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Do HIV+ Pregnant Women Have a Constitutional Right To Refuse HIV Medication,

if they plan on carrying their children to term? The babies may end up infected with HIV via the mother, and, as I understand it, their risk of infection would be considerably lower if the mother were treated during pregnancy.

A New Jersey trial court in New Jersey Division of Youth & Family Servs. v. L.V., 2005 WL 3527274 (N.J. Super. Ch. Aug. 3), seemed to suggest the women do have such a constitutional right. The court also rested its decision partly on statutory grounds and partly on factual grounds, but it did say that

The right to make that decision [as to what medications she will take during her pregnancy] is part of [the woman's] constitutional right of privacy, which includes her right to control her own body and destiny.

But I wonder whether the abortion right-to-privacy cases, to which the court referred, are quite the right analogy -- why isn't the better analogy the vaccination cases, which have consistently upheld the government's power to vaccinate? The government may demand that I get a vaccine for a communicable disease even when I likely don't yet have that disease. Presumably if I were known to be infected with a communicable disease, and treatment would diminish my chances of spreading it to others, the government would if anything have even more power.

Here, the mother is infected with a communicable disease; and though it's a disease that fortunately isn't spread by casual contact, it is often spread to unborn children. If the mother plans on carrying the child to term -- of producing a born, rights-bearing human being who might have a deadly disease because of exposure through the mother -- why isn't mandating treatment of the mother at least as constitutionally permissible as mandating vaccination?

(I realize that HIV medication may have more harmful side effects than the typical vaccine typically does, but I doubt that this is dispositive as a constitutional matter. Among other things, HIV medication generally also has a more direct positive effect on the recipient than does the typical vaccine. In any case, why isn't a risk of some harmful side effects to the woman justified by the goal of preventing the extraordinarily serious effects -- more or less a sentence to an early and painful death, though with luck modern HIV therapy might commute that in some cases -- to the child whom the woman may infect?)

Related Posts (on one page):

  1. Pregnancy and Communicable Disease -- A Thought Experiment:
  2. Do HIV+ Pregnant Women Have a Constitutional Right To Refuse HIV Medication,
Bob_Minn:
I recall appellate case law from the 1990s that affirmed the power of the state to involuntarily commit pregnant women who were using crack cocaine. The stated purpose of the statute in question was to protect the fetus. (South Carolina was one such state.) Wouldn't the underlying rationale of those cases, to protect the unborn fetus, also apply here? I suppose one could argue that a woman does not have the constitutional right to abuse an illegal narcotic, while she has the right to refuse medical treatment, though the effects upon the fetus can be just as traumatic. This would then tie into the mandated vaccinations analogy.
1.4.2006 5:11pm
Eugene Volokh (www):
That's precisely the distinction that the court drew -- it distinguished "the decisions she makes as to what medications [presumably legal ones] she will take during her pregnancy" from decisions to take "controlled dangerous substances." I think that this isn't an implausible distinction, and the analogy to "don't use crack while pregnant" isn't quite apt; I think the vaccination analogy is indeed the better one.
1.4.2006 5:18pm
DNL (mail):
What about a statute that made it illegal for any woman who is knowingly pregnant to knowingly have unprotected intercourse with someone who is HIV positive? Beyond the difficulty in enforcing the statute, of course, how would you analyze this?

There's clear Constitutional authority for striking this law. That's why I bring it up. I can't imagine that the court in the case you cite would uphold this law; however, the vaccination analogy (in the sense that condoms, like vaccinations, are preventative measures) still holds.
1.4.2006 5:34pm
Cheburashka (mail):
The decision surfaces the absurdity of the "choose your own destiny" Roe-Lawrence line.
1.4.2006 5:38pm
procrastinating clerk (mail):
The vaccination analogy isn't perfect. We preempt autonomy in the case of vaccinations because there are very strong incentives to free ride off the vaccinations of others, thus avoiding what little risk is inherent in a vaccine while availing yourself of all its benefits. In mother to child transmission cases, the incentives are different. It seems more like a binary, "what's best for my child" sort of decision. Perhaps it's better to focus on the potential spread of HIV from the child to others in the community.
1.4.2006 5:49pm
Per Son:
Heck, lets make it criminal for pregnant women to not be as healthy as they can be under reasonable circumstances.
1.4.2006 5:58pm
Thales (mail) (www):
I don't know what the medical literature specifically says about HIV medication and pregant women, but there are good reasons for pregnant women to refuse live-virus vaccines for other illnesses, and for the government not to mandate a one-size fits all policy when there are many unknown risks. See http://www.cdc.gov/nip/publications/preg_guide.htm

