vol. 51, no. 2

Volume LI

March 1986

aclu news

No. 2

Emergency Room Doors Closing,

~ ACLU Takes on Patient Dumping

by Edward Chen

ACLU-NC Staff Counsel

Item: Last December, two East Bay

hospitals turned away a black woman in

labor because a hospital computer

(erroneously) said that she did not have

health insurance. At hospital one, she

never got past the admitting nurse. At the

second, preliminary tests indicated the

fetus was in trouble. Still the patient was

told to go instead to the county hospital.

Finally, she arrived at the county hospital.

The baby was stillborn.

Item: A month earlier a black man from

Berkeley lay for 17 hours in a private

hospital in excruciating pain with a gaping

shotgun wound in his back. Because he

was uninsured, the hospital chose not to

operate, choosing instead to transfer him.

By the time he arrived at the county

hospital, his wound was infected and

leaking spinal fluid. The result: a serious

threat of spinal meningitis.

How To Help

Stop Dumping

The state and federal legislation

supported by the ACLU will undoubt-

edly face strong political opposition.

You can support important local, state

and federal legislation by:

e State. Write to Assemblyman Burt

Margolin and your own state Assem-

blymember and Senators and members

of the Assembly Health Committee

voicing your support of state anti-

dumping legislation (AB 3403): State

Capitol, Sacramento 95814.

(For more information, contact

ACLU lobbyist Marjorie Swartz, 916/

442-1036.)

cent Federal. Write to Representative

Pete Stark, Senators Alan Cranston

and Pete Wilson and your Represent-

ative in support of federal anti-dumping |

legislation: House Office Building,

Washington, D.C. 20515 and USS.

Senate, Washington, D.C. 20510.

cent Local. Urge your city council and

county board of supervisors to pass

resolutions supporting state and federal

legislation; and-in the meantime-to

pass local legislation banning patient

dumping. (For a copy of the Alameda

County ordinance, write to Edward -

Chen, Staff Counsel, ACLU-NC, 1663

Mission St., San Francisco 94103.

Item: Also in November a man, an

amateur guitar player for 20 years, crushed

and severed three fingers in a machine at

work. He was rushed to a Hayward

hospital where doctors gave him a pain

killer and a tetanus shot, but did not

perform surgery. He lacked insurance. He

too was sent to a county hospital, which

in this case did not have an orthopedic

surgeon. After a long fruitless search for

a surgeon who could save his fingers, the

doctors were forced to amputate.

"Patient dumping": It is a national

phenomenon, and it raises significant civil

liberties concerns. As a result of govern-

ment health care cutbacks, hospital cost

containment measures and _ increasing

competition in the health care industry,

private hospitals have an increasingly

compelling financial incentive to "dump"

patients who are indigent and uninsured.

In California, the problem was exac-

erbated in 1982 when the state turned over

to the counties responsibility for providing

health care for Medical Indigent Adults

("MIA's") who do not qualify for Medicare

or Medi-Cal. However, the state gave the

counties only 70% of the previous funding

to do the job.

Faced with the lack of adequate

funding, most counties decided they would

not reimburse private hospitals for

emergency care provided to MIA's as had

been done previously. All MIA's had to

obtain their medical care from county

hospitals. With little or no prospect of

payment, private hospitals responded by

"dumping" indigent uninsured patients

onto county hospitals as quickly as

possible, often at serious risk to the

patient's health-or even life.

A 1982 study of transfers to Highland

Hospital, the Alameda County hospital,

found that in seven percent of the 458

transfers from private hospitals in a six

month period, the patients' lives were

jeopardized. As Highland now receives

twice as many transfers, the situation today

is even worse.

Civil Liberties Issue

_ The practice of "dumping" indigent

patients raises several civil liberties

concerns. First, dumping disproportion-

ately affects poor and minority patients,

violating equal protection guarantees.

Second, many of the dumps involve

women in active labor, interfering with the

woman's right to reproductive choice. The

practice also effectively deprives emergency

patients of life and limb without any due

process.

ACLU national policy states that when

the government provides medical care it

should conform with traditional areas of

civil liberties concerns, and it should

provide fair and equal access to adequate

medical care.

ACLU policy is consistent with court

decisions which recognize that even private

hospitals are in the nature of a public

service enterprise with an obligation to

treat people fairly. They are licensed and

regulated by the state and obtain a major

portion of their revenues from state and

federal funding (Hill-Burton funds, Medi-

Cal, Medicare). Most are also exempt from

taxation as non-profit organizations. As

one court has noted, "where such a

hospital contains unique, or scarce,

medical resources needed to preserve life,

it is arguably in the nature of a `public

service enterprise, and should not be

permitted to withhold its services arbitrar-

ily, or without reasonable cause."

Little Protection

Notwithstanding the fairness obligation

owed by hospitals, there is little law

specifically protecting uninsured patients

from dumping. Hospitals which have a

licensed emergency room are statutorily

_required to provide emergency treatment

to patients regardless of ability to pay: The

law, however, does not clearly define what

is a treatable emergency and the extent

of treatment that must be provided.

Moreover, there are no mandated

procedures assuring a patient is adequately

evaluated before being turned away.

Regulations of the Department of

Health Services prohibit transfers between

hospitals if the transfer creates a "medical

hazard" to the patient. But the regulations

Continued on page 2

Parking Lot Searches

Assault Visitors

Charging that prison parking lot

searches of prison visitors are "a shocking

assault on constitutional rights and human

dignity," the ACLU-NC and the Prison ~

Law Office filed a lawsuit in Marin County

Superior Court on February 27 calling for

a halt to the practice.

