Public Policy and Public Health intersect in Public Health Law.
Public Health law is a field that focuses legal practice, scholarship, and advocacy on issues involving the government’s legal authorities and duties “to ensure the conditions for people to be healthy” (Gostin, 2008). Public health law has been a cornerstone in infectious disease control, food safety, occupational health, injury prevention and emergency preparedness and response. However, it does not always reflect the current standards of health care. Advances in technology and the evolution of healthcare practice has changed the landscape of public health, public health law has failed to keep up with these changes. The failure to respond appropriately to the new dynamics of public health effects public policy and subsequently influences patient care. An example of the influence of public policy on public health is the criminalization of HIV in The United States.
The beginning of the HIV epidemic in the United States, influenced states to enact public health laws to protect HIV negative individuals. These laws were designed to penalize people infected with HIV who knowingly infected other individuals. The laws were often vague. The language of these laws stigmatized people living with HIV. Congress passed a law in 1990 that provided HIV-related health care funding to the states.
One is the condition that they criminalize HIV transmission. This is known, as the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, which provides states with funds for AIDS treatment and care, required every state to certify that its criminal laws were adequate to prosecute any HIV-infected individual who knowingly exposed another person to HIV (CDC, 2017). Although the Care Act clarified the purpose of the laws, many states failed to adjust the language to respond to CDC/HRSA recommendations. Many of the laws designed to protect people actually made them more vulnerable due to a lack of understanding of the HIV disease state, modes of transmission, Highly Effective Anti-Retro Viral Therapy, and HIV prevention methodologies. Instead of these laws being based on relevant best practice, many of these laws were based on inadequate or incomplete science, lack of understanding about the routes of transmission of the disease and the risk factors, and public fears.
As result, the laws: Reinforce stigma surrounding HIVCreate an atmosphere of fear around knowing your HIV statusDo not adopt best practices in conjunction with new science and medical innovationsAs result of inadequate or incomplete science, lack of understanding about the routes of transmission of the disease and the risk factors, and public fears HIV criminalization laws have been imposed people living with HIV. Currently, Thirty-four states and two U.S territories have laws concerning potential exposure to HIV or non-disclosure of HIV status. Even in the absence of transmission of the diseases, sentences can range between 10-30 years for these offenses. The policy issue with these public health laws is that these laws are not representative of the current state of science related to the HIV disease state. These laws have not evolved as science and technology have transitioned HIV into a manageable chronic disease. The laws do not take into account the multiple approaches utilized for HIV prevention including; treatment as prevention, pre and post-exposure prophylaxis, and effective behavioral interventions. These laws undermine the progress made in eliminating stigma and routinizing HIV testing by scaring people away from learning their status and continuing to stigmatize people living with HIV/AIDs (PLWHA).
Another weakness of the current HIV criminalization laws is that they perpetuate stigma and shame. Moreover, because the federal government mandates a law but does not directly address the penalties associated with the law. State penalties very across the country. For example, an Iowa statute charges offenders with 25 years in prison for infecting someone with HIV. This state statute does not consider that the vast majority of people who are infected with HIV are infected by accident. Severe penalties; such as the Iowa Statute limit the opportunity to prevent HIV by increasing stigma around HIV and mistrust of health and public health providers. The increased stigma and mistrust of health and public health provide is more likely to contribute to increased incidence of HIV infection as result of a law designed to prevent HIV infection.The National HIV/AIDS Strategy, released by the White House in July 2010, provides some guidance regarding the issue of criminalization, noting that in some instances, existing HIV exposure laws may need to be re-examined.
An example of such a case currently is being heard in Ohio, the Supreme Court of Ohio will hear oral arguments in State of Ohio v. Batista, a constitutional challenge to an Ohio law (R.C. 2903.
11(B) (1)), which makes it a felony assault for a persons living with HIV to engage in sexual conduct without prior disclosure of their HIV status. Orlando Batista was convicted of felony assault for failing to disclose his HIV-positive status to his girlfriend before having sex with her and was sentenced to 8 years imprisonment, the maximum allowed under the law. The Ohio First District Court of Appeals affirmed the conviction. The grounds to challenge this case highlights the lack of science being used to perpetuate federal law. Batista argues that the law is not rationally related to its purpose of preventing the spread of HIV. This is because criminalization does not reduce the rates of HIV transmission and perpetuates outdated stigma against people living with HIV.