Perhaps this is also a good argument for revisiting the government's unquestioned authority to vaccinate. Eugene, has the general (Cruzan) right to refuse life-saving medical treatment to your knowledge ever squarely confronted the vaccination cases?
1.4.2006 6:06pm
AppSocREs (mail):
I think procrastinating clerk is right here. There is a public health justification for compulsory vaccination that is lacking when the state tries to force a woman to engage in potentially risky behavior for the sake of the child she is carrying. The courts have upheld state interventions in the interests of public health that would have been outrageously unconstitutional otherwise, e.g., indefinite incarceration without trial. By the way, there seems to be little public awareness of this, but even though Peter Duesberg has been silenced, research continues to be published that calls into question the "standard model" of the relation between HIV and AIDS. It's quite possible this woman is doing the right thing both for herself and for her child!
1.4.2006 6:34pm
Eugene Volokh (www):
I'm a bit puzzled here. First, Per Son, we surely don't make it mandatory for everyone to be as healthy as possible under all circumstances -- but when contagious diseases and therefore the risk of death to others are involved, we may mandate vaccination.

Second, Procrastinating Clerk is right that the analogy isn't perfect, and that there isn't the same sort of free-riding risk here -- most HIV+ mothers would take the drugs in any event, to help themselves and the fetus. But I suspect that most parents would give their children vaccines, too. There's some benefit to free-riding, but also some risk: If you don't vaccinate your child, he might get sick, even if 90% of other parents vaccinate their children. I suspect that today the risk of vaccination to the child himself is much less than the risk of non-vaccination; yet vaccination is still mandatory, in part to protect children from their parents' mistakes.

Third, AppSocREs, I realize that it's possible this woman is doing the right thing by refusing the HIV vaccine, just as I suppose it's possible that various vaccines are unsafe, or for that matter that not giving your child various life-saving treatments (e.g., blood transfusions) is a good idea. But the law can't operate simply on the basis of possibilities. Let's assume that the medical consensus is in favor of HIV treatment during pregnancy as a means of preventing harm to the child, just as it's in favor of vaccination, transfusions, and various other things. (If there's a medical consensus to the contrary, please let me know, but the mere presence of dissenting voices can't be enough here.) What should the result be?
1.4.2006 6:55pm
James Dillon (mail):
It seems that all the discussion so far has focused on the constitutional right of the woman to be free from state-coerced medical care, but let's not forget that there is another side to this. Roe recognized that unborn children do have legally cognizable rights to life that must be weighed against the mother's interests, but determined that most of the time the mother's autonomy interests give her the right to terminate the pregnancy early on free from intervention by the state. In this situation, though, the infringement on the mother's autonomy interest (via state-coerced medication) is substantially less than that in Roe, whereas the infringement on the child's life (greatly increased probability of near-certain death) is nearly the same, so perhaps the balance comes out differently?

AppSocREs,

Regarding your discussion of Duesberg and ongoing research that "calls into question the 'standard model' of the relation between HIV and AIDS," I'm not sure that it's valid to rely on such speculative "what-if" scenarios to reach a constitutional conclusion. I am not particularly well versed in the medical literature on this point, but absolute certainty is virtually impossibly in any field of scientific inquiry, and were the government to become paralyzed in the face of a whiff of doubt, it would never manage to address any serious problems at all.
1.4.2006 7:01pm
Thales (mail) (www):
Just to clarify, I was trying to point out that there may be some inordinate risks to compulsory vaccination of pregnant women specifically (as the CDC, surely the leading scientific proponent of general vaccination, points out) that justify a departure from the general norm that vaccines are good (they are). This says nothing about pregnant women and HIV medication.

By contrast, there is so little epistemic basis for doubting the "standard model" of the relationship between HIV and AIDS, that it is scientifically and morally irresponsible to suggest that the two are not linked. Peer-reviewed scientific journals have not engaged in some conspiracy of silence about this.

But Eugene, to repeat, do you know if any post-Cruzan cases have entertained a putative right to refuse compulsory vaccination? Cruzan had some dicta about the vaccination cases if I recall.
1.4.2006 7:07pm
Tony (mail):
It seems to me that the "against medical advice" restrictions common in health insurance would apply. In short: you have the right to do whatever you want with your body (or your fetus / dependent child / whatever), but if you don't follow medical advice, you have to pay for the consequences of any resulting problems yourself.

In other words, the woman could do whatever she likes, but neither the state nor private insurers would be obligated to fund medical treatment for the child.

Not a very humane approach, but it's arguably one that is defensible as being neither coercive nor neglecting of public health. Maybe it's the least unpalatable of the alternatives, none of which are very pleasant.
1.4.2006 7:11pm
dk35 (mail):
If there is no constitutional right protecting women's choices over whether to take HIV fighting medication for the reasons EV mentions, wouldn't that also support an argument that pregnant women do not have the right to refuse to be tested for HIV when they become pregnant?
1.4.2006 7:13pm
Eugene Volokh (www):
Tony: Isn't there a bit more than money involved here? The government's goal isn't to save money -- it's to save the child's life; and even if the woman can pay for the child's care when it's born HIV+, she can't buy it to health.

