On World AIDS Day, President Barack Obama declared that America is on its way to defeating the global pandemic known as the AIDS virus. At an online conference
On World AIDS Day, President Barack Obama declared that America is on its way to defeating the global pandemic known as the AIDS virus. At an online conference Thursday, the President announced more funding ($50 million more) for HIV/AIDS treatment in the U.S. and a higher target goal for how many Americans will be on treatment by 2013 (6 million people). And while HIV patients and advocates welcome efforts to fight and treat the disease on a large scale, many agree that at the state and local levels, serious problems with treatment programs and the criminalization of HIV-positive individuals often go unaddressed.
Michigan is one state that has been host to repeated violations of HIV-positive persons’ rights, as has been frequently documented by The American Independent’s former sister site The Michigan Messenger. And a recent study into the application of Michigan’s HIV disclosure laws has uncovered policies in some local health jurisdictions that experts say are troubling in their implications to reproductive freedom and personal privacy.
Trevor Hoppe, a Ph.D. candidate in women’s studies and sociology at University of Michigan, has been conducting extensive interviews with local health department officials about how they have been applying state laws related to HIV. In the course of that study, Hoppe identified several health departments that are using pregnancy, partner-notification services, and sexually transmitted infection (STI) reports to initiate what’s known as “health threat to others” actions (HTTO). To ensure the anonymity of the respondents, Hoppe’s study did not identify specific health departments or counties where these policies were uncovered.
HTTO is a state law that allows health officials to intervene in the private lives of people who have serious infectious diseases. The initiation of an HTTO starts with a formal cease and desist letter with a demand for the person in question to appear at the local health department on a specific date. From there, health officials can do anything from prescribing counseling to seeking a court order to civilly confine a person for as long as six months.
Issuance of an HTTO order is also documented in a statewide database. That database is coded, but it is names-based and accessible to any health official in the state. A person remains in that database indefinitely – until the HTTO order is lifted by local and state health officials. And sometimes it’s never lifted.
Hoppe presented the results of his (currently unpublished) study in August at the 2011 National HIV Prevention Conference (PDF), held in Atlanta. Among the results, he found that two health departments were starting HTTO actions against HIV-positive women after knowing only two things about these women: They were pregnant; they were HIV-positive. The assumption underlying the HTTO actions against them was that the women engaged in behavior that would lead to a significant risk of HIV transmission in others.
What makes a human a ‘health threat’?
Joshua Moore, who runs Detroit Legal Services, a law firm focused on HIV issues and the law, told The American Independent that the policy of labeling people as ‘health threats’ with insufficient evidence is problematic for many reasons.
“The obvious concern is that the pregnant HIV-positive woman is not a ‘health threat to others’ based on the fact that she is simply HIV-positive,” Moore said. “This concept is just outrageous. Many HIV-positive women are choosing to have children safely and are not putting anyone at risk for contracting HIV. The fathers of these children are either HIV-positive themselves or are aware of their partners’ HIV status.”
These health departments have taken up this HTTO policy against pregnant HIV-positive women in spite of recent studies that have shown that in serodiscordant couples (where one partner is HIV-positive and the other is HIV-negative), the use of successful antiretroviral treatment reduces the risk of infection by 96 percent. In addition, the Centers for Disease Control and Prevention (CDC) in Atlanta reports the risk of HIV transmission to newborn babies is reduced to less than 2 percent for pregnant women who are on successful treatment during pregnancy, labor, and delivery and if babies are immediately treated with the medications****. Even starting treatment only at labor and delivery reduces the risk of transmission to under 10 percent****.
Nicole Seguin, of the Positive Women’s Network, told TAI that the kind of policy highlighted in Hoppe’s study is troubling. As an HIV-positive woman who chose to have a child while positive, Seguin said she worked very closely with her doctor and staff to ensure a safe pregnancy.
“The circumstance of a woman’s HIV status should not allow for an initiation of a ‘health threat to others’ action and diminish the responsibility doctors have to adequately explain medical choices to his patient so that she is comfortable and can consent to all procedures and interventions during pregnancy and birth,” Seguin said. “It erodes women’s reproductive rights by taking away the medical choices that every person is entitled to simply because the woman is living with HIV, and pregnant.”
Similar actions occurred in Mississippi until the U.S. Department of Justice intervened and ordered the state to stop directing people with HIV not to have children.
“Pregnancy in and of itself is not a sufficient reason to define an individual as a ‘health threat,’” said Angela Minicuci, spokesperson for the Michigan Department of Community Health (MDCH). “Local health departments carefully evaluate individual cases in order to determine whether they should be considered ‘health threats,’ as defined by statute, and if they are, appropriate action to be undertaken. We are not aware of action being taken against HIV-positive women for getting pregnant.”
Violation of privacy
In addition to the pregnant women being targeted, a more dangerous activity from public health officials was uncovered by Hoppe. Under Michigan law, the names of all people who test positive for HIV are reported to the MDCH. They are kept in a centralized, coded database. While the move to the names-based reporting was mandated by the CDC and fought by those living with HIV, the state assured the database would be used only as a list of those living with the virus.
