Amicus Curiae Brief — Christopher N. Payne, Petitioner v. Jahal Taslimi, et al.
Supreme Court briefNov 23, 2021
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No. 21-617
In the Supreme Court of the United States
CHRISTOPHER N. PAYNE, PETITIONER,
v.
JAHAL TASLIMI; MS. SMITH, LPN
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF OF AMICI CURIAE
AMERICAN ACADEMY OF HIV MEDICINE, GLMA, THE
HIV MEDICINE ASSOCIATION, AND THE LEGAL ACTION
CENTER IN SUPPORT OF PETITIONER
EDWARD MCNICHOLAS
Counsel of Record
DOUGLAS HALLWARD-DRIEMEIER
FRANCES FAIRCLOTH
ROPES & GRAY LLP
2099 Pennsylvania Avenue, N.W.
Washington, DC 20006
(202) 508-4600
Edward.McNicholas@
ropesgray.com
CHRISTINE MOUNDAS
ROPES & GRAY LLP
1211 Avenue of the Americas
New York, NY 10036
QUESTION PRESENTED
Amici will address the following question:
Did the court of appeals err by relying on information outside of the record—including misguided and outdated scientific premises—to determine that the well-established right to medical
privacy does not apply to the HIV status of prisoners?
(I)
TABLE OF CONTENTS
Page
Interest of amici................................................................... 1
Summary of argument ........................................................ 3
Argument:
I.
When Effectively Managed, HIV transmission can be prevented ....................................... 6
A. Adherence to Antiretroviral Therapy
(ART) effectively eliminates the risk
of HIV transmission ........................................ 7
B. HIV cannot be transmitted by casual
contact.............................................................. 12
II. The right to privacy of medical information, particularly HIV Status, is widely
recognized ............................................................... 13
A. Individuals have a constitutional
right to medical privacy ................................ 13
B. Various statutes recognize a heightened right to privacy of HIV status ............ 14
III. Incarceration does not obliterate the right
to medical privacy ................................................. 17
Conclusion........................................................................... 18
(II)
III
TABLE OF AUTHORITIES
Page(s)
Cases:
Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995) ...... 5
Doe v. Delie, 257 F.3d 309 (3d Cir. 2001) ................... 14
Doe v. State of New York, 152 Misc. 2d 922 (N.Y.
Ct. Cl. 1991) .............................................................. 15
Ferguson v. City of Charleston, 532 U.S. 67
(2001) ......................................................................... 13
Moore v. Prevo, 379 F. App’x 425
(6th Cir. 2010) .............................................. 13, 16, 17
Powell v. Schriver, 175 F.3d 107
(2d Cir. 1999) ................................................ 14, 16, 17
Turner v. Safley, 482 U.S. 78 (1987)........................... 17
Warren v. Corcoran, No. 9:09-CV-1146, 2011 WL
5599587 (N.D.N.Y. Oct. 20, 2011), R. & R.
adopted, No. 9:09-CV-1146, 2011 WL 5599620
(N.D.N.Y. Nov. 17, 2011) ....................................... 16
Constitutional provisions, rules and statutes:
U.S. Const. Amend. IV ................................................ 13
U.S. Const. Amend. XIV ............................................. 17
45 C.F.R. 160.402........................................................... 14
45 C.F.R. 164.502........................................................... 14
35 Pa. Cons. Stat. § 7607 .............................................. 16
42 U.S.C. 1320d-6 .......................................................... 14
Al. Code § 22-11A-54 .................................................... 15
Ariz. Rev. Stat § 20-448.01 .......................................... 15
IV
Statutes—Continued:
Page(s)
Ariz. Rev. Stat § 36-664 ............................................... 15
Cal. Health & Safety Code § 120975 .......................... 15
Colo. Rev. Stat. § 10-3-1104.5 ...................................... 15
Conn. Gen. Stat. § 19a-583 ........................................... 15
Del. Code tit. 16, § 717 .................................................. 15
Fla. Stat § 381.004 (1989) ............................................. 15
Fla. Stat § 381.004 ......................................................... 15
Ga. Code § 24-12-20 ....................................................... 15
Ga. Code § 24-12-21 ....................................................... 15
Haw. Rev. Stat. § 325-101 ............................................ 15
Health Insurance Portability and
Accountability Act of 1996, 110 Stat.