Again, shifting to vaccination, we don't tell people "vaccinate, or else you have to pay for the health care of all the people who end up dying as a result of your transmitting the disease to them." We insist that they get vaccinated, to prevent a harm that really can't be monetarily fixed (even in the unlikely event that the person who refuses to get vaccinated has the money to try to fix it).
1.4.2006 7:17pm
Sebastianguy99 (mail):
The medication in question is probably AZT and/or a combination of other antivirual medications. I think there are other critical facts missing in all of the above scenarios. It seems that people think that the child is already infected while while in the womb and this is not the case. The mother can pass the virus to the child during pregnancy, birth, or breastfeeding. I have read studies that suggest most newborns become infected when passing from the protective womb, and through the birth canal.

Second, there is an increased risk of harm to the baby if the mother takes AZT, especially with anemia. There have also been some reports of low weight births and birth defects.

Third, there are some HIV positive women who decided on post-birth drug regimines for their newborns and there have been promising results.

Lastly, even with meds, there is not a guarantee that the newborns will not have the virus or compromised immune systems.

If anything, I think that there should be some account given, at least in the vaccine analogy, that the risk of transmission, even on drug therapy, might be higher than that of a vaccinated child contracting a disease. If we factor in an increased risk of physical defect to the child if given those meds, then the mother's decision not to undergo the regimine becomes more plausible.
1.4.2006 7:37pm
Christina Martin (www):
As long as we have co-existing, mutually contradictory laws, such as those protecting the health of the fetus, and at the same time others that protect the right to destroy the fetus, I doubt there will ever be any sensible conclusion to the question of privacy vs. the rights of those yet to be born.
1.4.2006 7:48pm
smc78 (mail):
It seems that under a Roe framework, the fetus has no right to protection from the HIV virus. If it cannot be protected from a medical procedure, how can it be protected from a potential transmission of a deadly disease? Mandatory vaccination serves a public interest in protecting other children from infection. Since there are no other born persons at risk in the HIV scenario, there are no other person's rights to be weighed against the right of the mother to refuse medical treatment. In a vaccination scenario, it seems that one can make an argument that allowing the vaccine to be refused increases the risk to others who also refused the vaccine, such that each are responsible for the infection. So, the parent's right to refuse vaccination for their child must be weighed against the risk of infection to another child whose parents made the same decision. One could also argue that the parents are forced to vaccinate so as to protect the interest of the child, but under Roe before that child is born it has no protectable interest vis-a-vis its mother.
1.4.2006 7:50pm
Mary (mail):
"vaccination is still mandatory"
"We insist that they get vaccinated"
---
Is this true? I have no children, but I am fairly certain there are no forced immunizations and vaccinations now where I live anyway. Your child would not be allowed to enter school, true. The child would not have travel privileges. But if you birth at home, how could the government force a vaccination on a child?

Concern with autism and vaccines, though not proven, might want a parent to reject any vaccinations. Perhaps you are thinking of specific moments in disease history where vaccinations were "mandatory"? Still, I am thinking if a parent were dead set against it, and willing to sacrifice the privileges, even take the child and "disappear", that mandatory vaccinations would be hard to enforce.

Am I missing something here? It seems like a major government intrusion if a person does not want their child vaccinated and is willing to pay the price. What about people who object for religious reasons (ie Christian Science)? Are their children mandatorily vaccinated too? -- Mary
1.4.2006 7:55pm
James Dillon (mail):
Smc78,

For reasons discussed in my comment above, I think that you are misreading Roe. Roe did not conclude that a fetus has no right to protection; had it done so, the Court could not have justified a ban on abortion in the third trimester (unless perhaps by reference to the heightened risk that the procedure would pose to the mother's health so late in the pregnancy, but that was in fact not its rationale). Rather, the Court determined that the mother and the fetus both have competing interests, and determined that its famous trimester approach embodied a fair balance of those interests. As I noted, it seems that in this case, the infringement on the mother's autonomy interest is substantially less than in Roe, whereas the infringement on the fetus's right to life is almost as strong, so a case could be made that the balance of interests tips more in favor of protecting the fetus here.

Hopefully this won't post 3 times like my last comment did-- I didn't hit Refresh, I swear!
1.4.2006 7:55pm
Mary (mail):
"The government's goal isn't to save money -- it's to save the child's life; and even if the woman can pay for the child's care when it's born HIV+, she can't buy it to health. "

Doesn't this come down to who gets to make the decision? Unless this is a scheme to chip away at Roe, the woman does have autonomy over her body, and I would prefer, her baby too. Parents might make the "wrong" decision, but it is hers to make. Perhaps she might fear the child living on with no mother, and would choose to put both their lives in the hands of a higher power ... much much higher than the government's.
1.4.2006 8:01pm
Defending the Indefensible:
Benjamin Rush believed that Americans should enshrine the right to medical freedom in their Constitution, much as the right to freedom of religion is expressly guaranteed in that document.