In fact, the law criminalizes conduct that carries a negligible risk of transmissions such as condom use or viral suppression through antiretroviral treatment. Batista also argues that there is no rational basis for the law to distinguish between HIV and other communicable diseases (such as Hepatitis C). In addition, Batista argues there is no rational basis to distinguish between the modes of transmission of HIV by criminalizing transmission through sexual conduct but other modes of transmission such as sharing needles. That is to say, that because Batista was and is currently virally suppressed he posed no threat to his partner.The Centers for Disease Control and Prevention (CDC) this week stated there is “effectively no risk” of an HIV-positive person with an undetectable viral load — the amount of HIV in blood — sexually transmitting the virus to an HIV-negative partner.In consideration to the CDC statement and response to advances in technology and the evolution of healthcare practice and the changing landscape of public health, several states have moved to change the legal statutes that criminalize HIV transmission.
The State of California is the process of changing the law to better reflect science and reduce stigma-surrounding HIV. Under current California law, it is felony offense punishable by 3 to 8 years in prison. The new law, which was signed on Oct. 6 and takes effect January 1, changes this to a misdemeanor, carrying a 6-month prison term — the same punishment as knowingly exposing someone to other communicable diseases (Moreau, 2017). The Bill signed into law by Governor Brown lowers the former law from a felony to a misdemeanor the crime of knowingly exposing a sexual partner to HIV without disclosing the infection (McGreevy, 2017). This progressive approach is in response listening to science and the dynamic needs of community members. This decision takes into consideration the advances in health care that acknowledges to multiple tools to suppress patients’ viral loads and prevention science.My recommendation to public health policy relating to public health and HIV criminalization is that HIV laws across the country need to be updated to be responsive to the Advances in technology and the evolution of healthcare practice has changed the landscape of public health, public health law has failed to keep up with these changes.
The federal legislature should guide the process by updating the CARE Act mandate requiring the condition that states criminalize HIV transmission. This update should provide states and jurisdictions with best practice science and recommend policy change regarding the criminalization of HIV. This language should be standardized across the country to address the inequity of the severity of the law and its repercussions.
Public policy/law should be guided by science, the government should ensure that relevant, and data is utilized to influence public policy. The new national policy should be retroactive to address sentences carried out across the US under a myriad of laws.In order to garner support for this public policy amendment, it is necessary to identify and engage key stakeholders. I chose to start with the National Association of State and Territory AIDS Directors (NASTAD). NASTAD is a non-partisan non-profit association that represents public health officials who administer HIV and hepatitis programs in the U.S.
and around the world. Their mission is to end the intersecting epidemics of HIV, viral hepatitis, and related conditions. They do this work by strengthening domestic and global governmental public health through advocacy, capacity building, and social justice (NASTAD, 2017). Engaging Health Departments at the local and state level can help drive changes to public policy. Public Safety and Public Health intersect in Public Health Law. It is imperative that public health policy evolves in tandem with healthcare. In order to effectively respond to the evolving healthcare state and the dynamic needs of patients’ key stakeholder engagement is necessary. Stakeholder engagement and medical innovation can impact public policy and effectively change antiquated policies.
Reference:Gostin LO. Public Health Law: Power, Duty, Restraint. 2nd ed. Berkeley, CA:University of California Press; 2008: 4.Lehman, JS, Carr, MH., Nichol, AJ, et al.
Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States. AIDS Behav 2014.Mathews, J. (2017, November 07). Science battles politics in growing state-by-state debate over HIV as a crime. Retrieved November 22, 2017, from https://www.cnbc.
com/2017/11/07/aids-drugs-success-forces-states-to-rethink-harsh-hiv-felony-charges.htmlMcgreevy, P. (2017, October). Retrieved January 22, 2018, from http://beta.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-gov-brown-downgrades-from-felony-to-1507331544-htmlstory.
htmlMoreau, J. (n.d.). New California law reduces penalty for knowingly exposing someone to HIV.
