 123 N.E.2d 792; White v. Sarasota Co. Public Hospital Bd., 206 So. 2d 19 (Fla. App. 1986); Miles Laboratories, 175 Cal. App. 3d 509, 220 Cal. Rptr. 590 (1985). See Galante, Blood Liability Theory Rejected, 7 Nat'l L.J. 3, 8 (April 8, 1985).

46 See,e.g., Brody v. Overlook Hospital, 127 N.J. Super. 331, 317 A.2d 392 (1974), aff'd., 332 A.2d 596 (N.J. 1975).

47 500 So. 2d 533 (Fla. 1987). See Note, AWS-Related Litigation: The Competing Interests Surrounding Discovery of Blood Donors’ Identities, 19 Ind. L. Rev. 561 (1986)Google Scholar.

48 500 So. 2d at 537-38.

49 See Barry, Cleary & Fineberg, Screening for HIV Infection: Risks, Benefits, and the Burden of Proof in 14:5-6 Law, Med. & Health Care 259-67 (Dec. 1986) [hereinafter cited as Screening for HIV Infection].

50 Office for the Protection from Research Risks, National Institutes of Health, Guidance for Institutional Review Board for AIDS Studies (Dec. 26, 1984). See also American Psychological Association, Comm. for the Protection of Human Participants in Research, Ethical Issues in Research on AIDS, July 1985. Bayer, , Levine, & Murray, , Guidelines for Confidentiality in Research on AIDS, 6 IRB: A Review of Human Subjects Research 1 (1984)CrossRefGoogle Scholar; Gray, & Melton, , The Law and Ethics of Psychosocial Research on AIDS, 64 Neb. L. Rev. 637 (1985)Google Scholar.

51 CDC, Provisional Public Health Service Inter-Agency Recommendations for Screening Donated Blood and Plasma for Antibody to the Virus Causing Acquired Immunodeficiency Syndrome, 34 Morbidity & Mortality Wkly. Rpt. 1(1985); Proposed Rule, supra note 30, at 6365.

52 “At this time, FDA is not proposing specific regulations requiring the notification of a donor when the test for antibody to HTLV-III is repeatedly positive.” Proposed Rule, supra note 30, at 6365.

53 The National Institutes of Health Development Conference strongly advises informing positive testing blood donors. National Institutes of Health Statement, supra note 8.

54 It is also possible to arrive at this conclusion from the legal duties that could be ascribed to those holding the test results. The minimum the law should require is informing the patient of the test results and the consequences of engaging in behavior likely to transfer the infection. Those holding such test results may well have a duty to protect third parties; the minimum step to be taken to fulfill this obligation is to try to restrain the infected person's future behavior. See infra notes 89-106 and accompanying text.

55 See Current Status and Future Prospects, supra note 3; Francis & Petricciani, supra note 5; Jaffe, , Hardy, , Meade, , Morgan, & Darrow, , The Acquired Immunodeficiency Syndrome in Gay Men, 103 Ann. Int. Med. 662 (1985)CrossRefGoogle Scholar; Goedert, , Sarngadharan, , Biggar, , Weiss, , Winn, , Grossman, , Greene, , Bodner, , Mann, , Strong, , Gallo, & Blattner, , Determinants of Retrovirus (HTLV-III) Antibody and Immunodeficiency Conditions in Homosexual Men, 8405 Lancet 711 (1984)CrossRefGoogle Scholar; Mathur-Wagh, , Mildvan, , Senie, , Follow-up at Four and One Half Years in Homosexual Men with Generalized Lymphadenopathy, 313 New Eng. J. Med. 1542 (1985)Google Scholar.

56 Current practice in many blood collection centers is to enter the names of persons whose blood is ELISA positive, but negative by confirmatory tests, into a donor deferral registry. Persons on the register are not informed that they cannot give blood in the future. The NIH Consensus Conference on HIV screening strongly recommends that such people should be informed. National Institutes of Health Statement, supra note 8.

57 See A. Brandt, No Magic Bullet, supra note 11.

58 AZT has had some preliminary success in impeding the re-occurrence of pneumocytis carinii pneumonia in immunocompromised patients. Macklin & Friedland, supra note 37. On March 20, 1987, the FDA approved the use of AZT, permitting its prescription by physicians. In approving AZT, FDA officials emphasized that the drug was not a cure for AIDS but that it had improved the short-term survival rates of AIDS patients. U.S. Approves Drug to Prolong Lives of AIDS Patients, N.Y. Times, Mar. 21, 1987, at 1, col. 6.

