Amicus Curiae Brief — School Bd. of Nassau Cty. v. Arline

Supreme Court brief1987

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g Supreme Court, U.S, x

FILED

SEP 19 1986

JOSEPH F. SPANIOL, JR,

IN THE

Supreme Court of the United States

October Term, 1985

SCHOOL BOARD Ol!

FLORIDA, et al..

BRIEF AMICI CLURLAE OF DOCTORS FOR AIDS RESEARCH AND

EDUCATION: NEIL SCHRANI, M.D., MERVYN SILVERMAN, \VI.D.,

\ 17

‘ } ,

GERALD FRIEDLAND, M.D., DONALD ABRAMIS,

DANIEL WILLIAM, M.D., HAROLD HAWLEY, M.D

ALEXANDRA LEVINE, M.D., DAVID OSTROW, M.D

tinued within)

OF RESPOS

LEISHNIAN

And

DAY LDSé mN _at I ite for I Disabled

VIcGREIV"

HOFFMAN

JOSEPH LAVV!I

Law Center!

ADDITIONAI

DENNIS McSHANE,

PETER HESELTINE,

JOEL WEISMAN,

JAMES LIPSETT,

STUART

ROGER

CONSTANCE WOFSY,

NICK IFFT, M.D.,

MICHAEL ROTH, M

MICHAEL

ALLEN

NICHOLAOS BELLOS,

M.D

FREEMAN, M.A.,

M.D..,

PETER WOLFE,

HAL

THOMAS MUNDY,

AMIC

]

M.D..

M.D

D.O..

M.D..,

NICHOLS, M.D..,

DETELS, M.D..,

bios

KAISER, M.D.,

McCUTCHAN, M.D.,

WILLIAM CHRISTOPHER

NORBERT

MARSHALL

GILMORE,

FORSTEIN,

DAVID McEWAN, M.D

AMY ROSS, Ph.D..,

ROBERT BOLAN, M

BRAD TRUAX, M.D.,

BRIAN WILLOUGHBY, Nh

JAMES CHERRY,

KENT SACK,

and

M.D

D.,

M.D..,

1.]

TABLE OF CONTENTS

INTEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

I. A REVIEW OF THE

MEDICAL AUTHORITIE

DEMONSTRATES THAT

PERSONS INFECTED

WITH THE AIDS VIRUS

ARE HANDICAPPED

INDIVIDUALS

A. What Is

The AIDS Virus

Not Casually

THE

ESTABLISH THAT

PERSONS INFECTED

WITH THE AIDS

ARE PROTECTED UNDER

Persons Infected

With The AIDS Virus

Are Handicapped

Within The

Meaning Of The

Statute. ccceccces 41

Persons Infected

With The AIDS

Virus Are Not,

Solely By Virtue

Of Their Infection,

Automatically

Rendered Not

Otherwise

Qualified For

Any JOD... eeeees 59

‘@

[ |

APPENDIX

TABLE OF AUTHORITIES

CASES Page(s)

Arline v. School Bd. of

Nassau County,

772 F.2d 759 (llth

Gee 6 Bens 6666 06we-oee< 60

Bentivegna v. Dept. of Labor,

694 F.2d 619 (9th Cir.

Dei videcceodeeceuces 57,62

Bowen v. American Hospital

ASSOC.,

106 S. Ct. 2101

0) re eer 54

Bowers v. Hardwick,

i106 S. Ct. 2841

CRO? 6 oeb 6a seceeees ede 30

Califano v. Goldfarb,

430 U.S. 199 (1977).... 59

Commonwealth of Massachusetts

v. Painten,

390 U.S. 560 (1968).... 9

Consolidated Rail Corp.

Vv. Darrone,

104 S. Ct. 1248 (1984). +2

District 27 School Bd.

v. Bd. of Educ.,

130 Misc. 2d 398, 502

N.Y.S.2d 325

8 | Preyer Terr Ss 38

Doe v. New York Univ.,

666 F.2d 761 (2d Cir.

300) are eee 55,593

Eu v. Male,

No. 341940 Slip op. (Sac.

Sup. Ct. Aug. 8, 1986..

Grove City College v. Bell,

104 S§. Ct. 1211 (1984).

Mantolete v. Bolger,

767 F.2d 1416 (9tii Cir.

BUEe 6 6 6460000806066 K08

New York State Ass'n for

Retarded Children v.

Carey,

612 F.2d 644 (2d Cir.

Sve 6666 606640006008 65

Plummer v. Branstad,

731 F.2d 574 (8th Cir.

Ss ee ae ee ae eee be

Pushkin v. Regents of Univ.

of Col.,,

658 F.2d 1372 (10th Cir.

CE nh ee eee a} é

School Bd. of Nassau

County, Florida vy.

Arline,

106 S. Ct. 1633 (1986).

Page(s)

Shuttlesworth v. Broward

County Office of

Management & Budget

Policy,

FCHR 85-0624, slip op.

(Fla. Comm'n on Human

Relations Dec. ll, 1985),

reprinted in Daily

Lab. Rep. (BNA) No. 242,

E-l1 (Dec. 17, 1985).... 50

Southeastern Community College

v. Davis,

442 U.S. 397 (1969).... 60

Stanley v. Illinois,

405 U.S. 645 (1972).... 46

Tagqgarty v. Weinaker's, Inc.,

St Gels 2E08 LESTel cece 60

STATUTES

Cal. Health & Safety Code

§ 3353 (West 1979).... 46

2U C.F.R § 416.934(k)

CRPSSP ceccccsccescesces

, ah, Be See). | >} eae 42

34 CFR § 104 (1985)...... 42

45 CFR § 84.3(3)(2)(1)(A)-(11)

i Ree 6666666066806 866 43,44

45 C.F.R. Pt. 84, App. A..

Rehabilitation Act of 1973,

§ 504, 29 U.S.C.A.

BR, Bi rae

Rehabilitation Act of 1973,

29 U.S.C.A. §$ 706(7)

fo: ae ee

Rehabilitation Act of 1973,

29 U.S.C.A. §$ 706(13)

a.) ee ee

Social Security Act, 42

U.S.C.A. § 423(d)

[eee csestheceseteuoe

MEDICAL AUTHORITIES

Apparent Transmission of Human

T-Lymphotropic Virus

Type III/Lymphadenopathy-

Associated Virus From a

Child to a Mother Providing

Health Care, 35 MMWR 76

[as Bet 66666eceence

Bakeman, et al., AIDS

Risk-Group Profiles in

Whites and Members of

Minority Groups, 315 New

Eng. J. Med. 191 (July

Page(s)

43,57

passim

Blattner, et al., Epidemiology

of Human T-Lymphotropic

Virus Type I. and the Risk

of Acquired Imauno-

deficiency Syndrome,

103 Annals Internal Med.

665 (Nov. 1985)......-.. 18

Brettman, Serologic and

Epidemiologic Assessment of

AIDS Risk, 3 Infections in

Med. 18 (Jan. 1986).... 15,17

Carlson, et al., AIDS Serology

Testing in Low- and

High-Risk Groups, 253 J.