1936 ............................................................... 14, 16, 17
Idaho Code § 39-610 ...................................................... 15
Ill. Comp. Stat. 305/9 .................................................... 15
Iowa Code § 141A.9 ...................................................... 15
Kan. Stat. § 65-6002 ...................................................... 15
Ky. Rev. Stat. § 214.625 ............................................... 15
La. Stat. Ann. § 40:1171.4 ............................................ 15
Mass. Gen. Laws ch.111, § 70F.................................... 16
Md. Code, Health-Gen. § 18-338.1............................... 15
Me. Rev. Stat. tit. 5, § 19203 ........................................ 15
Me. Rev. Stat. tit. 5, § 19204-C.................................... 15
Mich. Comp. Laws § 333.5131...................................... 16
Mo. Rev. Stat. § 191.656 ............................................... 16
Mont. Code Ann. § 50-16-1009 ..................................... 16
V
Statutes—Continued:
Page(s)
N.C. Gen. Stat. § 130A-143 .......................................... 16
N.D. Cent. Code 23-07-02.2.......................................... 16
N.J. Rev. Stat. § 26:5C-7 .............................................. 16
N.M. Stat. § 24-2B-6 ..................................................... 16
N.Y. Pub. Health Law 27-F ........................................ 16
Nev. Rev. Stat. § 433A.220 .......................................... 16
Ohio Rev. Code § 3701.24 ............................................. 16
Or. Rev. Stat. § 135.139 ................................................ 16
Or. Rev. Stat. § 433.045 ................................................ 16
R.I. Gen. Laws § 23-6.3-7 ............................................. 16
R.I. Gen. Laws § 23-6.3-8 ............................................. 16
Tenn. Code § 68-5-703................................................... 16
Tex. Health & Safety Code § 81.103........................... 16
Utah Code § 26-6-27...................................................... 16
Va. Code Ann. § 32.1-36.1 ............................................ 16
Vt. Stat. tit. 8, § 4724 .................................................... 16
W. Va. Code § 16-3C-2 .................................................. 16
Wash. Rev. Code § 70.24.050 ....................................... 16
Wis. Stat. § 252.15 ......................................................... 16
VI
Miscellaneous:
Surajudeen A. Abdulrahman et al., HIV
Treatment Adherence: A Shared Burden for
Patients, Health-Care Providers, and Other
Stakeholders, 12 AIDS Rev. 28 (2019),
https://www.researchgate.net/publication/331
849722_HIV_Treatment_Adherence__A_Shared_Burden_for_Patients_HealthCare_Providers_and_Other_Stakeholders#re
ad ........................................................................... 9, 10
Stephen Breyer, Science in the Courtroom, 16
Issues Sci. & Tech. Online (2000),
https://issues.org/breyer-science-courtroom ........ 7
Kathy Byrd et al., Antiretroviral Adherence
Level Necessary for HIV Viral Suppression
Using Real-World Data, 82 J. Acquired
Immune Deficiency Syndromes 245 (2019),
https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC6854523/pdf/nihms-1055707.pdf.................... 10
Centers for Disease Control & Prevention:
Evidence of HIV Treatment and Viral
Suppression in Preventing the Sexual
Transmission of HIV 2 (Dec. 2020),
https://www.cdc.gov/hiv/pdf/risk/art/cdchiv-art-viral-suppression.pdf ...................... 6, 11
Final Rule: Removal of HIV Entry Ban
(Nov. 2, 2009), https://www.cdc.gov/imm
igrantrefugee health/laws-regs/hiv-banremoval/final-rule.html .................................... 12
HIV and AIDS Timeline (Oct. 21, 2020),
https://npin.cdc.gov/pages/hiv-and-aidstimeline#1980 ....................................................... 6
VII
Miscellaneous—Continued:
Page(s)
HIV Basics: About HIV, https://www.cdc.gov/
hiv /basics/whatishiv.html (last updated
June 1, 2021) ......................................................... 7
Anthony S. Fauci et al., HIV Viral Load and
Transmissibility of HIV Infection:
Undetectable Equals Untransmittable, 321
JAMA 451 (2019), https://www.natap.org/
2019/HIV/jama_eisinger_2019_vp_180
174opy.pdf ...................................................... 8, 10, 11
James Myhre & Dennis Sifris, How Much HIV
Drug Adherence Is Enough?, Verywell
Health (May 23, 2021), https://www.
verywellhealth.com/how-much-adherence-isenough-adherence-49307 ........................................ 10
N.Y. State Dep’t of Health, Communicable
Disease Reporting Requirements,
https://health.ny.gov/forms/instructions/doh389_instructions.pdf................................................ 12
National Institute of Allergy & Infectious
Diseases:
Antiretroviral Drug Discovery and
Development, https://www.niaid.nih.
gov/diseases-conditions/antiretroviraldrug-development (last visited Nov. 22,
2021).................................................................... 8, 9
When Undetectable Is Unachievable: Study
Offers Insights into HIV Persistence (Mar.
5, 2019), https://www.hiv.gov/blog/whenundetectable-unachievable-study-offersinsights-hiv-persistence ...................................... 8
VIII
Miscellaneous—Continued:
Page(s)
Kenneth L. Schaecher, The Importance of
Treatment Adherence in HIV, 19 Am. J.