The lawsuit, which was announced at

a dramatic press conference in the parking

lot of San Quentin, was filed on behalf

of six persons who visit relatives in

ACLU-NC cooperating attorney Richard Goff speaks to reporters at San Quentin

California prisons, an inmate at the

California Men's Colony at Chino, and two

taxpayers.

New Search Policy

The California Department of Correc-

tions (CDC) implemented a new search

policy in 1985, requiring vehicles and

visitors in prison parking lots be subjected

Continued on page 2

Le

press conference. Clients Kathleen Birmingham (left) and Barbara Sianez watch.

aclu news

2 March 1986

Letters

ACLU vs. Law Enforcement?

Editor:

I am a long-time member of ACLU,

and so it bothers me to see something

in print from us that gives support to those

who misrepresent our positions in an

attempt to discredit the civil liberties

movement. Unfortunately, such an item

appeared in the most recent issue of the

News, in the lead article by Marjorie

Swartz and Daphne Macklin. The fourth

_ paragraph of that article notes that

Assemblyman Stirling's appointment "was

of major concern to civil libertarians as

he has always been a consistent vote for

law enforcement interests." The clear,

though I trust unintended, implication of

that sentence is that civil libertarians are

, against law enforcement.

We have enough trouble getting our

message across without giving ammunition

to those who would gleefully misrepresent

our positions in order to discredit us in

the public eye. We can, and should, take

the position that we are in favor of strong

law enforcement within the bounds set by

the Constitution.

Donald L. Doernberg

"Innocent Until Proven Guilty?"

Editor:

The letter from Ms. Reid (Jan-Feb 86

News) raises a serious question, and, I

think a very valid one. "Innocent until

proven guilty" is lacking in other ways as

well.

Take for instance, the person who is

accused by a child of molestation. As Ms.

Reid suggests, it is next to impossible to

defend against. Then, even if the accused

is able to bring sufficient discredit to the

testimony, and somehow can get the

charges dismissed, the arrest record

remains a future obstacle. Expungement

petitions require "proof of factual

innocence" in order to be supported! How,

then, can a person accused of such an

unspeakable crime ever hope to free him/

herself from the damage a child's lie can

cause?

The need to "prove factual innocence"

to have an arrest record expunged seems

to me to be in direct opposition to the

concept of "innocent until proven guilty"

- in every sense of the word.

Curtis Hults

Private Property

Editor:

I feel compelled to answer the recent

lettes of Randall Grindle and Jeffrey

Smith. These gentlemen say private

property is the basis of personal autonomy,

and therefore the ACLU should vigorously

defend existing property rights.

I insist that the present distribution of

wealth is the main enemy of personal

autonomy. The properties and privileged

tyrannize us in our work places. They

brainwash us through our televisions. They -

buy out our politicians. To preserve their

position, they created Twentieth Century

fascism-created it in the image of their

own autocratic corporations.

Mark Ortiz

Emergency Room Doors Closing,

ACLU Takes on Patient Dumping

Continued from page I

do not define what a "medical hazard"

is. In the event of a violation, the

Department currently must choose

between a toothless citation or the

draconian remedy of revocation of the

Parking Lot

Searches

Continued from page I

to search procedures. The searches are

carried out on random Saturdays, the

busiest visiting day of the week, at CDC

prisons including San Quentin, Duell

Vocational Institute, Vacaville, Soledad

and Folsom.

"Under the new practice armed guards.

and dogs subject prison visitors, including

children, to a frightening, humiliating and

blatantly excessive invasion of personal

liberty," said ACLU-NC staff counsel Alan

Schlosser. "In doing so, the CDC obstructs

and deters prison visits, and indeed,

undermines the values which visits are

intended to foster."

The suit is being litigated by ACLU-NC

cooperating attorneys Richard Goff,

Jonathan Hayden, Cheryl Poinsette, and

Richard DeNatale, all of the San

Francisco law firm of Heller, Ehrman,

White and McAuliffe, Schlosser and Donald

Specter of the Prison Law Office.

Dogs and Armed Guards

Attorney Goff described the search

procedure: "At random, or in some

predetermined sequence, the officers stop

some or all of the cars entering the lot.

All occupants of the cars-including

children and non-visitors-are ordered

out. The officers have no probable cause

to stop the cars, nor any individualized

suspicion to do so.

"All of the compartments of the cars

and their contents, and all of the visitors'

wallets, handbags, and other personal

belongings-none of which typically enter

the secured part of the prison-are

searched," he added.

If any "contraband" is found, visitors

are arrested, often strip-searched and

taken to jail, and their right to visit is

denied for up to six months. Such

"contraband" has included marijuana

residue in a car ashtray and an empty beer

can in the trunk, ACLU attorneys noted.

One of the plaintiffs, Lucinda Salazar

was so traumatized by a search that she

was bedridden for two days. She says that

she now visits her husband less frequently,

fearing that she may again be subject to

unexpected and unexplained searches.

The ACLU-NC suit charges that these

searches are unconstitutional and unnec-

essary for prison security. "All visitors are

subject to metal detector and body

searches when they enter the prison gates,"

noted Schlosser, "a reasonable security

precaution to prevent contraband coming

into the prisons."

Defendants in the suit are the California

Department of Corrections and Daniel J.

McCarthy, Director of CDC.

hospital's license. There is no system of

civil fines or specific criminal penalties.

Finally, local health agencies have been

slow to establish, as required by state law,

transfer guidelines for hospitals.