A.M.A. 3405 (June

a errrrrr TT Tere Te 18

Case for Concluding Heat

Treated Licensed

Anti-Hemophiliac Factor Is

Free From HTLV-III, Lancet

890 (Oct. 19, 1985).... 29

CDC, Classification System for

Human T-Lymphotropic Virus

Type III/Lymphadenopathy-

Associated Virus Infection,

105 Annals Internal Med.

234 (Aug. 1986)........ 13,15

CDC, Weekly Surveillance

Report - United States

AIDS Program, July 29,

DR cee ce eeseeoeseoeess tf. Fe

CDC, 1985 STD Treatment Guidelines,

34 MMWR (Supp.) 75S (Oct.

BU) 66s 6b oseeeeeoesees 29

Page(s)

Coffin, et al., Human

Immunodeficiency Viruses,

232 Sci. 697 (May

BOOP cevecenetestuseoes 10

Cohen et al., Congestive

Cardiomyopathy in

Association with the

Acquired Immuno-

deficiency Syndrome,

315 New Eng. J. Med. 628

SS. SPO l oe cecécecce 16

Condoms Prevent Transmission

of AIDS-Associated

Retrovirus, 255 J. A.M.A.

1706 (Apr. 1986)....... 29

ck, et al.

roepidemiological Studies

HTLV-III Antibody

evalence Among Selected

oups of Heterosexual

ricans, 254 J. A.M.A.

25a (MOV. 1LFSS) eo ceseces

mrss irhiDd ©

» 10/0

Daul, et al., Acquired Immnune

ency Syndrome: An

e and Interpretation,

ls Allergy 351

(Sept. 1983)........0..

Davis, Histopathological

Changes in the Thymus

Gland, 12 Annais N.Y. Acad.

Sciences 493 (1986).... 24

Dlugosch, et al., AIDS

Antibody Testing:

Evaluation and

Counseling, 1 Focus: Rev.

of AIDS Res. 1 (July

De non nbeeneeesesensn 47

Drotman, Insect-Borne

Transmission of AIDS?, 254

J. A.M.A. 1085 (Aug.

RUS 0 0650666666646 688 23

Education and Foster Care of

Children Infected With

Human T-Lymphotropic Virus

Type I1I/Lymphadenopathy-

Associated Virus, 34 MMWR

517 (Aug. 1985).....26.

Evatt, Coincidental Appearance

of HTLV-III/LAV Antibodies

in Hemophiliacs and the

Onset of the AIDS Epidemic,

31 New Eng. J. Med. 483

POR. AFSOlcccecececees 21

Female-to-Male Transmission of

HTLV-III, 255 J. A.M.A. 1702

Fettner & W. Check, The

Truth About AIDS

(1984)

*eeseeenee#ee#eeseeee##ee#e##*# # # #

Page(s)

Freidland, et al., Lack of

Transmission of

HTLV-III/LAV Infection to

Household Contacts of

Patients With AIDS or

AIDS-Related Complex with

Oral Candidiasis, 314 New

Eng. J. Med. 344, (Feb.

Friedman et al.,

Cytomegalovirus Retinitis:

a Manifestation of the

Acquired Immune Deficiency

Syndrome (AIDS), 67 Brit.

J. Opthamology 372 (June

4 eee eee l6

Gallo, et al., Frequent

Detection and Isolation

of Cytopathic Retroviruses

(HTLV-III) from Patiencs

With AIDS and At Risk For

AIDS, 224 Sci. 500

| eee eee 19

V-III Transmiss Lon ’

LV-

254 J. A.M.A. 2130 (Oct.

Health & and Pub. Policy

Comm'n, Amer. C. Physicians,

& the Infectious Diseases

soc’'y Amer., Position

Paper: Acquired Immune

Deficiency Syndrome, 104

Annuals Internal Med. 575

(Ae. SISO cccecesesces

Henderson, et al., Risk of

Nasocomial Infection

With Human T-Cell

Lymphotrophic Virus

Type III/Lymphadempothy-

Associated Virus in Large

Cohort of Intensively

Exposed Health Care Workers,

1104 Annals Internal Med.

644 (May 1986)......... 35

HTLV-III Exposure During

Cardiopulmonary

Resuscitation, 313 New

Eng. J. Med. 1606 (Dec.

Infrequency of Isolation of

HTLV-III Virus From Saliva

In AIDS, 313 New Eng.

Med. 1606 (Dec.

1985)

Sea eoeeessece@ee@eesetereectees?s F

Kalish & Schlossman, The

T4 Lymphocyte in AIDS

313 New Eng. J. Med.

112 (July 1985)

je@#e#eeeeese# # @

Korcok, AIDS Hysteria: A

Contagious Side Effect,

133 Can. Med. A.J. 1241

(Dec. 1985) 5 2

Krelss, et al., Antibody tO

Human T-Lymphotropic Virus

Type III in Wives of

Hemophiliacs, 102 Annals

Internal Med. 623 (May

1985)

Page(s)

Lange, et al., HTLV-III/LAV

Infection in Nine Children

Infected by a Single Plasma

Donor, 154 J. Infectious

Diseases 171 (July

S| Pee TTT TT TTT eT eee 19

, 6 Discovery

985)... oe eeeeeae 1Q,21,26

Langone, AIDS

28 (Dec. 1

Levine, The Acquired

Immunodeficiency Syndrome

In Persons With Hemophilia,

103 Annals Internal Med.

723 (Mov. 1965)... ccceccs

Lymon, et al., Minimal Risk

Transmission of

AIDS-Associated Retrovirus

Infection by Oral-Genital

. ie

Contact, 255 J. A.M.A. 03

[as Bev bs 6460080008 28

Mandell, et al., Principles

and Practices of Infectious

Diseases (2d ed. 1984).

Mann, et al., Prevalence of

HTLV-III/LAV_ in Household

Contacts of Patients With

Confirmed AIDS and Controls

in Kinshasa, Zaire, 256 J.