59 See Macklin & Friedland, supra note 37.

60 See CDC, Self-Reported Behavioral Change Among Gay and Bisexual Men—San Francisco, 34 Morbidity & Mortality Wkly. Rpt. 613 (1985)Google Scholar; Schecter, , Jeffries, , Constance, , Douglas, , Fay, , Maynard, , Nitz, , Willoughby, , Boyko, & MacLeod, , Changes in Sexual Behavior and Fear of AIDS, 8389 Lancet 1293 (1984)CrossRefGoogle Scholar; CDC, Declining Rates of Rectal and Pharyngeal Gonorrhea Among Males—New York City, 33 Morbidity & Mortality Wkly. Rpt. 295 (1984)Google Scholar.

61 See infra notes 63-64 and accompanying text.

62 See supra note 23 and accompanying text.

63 Current Status and Future Prospects, supra note 3; McFadden, , Jason, & Feorino, , HTLV-III/LAV-Seronegative, Virus-Negative Sexual Partners and Household Contacts of Hemophiliacs, 255 J.A.M.A. 1702 (1986)CrossRefGoogle Scholar. Studies have identified specific behavioral risk factors, such as increased number of sexual partners and receptive anal intercourse or other practices associated with rectal trauma. Winkelstein, , Lyman, & Padian, , Sexual Practices and Risk of Infection by the Human Immunodeficiency Virus, 257 J.A.M.A. 321 (1987)CrossRefGoogle Scholar. Heterosexual transmission has been documented. Fischl, , Dickinson, & Scott, , Evaluation of Heterosexual Partners, Children, and Household Contacts of Adults with AIDS, 257 J.A.M.A. 640 (1987)CrossRefGoogle Scholar; Whittington, Krauss, Lee & Nahmias, The Prevalence of HTLV-III/LAV Antibodies in Heterosexuals, 255 J.A.M.A. 1702 (1986). CDC, Heterosexual Transmission of Human T-lymphotropic Virus Type III ILymphadenopathy Associated Virus, 34 Morbidity & Mortality Wkly. Rpt. 561 (1985)Google Scholar; Redfield, , Markham, , Salahuddin, , Sarngadharan, , Bodner, , Folks, , Ballov, , Wright, & Gallo, , Frequent Transmission of HTLV-UI Among Spouses of Patients with AIDS-Related Complex and AIDS, 253 J.A.M.A. 1571 (1985)CrossRefGoogle Scholar; Jason, , McDougal, , Dixon, , Lawrence, , Kennedy, , Hilgartner, , Aledort, & Evatt, , HTLVIII/LAV Antibody and Immune Status of Household Contacts and Sexual Partners of Persons with Hemophilia, 255 J.A.M.A. 212 (1986)CrossRefGoogle Scholar; Pearce, , Heterosexual Transmission of AIDS, 256 J.A.M.A. 590 (1986)CrossRefGoogle Scholar; Vogt, , Witt, , Craven, , Byington, , Crawford, , Schooley, & Hirsch, , Isolation of HTLVIII/LAVfrom Cervical Secretions of Women at Risk for AIDS, 8480 Lancet 525 (1986)CrossRefGoogle Scholar; Lederman, , Transmission of the Acquired Immunodeficiency Syndrome Through Heterosexual Activity, 104 Ann. Int. Med. 115 (1986)CrossRefGoogle Scholar. Male to female transmission is thought to be more efficient in the United States. Data suggesting the possibility of female to male transmission have been reported. Piot, , Quinn, , Taelman, , Feinsod, , Minlangu, , Wobin, , Mbendi, , Mazebo, , Ndangi, , Stevens, , Kalambayi, , Mitchell, , Bridts, & McCormick, , Acquired Immunodeficiency Syndrome in a Heterosexual Population in Zaire, 8394 Lancet 65 (1984)CrossRefGoogle Scholar; Clumeck, , Van de, Perre, Carael, , Rouvroy, & Nzaramba, , Heterosexual Promiscuity Among African Patients with AIDS, 313 New Eng. J. Med. 182 (1985)Google Scholar; Redfield, , Markham, , Salahuddin, , Wright, , Sarngadharan, & Gallo, , Heterosexually Acquired HTLV-III/LAV Disease: Epidemiologic Evidence for Female to Male Transmission, 254 J.A.M.A. 2094 (1985)CrossRefGoogle Scholar; Vogt, , Witt, , Craven, , Byington, , Crawford, , Schooley, & Hirsch, , Isolation of HTLV-III/LAV from Cervical Secretions of Women at Risk for AIDS, 8480 Lancet 525 (1986)CrossRefGoogle Scholar; Padian, & Pickering, , Female-to-Male Transmission of AIDS: A Reexamination of the African Sex Ratio of Cases, 256 J.A.M.A. 590 (1986)Google Scholar. But see Schultz, , Milberg, , Kristal, & Stoneburner, , Female-to-Male Transmission of HTLV-III, 255 J.A.M.A. 1703 (1986)CrossRefGoogle Scholar.