Rush is reported to have argued that "Unless we put Medical Freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship . . . to restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of Medical Science. All such laws are un-American and despotic, and have no place in a Republic ... The Constitution of this Republic should make special privilege for Medical Freedom as well as Religious Freedom."
1.4.2006 8:03pm
Splunge (mail):
Well, there's something to be said for letting such a mother have her way. Since her children will not survive long enough to produce grandchildren, the process of natural selection is speeded up, and the genes that helped shape her (manifestly maladaptive) character are more quickly edited out from the human genome. I'm all in favor of that. Harsh on the children, though.
1.4.2006 8:12pm
Laura(southernxyl) (mail) (www):
Around here, vaccination is required for daycare or for public or private schools. We had to provide proof of 2 measles vaccinations when our daughter moved into her college dorm. I think people whose religion forbids this can get waivers, and I think people who just don't believe their kids should be vaccinated can get them but it's not easy. I think if people have carefully-thought-out and researched reasons why they don't think their kid should be vaccinated that should be accomodated - but in the event of a measles or pertussis outbreak, those unvaccinated kids should have to be kept out of school for the duration.

The HIV+ pregnant woman is more problematic. Does she have valid reasons for not wanting AZT, does she have a viable alternative plan, or is she just selfish and bloody-minded? It kind of matters.
1.4.2006 8:13pm
Alex F:
1) Vaccines do not merely "considerably lower" the risk of infection, they drive the odds to practically zero. My understanding is that this is not the case with the HIV-prevention drug regimen.

2) Vaccination prevents you from infecting many many people whom you otherwise might have (from what I understand, polio and TB can be spread through casual conduct). If the scale of the epidemic is severe enough, and it should be REALLY severe, I suppose most would be willing to allow gov't intervention that they'd normally consider unacceptable. For example, I don't believe you can jail someone who tests positive for HIV, but if a new strain of HIV developed that could infect everyone within a 100 yd radius, thru the air(crazy, but this is a hypothetical), then I might be in favor of forcibly quarantining the people who have it. In this case, even if you consider the fetus a person, it is one person whose odds of infection you're merely REDUCING, not even conclusively. Not even comparable.

3) Say the same reduced-risk-of-infection medical principle that applies to fetuses of HIV+ women, applied to sex partners of HIV+ people. Would it be constitutional to force all HIV+ people to take the medication? Even though they'd have to take it every day and suffer the side effects?
1.4.2006 8:17pm
smc78 (mail):
Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278 (1990); cf., e.g., Riggins v. Nevada, 504 U.S. 127, 135 (1992); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905).

Planned Parenthood v. Casey, 505 U.S. 833 at 837 (1992).
1.4.2006 8:26pm
Alex F:
"In any case, why isn't a risk of some harmful side effects to the woman justified by the goal of preventing the extraordinarily serious effects -- more or less a sentence to an early and painful death, though with luck modern HIV therapy might commute that in some cases -- to the child whom the woman may infect?"

Decreasing the odds of (not PREVENTING) premature and/or painful death to baby is sufficient cause to: 1) violate the mother's bodily integrity. 2) cause her some degree of physical harm/discomfort (the precise degree of harm/discomfort you do not specify) that she does not wish to experience.

By this logic, you must think it's constitutional to force women to have C-sections if the medical community comes to a consensus that in a given situation, a C-section would "considerably" increase the child's odds of survival, reduce the odds of brain damage from oxygen deprivation, etc. Sometimes a C-section is predicted to be safer for the mother as well, so it can also be considered a direct positive effect on the recipient (surely more so than a vaccine).
1.4.2006 8:29pm
James Dillon (mail):
SMC,

How many of the cases you cited address the issue of mandatory medical treatment for pregnant women? Cruzan upheld a right to refuse life-saving treatment for oneself; Casey affirmed the core holding of Roe but absolutely made clear that the right to personal autonomy and bodily integrity is not absolute even in the abortion context. The key point in my discussion of Roe is its recognition of the competing interests of the pregnant woman and the fetus. Whether an HIV-positive individual who is not pregnant may constitutionally be compelled to take medication (I tend to think not) is another question that does not raise the competing interests, and requisite balancing, unique to the situation of a pregnant woman.
1.4.2006 8:32pm
Splunge (mail):
Mary, you may imagine that parents have absolute control over post-birth health decisions with respect to their children, but this is far from the case. Try making some weird medical decisions, and let it come to the attention of the child welfare people. You could easily find yourself needing to prove to a Court that you should still be allowed to make decisions for your child. This enforcement of the social standard when it comes to child-rearing is very unevenly applied (e.g. it is applied much more often to divorced parents, whose parenting practises are usually already under the scrutiny of the Court). But it is, in principle, enforceable on anyone.