A.M.A. 721 (Aug. 1986). 26

Melbye, et al., Long-Term

Seropositivity For Human

T-Lymphotropic Virus Type

III in Homosexual Men

Without the Acquired

Immunodeficiency Syndrome:

Development of Immunologic

and Clinical Abnormalities,

104 Annals Internal Med.

496 (Apr. 1986)........ 21

Melbye, et al., Anal

Intercourse As A Possible

Factor in Heterosexual

Transmission of HTLV-III ¢t

Spouses of Hemophiliacs,

312 New Eng. J. Med. 85/7

[JOR BFS) cc cceceéesses 25,36

Moss et al., Progression to

AIDS in Men Seropositive

for LAV/HTLV-III: One-year

Followups of San Francisco

General Hospital Study,

Proc. of the Second Int'l

Conf. On AIDS 152 (Paris)

(JUNG LISS). cccccesccses 30,46

Navia, et al., The AIDS

Dementia Complex: I

Clinical Features and

Il, Neuropathology,

19 Annals Neurology 51/7 &

525 (Apr. L9G) .ccccces

*e eeeeeee##e#*e*

Paterat, et al.

laa

serological Markers

as ,Indicators of

Sexual Orientation

in AIDS Virus-

Infected Men, 256

J. A.M.A. 712 (Aug.

erman, et al., Epidemiol:

of the Acquired

Immunodef i l1ency Syndro me

(AIDS), 7 Epidemiological

Rev. 1 (1985

vention of Acquired Immu:

Deficiency Syndrome (AIDS

Report of Inter-Agency

Recommendations 32 MMWR

See SEE s BOS lcccecece

visional Public Healt

Service Inte yency

screening Donated Blood

and Plasma f 1]

to the Virus Causing

Acquired Immunodef 1¢ c

Syndro e, $4 MMWR

dl Pervpeeeoeoeeaneeees

Page(s)

Recommendations for Assisting

in the Prevention of

Perinatal Transmission of

Human T Lymphotropic Virus

Type III/Lymphadenopathy

Associated Virus and

Acquired Immunodeficiency

Syndrome, 34 MMWR 721

ts MP cseecoceeeces 24,32,48

Recommendations for Preventing

Transmission of Infection

with Human T-Lymphotrophic

Virus Type III/

Lymphadenopathy~-Associated

Virus During Invasive

Procedures, 35 MMWR 221

CRs BOPOP cece qesccece 22,3

Recommendations for Preventing

Transmission of Infections

with Human T-Lymphotropic

Virus Type III/

Lymphadenopathy-Associated

Virus In The Workplace, 34

MMWR 681 (Nov. 1985)...

Recommendations for Providing

Dielysis Treatment to

Patients Infected With

Human T-Lymphotrophic Virus

Type III/Lymphadenopathy

Associated Virus, 35 MMWR

376 (June 1986)........

Page(s)

Redfield, et al., Frequent

Bidirectional Heterosexual

Transmission of HTLV-III/

LAV Between Spouses,

Proc. of the Second

Int'l Conf. on AIDS 125

(Paris) (June 1986).... 25,27

Redfield, et al., Frequent

Transmission of HTLV-III

Among Spouses of Patients

With AIDS-Related Complex

and AIDS, 253 J. A.M.A.

1571 (Mar. 1985)....... 26

Revision of the Case

Definition of Acquired

Immunodeficiency Syndrome

for National Reporting --

United States, 34 MMWR 373

[oun Sees atadeeuceer 12,15

Sande, The case against Casual

Contagion, 14 New Enq.

Med. 380 | pods, 1986)... 6,27,28,

scott, et al., Mothers of

Infants with the Acquired

Immunodeficiency Syndrome

Evidence for Both

Symptomatic and

Asymptomatic Carriers, 253

J. A.M.A. 363 (June

BOOM eee cceeeéeeeeenécs Gre

Self-Reported Behavioral]

Changes Among Homosexua]

Men -- San Francisco, 34

MMWR 6]3 (Oct. 1985)...

XxVi

° — EEE — ——_

Tsoukas, et al., Risk of

Transmission of

HTLV-III/LAV From

Human Bites, Proc. of

the Second Int'l Conf.

on AIDS 125 (Paris)

(Fume ADSSPccccceceosss 35

Update: Acquired

Immunodeficiency

Syndrome-United States, 35

MMWR 17 (Jan. 1986).... 19,34

Update: Evaluation of Human

T-Lymphotropic Virus Type

[l1I1/Lymphadenopathy

Associated Virus Infection

in Health Care Personnel -

United States, 34 MMWR 575

(Sept. 1985)......eee--, 3 4

Update: Prospective

Evaluation of Health-Care

Workers Exposed Via The

Parenteral or Mucous-

Membrane Route To Blood

Or Body Fluids From

Patients With Acquired

Immunodeficiency Syndrome -

United States, 34 MMWR 101

(PeD. L9ESPecccccsceess 34

Welliseh, U.C.L.A. Psychological

Study of AIDS, 19 Frontiers

of Radiation Therapy &

Oncology 155 (1985).... 6 3

Page(s)

OTHER AUTHORITIES

AIDS Fear Forced Pupils Out,

N.Y. Times, Oct. 4, 1985,

OS Debs CGibe Gace dbs evs 5

AMA Management Briefs,

AIDS: The Workplace

ageues, S&F CAFS) oscces

CCH, AIDS: Employer Rights

and Responsibilities 29

¢).. ) eee 49

Cimons, 11 Immigrants Face

AIDS Test, L.A. Times, §

at 1, col. 3 (Feb. 4,

POO oeecceees eocescces

Civ. Rts. Comm'n, Accommodating

the Spectrum of Abilities

—_

LA)

*eeeeeesekse#ee#e#e#e#«

Dershowitz, Crucial Steps

in Combating the AIDS

Epidemic; Emphasize

Scientific Information,

N.Y. Times, Mar. 18, 1986,

CS Betis Gee Sibcacteoeoes

(Letter), N. Tim P

Apr 186, at 14,

Page\s)

Eckholm, Screening of Blood

for AIDS Raises Civil

Liberties Issues, N.Y.

Times, Sept. 30, 1985,

AL, GOEc Beecccoceseses 48

Floum, The Federal Rights

of Hanson's Disease

(Leprosy) Patients

at Kalaupapa, 6 U.

Haw. L. Rev. 507

S). . | Se ereyverrrrrrre 56

Gay Women and Risk of AIDS

L.A. Times, Apr. 2, 1986,

Ot VE, GObe Besesceesens

Hemophilia Info. Exchange,

AIDS, HTLV-III and

Hemophilia: Your Questions

Answered, AIDS Update 4

(Apr. 1966) ..cccccccces 14

Hemophilia Info. Exchange,

Hemophilia and Acquired

Immune Deficiency Syndrome

(AIDS): Intimacy and

Sexual Behavior, AIDS

Update 1 (Sept.

LPR OP ccc eesesseceosesess

Jaret, The Wars Within, 169

Nat'l Geographic 70<z

(June 1966) ..ccccccsves

Keppel, Insurers Try to Screen

Out AIDS Cases, L.A. Times,

> & Be. &, GCOS. 3 (CC

Rw) o66e 04406 060% 19

Page(s)

Kristof, More Insurers Screen

Applicants for AIDS, N.Y.

Times, at Dl, col. 1 (Dec.

26, 4) eee eee -}.'

Lieberson, The Reality of

AIDS, N.Y. Rev. 43

les BGs REE ooesecee 5,12

Local Health Officers Meet in

Washington to Make

Recommendations to Mayors,

3 AIDS Info. Exchange 1

tS Perret re Te 39

McKeever, The Number One Issue,

Aids Update Newsletter 1]

LAE. LISS ccvcecesveces

Medical Experts Assail

Initiative on AIDS:

Officials Dismiss Claims

Made by Supporters of

LaRouche-Backed Prop. 64,

L.A. Times, Aug. 3, 1986,

rf 2 — ese Aveo f

Note, AIDS and Employment

Discrimination under the

Federal Rehabilitation Act

of 19%3—and Virginia's

Rights of Persons with

Disabilities Act, 20 U.