Manag. Care S231 (2013), https://cdn.sanity.
io/files/0vv8moc6/ajmc/2c3d3cfc8f07952e3fe1e
b48d886314088baa31e.pdf/A472_09_13_Schaec
her_S231to7.pdf ......................................................... 9
U.S. Dep’t of Health & Human Servs., How is
HIV Transmitted?, https://www.hiv.gov/hivbasics/overview/about-hiv-and-aids/how-ishiv-transmitted
(last updated June 24, 2019) ........................ 7, 12, 13
U.S. Food & Drug Admin., The History of the
FDA’s Role in Preventing the Spread of
HIV/AIDS, https://www.fda.gov/aboutfda/fda-history-exhibits/history-fdas-rolepreventing-spread-hivaids (last updated Mar.
14, 2019) ...................................................................... 8
Pietro L. Vernazza & Edwin J. Bernard,
Editorial, HIV Is Not Transmitted Under
Fully Suppressive Therapy: The Swiss
Statement—Eight Years Later, Swiss Med.
Wkly. (Jan. 29, 2016) ............................................... 11
Shilpa Viswanathan et al., Level of Adherence
and HIV RNA Suppression in the Current
Era of Highly Active Antiretroviral Therapy
(HAART), AIDS Behav. (2016),
https://www.ncbi.nlm.nih.gov/pmc/articles
/PMC4393774/pdf/nihms-638199.pdf .................... 10
IX
Miscellaneous—Continued:
Page(s)
Va. Dep’t of Health, Virginia Reportable Disease
List, https://www.vdh.virginia.gov/diseaseprevention/disease-reporting/ (last updated
Feb. 1, 2021) ............................................................. 12
In the Supreme Court of the United States
No. 21-617
CHRISTOPHER N. PAYNE, PETITIONER,
v.
JAHAL TASLIMI; MS. SMITH, LPN
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF OF AMICI CURIAE
AMERICAN ACADEMY OF HIV MEDICINE,
GLMA, THE HIV MEDICINE ASSOCIATION,
AND THE LEGAL ACTION CENTER IN
SUPPORT OF PETITIONER
INTEREST OF AMICI1
Amici are advocacy groups advancing the interests
of individuals who have been diagnosed with HIV and
the health professionals who care for those individuals.
Amici are deeply interested in this case because its outcome could affect the medical care, health privacy rights,
1
Both parties have consented in writing to the filing of this amicus
curiae brief. No counsel for any party authored this brief in whole
or in part, and no person or entity, other than amici curiae or their
counsel, made a monetary contribution intended to fund the preparation or submission of this brief.
(1)
2
and dignity of people with HIV.
The American Academy of HIV Medicine (the Academy) is the nation’s leading independent organization of
healthcare professionals dedicated to providing excellence in HIV care and prevention. The Academy comprises physicians, physician assistants, nurse practitioners, and pharmacists who manage the health of the majority of people with and at risk for HIV in the United
States. The Academy is committed to educating these
providers about HIV’s rapidly evolving treatment and
prevention landscape and advocating for efforts to eliminate stigma around those with and at risk for HIV.
GLMA: Health Professionals Advancing LGBTQ
Equality (previously known as the Gay & Lesbian Medical Association) is the world’s largest and oldest association of lesbian, gay, bisexual, transgender and queer
(LGBTQ) healthcare professionals. GLMA was founded
in 1981, as the American Association of Physicians for
Human Rights, with the mission of ensuring equality in
healthcare for LGBTQ individuals and healthcare professionals. GLMA is a leader in public policy advocacy
related to HIV/AIDS and LGBTQ health. GLMA's
membership includes approximately 1,000 member physicians, nurses, advanced practice nurses, physician assistants, researchers and academics, behavioral health
specialists, health profession students and other health
professionals across the United States and in several
other countries.
The HIV Medicine Association of the Infectious Diseases Society of America (the Association) is an organization of medical professionals who practice HIV medicine. The Association represents the interests of HIV
health care providers and researchers and their patients
3
by promoting quality in HIV care and by advocating for
policies that ensure a comprehensive and humane response to the AIDS pandemic informed by science and
social justice.
The Legal Action Center (LAC) was founded in
1973, and uses legal and policy strategies to fight discrimination, build health equity, and restore opportunity
for people with arrest and conviction records, substance
use disorders, and HIV or AIDS. LAC provides free legal services to individuals who have arrest or conviction
records, substance use disorders, HIV, or AIDS and face
discrimination in health care, employment, housing, education, and other areas. LAC also advocates for important precedents to defend the civil rights of individuals with HIV/AIDS and others in their constituent
group and fights to protect access to health care, opportunity, and justice for all.
Amici present this brief to provide analysis regarding the grave constitutional concerns raised by the
Fourth Circuit court of appeals’ decision, which threatens to entrench an antiquated and fear-driven approach
to HIV that would jeopardize the constitutional medical
privacy rights of individuals with the virus, including in
the prison setting.
SUMMARY OF ARGUMENT
The decision of the court of appeals merits review
because it represents a dangerous abandonment of judicial process in which the court based its decision on a
pseudo-scientific premise, without support in the record
or scientific fact. If courts are able to simply hypothesize
scientific truth outside of the record—untested by evidence and argument—the court abandons its role as an
4
arbiter of evidence and becomes little more than an uninformed commentator. This abdication of the legal process is particularly pernicious with respect to misunderstood and marginalized groups, such as individuals with
HIV, who suffer through the ignorance of others.