Retrieved January 22, 2018, from https://www.nbcnews.com/feature/nbc-out/new-california-law-reduces-penalty-knowingly-exposing-someone-hiv-n809416NASTAD (2017, October 17), Guidelines to end HIV Criminalization in Public Health Practice. Retrieved January 28, 2018, from https://www.
d.). Understanding State Departments of Health and Corrections Collaboration A Summary of Survey Findings — Part II and Strategic Guidance towards ending criminalization-related stigma and discrimination. Retrieved January 28, 2018, from https://www.nastad.org/sites/default/files/decriminalization_findings_.pdfRyan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 104 Stat.
576).Testimony for Public HearingNational Association of State and Territory AIDS DirectorsJanuary 28, 2018Matthew Tochtenhagen312 23rd StreetWest Palm Beach, Florida, 33407 Guidelines to End HIV Criminalization in Public Health Practice Good Afternoon Committee Members. My name is Matthew Tochtenhagen and I a student at Southern New Hampshire University and a health policy advocate for people living with HIV/AIDS. I am here today to address public policy on the criminalization of HIV in The United States.Current public policy on the criminalization of HIV does not reflect advances made in science and technology, nor does it appropriately respond to the current disease state.
Current laws limit progress in HIV prevention and care by:Reinforcing stigma surrounding HIVCreating an atmosphere of fear around knowing your HIV statusNot adopting best practices in conjunction with new science and medical innovationsAs result of inadequate or incomplete science, lack of understanding about the routes of transmission of the disease and the risk factors, and public fears HIV criminalization laws have been imposed people living with HIV, frequently in the absence of HIV transmission or even a serious risk that it could occur. The policy issue with these public health laws is that these laws are not representative of the current state of science related to the HIV disease state. These laws have not evolved as science and technology have transitioned HIV into a manageable chronic disease. The laws do not take into account the multiple approaches utilized for HIV prevention including; treatment as prevention, pre and post-exposure prophylaxis, and effective behavioral interventions.I am speaking as an advocate, an educator, and also a person living with HIV (PLWH). As a PLWH I am aware of the stigma surrounding the disease.
Outdated public health policy is not responsive to the current state of HIV. HIV, when treated is a chronic disease. The Centers for Disease Control states: That “When (antiretroviral treatment) results in viral suppression, defined as less than 200 copies/ml or undetectable levels, it prevents sexual HIV transmission.”In other words, having one’s HIV suppressed to undetectable levels prevents transmission (CDC,2017).
PLWH should not be subjected to public policy that marginalizes the population by imposing criminal sanctions on behaviors. I am advocating for equity in public health policy and moving adopting a national rule similar to the California statute that treats HIV transmission the same as all communicable diseases. The new California statute takes into consideration advancements made in HIV treatment and care and is effective of best practices surrounding the current disease state.Amending current state statutes can effectively reduce the risk of HIV transmission.
It can empower people at risk to test for HIV without fear of repercussion. Moreover, a progressive policy can ramp up prevention efforts such as Treatment as Prevention (TASP) and Pre and Post-exposure prophylaxis. These efforts have been proven to stop the spread of HIV. Outdated public policy can increase the risk of HIV transmission by perpetuating an environment of stigma and fear. I am asking that you, as public health leaders consider scientific discovery and the current state of HIV and go back to your jurisdictions and advocate for policy change. Policy change at the state level can influence policy at that the national level. It is my recommendation to the group that we advocate for a standardized national public health statute rooted in science that treats HIV no different than any other communicable disease.
In addition, we must advocate the Department of Health and Human Resources to amend language requiring statutes criminalizing HIV transmission as a caveat to federal funding under the Ryan White Care Act.It is important that we encourage people at risk of HIV to know their status and seek preventative care and for PLWH to actively participate in treatment and care to achieve an undetectable viral load. These initiatives; Prevention, Testing, Treatment, and Care, can prevent ongoing transmission of HIV in the United States. Thank you for your time and consideration.Sincerely,Matthew Tochtenhagen