Richmond L. Rev. 425

,aas

(LISS) wccccccccccccceccs

CR Region IV Letter Ruling

. ] sr / (VA ba /

Complaint No, )4 +4 5 Io

. m 1} QR

(AUG. 9, LIGGJecccccceccs

OCR Region IX, Your Rights as

a Person with AIDS or ARC

(undated release).....-

Public Health Service Plan

for the Prevention and

Control of the AIDS

Virus: Report of the

Coolfant Conference,

(June 4-6, 1986)

reprinted in principal

art in Health

ep. 341

PD. ec eeedsseeeeeseos 11,19,26,

— €

Cy ee

4 @)

Dp:

]

Shipp, Physical Suttering 15

Not the Only Pain AIDS Ca

inflict, N.Y. Times at AS,

91. 1 (Fer ), 1986)

Smith, et al., High Court Eyed

for Guidance on AIDS as

Handicap, Legal Times 35

(June 30, 1986).......-.

le United States Gove

Manual 1985-86 2/7¢f

(1985)... cece peeeeeess

Crew Leaves set r A >

: tims Interview, N

es Mar 28 Y

U.S. Civ. Rights Comn.,

Accommodating the Spectrum

of Abilities (1983).... 42

-S. Dep't of Justice Office of

Legal Counsel, Memorandum

Re: Application of Section

204 of the Rehabilitation

Act to Persons with AIDS,

AIDS-Related Complex or

AIDS Virus (June 23,

Peer bebe seedeseeeeneer passin

-S. Off. Tech. Assessment,

Review of the Public Health

Service's Response to AIDS:

A_ Technical Memorandum

ee. ) ere

Researcher, N.Y. Times,

July 23, 1986, at D20,

o~ )

U.S. Apologizes to AIDS

BRIEF OF DOCTORS FOR AIDS RESEARCH

AND EDUCATION, AS AMICI CURIAE

INTEREST OF AMICI CURDAE

This brief amici

mitted in support f Re

behalf of Doctors for AIDS Research and

Education (DARE). DARE 1S >omposed of

physicians and public health specialists

who are experts on the disease commonly

Known aS Acquired _ Immune Deficiency

Syndrome (AIDS).

Through this brief, An provide

the Court with accurate and p-to-date

medical facts regarding AIDS order t

rrect the nisinformatio and dist

t — / Wi fe [ ed DY 4 r s@ [ — i. I cv i Aw 4 y

i ed nerein DY otners ‘nese acts

ecome } al only if tne Court ‘ ses

t > 1e a lsSsS e t Del ce tne

The qualifications of the Jivid

als who constitute DARE are set f tt

the Appendix to this brief

applicability of Section 504 of the

Rehabilitation Act of 1973, as amended,

29 U.S.C. § 794, et seg., (the "Act") to

individuals infected with the AIDS

virus.

Resolution of that question should

await a case squarely presenting the

. ° — 7 , a] ‘7 ] rr) ry ] ]

issue, to allow development of a full

even pdDasic avallable medical data demon

Strate that individuals infected with

tne AIDS virus must be encompassed

within the framework of the Act. An ,

aS experts, here present these data.

SUMMARY OF ARGUMENT

€ . pe ) f review in tne [ cac

ase iS narrow, rne yuestions tnis

Tne parties t tnis action have

nsented to the filing of this brief,

and tneir letters of nmsent are pelna

] ur °F -L hic . y

filed with the Clerk of this Court.

Court certified for consideration are

expressly limited to the "disease of

tuberculosis." School Board of Nassau

County, Florida v. Arline, 106 S. Ct.

1633, 1634 (1986). No testimony, otner

evidence or findings below dealt with,

()

or even mentioned, A:DS. The A

focus upon individualized consideration

of the handicapped thus prohibits trans

forming this case about a woman with

tuberculosis into a vehicle for specula

tion on the varied situations of the

over one million Americans who have been

nal

licted with a virus causing the very

different disease of AIDS.

Nevertneless, without adequate

f . 1, e

nrormatlol and ln tne absence of a

. “A [ + Wate -c us Lilia + Aat }

record, retitioners WOULC nave tne

Court, through a broadly based decision,

pre- judge sSues bearing ipon those

' : |

infected with the AIDS virus. Am1Ci

3 Petitioners and those supporting

their petition have tried repeatedly t

(footnote ontinued on next page!

urge the Court to reject efforts to

broaden the scope of the issues pre-

sented and to limit its ruling to the

record before it.

The high mortality rates resulting

from AIDS have created anxiety in a pub

. 4

lLinformed about the disease, an

nterject questions about AIDS into this

ase. Petitioners’ Reply Brief on writ

of Certiorari discussed application of

the Act to AIDS exclusively. Peti

’

tioners Opening Brief discusses at

length the Justice Department's Office

of Legal Counsel's Memorandum Re:

Application of Section 504 of the

Rehabilitation Act to Persons with AIDS,

AIDS-Related Complex or AIDS _Virus

(June 23, 1986) [hereinafter DoJ Memo],

a copy of which Petitioners have lodged

with the Court. All amici supporting

Petitioners refer to the DoJ Memo in

their briefs, and the brief amicus

curiae of Congressman Dannemeyer, et al.

Speaks nore about AIDS than about tuber

‘ulosis.

4 A September 1985 CBS _ poll found

that 47% erroneously think it is possi-

ble to contract AIDS from ae shared

drinking glass, 32% believe in error

that AIDS may be contracted from

(footnote yntinued on next page)

anxiety that many of Petitioners’ amici

attempt to feed.” This hysteria and the

public's misquided exclusive association

of the infection with certain sexual

activities have brought political

kissing, and 28% mistakenly think AIDS

can be contracted from a toilet seat.

Lieberson, The Reality of AIDS, N.Y.

Rev. 43, 45 (Jan. 16, 1986) {hereinafter

Reality]. Such misperceptions have

resulted in television crews walking off

the set where persons with AIDS were

being interviewed, TV Crew Leaves Set of

AIDS Victims Interview, N.Y. Times,

Mar. 28, 1985, at B6, col. 3, and stu

dents being removed from classes because

of suspicions that boyfriends of their

mothers had contracted AIDS. AIDS Fear

Forced Pupils Out, N.Y. Times, Oct. 4,

1985, at Bl, col. 4; see also Korcok,

AIDS Hysteria: A Contagious Side

Effect, 133 Can. Med. A.J. 1241 (Dec.

1985).

5 See, e.q., Brief Amicus Curiae of

Cong. Dannemeyer, et al., at 18-19, nN.

/. Not even the legal system has been

immu. - from such irrational reactions.

See, e.q., Richmond News Leader, Sept.

6, 1985, at 13, col. 1 (reporting drop-

ping of charges against criminal defen-

dant with AIDS rather than having

accused enter courtroom).