64 HIV is fragile and difficult to communicate. Almost all cases of transmission in the United States have occurred through one of the four previously mentioned routes. See supra note 63 and accompanying text. Studies showing the extreme rarity with which infection is transmitted from prolonged and close household contact illustrate that mere exposure to and touching of persons who have been infected poses no meaningful risk of virus transmission. Fischl, Dikinson & Padian, supra note 63; Friedland, , Saltzman, , Rogers, , Kahl, , Lesser, , Marguerite, , Mayers, & Klein, , Lack of Transmission of HTLV-III/LAV Infection to Household Contacts of Patients with AIDS or AIDS-Related Complex with Oral Candidiasis, 314 New Eng. J. Med. 344 (1986)CrossRefGoogle ScholarPubMed; Jason, , McDougal, , Dixon, , Lawrence, , Kennedy, , Hilgartner, , Aledort, & Evatt, , HTLVIII/LAV Antibody and Immune Status of Household Contacts and Sexual Partners of Persons with Hemophilia, 255 J.A.M.A. 212 (1986)CrossRefGoogle Scholar; Piot, Quinn, Taelman, Feinsod, Minlangu, Wobin, Mazebo, Ndangi, Stevens, Kalambayi, Mitchell, Bridts & McCormick, supra note 63. But see Operskalski, & Mosley, , Risk of HTLV-III/LAV Transmission to Household Contacts, 315 New Eng. J. Med. 257 (1986)Google Scholar; Phillipson, & Lorincz, , Risk of HTLV-HI Transmissions to Household Contacts, 315 New Eng. J Med. 257 (1986)Google Scholar; McDonald, & Rogers, , Risk of HTLV-III/LAV Transmission to Household Contacts, 315 New Eng. J. Med. 258 (1986)Google Scholar. There is also evidence demonstrating the difficulty of transmitting the virus in higher risk settings such as hospitals and laboratories. CDC, Update: Prospective Evaluation of Health-Care Workers Exposed Via the Parenteral or Mucous-Membrane Route to Blood or Body Fluids from Patients with Acquired Immunodeficiency Syndrome—United States, 34 Morbidity & Mortality Wkly. Rpt. 101 (1985)Google Scholar; Weiss, , Saxinger, , Rechtman, , Grieco, , Nadler, , Holman, , Ginzburg, , Groopman, , Goedert, , Markham, , Gallo, , Blattner, & Landesman, , HTLV-HI Infection Among Health Care Workers: Association with Needle-Stick Injuries, 254 J.A.M.A. 2089 (1985)CrossRefGoogle Scholar; Saviteer, , White, & Cohen, , HTLV-III Exposure During Cardiopulmonary Resuscitation, 313 New Eng. J. Med. 1606 (1985)Google Scholar.

65 There has been some evidence of higher than expected HIV positivity in the armed forces. See James, , Morgenstern, & Hatten, , HTLV-III/LAV-Antibody-Positive Soldiers in Berlin, 314 New Eng. J. Med. 55 (1986)Google Scholar. As to army policy, see Department of the Army, Office of the Adjutant General, Policy for Identification, Surveillance and Disposition of Personnel Infected with HTLV-III (Unpublished, February 1, 1986) [hereinafter cited as Department of the Army].

66 Deputy Secretary of Defense Memorandum, HTLV-III testing, August 30, 1985.

67 Of the 308,076 applicants tested between October 1, 1985 and March 31, 1986, the mean prevalence of confirmed positive tests was 1.5 per 1,000 recruit applicants. CDC, Human T-lymphotropic Virus Type IIllLymphadenopathy-Associated Virus Antibody Prevalence in U.S. Military Recruit Applicants, 256 J.A.M.A. 975 (1986)CrossRefGoogle Scholar. Since the program has begun, the exposure rate has remained virtually unchanged. No Change Seen in Exposure Rate, 1(7) AIDS Pol. & Law 3 (1986).

68 Secretary of Defense Memorandum, Policy on Identification, Surveillance and Disposition of Military Personnel Infected with HTLV-III (October 24, 1985) [hereinafter cited as Secretary of Defense Memorandum].

69 The following screening priority is recommended: individuals serving in, or subject to deployment on short notice to areas of the world with high risk of endemic disease or with minimal medical capability; individuals assigned to overseas stations or deployment overseas; other individuals deemed appropriate by Service Chiefs; all remaining individuals in conjunction with routinely scheduled periodic physical examinations. Id.

70 See Redfield, , Wright, & Tramont, , The Walter Reed Staging Classifications for HTLV-III LAV Infection, 314 New Eng. J. Med. 131 (1986)CrossRefGoogle Scholar [hereinafter cited as Walter Reed Classifications].