In response to this situation, ACLU-NC

staff attorneys and lobbyists, working with

a task force of various legal and health

organizations, are currently proposing

local and state legislation.

The proposals have already borne some

fruit. On February 4, the Alameda County

Board of Supervisors passed an ordinance

on hospital transfers drafted largely by the

task force over the initially vigorous

objections of private hospitals in Alameda

County.

State Proposal

On the state level, the ACLU-NC has

helped draft legislation (AB 3403)

introduced by Assemblyman Burt Mar-

golin (D-Los Angeles).

The state bill would specifically define

a hospital's duty to treat patients brought

to emergency rooms. It would require

evaluation and treatment by a physician

to alleviate any emergency medical

condition. The bill would prohibit both

hospitals and physicians from discriminat-

ing in the provision of emergency services

on the grounds of ability to pay and

insurance status.

The teeth to the measure lie in its

provisions for sanctions against hospitals

and personnel that violate the guidelines.

The bill would establish a range of

sanctions, including licensing revocation

or suspension, civil fines, criminal

penalties, redirection of ambulance

services, and creation of private causes of

action by both patients who are injured

and public hospitals which are forced to

provide additional medical services

because of an inappropriate dump.

Finally, federal legislation introduced by

Representative Fortney Stark (D- CA)

passed both House and Senate last session,

but ultimately died as part of the budget

reconciliation deadlock; he will reintroduce

the bill this Congressional session. The

Stark bill, which would apply to all

hospitals receiving Medicare funds, would

require hospitals to stabilize emergency

patients before transfer and impose civil

monetary penalties for violations. A

provision for criminal penalties was deleted

due to political pressure from private

hospitals and physicians.

Health Care and

ACLU Policy

Patient dumping is a graphic

example of the dual system of our

current health care system in which

those without economic means get sub-

standard or no health care at all.

Although current ACLU policies on

due process, poverty discrimination, |

and reproductive choice give guidance

for ACLU action on patient dumping,

the larger issue raised by the problem

of patient dumping-whether individ-

uals should have a constitutional right

to minimal health care-is not explicitly

addressed.

The national ACLU Board of

Directors is currently considering a

1985 Biennial Conference resolution

calling on the federal government "to

enact laws guaranteeing every individ-

ual a minimum standard of living as

a matter of constitutional right." E.C.

785 ACLU Gifts Reach New High

Gannon: from individual ACLU

supporters to the ACLU Foundation of

Northern California reached a new high

of $350,000 in 1985, according to

ACLU-NC Associate Director Michael P.

Miller.

"The ACLU-NC's legal, public educa-

tion, and grassroots programs are

financially stronger than ever. This is

because income to the Foundation has

more than quadrupled since 1980. In 1981,

the ACLU-NC Board took on a new Major

Gifts Campaign and the Field Program

established their annual Bill of Rights

Campaign telephone solicitation, and

weve had strong and consistent growth

ever since," said Miller, who directs staff

efforts in support of the ACLU-NC's

volunteer fund raising programs.

Michael P. Miller, Editor

aclu news

8 issues a year, monthly except bi-monthly in January-February, June-July,

August-September and November- December

Second Class Mail privileges authorized at San Francisco, California

Published by the American Civil Liberties Union of Northern California

Nancy Pemberton, Chairperson Dorothy Ehrlich, Executive Director a

Marcia Gallo,

Elaine Elinson, Scribe

ACLU NEWS (USPS 018-040) :

1663 Mission St., 4th floor, San Francisco, California 94103. (415) 621-2488

Membership $20 and up, of which 50 cents is for a subscription to the aclu news

and 50 cents is for the national ACLU-bi-monthly publication, Civil Liberties.

Chapter Page a

| Iain, slect OK

| rece Speech No

The Willits Post Office is a First

Amendment-free zone according to the

postmaster of that small Mendocino

County town.

In fact, when local activist Louis Korn

attempted to collect signatures at the

Willits Post Office for his petition to make

the town a nuclear-free zone, the post-

master placed Korn under citizens arrest.

On February 13 the ACLU-NC filed suit

on behalf of Korn in U.S. District Court

charging that his First Amendment rights

were violated.

Louis Korn

In January 1984, Korn, a caretaker at

the Shake City wilderness area and a

veteran peace activist, was collecting 400

signatures on a petition in order that the

nuclear-free city measure would appear on

the June 1984 ballot. "I went to the Willits

Post Office because it is the most

frequently used public place in Willits,"

he said. Korn had previously distributed

anti-war literature in the post office lobby,

with the postmaster's consent.

In January, Korn again received

permission to set up a table and distribute

literature at the post office-this time for

the highly controversial nuclear-free zone

issue.

"Remco Hydraulics, a government-

contracted manufacturer of hydraulic lifts

for the MX missile, is the largest employer

VOLUNTEER "COMPLAINT

COUNSELORS" NEEDED

A challenging volunteer position

awaits you as an ACLU "Complaint

Counselor'-taking complaint calls

and requests for assistance, referrals

and information, and helping to screen

cases for potential ACLU lawsuits. __

The position requires volunteering

one day (or more) a week, from 10am-

4pm from people who can make at

least a two month commitment.

| Patience, compassion, concern for

civil liberties and civil rights necessary.

Legal knowledge helpful, but not

necessary. Please call 621-2493 and

ask for Pat.

in Willits," Korn explained. "Some of the

customers entering the post office

expressed opposition to the political views

espoused by those at our table and

complained to the postmaster."