: 6 —-

tensions into tne medical arena. Amici

seek to help resolve these tensions by

providing an accurate understanding of

the nature of AIDS.

Amici first describe the nature of

authoritative medica journals. rhe

Studies reported demonstrate that the

AIDS virus 1S 1ifficult t tract

Hence, the Centers for Disease Control

[Ss recommends that individuals who

6 See Medical Experts Assail

Initiative on AIDS: Officials Dismiss

Claims Made _ by Supporters of LaRouche-

Backed Prop. 64, L.A. Times, Aug. 3,

1986, $1, at 3, col. 2; Eu v. Male, No.

341940, slip op. (Sac., Cal. Sup. Ct.

Aug. 8, 1986) (ordering removal of "med-

ical data” -- erroneously asserting that

casual transmission of AIDS virus has

been shown to occur -- from argument in

favor of quarantine initiative in state

Dallot pamphlet).

] See, e.qg., Sande, The Case against

Casual Contagion, 314 New Eng. J. Med.

380 (Feb. 1986) [hereinafter Casual].

8 The CDC is the federal agency

tharged with protecting the nati 'S

{ + + te + rn) ed or next r je)

SN eee

have been infected with the virus be

permitted to continue to work and attend

school.”

Second, Amici demonstrate that per

sons infected with the AIDS virus are

handicapped individuals under the Act's

provisions. Those infected have physi

cal and mental impairments that substan

tially limit major life activities.

They also are regarded by thers is

nav 1 Ng SUCI npa lrments

public health by providing leadershify

and direction in the prevention and con

trol of disease. The United States

Government Manual 1985-86 276 (1985)

4 Recommendations for Preventing

Transmission of Infections with Human

T-Lymphotropic Virus Type III/

lrus In The

Lymphadenopathy-Associated Viru

Workplace, 34 Morbidity a

Weekly Report [hereinafter "MMWR"] 681]

(Nov. 1985) [hereinafter Workplace];

Education and Foster Care of Children

Infected With Human T-Lymphotropic Virus

Type III/ Lymphadenopathy-Associated

Virus, 34 MMWR 517 (Aug. 1985) [herein

after Education].

The Act does not exclude conditions

like AIDS. Instead, it requires that

each person infected with the AIDS virus

be permitted to participate in all fed-

erally funded programs, unless and until

individualized symptoms of the disease

render that person unqualified to per-

form the activity in which he or she is

ARGUMENT

A REVIEW OF THE MEDICAL AUTHORITIES

DEMONSTRATES THAT PERSONS INFECTED

WITH THE AIDS VIRUS ARE HANDICAPPED

INDIVIDUALS.

Those infected with the AIDS virus

are the subject of public ignorance and

infounded fears, just like other handi-

capped persons whom Congress sought to

protect in passing the Act. Absent

legal protection, they are subjected to

irrational discrimination and exclusions

the basis of thelr impairments, at a

cost both to themselves and society.

Understanding what AIDS is shows that

there 1s no reason to treat persons

exposed to the AIDS virus any differ-

ently from those with other handicaps. ~

Acquired Immune Deficiency Sy:

(A S ) Ss the linical mar es

a dysfunct ff the human imm é

aused by a recently discovered

LQ While Amici have felt it

to present the medical facts set

in this brief, the record in the present

case is insufficient to support a deci

sion reaching AIDS issues. i

Commonwealth of Massachusetts _ ¥.

Painten, 390 U.S. 560, 561 (1968) (dis

missing writ because record not suffi

ciently clear and specific to permit

decision of issues).

Ll Gallo, et al., Frequent Detection

and Isolation of Cytopathic Retroviruses

(HTLV-III) from Patients With AIDS and

At Risk For AIDS, 224 Sci. 500 (May

1984). The AIDS virus has received sev-

eral names: Human T-Lymphotropic Virus

Type III (HTLV-III); Lymphadenopathy

\trootnote continued on next page}

The human immune system works through a

complicated process by which certain

white blood cells are able to recognize

and destroy foreign agents that enter

the body. The AIDS virus kills’ the

immune system's T-helper celis -- the

primary warriors of the cell-mediated

immune system?“ leaving those infected

with the virus vulnerable to diseases

Associated Virus (LAV); AIDS-Associated

Retrovirus (ARV); and, most recently,

Human Immunodeficiency Virus (HIV).

Compare Langone, AIDS, 6 Discovery 28,

30 (Dec. 1985) [hereinafter AIDS) and

DoJ Memo, supra note 3 (both using

former terminology) with Coffin, et al.,

Human Immunodeficiency Viruses (Letter),

232 Sci. 697 (May 1986) (proposing HIV

terminology). This brief refers to the

Virus aS Simply the "AIDS virus." Those

whose blood indicates they have been

exposed to the virus are termed

"seropositive.

12 A. Fettner & W. Check, The Truth

About AIDS 44 (1984); Jaret, The Wars

Within, 169 Nat'l Geographic 702, 723

(June 1986) (photographic essay on

immune system and AIDS virus).

(called "opportunistic" infections) that

, >

do not affect healthy people.”

To date, there 1S no vaccine

against nor cure for AIDS. Education 1s

Crucial in bringing about changes in

behavior, the only known means of pre

vention.”

13 As of July 29, 1986, the total

reported number of persons with AIDS in

the U.S. has exceeded 23,000, over half

of whom have died. CDC, Weekly

Surveillance Report - United States AIDS

Program, July 29, 1986 [hereinafter CDC

7/29/86 Rep. ].

14 U.S. Off. Tech. Assessment, Review

of the Public Health Service's Response

to AIDS: A Technical Memorandum 49

(Feb. 1985); see also Public Health

Service Plan for the Prevention and

Control of the AIDS Virus; Report of

the Coolfant Conference, June 4-6, 1986,

at 11-12 [hereinafter Coolfont Rep. |],

reprinted in principal part in 101 Pub.

Health Rep. 341 (July-Aug. 1986); Self-

Reported Behavioral hanges Among

Homosexual Men -- San Francisco, 34 MMWR

613 (Oct. 1985) {hereinafter Behavioral

Changes] (demonstrating that, as a

result of education, the percentage of

homosexual and bisexual men engaging

nly in non-promiscuous sa*e-sex prac

tices rose from 61% in April 1984 to 81%

one year later).

While fully developed AIDS is_ the

best known condition associated with the

AIDS virus, a range of symptoms may

result from infection.* Recently, man-

ifestations of the infection have been

classified pursuant to four groups of

Symptoms and several sub-classes:

15 See Revision of the Case Definition

of Acquired Immunodeficiency Syndrome

for National Reporting -- United States,

34 MMWR 373, 374 (June 1985) [hereinaf-

ter Revision of Definition]; see also

"The Case Definition of AIDS Used by CDC

for National Reporting" (Aug. 1, 1985),

Attachment A to DoJ Memo [hereinafter

CDC Definition].