71 Secretary of Defense Memorandum, supra note 68.

72 Id.

73 See Armed Forces Epidemiological Board Memorandum, HTLV-III Antibody Positivity (September 17, 1985).

75 See, e.g., Department of the Army, supra note 65.

75 Batten v. Lehman, U.S.D.C. No. CA85-4108, January 18, 1986. Two of the discharged men have filed administrative appeals with the Board of Correction of Naval Records for compensation. 1(3) AIDS Pol. & Law 4 (1986).

76 Id.

77 Id.

78 Defense Department Memo by Deputy Defense Secretary William H. Taft IV, Aug. 25, 1986. See 1(18) AIDS Pol. & Law 5 (1986).

79 Id.

80 Id.

81 Id.

82 See Walter Reed Classifications, supra note 70.

83 Id.

84 Screening for HIV Infection, supra note 49. siSee Waller Heed Classifications, supra note 70.

88 Herbold, , AIDS Policy Development Within the Department of Defense, 151 Military Medicine 623, 626 (1986)Google Scholar.

87 See id.

88 CDC, Education and Foster Care of Children Infected with HTLV-III/LAV, 34 Morbidity & Mortality Wkly. Rpt. 517 (1985)Google Scholar [hereinafter cited as Education and Foster Care].

89 Id.

90 See Application of District 27 Community School Board v. Board of Education of the City of New York, Sup. Ct. N.Y. County of Queens, Index No. 14940/85 (February 11, 1986) (New York City had adopted CDC guidelines which provided that primary and secondary school children should not automatically be excluded from school, but that their educational placement would be reviewed on a case by case basis. New York City school children were reviewed by a special multidisciplinary panel. The panel recommended the continuation of normal schooling for a seven year old child with AIDS in Queens. The trial court held that the non-exclusion policy was lawful.); Board of Education of the Borough of Washington v. Cooperman, 507 A.2d 253 (N.J. Super. Ct. App. Div. 1986) (challenge by local school board of the state decision to admit children with AIDS to school upheld on grounds that state decisions were made in the absence of procedural due process); Phipps v. Saddleback Valley Unified School District, Super. Ct. Orange County, Cal., No. 474981 (Feburary 18, 1986) (HIV positive child could return to school since he was not suffering from AIDS and the virus was not contagious in a school setting).

91 H.R. Con. Res. 8, 100th Cong., 1st Sess., 133 Cong. Rec. H106 (daily ed. Jan. 6, 1987); see also 133 Cong. Rec. E66, E67 (daily ed. Jan. 7, 1987) (remarks of Rep. W. Dannemeyer).

92 Education and Foster Care, supra note 88.

93 See supra note 64.

94 Education and Foster Care, supra note 88.

95 Current Status and Future Prospects, supra note 3.

96 See supra note 64.

97 See Current Status and Future Prospects, supra note 3; Anonymous, Needle Stick Transmission of HTLV-III from a Patient Infected in Africa, 8416 Lancet 1376 (1984)Google Scholar.

98 See Current Status and Future Prospects, supra note 3.

99 See Groopman, Salahuddin, Sarngadharan, Markham, Gonda, Sliski & Gallo,HTLV-III in Saliva of People with AIDS-Related Complex and Healthy Homosexual Men at Risk for AIDS, 226 Science 447 (1984); Fujikawa, , Salahuddin, , Palestine, , Masur, , Nussenblatt, & Gallo, , Isolation of Human T-Lymphotropic Virus Type III (HTLV-III) from the Tears of a Patient with the Acquired Immunodeficiency Syndrome (AIDS), 8454 Lancet 529 (1985)CrossRefGoogle Scholar.

100 Ho, , Byington, , Schooley, , Flynn, , Rota, & Hirsch, , Infrequent of Isolation of HTLV-III Virus from Saliva in AIDS, 313 New Eng. J. Med. 1606 (1985)Google Scholar.

101 See Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961) (holding that due process required notice and some opportunity for a hearing before plaintiff students at a tax supported college would be expelled for misconduct). The court stated: “It requires no argument to demonstrate that education is vital and, indeed, basic to civilized society. Without sufficient education the plaintiffs would not be able to earn an adequate livelihood, to enjoy life to the fullest, or to fulfill as completely as possible the duties and responsibilities of good citizens.” Id. at 157.

102 612 F.2d 644 (2d. Cir. 1979).

103 Id.

104 Id. at 649.

105 Id. at 651. Note that under Kampmeiier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977), exclusion from a school activity is not improper if there exists “a substantial justification for the school's policy.” The burden of proving substantial justification is on the party seeking to justify the exclusion.

106 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986).