Postmaster Don Carey then asked Korn

to leave the premises. Korn, asserting that

he was entitled to exercise his First

Amendment rights, refused to leave and

was placed under citizens arrest by the

postmaster and taken to the police station,

in the company of a police officer.

"The charge was trespassing in a public

place, a truly Orwellian concept," laughed

Korn. The charges were later dropped.

Korn, represented by ACLU-NC coop-

erating attorney Kimberly A. Reiley of

Farella, Braun and Martel, and _ staff

attorney Alan Schlosser, is suing the U.S.

Postal Service and Postmaster Carey for

wrongful arrest, damages, and an injunc-

tion allowing access to the Willits Post

Office lobby for the purpose of peaceful,

orderly, and non-disruptive free speech

activity.

Judges Consider

Teen Dossiers

The "state attorney general's office,

_ trying to force health care professionals

to report girls under 14 who have had

consensual sex, got a chilly reception" at

a January 30 state Court of Appeal

hearing, said one press report.

Justice Zerne Haning repeatedly asked

the state attorney, "So the state is going

to compile a dossier on 13-year-old girls

who become pregnant through their own

consensual acts?"

The Deputy Attorney General's grilling

from the three-judge appellate panel came

in the ACLU-NC challenge to a 1984

interpretation of the state Child Abuse

Reporting Law which would result in the

establishment of a statewide computer

bank on adolescents seeking treatment for

sexually transmitted diseases, abortion,

prenatal care or contraceptives.

ACLU-NC staff counsel Margaret

Crosby and attorney Abigail English of

the Adolescent Health Care Project

(AHCP) of the National Center for Youth

Law are representing Planned Parenthood

of California, a doctor who provides health

care to sexually active adolescents, and a

taxpayer in the challenge to the Attorney

General's opinion of the law.

The lawsuit was filed last September;

three days later the Court of Appeal issued

a temporary statewide stay of the reporting

requirement. Under the Court's order,

health professionals are required to report

only adolescents who appear to be sexually

victimized, not those who are voluntarily

sexually active.

Justice Haning also noted that, assuming

that teenagers who consent to sex are

victims, keeping permanent state records

on them, as opposed to criminals, "seems

to me unique in the jurisprudence of

American crime."

Crosby said that the ACLU opposed

the reporting requirement because "the

government cannot force teenagers to

relinquish their right to keep intimate

sexual matters private or forego seeking

necessary health care."

The ACLU-NC and the AHCP are

seeking a permanent writ and declaration

that the reporting provisions are invalid.

Legal Briefs

aclu news

March 1986

For Gay Chorus

All's in Name

The Gay Men's Chorus of Los Angeles

will be called the Gay Men's Chorus of

Los Angeles when they sing at the

American Choral Directors Association

(ACDA) convention in San Jose in

February, as a result of an agreement

reached on January 28 in an ACLU-NC

discrimination lawsuit.

A joint statement issued by the Chorus

and the ACDA announcing the agreement

also stipulated that the ACDA's Executive

Committee will recommend to its Board

of Directors the adoption of a new

nationwide policy which would permit gay

and lesbian groups to use their full names

when performing at ACDA functions.

The suit began when the ACDA

informed the Chorus, which had been

selected in a "blind" audition to sing at

the San Jose convention, that they would

not be able to use the word "gay" in their

performance or publicity around the (c)

convention.

The ACLU-NC filed a suit in Santa

Clara County Superior Court on

December 31 to challenge the discrimi-

natory bar.

"The prohibition was an obvious

violation of Californias Unruh Civil

Rights Act which prohibits arbitrary

discrimination on all bases, including

sexual orientation," said ACLU-NC

cooperating attorney Kip Edwards of

Orrick, Herrington and Sutcliffe, who, with

ACLU-NC staff attorney Alan Schlosser,

represented the Gay Men's Chorus in the

lawsuit.

The ACDA ban was part of an ongoing

dispute with several gay choruses across

the nation. Earlier this year, the ACDA

adopted guidelines which state that

programming and publicity for its events

must be done without reference to "special

interests of a non-musical and controversial

character." The guidelines, however, did

permit groups to identify themselves by

the name of a religious or ethnic group,

like the Mormon Tabernacle Choir.

As a result of the settlement, the

ACLU-NC lawsuit was dismissed.

RR Drug Tests

Challenged

The ACLU-NC filed an amicus brief

in the Ninth Circuit Court of Appeals

arguing that the Federal Railway Regu-

lations which authorize involuntary blood,

urine and breath testing of employees

violate the Fourth Amendment.

The ACLU-NC brief, filed on February

, 18 in the case of Railway Labor Executives

Association y. Dole, supports the halting

of mandatory drug tests for railway

employees throughout the country. A

lower court ruled that the tests may be

done without probable cause or individ-

ualized suspicion.

"This use of intrusive drug testing

without individualized suspicion violates

the core Fourth Amendment value-the

right to be left alone," said ACLU-NC staff

counsel Alan Schlosser, author of the

friend of the court brief.

The ACLU is asking the appeals court

to reverse the lower court ruling upholding

the tests.

"Town Meeting"

Stops Censors

The controversial children's sex educa-

tion book Show Me! will remain on

Alameda County Library shelves thanks

to testimony by attorney Len Weiler of

the ACLU-NC Earl Warren Chapter and

dozens of other concerned citizens at "an

old-fashioned town meeting" before the

Alameda County Library Commission on

February 4. |

Show Me! A Picture Book of Sex for

Children and Parents came under fire from

a local evangelical minister who, after

learning from a religious TV program that

the book contained sexually explicit

photos, checked the book out of the

Dublin branch library and failed to return

it for six months. The minister tried to

get the book confiscated by the FBI, the

U.S. Attorney, the Dublin Police and

finally the Alameda County Board of

Supervisors.