16 Previously, persons with the AIDS

virus were classed as (1) having either

AIDS; (2) having AIDS-Related Complex

("ARC"), which loosely referred to the

-onjunction of such symptoms as swollen

lymph-nodes, fever, weight loss,

fatigue, and night sweats, Kalish &

Schlossman, The T4 Lymphocyte in _ AIDS,

313 New Eng. J. Med. 112 (July 1985), or

(3) being asymptomatic but testing posi-

tive. See Reality, supra note 4. See

also DoJ Memo, supra note 3, at 9 and

n.20 (using former classification sys

tem).

I) early acute, though t iwsilent, sig!

. a yY T r or , ?

f the disease; (II) asymptomat1 inte

lon; (III) persistent Swoliel Lymp

— Tt .

odes; and (IV) presence of opportu

Stic disease and/or rare types

ancer, including one known as _ Kaposi

ircoma.

Yiauals 1 al I tne

is I at S suffer fr impa e

; " ¥ er < we srr) . i ~ > . .

, i< ’ Yu 4 aa ~ 7 — Cils .e ‘ € xX .

Vel tn —T wn are as y! Dt mat a

rmaiities 1 tneir nemi and rep!

ictive systems aking procreat

it , rt t . 1a), + +hnea co >

ARAMA LL i >| 40 i si c sc ives |

rT rer —_ “

— 21 yy ai

a Oe Classifticatiol! syste I

, c THT y ~ ; Virue T's [|

man T-Lymphotropic Virus Type II

. V3 . rt

Lymphadenopathy-A Associated Virus Infe

T ems

n, 105 Annals Internal Med. 234

986) [hereinafter Classification].

Oo »¢ Ge et Gie, Mothers of Lfil al

tt the Acquired Immunodeficie

+ +o - ‘Q ~ y ext nade

Symptoms classified under Class IV

most severely impair the body's sys-

tems.*? Such patients generally have

Syndrome Evidence for Both Symptomatic

and Asymptomatic Carriers, 253 J. A.M.A.

363. (June 1985) [hereinafter Mothers]

(indicating 30-50% of children born to

seropositive mothers develop AIDS and

that seropositive women who become preg-

nant are at increased risk of developing

Class IV AIDS themselves). As a result,

the hemophiliac community has recom-

mended that those who are seropositive

give "Serious consideration... to

deferring pregnancy." Hemophilia Info.

Exchange, AIDS, HTLV-III and

Hemophilia: Your Questions Answered,

AIDS Update 4 (Apr. 1986); see also

Provisional Public Health Service Inter-

Agency Recommendations for Screening

Donated Blood and Plasma for Antibody to

the Virus Causing Acquired Immunodefi-

ciency Syndrome, 34 MMWR 1 (Jan. 1985)

(advising persons with any evidence of

AIDS virus infection to avoid transmis-

sion through sexual] intercourse and to

refrain from donating sperm, blood,

etc.).

19 Class IV. includes four subclasses:

1) constitutional diseases; 2) neuro-

logic diseases; 3) secondary infections

diseases [including infections of

pathogens such as protozoa (amoeba- like

organisms) or helminthics (worms); the

(footnote continued on next page)

14.

multiple symptoms. While the lymphatic

and hemic systems are the bodily systems

‘

the respiratory system causes the

greatest number of deaths. Pneumocystis

carinii pneumonia (PCP) is present in

58% of all AIDS patients. This uncommon

form of pneumonia and a spectrum of

other respiratory infections frequently

bring about shortness of breath and

severe chest pains.

most common are pneumocytis carinii

pneumonia, diseases caused by fungi

(molds such as candidiasis or

cryptococcus), viral infections (like

cytomegalovirus and herpes simplex) and

bacterial infections (such as

mycobacterium)]; and 4) other clinical

symptoms not classifiable in other

categories. See Classification, supra

note 17; see also Revision of Def ini-

tion, supra note 15.

20 Brettman, Serologic and Epidemio-

logic Assessment of AIDS Risk, 3 Infec-

tions in Med. 18, 20 (Jan. 1986)

[hereinafter Serologic Assessment ]}.

21 PCP is the most prevalent opportun-

istic disease affecting those with AIDS.

(footnote continued on next page)

15.

Neurological disorders, including

dementia, AIDS-virus induced encepha-

litis, and motor and behavioral changes

are also common. ** In addition, various

bacteria and fungi attack the cardiovas-

cular system, often resulting in

congestive heart and renal failure.*?

Visual abnormalities, and even

blindness, result from viral eye’ infec-

tions, *4 while the intestinal track is

Although persons with adequately func-

tioning immune systems are fully able to

defend themselves against PCP, it has

been fatal to 45% of those AIDS patients

stricken with ‘, Daul, et al.,

Acquired Immnune Deficiency Syndrome:

An Update and Interpretation, 51 Annals

Allergy 351, 352-53 (Sept. 1983).

22 Navia, et al., The AIDS Dementia

Complex: I. Clinical Features and II.

Neuropathology, 19 Annals Neurology 517

& 525 (Apr. 1986).

23 Cohen et al., Congestive Cardiomyo-

pathy in Association with the Acquired

Immunodeficiency Syndrome, 315 New Eng.

J. Med. 628 (Sept. 1986).

24 Friedman et al., Cytomegalovirus

Retinitis: A Manifestation of the

(footnote continued on next page)

16.

attacked through persistent month-long

bouts of diarrhea.“ In fact, it is

fair to say that there is not a single

system of the body that is not debili-

tated by the ubiquitous infections to

which the body is susceptible after

infection by the AIDS virus.

Clearly, these conditions dras-

tically affect most major life activi-

ties. The cited studies illustrate that

people with AIDS may have difficulty

caring for themselves, performing manual

tasks, walking, seeing, hearing, speak-

ing, breathing, learning and working,

among other life functions.

Acquired Immune Deficiency Syndrome

(AIDS), 67 Brit. J. Opthamology 372

(June 1983).

25 Serologic Assessment, supra

note 20, at 20.

The most common way of determining

whether someone has been exposed to the

AIDS virus is to investigate whether

antibodies to the virus (indicating pre-

vious infection) are present in the per-

son's blood. °°

Although no one. yet

knows exactly how many of the persons

testing positive for antibodies to the

AIDS virus ultimately will develop cases

of AIDS, *’ estimates run to between 20%

26 See Blattner, et al., Epidemiology

of Human T-Lymphotropic Virus Type III

and the Risk of Acquired

Immunodeficiency Syndrome, 103 Annals

Internal Med. 665 (Nov. 1985). At pres-

ent, a person's blood is determined to

have antibodies to the AIDS virus after

repeated trials with one test (the ELISA

test), followed by a more specific con-

firmatory test (Western Blot). Id. (The

confirmatory test is necessary because

the ELISA test has a significant poten-

tial for error. Carlson, et al., AIDS

Serology Testing in Low- and _ High-Risk

Groups, 253 J. A.M.A. 3405 (June 1985),.)

27 Norman, AIDS Trends: Projections

From Limited Data, 230 Sci. 1018 (Nov.

1985) [hereinafter AIDS Trends].