107 Id. at 413, 502 N.Y.S.2d at 335.

108 55 U.S.L.W. 4245 (U.S. Mar. 3, 1987). The Arline case is critical to future legal assessments of discrimination against persons with an infectious disease. The U.S. Supreme Court in the Arline case determined that a person who is physically impaired due to a contagious disease qualifies as a handicapped person under Section 504. A recent Justice Department memorandum concluded that while Section 504 does prohibit discrimination based on the disabling effects that AIDS has on its victims, Section 504 does not prohibit discrimination on the basis of the individual's real or perceived ability to transmit the disease since this is not a handicap within the meaning of the statute. The Justice Department, however, substantially underestimates the fact that 35 percent or more seropositives will develop AIDS. The Department also fails to adequately examine the “perception” of handicap, which is an integral concept behind Section 504. Memorandum prepared by U.S. Dep't of Justice, Office of Legal Counsel, Charles J. Cooper, Application of Section 504 of the Rehabilitation Act to Persons with AIDS, AIDS-related Complex, or Infection with the AIDS virus [hereinafter cited as Dep't. of Justice Memorandum].

109 55 U.S.L.W. at 4248.

110 Id. at 4248 n.7.

111 See Dep't. of Justice Memorandum, supra note 108.

112 29 U.S.C. §706(7)(b) (1982).

113 See generally, Dep't. of Justice Memorandum, supra note 108, at 3-15.

114 See supra note 55 and accompanying text.

115 Dep't. of Justice Memorandum, supra note 108, at 38-39.

116 Id. at 32-34.

117 See supra note 64.

118 209 N.J. Super. 174, 507 A.2d 253 (1986).

119 Id. at 212, 507 A.2d at 269.

120 Id. at 216, 507 A.2d at 277.

121 Id. at 220, 507 A.2d at 278-79 (Gaulkin, J.A.D., dissenting).

122 See Robert-Guroff, , Weiss, , Giron, , Jennings, , Ginzburg, , Margolis, , Blattner, & Gallo, , Prevalence of Antibodies to HTLV-I, -II, and -III in Intravenous Drug Abusers from an AIDS Endemic Region, 255 J.A.M.A. 3133 (1986)CrossRefGoogle Scholar; D'Aquila, , Williams, , Kleber, & Williams, , Prevalence of HTLV-III Infection among New Haven, Conn., Parenteral Drug Abusers in 1982-1983, 314 New Eng. J. Med. 117 (1986)Google Scholar; Levy, , Carlson, , Hinrichs, , Lerche, , Schenker, & Gardner, , The Prevalence of HTLV-III/LAV Antibodies among Intravenous Drug Users Attending Treatment Programs in California: A Preliminary Report, 314 New Eng. J. Med. 446 (1986)Google Scholar; Kreiss, , Koech, , Plummer, , Holmes, , Lightfoote, , Piot, , Ronald, , Ndinva-Achola, , D'Costa, , Roberts, , Ngugi, & Quinn, , AIDS Virus Infection in Nairobi Prostitutes, 314 New Eng. J. Med. 414 (1986)CrossRefGoogle Scholar; Tirelli, , Baccher, , Sorio, , Carbone, & Monfardini, , HTLV-III Antibodies in Drug-Addicted Prostitutes Used by U.S. Soldiers in Italy, 256 J.A.M.A. 711 (1986)CrossRefGoogle Scholar; Papaevangelou, , Roumeliotou-Karayannis, , Kallinikos, & Papoutsakis, , LAV/HTLV-III Infection in Female Prostitutes, 8462 Lancet 1018 (1985)CrossRefGoogle Scholar.

123 Proposals for premarital screening have been made in Alabama, Georgia, Connecticut, California, Massachusetts, Michigan and New York. See W. Curran, L. Gostin & M. Clark, Acquired Immunodeficiency Syndrome: Legal and Regulatory Policy 308 (1986) (Contract No. 282-86-0052) [hereinafter cited as W. Curran, L. Gostin & M. Clark].

124 Id.

125 See A. Brandt, supra note 11, at 19.

126 See W. Curran, L. Gostin & M. Clark, supra note 123, at 308.

127 Id. at 309.

128 U.S. Dep't. of Commerce, Bureau of the Census, Statistical Abstract of the United States 1986, 80 (106th ed. Dec. 1985).

129 See supra notes 20-24 and accompanying text.

130 See supra note 24 and accompanying text.

131 See W. Curran, L. Gostin & M. Clark, supra note 123, at 308-09.

132 The U.S. Public Health Service already recommends voluntary screening for wome n considering childbirth. CDC, Recommendations for Assisting in the Prevention of Prenatal Transmission of Human T-lympholropic Virus Type III I: Lymphadenopathy-Associated Virus and Acquired Immunodeficiency Syndrome, 34 Morbidity & Mortality Wkly. Rpt. 721 (1985)Google Scholar.

133 See W. Curran, L. Gostin & M. Clark, supra note 123, at 308.

134 434 U.S. 374 (1978).