Individuals with HIV have long been the subjects of
stigma and discrimination. In the early years of the
HIV/AIDS pandemic, this stigma was tied to fears about
how the virus might possibly be transmitted, which led
to unfair biases and prejudices against some groups affected by the virus, including the LGBTQ community.
As a consequence, people with HIV faced housing and
employment discrimination, mistreatment, abuse, and
even violence.
Thankfully, advances in science have transformed
HIV into a manageable condition and have given individuals who adhere to HIV therapy regimens the freedom
to engage in the full breadth of human experiences, including increasingly long lifespans and active sexual relationships, without fear of transmitting the disease to
others. Still, as the court of appeals’ decision reflects, the
vast majority of citizens do not appreciate that modern
antiretroviral treatments are able to suppress HIV viral
load to such an imperceptible level that individuals undergoing such treatments are able to engage in the full
range of human relationships, including full-contact
physical sports and even sexual activity without any
measurable risk of transmitting the virus to another person. Unfortunately, while there have been great leaps in
treatment of the virus, much of the social stigma related
to HIV remains, especially where individuals are ill-informed about these scientific advances. Amici are committed to fighting such misinformation and protecting
the lives and dignity of people with HIV.
5
The court of appeals’ decision in this case threatens
to entrench retrograde, misguided beliefs and erode the
rights and freedoms of individuals with HIV. The court
cited Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995), a
case which was decided last century, in the year before
the current leading therapy for HIV was developed, for
the proposition that prisoners’ rights to medical privacy
do not extend to HIV status because it is a “communicable” disease. The court then went one step further,
transforming that opinion into pseudo-science, by suggesting that the assumed communicability of HIV is similar to the current COVID-19 pandemic—a comparison
unsupported by the record, science, or common sense. It
further betrays the type of hysterical attitudes that
have stoked HIV stigma and discrimination over the
decades and kept people from getting care.
Based on this unsupportable pseudo-science, the
court then weighed fear of this easily communicable disease against the interests of the other incarcerated persons and staff. From this flawed foundation, the court
concluded that individuals in the prison setting do not
have an expectation of privacy in their HIV-status because the information “is especially relevant in a prison
where disease can spread rapidly.”
The court of appeals’ decision is wrong on the science and wrong on the law. No court should be allowed
to reach results based on the creation of scientific comparisons that lack record support.
An individual’s right to medical privacy, and especially privacy of HIV status, has been widely recognized
by federal courts as well as federal and state statutes.
Given how HIV is actually transmitted (which will be addressed in detail later in the brief) and the advances in
6
treatment of HIV, there is no reason to believe that
there is a threat of rapid spread of the disease, even in
the close and sometimes violent quarters of the prison
setting. Indeed, the “risk of transmission to prison workers and other inmates” from an individual on effective
treatment for HIV is essentially nonexistent. There is
therefore no reason that prisoners should not enjoy the
same constitutional right to privacy in their medical information afforded other individuals in the United
States.
ARGUMENT
I.
WHEN EFFECTIVELY MANAGED, HIV TRANSMISSION C AN B E P REVENTED
It has been forty years since the initial published report about what would later be recognized as the first
reported U.S. cases of acquired immunodeficiency syndrome (AIDS), the chronic disease caused by HIV.2 During that time, revolutionary advances have made HIV—
which was once a fatal condition—a chronic, manageable
one, especially for those who have reliable access to HIV
therapies that suppress the virus to very low levels in
the body, also referred to as viral suppression. Individuals with HIV who maintain viral suppression further reduce their risk of transmitting the virus to sexual partners to effectively zero.3 Moreover, there are limited
2
Centers for Disease Control & Prevention, HIV and AIDS Timeline (Oct. 21, 2020), https://npin.cdc.gov/pages/hiv-and-aids-timeline#1980.
3
See Centers for Disease Control & Prevention, Evidence of HIV
Treatment and Viral Suppression in Preventing the Sexual Transmission of HIV 2 (Dec. 2020), https://www.cdc.gov/hiv/pdf/risk/art/cdc-hiv-a
rt-viral-suppression.pdf (CDC, Evidence of HIV).
7
routes for transmission that include sexual contact, sharing needles or blood contamination even for persons who
are not virally suppressed. Unlike other viruses, HIV
cannot spread by touching, coughing, sneezing, sweating, kissing, or sharing silverware or straws.4 Despite
these indisputable scientific facts, misinformation about
HIV persists in society and, unfortunately, even in the
courts. In the present case, the Fourth Circuit invokes
antiquated attitudes about the contagiousness of HIV to
make a false case for a penological interest that outweighs the right to health privacy. This Court must reject such pseudoscience and remain informed by firmlyestablished epidemiological evidence. As Justice Breyer
eloquently expressed the idea in an academic setting,
“Our decisions should reflect a proper scientific and technical
understanding so that the law can respond to the needs of the
public.”5
A.