That is, even if there is no explicit law that says you must vaccinate your child, see that he eats right, get prompt treatment for his minor wounds, et cetera -- if as a parent you fail to do a sufficient number of these things you may have your parental status legally revoked, so to speak.

The law could perhaps take the same position with respect to infants in utero, just as soon as it becomes technologically plausible to bring a fetus to term ex utero, and skipping lightly over the (nontrivial) issue of the forced Caesarian necessary. In this case, the law could eschew explicitly forbidding any particular decision the prospective mother might make (we can't call her an actual mother for Roe reasoning reasons, since to have this debate at all we must assume that she doesn't yet have an actual human being in her belly, someone with an inalienable right to life that would trump any mere right to privacy). But a prosp. mom who made too many unacceptable decisions could have her right to become the child's actual mother legally revoked.
1.4.2006 8:33pm
Mary (mail):
Splunge,
But aren't there people in years past who have had no medical care period, relying on the "old" ways and taking care of themselves and their environment, who lived long long lives, in a comfortable physical shape? Yes, these people even have great grandchildren!

I think if you are self-sufficient enough, and not benefitting from government services or endangering others around you, you still get to make that choice.

If there is any risk to an unborn baby by taking AZT, and in some cases even without treatment HIV is not passed on to the child, then the parents should get to decide not the government. Thank you, Mr. Government, for doing what you think is best for the health of the child. But there are no guarantees, ever.

Libertarianism tells us that if you are willing to take the risks, you should be trusted to make this personal decision. Particularly where there are no risks to others.
1.4.2006 8:36pm
smc78 (mail):
I cited only Casey. The Casey majority cited the rest.
1.4.2006 8:37pm
James Dillon (mail):

If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278 (1990); cf., e.g., Riggins v. Nevada, 504 U.S. 127, 135 (1992); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905).

Planned Parenthood v. Casey, 505 U.S. 833 at 837 (1992).


If that is supposed to mean, "Casey, citing...," you really need to brush up on your Bluebook. Do you know what the other cases are about?

In any case, what about my main point that the issue of constitutional significance here is where the balance of conflicting, legally cognizable interests between the mother and fetus lies?
1.4.2006 8:41pm
Alex F:
re: Splunge's comment

A law student friend of mine showed me a case he was studying where a child had Hodgkin's disease, and the highly successful conventional treatment was radiation and/or chemo. The parents instead decided took the advice of some holistic-type doctor guy to do some weird treatment that was not accepted by the general medical community. The doc did have a medical degree, and his way had a few proponents. The courts upheld the parents' decision. The child later died. If anyone is familiar with this case, let me know if I got my summary wrong. It was a while ago and I don't remember too well.
1.4.2006 8:41pm
Mary (mail):
"...let it come to the attention of the child welfare people"

If you feed your children and take care of them properly, and live in a relatively closed community, I don't fear this type of intrusion by well-meaning types.

"But a prosp. mom who made too many unacceptable decisions could have her right to become the child's actual mother legally revoked."

This assumes that she is treating in a hospital or health care community for her pregnancy.
1.4.2006 8:43pm
anon:
I agree that privacy should be irrelevant. The government can force vaccinations in the interest of public health. But the government cannot compel someone to accept or refuse medical treatment so this is Jacobson et seq. v. Cruzan.

I like Cruzan on these facts because AIDS does not present the same indiscriminate public (as in anyone at random) health risk that smallpox and polio do. This looks more like the state is trying dictate medical treatment than promoting some effort to reduce AIDS (though, clearly to some extent, it is doing both).

Despite the high ick factor of a woman who would intentionally increase the risk of passing HIV to her child, I think the 5th/14th Amendment affords her that choice.
1.4.2006 8:43pm
anon atty:
In response to Mary's comment, I was raised as a Christian Scientist and indeed we were exempt from vaccination requirements for public school. We only had to fill out a little card each year and submit it to the school nurse. I'm not sure if there was a specific state law (Ohio) allowing this practice or not, but I always understood that it was based on the First Amendment.

I would imagine that there would be a similar religious freedom-based exemption for HIV+ mothers to any law that required in utero treatment of the fetus; if one may choose to not vaccinate one's child after it is born for religious reasons, should not the same apply prior to birth?
1.4.2006 8:52pm
Splunge (mail):
Alex F, here are the numbers you want.