135 Id. at 383.

136 Id. at 388. The Court further stated: “Since our past decisions make clear that the righ t to marry is of fundamental importance, and since the classification at issue here significantl y interferes with the exercise of that right, we believe that ‘critical examination’ of the stat e interests advanced in support of the classification is required.” Id. at 383.

137 Cal. Health & Safety Code § 1603.3 (West 1979) (Supp. 1987).

138 Id. at § 1601.1.

139 See W. Curran, L. Gostin & M. Clark, supra note 123, at 311.

140 See supra note 64; McCray, , Occupational Risk of the Acquired Immunodeficiency Syndrome Among Health Care Workers, 314 New Eng. J. Med. 1127 (1986)CrossRefGoogle Scholar.

141 CDC, Recommendations for Preventing Transmission of Infection with HTLV-III/LAV in the Workplace, 34 Morbidity & Mortality Wkly. Rft. 682, 684 (1985)Google Scholar [hereinafter cited as Workplace Recommendations].

142 Id.

143 Id. One case from England involved a nurse who became infected after accidentally being stuck with a needle. Id.

144 Anonymous, Needlestick Transmission of HTLV-III from a Patient Infected in Africa, 8416 Lancet 1376 (1984)Google Scholar; See also Stricof, & Morse, , HTLV-III/LAV Seroconversion Following a Deep Intramuscular Needlestick Injury, 314 New Eng. J. Med. 1115 (1986)Google Scholar.

145 CDC, Control Measures for Hepatitis B in Dialysis Centers (Investigations and Control Series Nov. 1977) [hereinafter cited as Hepatitis B Control Measures].

146 Workplace Recommendations, supra note 141.

147 Id.

148 The only evidence of transmission is in relation to needlestick injuries. See supra note 144. However, there have been no studies of high risk procedures.

149 Id.

150 Hepatitis B Control Measures, supra note 145.

151 See Edelbaum, , No AIDS Among Patients on Dialysis?, 314 New Eng. J. Med. 187 (1986)Google Scholar; CDC, Recommendations for Providing Dialysis Treatment to Patients Infected with Human T-Lymphotropic Virus Type III/Lymphadenopathy-Associated Virus, 35 Morbidity & Mortality Wkly. Rpt. 376 (1986)Google Scholar.

152 Blood of an AIDS patient has at least one million times fewer infectious viral particles per milliliter than does the blood of a patient with hepatitis B. National Association of Patients on Hemodialysis and Transplantation, Consensus Guidelines for Dialysis Patients Concerning Transfer of HTLV-III (1986) [hereinafter cited as Consensus Guidelines].

153 The National Association of Patients on Hemodialysis and Transplantation is opposed to routine screening for HIV. It favors continuation of sterilization, disinfection and sanitation facilities but feels that the minimum level of risk of transmission of HIV does not justify screening and segregation within dialysis units. Id.

154 W. Curran, L. Gostin 8c M. Clark, supra note 123, at 313.

155 See Hepatitis B Control Measures, supra note 145.

156 See Consensus Guidelines, supra note 152.

157 National Institute of Justice, AIDS in Correctional Facilities: Issues and Options 38 (1986) [hereinafter cited as AIDS in Correctional Facilities].

158 Id.

159 See Vaid, NPP Gathers the Fads on AIDS in Prison, 6 Nat'l Prison Project J. 1 (Winter 1985) [hereinafter cited as NPP Gathers the Facts].

160 Id. at 1.

161 Id. at 2.

162 Id.

163 This range is derived from the NPP figures, see supra note 162, and the estimates used in Current Status and Future Prospects, supra note 3.

164 As of the middle of 1985, there were over 452,372 prisoners incarcerated in state correctional systems. Bureau of Justice Statistics, Mid-Year Report on Prisoners, 1985 cited in NPP Gathers the Facts, supra note 159, at 5.

165 Over 95% of New York prisoners with AIDS were intravenous drug users, according to Dr. Raymond Broaddus, Assistant Commissioner for Health Services for the New York State Department of Correction. NPP Gathers the Facts, supra note 159, at 2.

166 AIDS in Correctional Facilities, supra note 157, at 14: “CDC is not aware of any cases of AIDS among inmates continuously incarcerated since before the disease first appeared in this country. This may suggest that AIDS is not being transmitted within correctional institutions. However, the extreme variability of incubation period renders this finding inconclusive.”

167 Personal communication to the author by Jack Rutledge, Deputy Commissioner for Public Health, New Jersey, (January 24, 1986).

168 AIDS in Correctional Facilities, supra note 157, at 14.

169 Id.

170 Id.

171 Id.

172 Id.

173 See Foy v. Owens, No. 85-6909 (E.D. Pa. March 19, 1986); Cordero v. Coughlin, 607 F. Supp. 9 (S.D.N.Y. 1984); In re LaRocca v. Dalsheim, 120 Misc.2d 697, 467 N.Y.S.2d 302 (1983).

