Public Health vs. Privacy: Rebalancing the Government Interest in Involuntary Partner-Notification Following Advancements in HIV Treatment

I. Introduction 482II. Background.........484A. History of the HIV Epidemic 4841. Discovering and Understanding Transmission 4842. The Evolution of Treatment 485B. Development of Partner-Notification Laws 4861. Medical Privacy and Threats to Third Parties 4862. HIV-Specific Legislation 487C. Establishing a Substantive Due Process Right to Privacy in Medical Information 4881. Whalen v. Roe and the Circuit Split on Medical Privacy Rights.........4882. United States v. Westinghouse and the Seven-Factor Balancing Test 489D. Creating a Test Case for Taking Infectiousness into Account 4901. Test Case Hypothetical 4902. Test Case Statutes 490III. Analysis 492A. The Personal Privacy Interest in HIV Status Is Great, Regardless of a Person's Adherence to Treatment, and Therefore Should Be Strongly Protected by the Constitution........4921. The Information That Dr. Jones Would Disclose to Ms. Smith's Boyfriend Is Highly Sensitive and Therefore Necessitates a Highly Protected Privacy Interest.........4932. The Potential for Harm if Dr. Jones Discloses Ms. Smith's HIV Status to Her Boyfriend Is Great, Which Increases the Significance of the Privacy Interest at Stake.........4943. By Disclosing Ms. Smith's HIV Status to Her Boyfriend, Dr. Jones May Greatly Harm Their DoctorPatient Relationship Because It May Severely Damage Her Trust in Doctors and Discourage Her from Continuing Treatment.....494B. The Government Interest in Allowing Health Care Providers to Disclose a Person's HIV Status to Third Parties Diminishes as That Person's Adherence to Treatment Improves........4961. Ms. Smith's Undetectable Viral Load Means That She Does Not Pose a Serious Public Health Risk, and Therefore May Not Fall Under the Stated Purpose of Partner-Notification Laws 4962. Ms. Smith's Undetectable Viral Load Mitigates Her Boyfriend's Need for Access to Information Regarding Her HIV Status to Effectively Protect Himself Against Infection Because the Risk of Transmission Is Significantly Reduced.........4993. Disclosure to Ms. Smith's Boyfriend Would Create a Great Risk to Her Continued Medical Privacy Because There Are No Safeguards Against Further Disclosures.....502IV. Policy Recommendation 505V. Conclusion 506I. IntroductionThe discovery of Acquired Immune Deficiency Syndrome (AIDS) and the Human Immunodeficiency Virus (HIV) created a new dilemma for healthcare providers faced with the challenge of knowing that their patients may be putting others at risk of an incredibly serious, and usually fatal, disease.1 State legislatures responded to this dilemma and the immense public fear of AIDS by enacting statutes that allowed, or even required, notification of sexual and needle-sharing partners of their potential exposure to HIV when a patient refuses to notify them on his or her own.2Despite the importance of preventing the spread of HIV, the need for personal privacy protections imposes limitations on these state partnernotification laws.3 According to certain circuit courts of appeals, the Due Process Clause of the Fourteenth Amendment covers medical information in its ambit of personal privacy protections.4This Comment argues that partner-notification statutes, in their most common forms, may be unconstitutional as applied to HIV-positive people who regularly comply with their medication and maintain an undetectable viral load, and, by extension, a low level of infectiousness.5 Part II of this Comment describes the development of the HIV epidemic, as well as the legislative response to it.6 Part II also discusses the different cases that form the basis for a constitutional right to privacy in personal medical information, with a focus on United States v. …