18.

and 303.78

Between 1 and 1.5 million people in

the United States are estimated to be

seropositive at present.” The impact

of AIDS on the economy will be enormous

if all infected with the AIDS virus’ can

be summarily excluded from the workforce

while they are able to work. °°

28 Coolfont Rep., supra note 14, at 5,

7 (factors determining expression and

progression of the disease in individ-

uals largely unknown); see Update:

Acquired Immunodeficiency Syndrome-

United States, 35 MMWR 17 (Jan. 1986)

{hereinafter Update]. One interesting

study showed that four years after 39

newborns received transfusions of plasma

from a single donor who, to his igno-

rance, had been infected with the virus,

two had died from AIDS and three had ARC

symptoms, but the other four _ were

healthy. Lange, et al., HTLV-III/LAV

Infection in Nine Children Infected by a

Single Plasma Donor, 154 J. Infectious

Diseases 171 (July 1986) [hereinafter

Nine Children].

29 Coolfant Rep., supra note 14, at 4;

Update, supra note 28.

30 Among those Americans thus far

diagnosed with fully-developed AIDS, 40%

(footnote continued on next page)

19.

The incubation period for onset of

clinical AIDS is several years after

infection, with an average of 4.5

years.°>! Individuals who ultimately

will develop full AIDS are clearly

employable during the prolonged incuba-

tion period. °* Indeed, many persons who

are infected with the viruS may

nonetheless live disease-free all their

lives.°° For example, of the

are minorities (25% are Black and 14%

are Hispanic). See CDC 7/29/86 Rep.,

Supra note 13; Bakeman, et al., AIDS

Risk-Group Profiles in Whites and

Members of Minority Groups, 315 New Eng.

J. Med. 191 (July 1986). All but 7% of

those currently infected in the U.S. are

male. Women and AIDS, Newsweek 60

(July 14, 1986).

31 Periods of up to 7 years have been

reported thus far. Peterman, et al.,

Epidemiology of the Acquired

Immunodeficiency Syndrome (AIDS), 7

Epidemiological Rev. 1 (1985); AIDS

Trends, supra note 27, at 1018.

32 Workplace, supra note 9.

33 Health & and Pub. Policy Comm'n,

Amer. C. Physicians, & the Infectious

(footnote continued on next page)

20.

approximately 20,000 hemophiliacs in the

United States (90% of whom are now

seropositive), only about 100, or 2%,

have fully developed Aips.>* This is

particularly significant because most

hemophiliacs were infected at the earli-

est stages of the epidemic as a result

of direct injections of infected

: 35 ais

lood. Thus, the data demonstrate

Diseases Soc'y Amer., Position Paper:

Acquired Immune Deficiency Syndrome, 104

Annuals Internal Med. 575 (Apr. 1986)

[hereinafter Position Paper]; see also

Mothers, note 18, Supra.

34 Levine, The Acquired Immuno-

deficiency Syndrome In Persons With

Hemophilia, 103 Annais Internal Med. 723

(Nov. 1985); see also Melbye, et al.,

Long-Term Seropositivity For Human

T-Lymphotropic Virus Type III in Homo-

sexual Men Without the Acquired Immuno-

deficiency Syndrome: Development of

Immunologic and Clinical Abnormalities,

104 Annals Internal Med. 496

(Apr. 1986).

35 Evatt, Coincidental Appearance of

HTLV-III/LAV Antibodies in Hemophiliacs

and the Onset of the AIDS Epidemic, 31

New Eng. J. Med. 483 (Feb. 1985); AIDS,

Supra note ll, at 50.

21.

that almost all individuals exposed to

the virus are capable of many productive

years in the workplace and that,

throughout their work-lives, many will

remain just as productive as their co-

workers who have not been infected.

This fact is recognized by the gov-

ernment's own CDC,

B. The AIDS Virus Is Not Casually

Transmitted.

The AIDS virus is not spread in the

air by droplet infection as are the com-

mon cold, influenza or tuberculosis. >’

Fragile and killed by most household

36 Workplace, supra note 9; see also

Recommendations for Preventing

Transmission of Infection with Human

T-Lymphotrophic Virus Type III/

Lymphadenopathy-Associated Virus During

Invasive Procedures, 35 MMWR 221

(Apr. 1986) (CDC explanation of how sur-

geons with AIDS can continue to perform

their duties if they -take limited

specified precautions).

37 See Education, supra note 9.

22.

Gisinfectants including, apparently,

38 ee

soap and water, it is spread only via

specific routes Dy transmission of

infected blood, semen or vaginal fluids

(and, possibly, mother's milk) from one

39 ear

person to another. Transmission by

either semen or blood accounts for vir-

tually all reported cases.

38 Grouse, HTLV-III Transmission, 254

J. A.M.A. 2130 (Oct. 1985) [hereinafter

Transmission]; see also Recommendations

for Providing Dialysis Treatment to

Patients Infected With Human T-Lympho-

trophic Virus Type Il1I1/Lymphadenopathy-

Associated Virus, 35 MMWR 376 (June

1986) (no extraordinary precautions nec-

essary to sanitize dialysis machine

after use by AIDS patients).

39 There is no evidence of insect-

borne transmission of the virus, such as

by mosquitoes. Drotman, Insect-Borne

Transmission of AIDS?, 254 J. A.M.A.

1085 (Aug. 1985).

40 The only reported exception to

transmission by blood, semen or vaginal

fluids is a single instance of a mother

who possibly transmitted AIDS to her

infant through breast milk.

(footnote continued on next page)

23.

The routes for transmission of the

AIDS virus are limited in nuaber.*"

Recommendations for Assisting in the

Prevention of Perinatal Transmission of

Human T Lymphotropic Virus Type IIi/

Lymphadenopathy-Associated Virus and

Acquired Immunodeficiency Syndrome, 34

MMWR 721, 722 (Dec. 1985) [hereinafter

Perinatal]; see DoJ Memo, supra note 3

at 1l, n.28. Of course, newborns have

immature immune systems. See Davis,

Histopathological Changes in the Thymus

Gland, 12 Annals N.Y. Acad. Sciences

493, 495 (1986).

4) In order to protect the blood sup-

ply, in 1983 the CDC looked at clusters

of AIDS cases and determined certain

categories of people as being at higher

risks for the disease (these “high-risk”

groups were then listec as hemophiliacs,

homosexual/bisexual men with multiple

sex partners, intravenous (IV) drug

users and Haitians). Prevention of

Acquired Immune Deficiency Syndrome

(AIDS): Report of Inter-Agency

Recommendations, 32 MMWR 101 (Mar. 1983)

{hereinafter AIDS Prevention.]. Unfor-

tunately, identification of risk qroups

as opposed to risk behaviors has led

some to misperceive the disease as being

caused by being, or being in the proxim-

ity of, a homosexual or a drug user,

rather than being a disease to which

certain acts (some of which are’ sexual)

render one susceptible. For example,

(footnote continued on next page)

24.

