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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,
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Pregnancy and Communicable Disease -- A Thought Experiment:

Say that Mary Moe is pregnant, HIV positive, and planning to take her child to term. Assume also that medical treatment for the HIV during pregnancy can substantially decrease the risk of her communicating the HIV to the soon-to-be-born child. (As best I can tell, that's factually accurate.)

Say also that Mary Moe is infected with some other disease — call it German Measles 2 — that risks causing birth defects in the children of other pregnant women who come into contact with Moe. (The hypothetical disease would differ from traditional German measles in that it would be persistent but asymptomatic in the carrier; in this respect, imagine Moe as a Typhoid Mary for this disease.) Assume also that medical treatment for German Measles 2 can substantially decrease the risk of Moe's communicating German Measles 2 to other women's soon-to-be-born children.

I take it that, by analogy to the vaccination cases, the government may force Moe to take the medical treatment for German Measles 2 (am I right?), to minimize huge health dangers to the soon-to-be-born children of others. True, this is an intrusion into Moe's bodily integrity, but your right to bodily integrity must yield when your body is threatening the spread of disease to others.

If so, can it really be the case that the government nonetheless may not force Moe to take the medical treatment for the HIV, to minimize huge health dangers to her own soon-to-be-born child?

Is Moe's bodily integrity sufficient to justify the harm to the life and bodily integrity of her child — not just to a potential person (which is how the law conceptualizes the fetus before viability), but to a real person who will be born, and who may well be sentenced to a short life and painful death because of Moe's communicating the disease to him?

Say that Moe's child grows up to be, say, ten, but is clearly dying by then. She's not just a fetus or even an infant. She can talk, and ask questions. Here's how the conversation goes:

Child: "Why am I dying?"

You: "Because you got a deadly infection from your mother. Your mother could have taken steps that may well have saved your life, but because of her idiosyncratic view of medicine, she chose not to."

Child: "But wait, why didn't someone stop her from doing this to me?"

You: "Oh, we couldn't do that: She had a constitutional right to infect you with a deadly disease, with no interference from anyone else."

Child: "So if someone is walking around with a communicable disease that would cause birth defects in other people's children, he has a legal right to keep doing that."

You: "Of course not; we could mandate that he be vaccinated, or otherwise treated. But that's only when he's infecting other people's children. When a women is infecting her own child who's still in her womb, she has a constitutional right to do that."

Can that really be right?

[UPDATE: Correct a couple of errors in paragraph 2 -- thanks to the commenters for pointing them out.]

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,
60 Comments