Adherence to Antiretroviral Therapy
(ART) effectively eliminates the risk of
HIV transmission
Understanding HIV therapy begins with a scientifically sound awareness of the underlying disease. HIV
attacks and destroys infection-fighting CD4 cells in the
immune system, making it difficult for the body to stave
off infections.6 Since the approval of the drug zidovudine,
4
U.S. Dep’t of Health & Human Servs., How is HIV Transmitted?,
https://www.hiv.gov/hiv-basics/overview/about-hiv-and-aids/howis-hiv-transmitted (last updated June 24, 2019) (HHS).
5
See Stephen Breyer, Science in the Courtroom, 16 Issues Sci. &
Tech. Online (2000), https://issues.org/breyer-science-courtroom.
6
Centers for Disease Control & Prevention, HIV Basics: About
HIV, https://www.cdc.gov/hiv/basics/whatishiv.html (last updated
June 1, 2021).
8
commonly known as AZT, in 1987, antiretroviral therapy
(ART) has been the first line of HIV treatment.7 When
an individual begins ART, the amount of virus in the system decreases until the viral concentration of HIV in the
bloodstream (“viral load”) drops to an undetectable or
low level.8 In the early years of single-drug ART, the
treatment was not potent enough to durably stop the virus from replicating, which led to the inevitable development of virus mutations that rendered the medication ineffective,9 but in 1996 researchers discovered that a
three-drug combination of antiretrovirals reliably and
persistently suppressed viral replication and prevented
the virus from developing drug resistance.10 The discovery revolutionized HIV treatment and, for the first time,
enabled people to suppress their viral load to undetectable levels and live longer lives.11 This combination therapy remains the standard treatment today and results in
7
U.S. Food & Drug Admin., The History of the FDA’s Role in Preventing the Spread of HIV/AIDS, https://www.fda.gov/aboutfda/fda-history-exhibits/history-fdas-role-preventing-spread-hivaids (last updated Mar. 14, 2019).
8
National Inst. of Allergy & Infectious Diseases, When Undetectable Is
Unachievable: Study Offers Insights into HIV Persistence (Mar. 5, 2019),
https://www.hiv.gov/blog/when-undetectable-unachievable-studyoffers-insights-hiv-persistence.
9
National Inst. of Allergy & Infectious Diseases, Antiretroviral Drug
Discovery and Development, https://www.niaid.nih.gov/diseasesconditions/antiretroviral-drug-development (last visited Nov. 22,
2021) (NIAID).
10
Anthony S. Fauci et al., HIV Viral Load and Transmissibility of
HIV Infection: Undetectable Equals Untransmittable, 321 JAMA
451, 451 (2019), https://www.natap.org/2019/HIV/jama_eisinger
_2019_vp_180174opy.pdf.
11
See NIAID.
9
sustained viral suppression.12
While adherence to ART—regular medication intake and consistent attendance of outpatient appointments—is critical for reducing the risk of transmission,13
the Fourth Circuit’s assumption that an individual with
HIV like Payne could “forgo taking medicine and thus
become contagious again” after a single delayed or
missed dose14 defies both science and common sense. The
exact optimum level of ART adherence is disputed, but
there is consensus that it falls somewhere between 80
and 95 percent; for years, HIV treatment guidelines dictated that individuals must maintain a 95 percent or
greater adherence to ART to sustain an undetectable viral load.15 For a daily single-pill ART regimen, 95 per-
12
Ibid. Combination therapy is referred to as cART (combination
antiretroviral therapy), HAART (highly active antiretroviral therapy), and ART, the acronym preferred in the medical community
and used here to describe single and multi-drug antiretroviral therapy.
13
See Surajudeen A. Abdulrahman et al., HIV Treatment Adherence: A Shared Burden for Patients, Health-Care Providers, and
Other Stakeholders, 12 AIDS Rev. 28, 30 (2019), https://www.res
earchgate.net/publication/331849722_HIV_Treatment_Adherence
_-_A_Shared_Burden_for_Patients_Health-Care_Providers
_and_Other_Stakeholders#read.
14
15
Pet. App. 15.
See, e.g., Abdulrahman 31; Kenneth L. Schaecher, The Importance of Treatment Adherence in HIV, 19 Am. J. Manag. Care
S231, S231 (2013), https://cdn.sanity.io/files/0vv8moc6/ajmc/2c3d3c
fc8f07952e3fe1eb48d886314088baa31e.pdf/A472_09_13_Schaecher_
S231to7.pdf (“For HIV therapeutic regimens in which an unboosted
protease inhibitor is a component, there exists a substantial risk of
failed viral suppression with treatment adherence less than 95%.”).