174 607 F. Supp. 9 (S.D.N.Y. 1984).

175 Id. at 10.

176 Id.

177 Id.

178 Id. at 11.

179 120 Misc.2d 697, 467 N.Y.S.2d 302 (1983).

180 Id. at 698, 467 N.Y.S.2d at 304.

181 Id. at 708, 467 N.Y.S.2d at 310.

182 Id.

183 Id.

184 Id. at 709, 467 N.Y.S.2d at 311.

185 Id.

186 No. 85-6909 (E.D. Pa. March 19, 1986).

187 Id.

188 Id.

189 See supra note 64.

190 AIDS in Correctional Facilities, supra note 157, at 49.

191 See infra notes 203-26 and accompanying text.

192 See Jew Ho v. Williamson, 103 F. 10(N.D.Cal. 1900) (court overturned quarantine and was heavily influenced by evidence that confinement of large groups of people together in an area where bubonic plague was suspected placed those under quarantine at increased risk of contracting the disease); Kirk v. Wyman, 83 S.C. 372, 65 S.E. 387 (S.C. 1909) (court would not subject elderly woman with leprosy to quarantine in unsanitary conditions adjacent to city trash dump). But see In re Martin, 83 Cal. App. 2d 164, 168, 188 P.2d 287, 291 (Cal. Ct. App. 1948) (court upheld quarantine of people with venereal disease in overcrowded jail which was condemned by a legislative investigating committee).

193 See supra note 55 and accompanying text.

194 See generally, Gostin & Staunton, The Case for Prison Standards: Conditions of Confinement, Segregation and Medical Treatment, in PRISONERS and ACCOUNTABILITY 81 (M. McGuire, J. Vaag & R. Morgan eds. 1985).

195 See generally Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285 (1985)CrossRefGoogle Scholar; Ginzbiirg, Intravenous Drug Abusers and HIV Infections: A Consequence of Their Actions, in 14:5-6 Law, Med. & Health Care 268-72 (Dec. 1986).

196 Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception); Zablocki v. Redhail, 434 U.S. 374 (1978) (marriage): Skinner v. Oklahoma, 316 U.S. 535 (1942) (procreation).

197 In California, a referendum which would have declared AIDS a communicable disease and permitted employment restrictions for persons carrying HIV was deteated. California's Proposition 64 Overwhelmingly Rejected by Voters, 1(21) AIDS Pol. & Law 1 (1986).

198 W. Curran, L. Gosrin & M. Clark, supra note 123, at 205.

199 Id. at 204.

200 Letter from Curran and Gostin to Robert Windham, U.S. Ass't. Secretary of Health and Human Services (August 18, 1986).

201 See W. Curran, L. Gostin & M. Clark, supra note 123, at 205. Such states include California, Florida, Illinois, New York, Pennsylvania and Texas.

202 Id.

203 Tarasoff v. Regents of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976); Hoffman v. Blackmon, 241 So. 2d 752 (1970), cert, denied, 245 So. 2d 257 (Fla. 1971).

204 17 Cal. 3d 425, 551 P.2d 340, 131 Cal. Rptr. 14 (Cal. 1976).

205 Id. at 450, 551 P.2d at 353, 131 Cal. Rptr. at 33.

206 Id. at 431, 551 P.2d at 340, 131 Cal. Rptr. at 20.

207 Peck v. The Counseling Service of Addison County, 146 Vt. 61, 499 A.2d 422 (1985); Mcintosh v. Milano, 168 N.J. Super. 466, 403 A.2d 500 (1979); Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb. 1980); Estate of Mathes v. Ireland, _ Ind. App. _, 419 N.E. 2d 782 (1981); Bradley Center, Inc. v. Wessner, 161 Ga. 576, 287 S.E. 2d 716 (1982); Davis v. Lhim, 335 N.Y. 481 (1983); Chrite v. United States, 564 F. Supp. 341 (E.D. Mich. 1983); Petersen v. State, 671 P.2d 230 (Wash. 1983); Jablonski v. United States, 712 F.2d 391 (9th Cir. 1983); Cairl v. State, 323 N.W.2d 20 (Minn. 1982); Mutual of Omaha Ins. Co. v. American National Bank, 610 F. Supp. 546 (D.C. Minn. 1985). See Durflinger v. Artiles, 673 P.2d 86 (Kan. 1983) (negligent release of dangerous patient).

208 Alberts v. Devine, 395 Mass. 59 (1985); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920) (physician was not liable for disclosure of confidential information where he in good faith and with reasonable care believed it was necessary to prevent spread of disease).

209 Cairl, 323 N.W.2d at 26 n.9 (1982).

210 727 F 2ci 950 (10th Cir. 1984). See also Derrick v. Ontario Community Hospital, 47 Cal. App. 3d 145, 120 Cal. Rptr. 566 (1975) (hospital has no duty to warn members of general public that one of its patients being released is suffering from a contagious disease).