The proportions [of infants] infected at 18 months...were 8.3 percent...in the zidovudine group and 25.5 percent...in the placebo group. This corresponds to a 67.5 percent relative reduction in the risk of HIV transmission...Minimal short-term toxic effects were observed.

This is from a 1991-93 controlled study of AZT therapy for prevention of AIDS transmission. Nowadays there are therapies that probably ought to be more powerful, but our ability to measure their actual effectiveness vis-a-vis doing nothing is severely compromised. Since antiretroviral therapy is now known to be significantly beneficial in a life-and-death matter, any further double-blind studies (in which half the participants are randomly given no treatment at all) would be totally unethical. No researcher would propose such a study, no agency would fund it, and no human-research monitoring committee would approve it.
1.4.2006 8:52pm
Ellie:
The medical literature is pretty clear on the advantage of treatment during pregnancy. If people are allowed to bring significantly malformed fetuses to term, then refusing treatment seems legal to me. Of course, I'd prefer not having to fund treatment for children who have AIDS because their mothers are fools.
1.4.2006 8:55pm
MDJD2B (mail):
I think procrastinating clerk is right here. There is a public health justification for compulsory vaccination that is lacking when the state tries to force a woman to engage in potentially risky behavior for the sake of the child she is carrying. The courts have upheld state interventions in the interests of public health that would have been outrageously unconstitutional otherwise, e.g., indefinite incarceration without trial. By the way, there seems to be little public awareness of this, but even though Peter Duesberg has been silenced, research continues to be published that calls into question the "standard model" of the relation between HIV and AIDS. It's quite possible this woman is doing the right thing both for herself and for her child!

The risk of transmission of HIV from mother to child at childbirth is approximately 25-20% for untreated women and approximately 1% for treated women. This is well substantiated data. One can not logically derive perscriptive propositions from facts, but this is the actual cost of a libertarian approach to this issue.
1.4.2006 9:00pm
Alex F:
"The proportions [of infants] infected at 18 months...were 8.3 percent...in the zidovudine group and 25.5 percent...in the placebo group. This corresponds to a 67.5 percent relative reduction in the risk of HIV transmission...Minimal short-term toxic effects were observed."

If vaccination is totally optional, as some of the above commenters seem to be saying, then I guess the whole analogy becomes moot. However, these numbers suggest that the majority (75%) of HIV+ moms will give birth to HIV-negative babies without any treatment at all. This substantially weakens Eugene's point about "preventing" the infection. The question is, do we violate what is supposedly a right (refusal of medical treatment) in order to decrease the chances of harm which, more likely than not, would not have happened even without our intervention.
1.4.2006 9:06pm
smc78 (mail):
You might find this case relevant... It goes into the balancing argument (seeming to support it).

In re AC, 533 A.2d 611 at 616 (D.C., 1987).

There is a significant difference, however, between a court authorizing medical treatment for a child already born and a child who is yet unborn, although the state has compelling interests in protecting the life and health of both children and viable unborn children. See Roe, supra, 410 U.S. at 163, 93 S.Ct. at 732; Prince, supra, 321 U.S. at 165, 64 S.Ct. at 441. Where birth has occurred, the medical treatment does not infringe on the mother's right to bodily integrity. With an unborn child, the state's interest in preserving the health of the child may run squarely against the mother's interest in her bodily integrity.
It can be argued that the state may not infringe upon the mother's right to bodily integrity to protect the life or health of her unborn child unless to do so will not significantly affect the health of the mother and unless the child has a significant chance of being born alive.
1.4.2006 9:14pm
Splunge (mail):
In re Mary:

But aren't there people in years past who have had no medical care period, relying on the "old" ways and taking care of themselves and their environment, who lived long long lives...?

The existence of exceptions says nothing about the rule. That some (small number of) people declining sensible medical treatments will survive their illnesses does not invalidate the proposition that one typically will not, in the same way that the fact that 1/6 of the people who play Russian roulette with 5 out of 6 chambers loaded survive does not invalidate the proposition that it's a fucking insane thing to do. We are in any event not describing ordinary healthy people, but people with HIV, and, historically speaking, HIV+ people who receive no medical treatment at all for the condition have a mortality rate essentially indistinguishable from 100%.

Libertarianism tells us that if you are willing to take the risks, you should be trusted to make this personal decision.

But who is this "you" of which you speak? Unfortunately, the "you" taking the risks is the child, and the "you" making the personal decision is the prospective mother. I suggest this pronoun metamorphosis renders your argument invalid.

Libertarianism may have nothing useful to say on this topic, anyway, inasmuch as libertarianism begins with the proposition that no one should have unlimited power to make decisions for another. Giving a mother unlimited power to make decisions for her child is clearly contrary to this philosophy. And yet, of course, the child is unable to make the decisions for himself, and someone else must -- so philosophically we are at an impasse.

