Public health, "AIDS exceptionalism" and the law.

It has become a commonplace to claim that HIV has been treated "differently" than other disease by health policy makers. This claim - the "exceptionalism thesis" - is, I argue here, fundamentally ahistorical, overlooking that virtually all major public health threats have inspired political disputes at one time or another. It is not necessary to rehearse the many ways in which the general social response to HIV has been very much like that accorded the killer diseases of the past. Even the sympathetic recognition that HIV is uniquely stigmatizing is only true relative to other present health threats; in their prime, cholera, tuberculosis, and syphilis were all badges of vice and dissipation. The passions that disease can inspire are what make public health as much a political art as a bio-medical science. HIV fits well into a tradition of vigorous policy dispute and social tension. It is also interesting to consider how HIV relates to other health threats. HIV, as a virus, has properties that make it different from other disease-causing microbes. The particular pattern of its spread depends upon contemporary social conditions that are different from conditions of the past. HIV was revealed suddenly, as an epidemic, and epidemic diseases have generally been seen as alarmingly different from more ubiquitous killers societies have learned to bear. The drama and biological peculiarity of HIV should not, however, obscure its similarity to other leading killers, like cancer, heart disease, and accidents. All of these ways of dying can be attributed to behavior, to our culture, and to its values as they are expressed in socially constructed options and individual choices. All of the ways of dying challenge public health to develop effective, long-term social learning strategies to change dangerous behavior, and in so doing all of them pose questions about the government's role in manipulating the lives of the people. One might justly question whether it is even accurate to assert that "traditional" health measures have not been applied to HIV. As Bayer himself noted in a later article, during the HIV epidemic, twenty-five states passed revised health laws authorizing coercive action against HIV-infected people engaging in dangerous behavior, and nineteen states passed HIV-specific criminal law. AIDS is a reportable disease throughout the country, and HIV is reportable in some way in half the states. Public health agencies in many cities have used their summary powers to close or modify bathhouses and other sites of free sexual activity. Legislation mandating screening of various sorts of people, like prostitutes and prisoners, has been common. Even if we suppose that a doctrine of exceptionalism has carried the day among health policymakers, the measures actually enacted by state legislatures across the country reflect, at best, the failure of life to match the elegance of theory. Of course, the argument for exceptionalism does not rest on the many "traditional" measures that have been applied to HIV, but on the undeniably new ones. Even if it is correct to say that the response to HIV is unexceptional in being shaped by contemporary society, the exceptionalists are equally correct in the view that people with HIV have enjoyed unprecedented legal protection of their social status. Conceding that this aspect of the policy response to HIV is something new, I offer a very different account of its meaning and implications than the exceptionalists. Rather than a political concession to effective advocates, the legal protection of people with HIV was an ambitious effort to control, even to change, the social fears that had traditionally made disease control more difficult. I believe that this is consistent with, not antagonistic to, public health, [FN10] and unlike the exceptionalists, I do not believe that the public health rationale for such an approach is losing its force. My fear is not that protecting people with HIV has been a compromise with effective disease control, but that the legal impulse towards protection may not be strong enough to overcome the exceptional fear and revulsion that HIV and other killer diseases traditionally inspire.