10
cent adherence translates to approximately 14 non-consecutive missed doses over the course of a year.16 However, recent studies have indicated that newer ART
drugs show similar viral load suppression with adherence in the 80 to 85 percent range, which is in line with
target adherence levels commonly used for other diseases, such as hypertension, diabetes, and tuberculosis.17
Furthermore, when ART is entirely stopped, full viral
rebound usually occurs within two to three weeks—not
hours or days.18
Provided that an individual does not miss many
doses of ART treatment, even at an adherence rate of 95
percent or higher, as Payne was here, the likelihood of
16
James Myhre & Dennis Sifris, How Much HIV Drug Adherence
Is Enough?, Verywell Health (May 23, 2021), https://www.
verywellhealth.com/how-much-adherence-is-enough-adherence49307.
17
See Shilpa Viswanathan et al., Level of Adherence and HIV RNA
Suppression in the Current Era of Highly Active Antiretroviral
Therapy (HAART), AIDS Behav. 8 (2016), https://www.ncbi.nlm.
nih.gov/pmc/articles/PMC4393774/pdf/nihms-638199.pdf (“Adherence levels as low as 80 to 84 percent may be sufficient for viral load
suppression in populations using newer ART formulations”); see
also Kathy Byrd et al., Antiretroviral Adherence Level Necessary
for HIV Viral Suppression Using Real-World Data, 82 J. Acquired
Immune Deficiency Syndromes 245, 249-250 (2019), https://www.
ncbi.nlm.nih.gov/pmc/articles/PMC6854523/pdf/nihms-1055707.pdf
(concluding that the adherence rate required to achieve viral suppression is 82 percent; suggesting that today’s ART medications are
much more forgiving than those of years past).
18
Fauci et al. 452; see also Abdulrahman et al. 31 (“Repeated missed
appointments have been shown to result in non-adherence to medication, faster disease progression, and eventual treatment failure.”
(emphasis added)).
11
transmission of the disease is effectively zero.19 It is now
widely accepted in the scientific and health care communities that individuals with HIV who did not have another sexually-transmitted infection and who achieved
and maintained an undetectable viral load for at least six
months could not sexually transmit the virus.20 According to the CDC today, when individuals with HIV adhere to ART and maintain undetectable or suppressed
viral levels, their risk of transmitting the virus to sexual
partners is effectively zero.21 In fact, there has not been
even one reported case of transmission of the virus
through sex from a person with an undetectable viral
load.22
19
Fauci et al. 451.
20
Pietro L. Vernazza & Edwin J. Bernard, Editorial, HIV Is Not
Transmitted Under Fully Suppressive Therapy: The Swiss Statement—Eight Years Later, Swiss Med. Wkly. (Jan. 29, 2016); see also
CDC, Evidence of HIV 2 (analyzing data from recent studies—
HPTN052, PARTNER, Opposites Attract, and PARTNER2—and
concluding that the combined transmission risk estimate for sex
without a condom among serodiscordant couples is virtually zero).
21
See CDC, Evidence of HIV 3. According to the CDC, viral suppression is defined as having less than 200 copies of HIV per milliliter of
blood, and an “undetectable” viral load is generally measured as
fewer than 50 copies per milliliter. The CDC uses the word effectively to reflect the fact that while “non-zero risk[s]” can never be
ruled out, evidence suggests that it is not possible to transmit HIV
during periods of non-detection or viral suppression.
22
Id. at 1.
12
B.
HIV cannot be transmitted by casual contact
HIV can be transmitted only in limited circumstances, leading the CDC23 and some states24 to exclude
it from lists of communicable diseases. HIV can be transmitted only through direct contact with certain bodily
fluids from a person with detectable levels of the virus
in their system; these fluids include blood, semen and
pre-seminal fluid, rectal fluid, vaginal fluid, and breast
milk.25 HIV cannot be transmitted by air or water, mosquitos, ticks or other insects, saliva, tears, sweat, nasal
secretions, shaking hands, hugging, sharing toilets or
dishes, or other person-to-person contact where these
fluids are not exchanged. For transmission to occur, the
23
See Centers for Disease Control & Prevention, Final Rule: Removal of HIV Entry Ban (Nov. 2, 2009), https://www.cdc.gov/immig
rantrefugeehealth/laws-regs/hiv-ban-removal/final-rule.html
(“HIV infection is no longer defined as a communicable disease of
public health significance and testing for HIV infection is no longer
required as part of the U.S. immigration medical screening process.
Additionally, HIV infection no longer requires a waiver for entry
into the United States.”).
24
For example, HIV/AIDS is not classified as a communicable disease in New York for communicable disease reporting requirements. See N.Y. State Dep’t of Health, Communicable Disease Reporting Requirements, https://health.ny.gov/forms/instructions/
doh-389_instructions.pdf. Other states, like Virginia, do require reporting of presumptive and confirmed cases of HIV/AIDS within
three days, but use the term communicable or place it in the same
critical (“report immediately”) category with severe coronavirus infection or other highly communicable diseases like measles and pertussis (“whooping cough”). See Va. Dep’t of Health, Virginia Reportable Disease List, https://www.vdh.virginia.gov/disease-prev
ention/disease-reporting/ (last updated Feb. 1, 2021).