Anal intercourse has been the predomi-

nant route among cases documented to

42 ; ' ;

; However, transmission via

despite public perceovtions to the con-

trary, lesbians are the group least

likely to become infected. Gay Women

and Risk of AIDS, L.A. Times, Apr. 2,

1986, at Vl, col. 2.

Some still cling to the “high-risk

group" terminology and simultaneously

claim that many cases do not fall into

any known risk group, a claim which

seems calculated to create concern about

possible "unknown" routes of transmis-

sion. See, e.g., DOJ Memo, supra

note 3, at 4, n.3; see also note 55,

infra.

42 Transmission by anal intercourse is

not limited to the male homosexuals’ and

bisexuals, but also poses a risk of

transmission in the heterosexual commu-

nity. Melbye, et al., Anal Intercourse

As A Possible Factor in Heterosexual

Transmission of HTLV-III to Spouses of

Hemophiliacs, 312 New Eng. J. Med. 85/7

(Jan. 1985); Redfield, et al., Frequent

Bidirectional Heterosexual Transmission

of HTLV-III/LAV Between Spouses, Pro-

ceedings of the Second Int'l Conf. on

AIDS (Paris) [hereinafter Paris Conf.

Proc.] 125 (June 1986) [hereinafter

Bidirectional].

Anal intercourse poses more of a

risk for transmission than vaginal

(footnote continued on next page)

23.

vaginal intercourse also is_ known to

occur. *? A single penile-vaginal

intercourse because the wails of the

rectum contain numerous’ blood vessels

and are more easily torn. See AIDS,

supra note ll.

43 Kreiss, et al., Antibody to Human

T-Lymphotropic Virus Type III in Wives

of Hemophiliacs, 102 Annals’ Internal

Med. 623 (May 1985); Redfield, et al.,

Frequent Transmission of HTLV-III Among

Spouses of Patients With AIDS-Related

Complex and AIDS, 253 J. A.M.A. 1571

(Mar. 1985). Widespread misinformation

about the manner of transmission has led

many erroneously to believe that only

those in high-risk groups will be

exposed to AIDS virus. Nonetheless, a

greatér proportional - increase in

heterosexual transmission is expected.

By 1991, it is estimated that 7,000

fully developed AIDS cases (9% of the

total in the U.S.) will be the result of

heterosexual transmission. Coolfont

Rep., supra note 14, @&t vs Bae In some

African countries, vaginal intercourse

already is believed to be the primary

method of transmission. Mann, et al.,

Prevalence of HTLV-III/LAV in Household

Contacts of Patients With Confirmed AIDS

and Controls in Kinshasa, Zaire, 256

J. A.M.A. 721 (Aug. 1986). Further,

while in 1983, 71% of the AIDS cases in

Haiti were among individuals in groups

regularly engaging in high-risk activi-

(footnote continued on next page)

26.

Wal sche Marto LE MNOE

bam OC Be

et ea ee th.F tl ee ty

ede etl 4a elt Fe Te LS

pty AL

ee ee ee

aE EY Ce a Rag OM Nellie hij | AIM TA be

contact may be sufficient.”

There is a public misconception

that any personal bodily contact mey

spread the disease. However, kissing

has never been documented as a transmis-

)

sion route. This is also true for

ties, by 1985, 71% of the cases were

among individuals outside such groups.

Women and AIDS, supra note 30; see also

Culmeck, et al. Seroepidemiological

Studies of HTLV-III Antibody Prevalence

Among Selected Groups _ of Heterosexual

Africans, 254 J. A.M.A. 2599 (Nov. 1985)

(16% of heterosexuals in Zaire and

Rwanda infected). But see

Female-to-Male Transmission of HTLV-III

(Letters) 255 J. A.M.A. 1702 (Apr.

1986). Thus, it is important that deci-

sions with an _ impact upon persons

exposed to the AIDS virus be made for

the population as a whole and not be

based upon unscientific moral judgments

of certain high-risk group behavior.

44 Peterman, Study Documents Hetero-

sexual Transmission, 1 AIDS Alert 5 (May

1986); Some experts believe the disease

can be readily transferred

heterosexually. Women and AIDS, supra

note 30; Bidirect. nal, supra note 42.

45 Casual, supra note 7; see also

Infrequency of Isolation of HTLV-II

(footnote continued on next page)

au.

te. 46

Oral-genital sex.

The most direct route of transmis-

sion is through exchange of blood prod-

ucts. This can occur when intravenous

(IV) drug users share infected needles.

In addition, until AIDS was recognized,

and the nation's’ blood supply tested,

transmission occurred through the

transfusion of contaminated blood.

Finally, newborn infants born of

infected mothers may receive contami-

nated blood in utero. *’

Virus From Saliva In AIDS, 313 New Eng.

J. Med. 1606 (Dec. 1985); HTLV-III

Exposure During __ Cardiopulmonary

Resuscitation, 313 New Eng. J. Med. 1606

(Dec. 1985) (paramedics giving mouth-to-

mouth resuscitation to infected individ-

uals tested negative for antibodies to

the virus).

46 See Casual, supra note 6; Lymon, et

al., Minimal Risk of Transmission of

AIDS-Associated Retrovirus Infection by

Oral-Genital Contact, 255 J. A.M.A. 1703

(Apr. i986).

47 See Mothers, supra note 18.

28.

i ET SIP

Transmission to hemophiliacs has

been contained through new blood treat-

48 ;

ments. Because condoms appear tc be

effective in preventing transmission of

; 49

the virus via semen, and because anal

intercourse can be replaced with safer

“ 50 oe

sexual practices, transmission among

male homosexuals and bisexuals’ has

slowed as those groups have responded to

48 Case for Concluding Heat Treated

Licensed Anti-Hemophiliac Factor Is Free

From HTLV-III, Lancet 890 (Oct. 19,

1985).

49 Condoms Prevent Transmission of

AIDS-Associated Retrovirus, 255

J. A.M.A. 1706 (Apr. 1986). Indeed, an

agency funded in part by a grant from

the U.S. Department of Health and Human

Services recommends condoms as the only

necessary precaution for sexual prac-

tices by hemophiliacs. Hemophilia Info.

Exchange, Hemophilia and Acquired Immune

Deficiency Syndrome (AIDS): Intimacy

and Sexual Behavior, AIDS Update 1

(Sept. 1985).

50 CDC, 1985 STD Treatment Guidelines,

34 MMWR (Supp.) 75S (Oct. 1985) (iden-

tifying safe sexual behaviors).

29.

education. ~- Transfusion-associated

transmission also has been contained

through development of antibody tests.°¢

51 Behavioral Changes, supra note 14.

But see Moss et al., Progression to AIDS

in Men Seropositive for LAV/HTLV-III:

One-year Followups of San Francisco

General Hospital Study, Paris Conf.

Proc. 152 (June 1986) [hereinafter

Progression]; Coolfont Rep., supra

note 14, at 7, 12 (IV drug abusers are

the major reservoir for transmission to

the community at large). Because of the

illicit nature of IV drug users' activi

ties, they are the most difficult group

to reach with education efforts. Id.;