Weiler said that the Library Commission

was "as exciting as an old-fashioned New

England town meeting." He noted that

several hundred people were in attendance

and that about 40 people-tlibrarians,

mental and family health professionals,

psychologists, trade unionists, parents and

teachers-spoke in opposition to censor=

ship and in favor of retaining the library's -

open access policy for Show Me!

About ten people spoke in favor of

banning the book or limiting its access,

Weiler said.

The Library Commission voted 13-1 in

favor of keeping the book in open access.

This means that any library member-

adult or child-can check it out of the

library. The ACLU supports the open

access policy. Parents, not the government,

should supervise their children's reading.

The Commission's recommendation will

be made to the Board of Supervisors who

are likely to accept it.

2nd Anti-Choice

Initiative Fails

The anti-choice initiative which would

have banned all Medi-Cal abortions failed

to qualify for the November ballot, the

second anti-abortion proposition to fail in

as many months.

School Changes

Pledge Policy

A letter from ACLU-NC staff attorney

Margaret Crosby to the Superintendent

of the Fairfield Unified School District

warning him that the district's requirement

that all teachers recite the pledge of -

allegiance daily is unconstitutional

provoked a quick change in policy by the

district.

Crosby reminded the Superintendent

: that a 1977 U.S. decision ruled that the

government may not compel an individual

to participate in a patriotic exercise over

any conscientious personal objection.

Within two weeks the Superintendent

replied, "Our attorney [is] in the process

of developing a new board policy to correct

the situation regarding the flag salute." -

4 March 1986

aclu news

O, let America

be America

again:

the land that never

has been yet,

and yet must be.

LANGSTON HUGHES

We, the undersigned, believe that immigration legislation now before

Congress would create a class of people separate and unequal in the

eyes of our government.

Should our government withhold basic

freedoms on the basis of whether a man,

woman, or child was born within or beyond

our borders?

Should undocumented aliens have

"inalienable rights to life, liberty and the

pursuit of happiness," named by our consti-

tution as a birthright of "all"

Is the "crime" of being an immigrant

sufficient justification for...

cent The beating of Haitian women held in the

INS Krome Avenue detention center in

Florida by Border Patrol agents;

cent The shooting of a twelve year old boy by

the U.S. Border Patrol on Mexican soil;

cent Detainees shackled to beds, fed food that

makes them gag, denied toilet paper,

showers and mattresses, and forced to

sign "Voluntary Departure Forms";

e Children incarcerated because the INS

wants to lure their parents into custody;

e Central American refugees sent back to

possible torture and death...

Is the "crime" of being an immigrant

reason enough to strip people of their most

basic human rights?

YOU CAN DEFEND THE RIGHTS

OF IMMIGRANTS. We urge you to send

the coupons below to your elected represent-.

atives and take a forceful stand in

opposition to the Simpson/ Rodino-Mazzoli

bill because::

cent The bill contains guestworker provisions

that undermine basic labor rights;

e It targets immigrant labor as a major

cause of unemployment;

cent It proposes legalization schemes that

would trap thousands of people in a web

of bureaucracy;

cent It includes employer sanctions that turn

employers into police officers and

promote racist hiring practices;

e It increases funds for border enforcement

rather than addressing the root causes of

immigration.

The ACLU-NC is initiating this campaign to educate -

the public about the serious implications of the

Simpson/Rodino-Mazzoli bill. The text of our ad (above)

will appear in several Bay Area newspapers during

the first week of April, followed by names of individuals,

organizations and major sponsors who supported this

project.

Yes, | want to help fill the page! Add my name to

those supporting

LJ Individuals $5-$99

C1) Organizations $25-99

L] Major Sponsors $100 and Up

$ Enclosed

Print name as you want it to appear:

(Anonymous donations accepted)

Name

Organization

Address

City

Phone

Make checks out to ACLU - Deadline: March 31.

_ Zip

Return to: ACLU Signature Ad, 1663 Mission Street, Suite 460, San Francisco, CA 94103.

Judiciary `Tops Agenda -

For Field Program

ACLU-NC chapter leaders and issue

activists tackled the difficult job of setting

annual priorities for ACLU's membership

action efforts at the Field Committee's

February 8 meeting in San Francisco. |

With a myriad of civil liberties concerns

facing activists in 1986, the issue of judicial

independence-particularly in the face of

the November ballot battle against

"liberal" California Supreme Court

justices-was the unanimous choice for the

Field Program's top priority.

The Committee chose to fight to insure

the right to reproductive choice for all

women-rich or poor, young or old-and

assert the basic rights of immigrants and

refugees as the second and third priority

areas, respectively.

"The assignment of `priority status' by

the Field Committee means that Field

Program staff and resources will be

devoted to that issue," explained Field

Committee Chairperson M. Anne Jen-

nings. She noted that two other issue

groups, the Right To Dissent Committee

and the Draft Opposition Network, may

continue to monitor legislation and keep

members informed, but will not receive

Field Program staff assistance until after

November.

Interested members can contact Marcia

Gallo, Field Representative, at 415/

621-2494, or check the ACLU News

Calendar for notices of upcoming com-

mittee meetings.

Knoll Honored

Historian Dr. Samson B. Knoll was

awarded in January with the Francis

Heisler Civil Liberties Award by the

Monterey Chapter of the ACLU-NC.