25
See HHS 4.
13
virus present in these fluids must pass into the bloodstream of a person without HIV through a mucus membrane, open cuts or sores, or by direct injection; the most
common ways HIV is spread is by having unprotected
vaginal or anal sex, or by sharing intravenous drug
equipment, with someone who has a detectable viral
load.26
Accordingly, the Fourth Circuit’s comparison of
HIV to COVID in terms of transmissibility is completely
false. Transmissibility of disease sits on a spectrum, with
HIV on one end and droplet or airborne diseases—such
as COVID-19 and influenza—firmly on the other. This is
even more true in cases, like the present one, where HIV
is under effective management. In such cases, as discussed above, even sexual transmission is virtually impossible, so all other forms of social interaction, even interaction that involves close contact with another person
like the act of restraining an incarcerated person, would
be exceptionally unlikely to result in transmission.
II. THE RIGHT TO PRIVACY OF MEDICAL INFORMATION , P ARTICULARLY HIV S TATUS, I S W IDELY
RECOGNIZED
A.
Individuals have a constitutional right to
medical privacy
This Court and lower courts have widely recognized
an individual’s constitutional right to privacy of their
medical information. See Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (recognizing an individual’s
right under the Fourth Amendment not to have sensitive medical information disclosed to “nonmedical personnel without her consent”); Moore v. Prevo, 379 F.
26
Ibid.
14
App’x 425 (6th Cir. 2010) (same); Doe v. Delie, 257 F.3d
309, 315 (3d Cir. 2001) (“We have long recognized the
right to privacy in one’s medical information.”); Powell
v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999) (acknowledging the “constitutional stature [of] the right to maintain
the confidentiality of previously undisclosed medical information”).
An individual’s constitutional right to the privacy of
their medical information has been codified by Congress’s passage of the Health Insurance Portability and
Accountability Act of 1996, 110 Stat. 1936 (HIPAA).
With limited exceptions, HIPAA precludes health care
providers, health plans, health care clearinghouses, and
their business associates from using or disclosing “protected health information” (PHI). See 45 C.F.R. 164.502
(the HIPAA Privacy Rule). While HIPAA does not provide a private right of action for individuals whose information is exposed, it does impose civil and criminal penalties for violations. See 45 C.F.R. 160.402; 42 U.S.C.
1320d-6.
B.
Various statutes recognize a heightened
right to privacy of HIV status
The right to medical privacy is even more closely
held when addressing HIV status due to the history and
risk of discrimination of HIV based on social stigmas related to homophobia and misguided fear of the disease,
which can lead to violence against individuals with HIV.
HIV status is one of only a handful of health-related categories that legislators have singled out for additional
confidentiality protections. In addition to the risk of discrimination and violence, one motivation behind laws
protecting the confidentiality of HIV status is that this
actually reduces the risk of HIV transmission because
15
individuals will not be afraid to get tested and treated.27
As such, the Fourth Circuit’s assertion that protecting
the privacy rights of individuals with HIV undermines
the institutional safety of the prison seems especially
misplaced.
Indeed, the vast majority of state legislatures have
recognized the importance of protecting the confidentiality of an individual’s HIV status. These states have enacted statutes explicitly governing the disclosure and
use of HIV/AIDS positive test results in at least some
contexts, such as providing standards for court-ordered
disclosures or prohibiting disclosures by insurers, public
health entities, or health care facilities and their employees in most instances.28 These state laws further empha-
27
See, e.g., Fla. Stat § 381.004 (1989) (explaining that “many members of the public are deterred from seeking * * * testing because
they * * * fear that test results will be disclosed without their consent” and that “the public health will be served by facilitating informed, voluntary, and confidential use of tests designed to detect
[HIV]”); see also Doe v. State of New York, 152 Misc. 2d 922, 923
(N.Y. Ct. Cl. 1991) (describing the legislative intent behind the confidentiality components of the state’s public health law to “encourage the expansion of voluntary confidential testing for human immunodeficiency virus (HIV) so that individuals may * * * change the
behavior that puts them and others at risk of infection” (internal
citation omitted)).
28
See Al. Code § 22-11A-54 (protecting privacy of HIV status); Ariz.
Rev. Stat §§ 20-448.01, 36-664 (same); Cal. Health & Safety Code §
120975 (same); Colo. Rev. Stat. § 10-3-1104.5 (same); Conn. Gen.
Stat. § 19a-583 (same); Del. Code tit. 16, § 717 (same); Fla. Stat.
§ 381.004 (same); Ga. Code §§ 24-12-20, 24-12-21 (same); Haw. Rev.
Stat. § 325-101 (same); Idaho Code § 39-610 (same); 410 Ill. Comp.