What Hoppe discovered was that health officials were comparing the names of individuals named in partner services counseling with the state database. Partner-notification services are voluntary, and the state mandates only that the assistance to contact partners at risk be offered. The counseling session often happens at the same time a person is diagnosed with HIV or another STI. That period can be one of deep trauma, and many advocates have argued the counseling programs can turn coercive.
Hoppe found that when a person tests positive for HIV, health officials in at least three jurisdictions will solicit names as part of partner-notification services. With a list of names in hand, health officials will compare that list to the state database, and if any name on the partner-notification list pops up on the statewide list, health officials will initiate an HTTO action against that person.
“Anytime a government agency uses names inappropriately, it is a threat to the civil liberties of those with HIV, as well as those who are not infected with HIV,” said attorney Moore. “Often, partner notification laws are abused by individuals. Issuing an HTTO to a person simply because they were mentioned in a partner notification and are in the state database would not mean that individual is an automatic HTTO. To suggest that anyone would automatically be a HTTO under these circumstances is an extreme scenario.”
Perpetuating the criminalization of HIV-positives
The final stunning discovery from Hoppe’s study is that some local health departments have begun initiating HTTO actions against HIV-positive persons who test positive for other sexually transmitted infections.
Hoppe quoted “Fern,” an anonymous disease investigator from a local health department, in his PowerPoint presentation at the HIV conference earlier this year.
“Well, usually it’s all the sudden their name appears with another STD… So… if the [syphilis coordinator] has any syphilis cases where they’re also showing that they’re HIV-positive, then her and I work together and we – you know, if I’ve got a case report – then it goes to a ‘health threat to others,’ more or less. Because if they come up with syphilis, they’re having unprotected sex.”
But that’s false logic. What distinguishes syphilis from other STDs is that it can be spread by skin-to skin contact. Thus, contrary to Fern’s conclusions, a syphilis infection does not necessarily indicate unprotected sex.
Minicuci, of the state health department, said Hoppe’s findings in relation to STIs and partner-notification services are accurate.
“Under the Michigan Public Health Code and Administrative Rules, public health is permitted to use available disease reporting records to aid in disease investigation and to support prevention,” she told TAI. “Michigan’s Public Health Code grants public health the ability to prevent and control disease, including collecting information, case investigation, and action to prevent the spread of disease. Confidentiality of all reports, records and data pertaining to testing, care, treatment, reporting, research, and information pertaining to partner notification activities is, however, protected by law (MCL 333.5131 (7)).”
This news comes as some states are seeking permission to use results of viral load tests and immune function tests to track down people with HIV who may not be on medications or who have developed resistance to their HIV medications. Such a proposal in New York state has activists there rattled. The Obama administration’s National HIV/AIDS Strategy called for the monitoring and collection of these test results with the theory that reduction in community viral load will lead to reduced new infections.
Though Michigan has collected these results for years, Minicuci said the results are not used to track down individuals.
“Currently MDCH collects HIV viral load, western blot, and CD4 results for epidemiological surveillance of HIV disease in Michigan,” she said. “Physicians will follow up with their patients on any positive HIV test results (such as a detectable viral load and reactive western blot) and will then report that case to the MDCH for the epidemiological surveillance. Additionally, viral load (detectable and undetectable) and CD4 results are aggregated and used to identify areas of the state where there may be gaps in service for persons living with HIV. This helps us to make well-informed funding decisions.”
Mark Peterson, a director of the Michigan Positive Action Coalition (MI-POZ), said the study’s discoveries are “disturbing” in how they malign people with HIV but not people who regularly contract other STDs.
“How often does public health in Michigan apply health threat measures against someone who has repeated STIs that don’t include HIV?” Peterson said. “Conversely, how often are the same measures applied when HIV in present?
“Our public health messages have stated that people with HIV can live long and happy lives, that HIV is no more of a health consequence than diabetes, yet continued stigma related policies show that this is not actually the real case,” he continued. “If presence of HIV is the main reason that health threat cases are begun, then what we’re doing is criminalizing HIV and those living with it. We can’t say something is ‘chronic and manageable’ and then go to the extremes in health threat cases. People with HIV need comprehensive and compassionate care that includes individualized education, counseling and skills building on how to keep themselves from getting another STD because it is bad for their health. They don’t deserve to be labeled as imminent public threats simply because they have a virus, while the individuals who continually get other STIs are held harmless.”
Peterson was not alone in raising concerns about the local health departments’ actions.
Catherine Hanssens, executive director of the Center for HIV Law & Policy in New York, told TAI that the discoveries highlighted in Hoppe’s study have troubling implications.
“All women retain the constitutionally protected right to reproductive choice, including the right to bear a child, and this right is not affected by an HIV diagnosis,” she said. “Similarly, a policy that treats evidence that a person with HIV is sexually active as tantamount to positing a HTTO, without more [evidence], likely is a violation to the related right to sexual expression and intimacy. The fact that cooperation with partner-notification services can lead to intrusive government actions against a partner raises serious public health and privacy issues.”
“This is about punishing people with HIV for being sexual – that’s the real agenda here,” Strub said. “These are horrible, but increasingly typical, examples of how people with HIV are increasingly treated as a problem population to be tagged, regulated, controlled and criminalized. … Using the excuse of public health to oppress people is not new. The Nazis were pioneers in this regard. It is unfortunate to see Michigan officials following their lead.”
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