Knoll, who fled Hitler's Germany in

1933, was honored for his lifelong fight

for civil liberties: "I am disturbed about

the revival of fascism," he says. "I don't

think the word has lost its meaning.

After 50 years, the battle is still with

us."

Knoll, the former chancellor of the

Monterey Institute of International

Studies, was chair of the chapter several

years ago when the award was

established in memory of constitutional

lawyer Heisler.

BERKELEY BOARD MEETING: (Usu-

ally fourth Thurs.) Volunteers are needed

to staff hotline. Program on the Independ-

ence of the Judiciary is scheduled for April,

at the North Berkeley Senior Center, Hearst

Grove Sts., Berkeley. For date and time,

contact Florence Piliavin, 415-655-7786.

EARL WARREN BOARD MEETING:

(Third Wed.) Contact Beth Weinberger

415-839-2743.

FRESNO BOARD MEETING: (Usually

third Wed.) Next meeting, Thurs., March

20, at 5:30 p.m. Contact Sam Gitchel for

details: 209-486-2411 (days), 209-442-0941

(eves).

GAY RIGHTS BOARD MEETING:

(Usually first Tues.) Tues., April 1 at 7:00

p.m., ACLU, 1663 Mission Street, #460,

SE Call Doug Warner for more information:

415-621-3900.

MARIN COUNTY BOARD MEETING:

(Third Mon.) Contact Milton Estes

415-383-6622 (days).

MID-PENINSULA BOARD MEETING:

_ (Usually last Wed.) Contact Harry Anisgard,

415-856-9186.

MONTEREY BOARD MEETING: (Usu-

ally fourth Tues.) Tues., March 25, 7:30

p.m., Monterey Library, Pacific and

Jefferson Streets, Monterey. Contact

Richard Criley, 408-624-7562.

MT. DIABLO BOARD MEETING:

(Fourth Wed.) Contact Hotline

415-939-ACLU.

NORTH PENINSULA BOARD MEET-

ING: (Second Mon.) Organizing a coalition

for Independence of the Judiciary. Brunch

May 4, in honor of Emily Skolnick; keynote

speaker: Dennis Riordon. Contact Sid

Scheiber 415-345-8603.

SACRAMENTO VALLEY BOARD

MEETING: (Usually second Wed.) Contact

Jerry Scribner 916-444-2130. Civil Liberties

Issues and AIDS Workshop, May 10,

CSUS, 9-1 P.M. Contact: Mary Gill,

916-457-4088. Nominating Committee will

Field Program Calendar

meet in April; contact Joe Gunterman,

916-447-8053.

SAN FRANCISCO BOARD MEETING:

(Usually fourth Tues.) Contact Chandler

Visher, 415-391-0222. Mon., April 21, 7:00

p.m., Fourth Forum, "Whither Our Courts?

Reflections on 1986 Reconfirmation Vote,"

Second Floor Auditorium, Golden Gate

University. Contact Suzanne Donovan,

415-642-4890.

SANTA CLARA BOARD MEETING:

(First Tues.) Contact Michael Chatsky,

408-379-4611.

SANTA CRUZ BOARD MEETING:

(Second Wed.) Contact Bob Taren,

408-429-9880.

SONOMA BOARD MEETING: Contact

Andrea Learned, 707-544-6911.

STOCKTON BOARD MEETING: (Third

Wed.) Contact Eric Ratner, 209-948-4040

(eves).

YOLO COUNTY BOARD MEETING:

Contact Dan Abramson, 916-758-2762.

FIELD COMMITTEE MEETINGS

PRO-CHOICE TASK FORCE: Wed.,

March 5, 6:00 p.m. Special Speakers Bureau

Training Program; April Special Lobbying,

ACLU, 1663 Mission Street, #460, SE

Contact Marcia Gallo or Deborah Shibley,

415-621-2494.

IMMIGRATION WORKING GROUP:

March 13 and April 10, 6:00 p.m., ACLU

1663 Mission Street, SE Contact Marcia

Gallo or Cindy Forster at 415-621-2494.

INDEPENDENT JUDICIARY: (Usually

First Sat. each month.) Sat., April 5 and

May 3, 10:00 am., ACLU 1663 Mission

Street, SE Contact Marcia Gallo, 415-62]-

2493.

DRAFT OPPOSITION NETWORK:

Wed., April 2, 7:30 p.m., CCCL, 325 Ninth

Street, SF. Contact Judy Newman,

415-567-1527.

ACLU of Northern California Policy

AIDS and Civil Liberties

March, 1986.

General Policy

The ACLU-NC Policy on AIDS and Civil Liberties

is published as a guide to the ACLU membership,

people with AIDS, public officials, private employers

and the concerned public at large. This statement

represents public policy and practice as the ACLU

believes it should be, not as it currently is. At this

time, federal, state and local laws are woefully

inadequate to protect the rights of persons with AIDS

or to address the legal questions which AIDS has

created.

Readers should also keep in mind that ACLU policy

itself is never static. ACLU AIDS-related policy may

very well change with the rapid increase in medical -

and scientific knowledge.

he emergence of Acquired Immune Defi-

ciency Syndrome (AIDS) as a major public

health problem has broad and _ serious

implications for civil liberties. According to

the informed consensus of medical and public health

experts, AIDS is a bloodborne, sexually-transmitted

infectious disease which is caused by a virus variously

known as human T- -lymphotropic virus type III,

lymphadenopathy-associated virus or AIDS-associated

`retrovirus.