Stat. 305/9 (same); Iowa Code § 141A.9 (same); Kan. Stat. § 65-6002
(same); Ky. Rev. Stat. § 214.625 (same); La. Stat. Ann. § 40:1171.4
(same); Me. Rev. Stat. tit. 5, §§ 19203, 19204-C (same); Md. Code,
16
size the common understanding that HIV status is an extremely sensitive piece of personal information and
should be kept confidential.
Several federal courts have also recognized the
right to privacy as applied to HIV status. See, e.g., Powell, 175 F.3d at 110 (“Individuals who are infected with
the HIV virus clearly possess a constitutional right to
privacy regarding their condition.” (quoting Doe v. City
of New York, 15 F.3d 264, 267 (2d Cir. 1994)); Moore, 379
F. App’x at 427 (“It is beyond question that information
about one’s HIV-positive status is information of the
most personal kind and that an individual has an interest
in protecting against the dissemination of such information.”). HIPAA likewise permits the disclosure of
HIV status, along with other protected health information, for only certain limited permissible purposes, including for treatment, payment, and healthcare operations. See, e.g., Warren v. Corcoran, No. 9:09-CV-1146,
2011 WL 5599587, at *7 (N.D.N.Y. Oct. 20, 2011), R. & R.
adopted, No. 9:09-CV-1146, 2011 WL 5599620 (N.D.N.Y.
Nov. 17, 2011) (distinguishing disclosure of an inmate’s
Health-Gen. § 18-338.1 (same); Mass. Gen. Laws ch.111, § 70F
(same); Mich. Comp. Laws § 333.5131 (same); Mo. Rev. Stat.
§ 191.656 (same); Mont. Code Ann. § 50-16-1009 (same); Nev. Rev.
Stat. § 433A.220 (same); N.H. Code Admin. R. Ins. 1103.02 (same);
N.J. Rev. Stat. § 26:5C-7 (same); N.M. Stat. § 24-2B-6 (same); N.Y.
Pub. Health Law 27-F (same); N.C. Gen. Stat. § 130A-143 (same);
N.D. Cent. Code 23-07-02.2 (same); Ohio Rev. Code § 3701.24
(same); Or. Rev. Stat. §§ 135.139, 433.045 (same); (same); (same);
(same); (same); 35 Pa. Cons. Stat. § 7607 (same); R.I. Gen. Laws
§§ 23-6.3-7, 23-6.3-8 (same); Tenn. Code § 68-5-703 (same); Tex.
Health & Safety Code § 81.103 (same); Utah Code § 26-6-27 (same);
Vt. Stat. tit. 8, § 4724 (same); Va. Code Ann. § 32.1-36.1 (same);
Wash. Rev. Code § 70.24.050 (same); W. Va. Code § 16-3C-2 (same);
Wis. Stat. § 252.15 (same).
17
HIV status to correctional officers, who were present at
the inmate’s telemedicine visit for security purposes and
who were subject to HIPAA obligations, from disclosure
of the same information to “other inmates or staff”).
III. INCARCERATION DOES NOT OBLITERATE THE
RIGHT TO MEDICAL PRIVACY
Contrary to the court of appeals’ assumption, the
mere fact of incarceration does not destroy rights to
medical privacy. Several federal courts have extended
the constitutional right to medical privacy, and privacy
of HIV status in particular, to individuals in the prison
setting. This extension of rights to prison inmates is consistent with this Court’s acknowledgment that a prisoner retains those constitutional rights that “are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.”
Turner v. Safley, 482 U.S. 78, 95 (1987) (upholding a prisoner’s right to marry) (quoting Pell v. Procunier, 417
U.S. 817, 822 (1974) and broadening the language in Pell
from “First Amendment” rights to all “constitutional”
rights); see also Powell v. Schriver, 175 F.3d 107, 112 (2d
Cir. 1999) (“[T]his Court already has accorded constitutional stature to the right to maintain the confidentiality
of previously undisclosed medical information. It follows
that prison officials can impinge on that right only to the
extent that their actions are ‘reasonably related to legitimate penological interests.’ ” (citing Doe v. City of New
York, 15 F.3d 264, 267 (2d Cir. 1994) and Washington v.
Harper, 494 U.S. 210, 221, 223 (1990)); Moore v. Prevo,
379 F. App’x 425, 428 (6th Cir. 2010) (“[I]nmates have a
Fourteenth Amendment privacy interest in guarding
against disclosure of sensitive medical information [specifically HIV status] from other inmates subject to legitimate penological interests.”).
18
****
The Fourth Circuit court of appeals’ decision threatens to entrench an antiquated and fear-driven approach
to HIV that would jeopardize the constitutional privacy
rights of individuals with the virus.
CONCLUSION
The court of appeals’ decision warrants this Court’s
review and reversal.
Respectfully submitted,
EDWARD MCNICHOLAS
DOUGLAS HALLWARD-DRIEMEIER
FRANCES FAIRCLOTH
CHRISTINE MOUNDAS
ROPES & GRAY LLP
Counsel for Amici Curiae
November 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.