Volume 3, Number 1
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Answering the Call: The Role of Lawyers in the Fight Against AIDS
June 5, 2006 marked the twenty-fifth anniversary of the first AIDS diagnosis in the United States. Twenty-five years, and there remains no cure for AIDS. New infections occur daily; another generation is being victimized; and, of the more than 1,000,000 people living with HIV in the United States, it is estimated that nearly one-third remain unaware of their infection.
Great progress has been made in understanding HIV -- the virus that causes AIDS -- and in developing medical interventions and social services programs that enable people to live productive lives with the disease. Despite this progress, however, the stigma and discrimination that people living with HIV/AIDS must face in nearly every aspect of their lives create obstacles to securing treatment, construct barriers to obtaining services, and engender fear in their communities. It is widely believed among experts that this fear, coupled with the rampant stigma and discrimination that manifests in communities large and small, urban and rural, in red states and in blue, results in individuals not availing themselves of HIV testing to learn whether they have been infected. Absent knowledge of their disease, infected persons may unknowingly pass the virus to others. HIV thus continues to spread.
Lawyers have a critical role to play in reducing the spread of HIV. Indeed, overcoming stigma and discrimination is precisely what the law enables society to do; providing instruments to vindicate the rights of those who are discriminated against and to combat stigma with principles of fairness and logic. By using the law effectively to overcome the stigma and discrimination faced by this community, lawyers can help to reduce the fear associated with HIV/AIDS. With less fear, people can be more easily encouraged to get tested, and thus obtain the services they need and the education that will assist in preventing further transmission of the virus.
The U.S. Centers for Disease Control and Prevention (CDC) recognized this important intersection between law and public health, when in its Revised Guidelines for HIV Counseling, Testing and Referral, 1 it recommended that “Clients who test positive should be referred to legal services as soon as possible after learning their test result for counseling on how to prevent discrimination in employment, housing, and public accommodation by only disclosing their status to those who have a legal need to know.” 2 The CDC adopted this guideline primarily to combat pervasive fear of AIDS-related stigma and discrimination, documented as a significant barrier to HIV testing, which is an essential element in breaking the chain of new infections.
Lawyers experienced in AIDS discrimination cases had proposed the new guideline. They argued that, because AIDS discrimination typically begins with clients’ unnecessary disclosure of their HIV status to employers, landlords, or others, prompt referral to legal services following a positive HIV test prevents such disclosures and thus prevents discrimination. Specifically, preventing discrimination accomplishes two vital public health goals: 1) to preserve clients’ access to employment, housing, health insurance, and health care, all of which are crucial to maintaining their well being in dealing with HIV; and 2) to increase the number of persons coming forward to be tested -- a critical CDC goal, because once people learn their HIV status, HIV prevention counseling can be given, resulting in fewer additional infections. Thus, prompt legal services play a central public health role in preventing HIV infection. 3 Never before had the CDC recommended an immediate referral to legal services based on someone having been diagnosed with a particular disease. This extraordinary recommendation underscores the unique challenges faced by people living with HIV/AIDS as well as the importance of legal services to stopping the spread of the disease.
In fact, people living with HIV/AIDS face a wide array of legal challenges, many of which may not immediately jump to mind for those that are unfamiliar with the disease and its impact. In addition to issues highlighted by the CDC, such as employment discrimination and access to health care, many must deal with considerable challenges in areas such as bankruptcy and debt counseling, immigration, privacy and confidentiality, government benefits, family law, and a host of others. If it is difficult for unwary attorneys to identify these issues, then one can easily understand why people living with the disease and who do not have the training to predict their own legal needs only do so once significant problems develop.
To answer the CDC’s call for prompt legal services as an HIV prevention measure, the American Bar Association is undertaking a new initiative to educate people with HIV/AIDS about their legal rights and give them the resources and advocacy tools they need to protect those rights. A central feature of this initiative involves a public service project developed by the ABA Young Lawyers Division, titled Answering the Call; a project that has now found a permanent home with the ABA’s AIDS Coordinating Committee and AIDS Coordination Project.
Answering the Call is an ambitious project by any measure. It was designed to educate young lawyers nationwide about AIDS and the law, and to encourage them to reach out to the community of persons living with the disease 4 . One of the ways in which lawyers are encouraged to reach out is by implementing HIV Legal Check-Up, a diagnostic legal needs assessment program that bridges the gap between the CDC’s recommended referral to legal services and the effective delivery of those services by the legal community. With Check-Up, an attorney provides a consultation to identify the legal needs of someone living with HIV/AIDS and to thereafter refer the individual to appropriate services. Check-Up has been successfully used to identify and address the legal needs of many people living with HIV/AIDS before these issues manifested into more serious problems. The program has been lauded for its unique capacity to identify, on average, one to two previously unrecognized legal issues for each person it is used to serve. Check-Up is a flexible program that can be readily tailored to suit the needs and resources of any community. It is a powerful mechanism for identifying incipient legal needs before they become problematic; for promoting the more effective use of legal services resources; for reducing stigma and discrimination; and for ensuring access to treatment and prevention counseling.
There are any number of ways in which lawyers, law firms, bar associations, and other entities in the legal community can use the tools and resources at their disposal to assist those living with HIV/AIDS. Such assistance is vital to curtailing the spread of the disease, and ultimately, to ending the epidemic.
Seth D. Levy is Of Counsel with the Los Angeles office of Davis Wright Tremaine LLP. He is the liaison between the ABA Young Lawyers Division and the ABA AIDS Coordinating Committee, and recently completed a term of service as the Young Lawyers Division’s Public Service Coordinator, where he led the development of Answering the Call.
2 Id. at 37.
3 Letter from the Los Angeles City Attorney’s AIDS/HIV Discrimination Unit to the CDC Re: Public Comments – 10/17/00 Draft Revised Guidelines for HIV Counseling, Testing and Referral (11/26/00), available by request from firstname.lastname@example.org.