The spread of the virus has occurred only through

the exchange of body fluids, that is, blood, blood

products or semen, between individuals. No evidence

exists to indicate that the virus can be spread by casual

person-to-person contact. Medical studies of families

in which one or more members have been infected

with HTLV-III/LAV/ ARV show no spread of the virus

other than through sexual intercourse or from mother

to fetus in utero. Medical studies of hospital personnel

caring for AIDS patients show no spread of the virus

other than through needlesticks. The virus can only

survive in certain body fluids and cannot exist for

any significant period of time outside the body. The

public health danger presented by the virus and its

subsequent manifestations as AIDS-related complex

(ARC) and AIDS is caused by a lengthy asymptomatic

period of infection during which an apparently healthy

individual may unknowingly spread the disease to

other persons through the exchange of blood, blood

products or semen.

AIDS and ARC by their nature have created a

discrete and insular minority who are afflicted with

a seriously disabling condition whose ultimate

outcome is fatal. Individuals infected with the virus

represent a significant segment of our population

particularly victimized due to the nature of their

infection and to the present climate of misinformation,

ignorance and fear in the general population. In

addition, persons who are at greatest risk from

AIDS-homosexual and bisexual men who engage

in sexual activities which are conducive to the spread ~

of AIDS, intravenous drug users who do not use sterile

needles and, to a lesser degree, the sexual partners

of persons in these two groups-have suffered from

discriminatory treatment in the past and are

particularly vulnerable to discriminatory treatment by

an ill-informed majority, whether or not they have

AIDS or have been exposed to the AIDS virus.

The ACLU believes that at present education leading

to voluntary behavioral change is the sole effective

means of preventing the spread of AIDS. All persons,

and particularly those in high risk groups, have a

right to complete and accurate information and

guidance on how to avoid' contracting AIDS.

Government at all levels has an obligation to ensure

that such information is widely and freely available.

The rapid dissemination of accurate, up-to-date

information is also necessary to adequately inform the

general public on what does and does not constitute

a threat of AIDS transmission. Failure to properly ~

educate the public in general and high risk groups

in particular, poses a violation of the fundamental

civil liberties of those groups most threatened by

AIDS. In addition, government at all levels should

not, through its laws, prevent persons from engaging

in risk-reducing behavior by restricting access to

information and materials that can inhibit the spread

of AIDS.

The ACLU further believes that before the

government adopts or permits any policy or practice

which would result in the infringement of individuals'

rights to privacy, bodily integrity, equal treatment, and

protection from self-incrimination and _ intrusive

governmental practices, the following criteria must be

met:

1. The policy or practice must be demonstrably

likely, based on generally accepted medical evidence,

to reduce the incidence of AIDS transmission;

2. It must be carefully tailored and not overbroad;

3. Serious efforts must be taken to minimize and

mitigate adverse impacts on privacy, equality and

other protected interests; and

4. There must be no feasible, efficacious alternative

that is less restrictive.

Efforts to restrict casual contact between the general

public and AIDS patients, AIDS carriers or those

thought to be at risk of being carriers are generally

not permissible because such restrictions cannot be |

shown to affect transmission of the disease.

Widespread or even targeted mandatory testing to

determine who has been exposed to the AIDS virus

is also impermissible because unless coupled with

behavioral change, testing will not retard the

transmission of AIDS, and risk-reducing behavior

should be practiced by all persons at risk from AIDS

regardless of whether or not they are presently carriers.

Laws criminalizing consensual sexual behavior by

which AIDS can be transmitted are also overbroad

and unlikely to significantly affect individual sexual

behavior. They are therefore also impermissible. To

reiterate, the ACLU believes that the keys to controlling

the transmission of AIDS are an effective program

of public education and voluntary reduction of risk-

reducing behavior, not actions which restrict the civil

liberties of persons with or at risk of contracting AIDS.

Testing for HTLV-II Antibodies

he expanded use of testing procedures

originally designed to protect the public

blood supply from the AIDS virus raises

many civil liberties issues. While proponents

of mandatory testing urge that testing is necessary

to track the disease and curb further infection, the

ACLU opposes any form of mandatory testing on the

grounds that such testing is of limited scientific or

medical value and may lead to gross abuses of civil

liberties. Unless coupled with behavioral change, it

is unlikely to affect the transmission of AIDS. In

addition, the disclosure of HTLV-II test results may

subject individuals to discrimination in employment,

housing, insurance coverage and other areas.

Widespread mandatory testing is therefore impermis-

sible as a means of controlling the spread of AIDS.

The ACLU supports a requirement that written

consent be obtained from any persond who is tested

for HTLV-III antibodies. In addition, where any person

or agency, whether public or private, desires to have

any person tested for HTLV-III antibodies, the person

must be informed that he or she has a right to refuse

the test and no penalty or withholding of benefits

may be imposed for such refusal. On the other hand,

the ACLU supports the availability of voluntary

HTLV-II antibody testing for individuals who wish

to find out if they have been exposd to the AIDS

virus. Such testing must be accompanied by accurate

follow-up counseling for both sero-positive and sero-

negative persons. In addition, strict precautions must

be maintained to protect confidentiality. The ACLU

favors absolute anonymity for voluntary HTLV-III

testing.

A. Disclosure of Test Data

The ACLU opposes the disclosure of AIDS -

antibody test data by state or local governmental

agencies, public or private employers, or insurance

companies. Such disclosure, whether compelled or not,

violates the privacy rights of individuals who are tested

and may expose them to discrimination in employment,

housing, insurance coverage, education or other areas.