That said, I probably agree with you. I would prefer to live in a society where men or women who made this kind of decision were ostracized, rejected and reviled as the unholy cow-stupid murderers of innocents they will often turn out to be. In which case, no law would be necessary to enforce sensible behaviour. But if I live in a society with essentially suicidal social mythology, where this kind of decision is classified as a mere personal pecadillo, like not wearing a helmet when you ride a motorcycle, then I can't see any mere law remedying what is, in essence, a profoundly sick culture with zero chance of long-term survival.
1.4.2006 9:22pm
Splunge (mail):
The question is, do we violate what is supposedly a right (refusal of medical treatment) in order to decrease the chances of harm which, more likely than not, would not have happened even without our intervention?

In New York City, among other places, you can legally be confined and treated for tuberculosis against your will. Yet the probability that you will, if untreated, infect someone else and cause him to die despite the best available medical therapy (for him, not you) is far less than 25%.
1.4.2006 9:35pm
James Dillon (mail):
SMC,

That's an interesting discussion, and is the sort of balancing that I had in mind. It's no doubt true that "With an unborn child, the state's interest in preserving the health of the child may run squarely against the mother's interest in her bodily integrity." I'm not sure which conclusion this case supports, though.


It can be argued that the state may not infringe upon the mother's right to bodily integrity to protect the life or health of her unborn child unless to do so will not significantly affect the health of the mother and unless the child has a significant chance of being born alive.


If anything, taking HIV medication would arguably improve the health of the mother, and greatly increase the child's chance of being born without a deadly disease (surely the rationale can be extended that far from live birth?), in which case compulsory treatment would seem to be constitutional.
1.4.2006 9:40pm
AppSocREs (mail):
I see two arguments for compulsory treatment here: Both of which I think are fallacious.

The first is based on analogy to situations where public health trumps civil liberties, e.g., compulsory vaccination, quarrantine, confiscation and destruction of livestock without recompense, and the like. However, these situations arise only when there is a very real risk of epidemics where large numbers of people may be at risk of death. Here, only one individual is at an increased risk. The analogy does not hold.

The second argument is based on an analogy with various child neglect cases. A parent is compelled to do something that will improve the health of their child. But the key point here is that the compelled action will not affect the parent's own health. No parent can be compelled, for example, to be a kidney donor, because this goes beyond just providing for the welfare of the child: It also impacts the health of the parent. I would not be surprised if there is case law on this. (It would certainly make for a compelling episode of Law &Order.) The case in question would neccessarily require the mother to take a hazardous drug that she clearly does not want to. It is more analogous to the kidney donation situation than to the child neglect scenario.

I regret muddying the waters with my reference to research on HIV and its relation to AIDS. Also, for the record, I am morally opposed to abortion and feel that Griswold v. Connecticut, Roe v. Wade, etc. are judicial over-reach. However, I believe the crux of the legal and moral situation here is whether one person can be compelled to put herself at risk in order to increase the likelihood of survival of another person. Such compulsion is neither legally nor morally justifiable, although the most moral -- perhaps saintly -- choice of the mother or another person in this situation would be to assume the risk.
1.4.2006 9:41pm
smc78 (mail):
Splunge,

I think you take it to far. It seems to me that all that is relevant is the chance of someone else being infected. There is an injury and loss sustained by another (who could in turn infect someone else causing further injury) at the time of infection. Whether or not the degree of loss is such that the other party dies is irrelevant.
1.4.2006 9:43pm
smc78 (mail):
J.D.,

I agree. I think this case could support compulsory treatment as it seems to set a standard that I don't see HIV treatment meeting with regard to harm to the mother.
1.4.2006 9:44pm
Alex F:
In New York City, among other places, you can legally be confined and treated for tuberculosis against your will. Yet the probability that you will, if untreated, infect someone else and cause him to die despite the best available medical therapy (for him, not you) is far less than 25%.

Question: First, link? When was this law passed (I bet it was when TB was still a huge epidemic)? When was the last time this actually happened to someone (for the odds to be far less than 25% it'd have to be AFTER TB vaccination was widespread and/or doctors were highly successful at curing TB)? If it did happen, was it challenged in court? If it happened today, what do you think the outcome in court would be?

In any case, in my opinion, that would be unconstitutional, and in our day, the epidemic risk would be nowhere near enough to justify suspending the constitution.
1.4.2006 9:55pm
smc78 (mail):
According to Sbarbaro (1977) (15), Tb is not an individual, but a social disease, that spreads through the air to other members of society (without their consent or knowledge); it is preventable and curable, if diagnosed and treated correctly and, therefore, treatment success depends on a responsible Health Department.

Based on these assumptions and in the cost of non-adherence ("pay now or pay much more later"), there are current laws that foresee compulsory hospitalization in all 50 American States (16).