211 727 F.2d at 954.

212 Id.

213 See,e.g., Lipari v. Sears, Roebuck & Co.,497 F. Supp. 185, 194 (D. Neb. 1980) (in order to establish liability there must be foreseeability to an injured party or a class of persons of which the injured party was a member).

214 Id. at 194-95.

215 See, e.g., Hasenei v. United States, 541 F. Supp. 999 (D. Md. 1982); Lundgren v. Fultz, 354 N.W. 2d 25 (Minn. 1984).

216 See, e.g., Ayres, & Holbrook, , Law, Psychotherapy, and the Duty to Warn: A Tragic Trilogy?, 27 Baylor L. Rev. 677 (1975)Google Scholar; Comment, Psychotherapist-Patient Privilege—Patient's Dangerous Condition—Confidentiality—Legal Duty to Warn Potential Victim, 9 Akron L. Rev. 191 (1976)Google Scholar.

217 See 61 Am. Jur. 2D Duly to Warn § 245 (1981).

218 As to reporting requirements, see infra notes 227-37 and accompanying text.

219 Hofmann v. Blackmon, 241 So. 2d 752 (Fla. 1970), cert, denied, 245 So. 2d 257 (Fla. 1971) (physician owes duty to child in immediate family to inform those charged with her well-being that her father is infected with TB); Davis v. Rodman, 227 S.W. 612 (Ark. 1921) (duty of physician to advise family members and others liable to be exposed of patient's typhoid fever); Wojcik v. Aluminum Co. of America, 18 Misc. 2d 740, 183 N.Y.S.2d 351 (1959) (employee and his wife could claim against employer for negligent failure to inform employee that physical exams had disclosed TB); Skillings v. Allen, 173 N.W. 663 (Minn. 1919) (knowing plaintiff's child had scarlet fever, physician negligently advised plaintiff's wife that it was safe to visit the child); Derrick v. Ontario Community Hospital, 47 Cal. App. 3d 145, 120 Cal. Rptr. 566 (Cal. Ct. App. 1975) (hospital patient's attending physician has duty to advise patient and her mother that patient has contracted an infectious disease); see Mcintosh v. Milano, 168 N.J. Super. 466, 475, 403 A.2d 500, 509 (1979) (dictum that doctor has duty to warn third parties against possible exposure to infectious disease).

220 227 S.W. 612, 614 (1921).

221 241 So. 2d 752 (Fla. 1970), cert, denied, 245 So. 2d 257 (Fla. 1971).

222 241 So. 2d at 753.

223 Id.

224 See, e.g., Hofmann v. Blackmon, 241 So. 2d 752 (Fla. 1970).

225 See, e.g., Davis v. Rodman, 147 Ark. 385, 387, 227 S.W. 612, 614 (1921).

226 Id.

227 W. Curran, L. Costin & M. Clark, supra note 123, at 329.

228 429 U.S. 589 (1977).

229 Id. at 591.

230 Id. at 603-04.

231 Id. at 602.

232 Id. at 600-01.

233 Id. at 606 (Brennan, J., concurring).

234 W. Curran, L. Gostin & M. Clark, supra note 123, at 329-30.

235 See supra note 2.

236 The U.S. Supreme Court has held that even under the Court's “minimum rationality” review, it will invalidate legislative measures based upon “vague, undifferentiated fears … of some portion of the community,” or based upon “irrational prejudice.” City of Cleburne, Texas v. Cleburne Living Center, 105 S. Ct. 3249, 3258-59 (1985). See also United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S. Ct. 2821, 2826 (1973) (state legislature may not succumb to “a bare … desire to harm a politically unpopular group…“).

237 Herdman, Behney & Milkey, Review of the Public Health Service's Response to AIDS: A Technical Memorandum (1985).

238 See Blumberg, & Fox, , The Daedalus Effect: Changes in Ethical Questions Relating to Hepatitis B Virus, 102 Ann. Int. Med. 390 (1985)CrossRefGoogle Scholar.

239 CDC, Self-reported Behavioral Change Among Gay and Bisexual Men—San Francisco, 34 Morbidity & Mortality Wkly. Rpt. 613 (1985)Google Scholar; Schecter, , Jeffries, , Constance, , Douglas, , Fay, , Maynard, , Nitz, , Willoughby, , Boyko, & MacLeod, , Changes in Sexual Behavior and Fear of AIDS, 8389 Lancet 1293 (1984)CrossRefGoogle Scholar; CDC, Declining Rates of Rectal and Pharyngeal Gonorrhea Among Males—New York City, 33 Morbidity & Mortality Wkly. Rpt. 295 (1984)Google Scholar.