Making North Dakota the first state to confine people
suspected of having HIV, Governor Edward Schafer today signed a controversial
measure that gives judges the power to detain a person without a hearing, and
force that person to take a blood test for HIV.
The American Civil Liberties Union, which is considering a legal
challenge, said the law serves no public health purpose, and is a serious
violation of due process and the Fourth Amendment's guarantee against
unreasonable searches and seizures.
"This law is way over the top," said Keith D. Elston, executive director
of the ACLU of the Dakotas. "It completely violates people's most basic
rights, while addressing none of the health concerns raised."
Under the measure, a person who believes that another individual has
"significantly" exposed them to blood may secure a state court order
confining that individual for up to five days, during which time a judge can
rule on whether to order a HIV test.
The legislation specifies a "person" as a police officer, firefighter,
emergency medical technician, health care worker or a patient -- in other
words, practically anyone could be detained. The law also allows a person to
be imprisoned even though no criminal charges have been filed.
"This measure gives courts the unprecedented power to jail doctors,
patients and ordinary citizens for something as unsubstantiated as a hunch,"
said Matt Coles, director of the ACLU's National AIDS Project.
"Even people accused of the most heinous crimes are jailed only after
some official has determined there is probable cause," Coles said. "Then they
are entitled to a fair hearing within a couple of days. Surely, the
possibility that someone has HIV is not a reason to disregard basic due
The law also provides no guidance to courts on how the results of the
forced HIV test will be kept confidential, raising important questions about
individual privacy, according to the ACLU.
The controversy stemmed from an incident in Minot, North Dakota where a
police officer was exposed to blood during an emergency call. The officer
later noticed a scratch on his forearm and requested the subject to be tested
for HIV. The subject tested positive, but the officer has not.
"The only way that officers and others can know if they haven't been
infected is to get tested themselves," Coles said. "While it may satisfy our
curiosity to know the other person's HIV status, those results don't tell us
anything about our own health."
We marvel at such an obviously unconstitutional act being passed and signed into law.
Surely the legislators and governor must know that the law cannot survive a court
challenge. One wonders why they pass such legislation.