From here.

This is a really good look at public health law as it relates to TB control in the states...

Here.
1.4.2006 10:04pm
nk (mail) (www):
There may be conditional vaccination, in order, for example, to gain entrance into the country or even into our public schools or the military or to certain jobs, but I doubt greatly whether there is compulsory vaccination. The law, state and federal, is pretty much against involuntary medical treatment. Buck v. Bell is no longer good law. As a lawyer, I would advise my physician client as follows: "No matter waht the judge said, do nothing to this lady without her consent. It is not a question of malpractice -- it is a question of aggravated battery punishable by up to ten years in prison".
1.4.2006 10:26pm
nk (mail) (www):
P.S. Not a constitutional or statutory issue. Common law. In case my point was not clear from my prior comment.
1.4.2006 10:29pm
smc78 (mail):
If you are making a common law cause wouldn't that be battery as a tort? Not criminal battery which is statutory? In any event, you should look at the second link above. States can and do require treatment for highly contagious diseases that threaten the public welfare.
1.4.2006 10:36pm
smc78 (mail):
Just to go further, the California statute apparently authorizes jailing of an individual who refuses TB treatment.
1.4.2006 10:37pm
Laura(southernxyl) (mail) (www):
I think New York starting quarantining certain persons with TB because they had a serious public health problem: these people would show up for treatment when they started feeling bad, and then stop it when they started feeling better, so that when they came in again their disease would have become resistant to that particular treatment and they would have to go to the next one. The public health problem is that if anyone caught TB from them, it was already resistant to those lines of treatment. NY had to start enforcing treatment to prevent an outbreak of multiple-drug-resistant TB.

It's the kind of thing you want your public health department to do.
1.4.2006 10:46pm
Mary (mail):
"That some (small number of) people declining sensible medical treatments will survive their illnesses does not invalidate the proposition that one typically will not, in the same way that the fact that 1/6 of the people who play Russian roulette with 5 out of 6 chambers loaded survive does not invalidate the proposition that it's a fucking insane thing to do. "

I truly believe that some people's DNA/genetics/body make up, given to them by their ancestors, are different than others. If your people come from a more natural place, that has relied on fresh foods, outside activity in the environment and little in the way of artificial/toxic substances, your body will react differently than someone whose body has been gradually introduced to these things over the years via their ancestors. These people might be the ones running the greatest risks for current medical treatment, for example anesthesia. Their systems just might not be up for it. One pill in one person, even of the same weight, might be "felt" a hell of a lot more than another. Just like skin conditions, they might be a lot more "sensitive" to drugs/treatment given their past history or non-history. If a person has a hunch that the medical treatment is going to kill her or do her harm, why should other people decide based on their statistics what will happen. Say she does die from the risks, albeit minor, of the treatment. Feel differently then, after she dies, or should she merely be sacrificed for the good of the less-sensitive community who can tolerate greater man-made treatments. What if she would have been the 1/6 alive without the forced treatment, but is dead from it? Let's be realistic here. Everything from dental to medical treatment differs, from good to bad, often depending of where you live and how much money you have. Is that doctor committed 100 percent to keeping her alive, like she is to herself? We all should be able to control our own medical treatment if it will not harm another (and an unborn baby inside her is hers, not society's yet.) I agree with Rush. For everyone who believes that is selfish, I would be selfish with my health and the future of my child.
1.4.2006 11:08pm
ajf (mail) (www):

The government may demand that I get a vaccine for a communicable disease even when I likely don't yet have that disease.


well, it would be pretty silly to demand anyone get a vaccine for a disease they already have, the purpose of traditional vaccines being to prod the body into making antibodies and all. if you've got the disease, you're already making antibodies.
1.5.2006 12:46pm
anonymous nonattorney:
I want to back up a bit and re-examine the idea of child welfare intervention. If, as in previous examples above, a pregnant woman takes illegal drugs during her pregnancy and her child is born addicted to those drugs, her child is removed from her custody in the name of child endangerment. Why would the law treat a woman differently who knows she has HIV and decides to not do what medical experts have determined will help prevent communicating the disease to her baby?

If she has HIV and takes the drugs to reduce the risk of communicating it to the child, and the child still gets it (99% unlikely though, I think the statistic was), that's not her fault. But if a woman has already decided to bring her fetus to term, then Roe is not an issue here. It's not about whether the law considers that a child or not. The woman considers it a child, and is making a medical decision for that child that is knowingly detrimental to the child's health. Why is she treated any differently than the aforementioned crack user? Why are we more concerned with this hypothetical woman's medical autonomy and right to privacy than we are about the child she has decided to bring into this world? She has proven she is not willing to put her child's needs above her own comfort, even when the child's very life, as well as the quality of that life, depends on her.
1.5.2006 1:11pm