The ACLU supports a limited exception for disclosure

of test results to qualified persons for research purposes

so long as the identity of individuals who are tested

remains confidential.

In order to maintain such confidentiality and

prevent unauthorized use of test information, the

ACLU supports a requirement that a separate, written

consent be required for disclosure of HTLV-III test

results, in addition to any general consent for release

of hospital or medical records. HTLV-II test results

should not be used as a condition of employmemt

or insurability.

B. School Workers, Food

Handlers and Service Workers

Guidelines from the Centers for Disease Control

state that AIDS is spread only by exchange of infected

bodily fluids, particularly blood, blood products and

semen, and not by casual contact. There is, therefore,

no medical justification for routine testing of school

workers, food handlers or other service workers.

C. Healthcare Providers

Since routine procedures performed by dentists,

physicians and other healthcare providers may involve

contact with blood, it is possible, though not likely,

that the HTLV-II virus could be transmitted between

patients and healthcare providers. Any risk of

Continued on page 2

2 ACLU-NC POLICY ON AIDS and CIVIL LIBERTIES

Testing for HTLV-II Antibodies

Continued from page 1

infection, however, can be eliminated by the use of

protective clothing, gloves and other infection control

measures commonly used in the healthcare setting.

The ACLU is therefore opposed to mandatory testing

or screening of healthcare workers for HTLV-III

antibodies.

D. Prerequisite for a Marriage

License

The ACLU opposes mandatory antibody testing as

a prerequisite for obtaining a marriage license. Such

a requirement would serve no legitimate medical or

' scientific objective and would constitute an intrusion

on protected individual interests.

Persons wishing to obtain marriage licenses -

represent an infinitesimal fraction of the current and

probable future AIDS population. Such widespread

testing is not likely to reach those most at risk for

AIDS and would, therefore, impose an unwarranted

intrusion on privacy rights. Because there is no known

cure for AIDS, routine testing: would not allow for

cure of the infected partner prior to marriage, as is

the case with other kinds of required testing. Finally,

testing alone will not retard transmission of AIDS.

Rather, the provision of adequate information on how

AIDS is spread and how it may be prevented, along

`with the suggestion that persons who _ believe

themselves to be at risk of AIDS should voluntarily

be tested, is an adequate and less intrusive alternative.

E. Pregnant Women

The ACLU opposes mandatory antibody testing for

pregnant women or women contemplating pregnancy

on the grounds that the intrusion into protected

interests is not outweighed by any medical or scientific -

_ benefit. Furthermore, it is unenforceable by any

acceptable means.

At the present time there is insufficient medical

knowledge concerning the risk of mother-to-fetus

transmission of the HTLV-II virus to justify

mandatory testing even of high-risk pregnant women

such as intravenous drug users. Additionally,

mandatory testing in connection with pregnancy

implicates a woman's fundamental reproductive rights.

Under existing ACLU policy (Policy #259), questions

concerning human reproduction are matters of

personal choice and governmental intrusion into this

protected choice is impermissible.

On the other hand, women who are pregnant or

who are contemplating pregnancy are entitled to a

full range of information on which to base their

reproductive choices. ACLU therefore supports the

availability of voluntary testing for pregnant women

and couples so long as confidentiality is maintained,

it is accompanied by adequate follow-up counseling,

and a full range of options is available to the woman

in the event she tests positive.

Employment

n any employment setting, employers are

obligated to provide employees with access to

necessary, appropriate and relevant information

regarding AIDS/ARC, including accurate

information about modes of transmission and the

precautions which may be taken to avoid exposure

to the HTLV-III virus.

A. Principles Governing

Employment

The principles which govern the employment

opportunities of persons with physical disability

(including persons perceived to have a_ physical

disability) apply to persons with (or perceived to have)

AIDS or ARC. No qualified person should be denied

employment because of AIDS or ARC except where

those conditions prevent the person from performing

the functions of the job for which he or she is otherwise

qualified. To the maximum extent possible, individuals

with AIDS or ARC should enjoy discrimination-free

access to employment opportunities and

discrimination-free working environments.

Guidelines from the Centers for Disease Control

state that AIDS is spread only by the exchange of

infected bodily fluids, particulary blood, blood

products and semen, and not by the kinds of casual

contact which occur in the vast majority of

employment settings. There is no medical justification

to. exclude persons with AIDS or ARC from

employment or to segregate such persons in the work

environment. Special precautions to avoid risk of

infection should be used by those health care workers

who may be at risk of AIDS and who perform invasive

medical procedures such as dentists and doctors.

Employers are obligated to reasonably accommodate

_ AIDS or ARC symptomatic employees to allow such

employees to continue in their employment, unless

accommodation would impose an undue hardship.

Reasonable accommodations might include measures

such as job restructuring, reassignment or transfer,

and part-time or modified work schedules.

B. Employment Issues In Special

Settings

In those special employment settings where there

is a risk of exposure to the AIDS virus, employees

have a right to adequate information regarding the

modes of transmission of AIDS and appropriate safety

procedures. Examples of such settings are jails, prisons

and mental health facilities where a risk of exposure

to the HTLV-III virus may occur as a result of physical

violence between a patient and a caretaker or a prisoner

and a guard; or as a consequence of custodial care

which may involve exposure to bodily fluids, as in

the case of an incontinent person. However this right

does not extend to the routine disclosure of the

identities of persons with AIDS/ ARC.

While employers have an obligation to provide a

safe working environment for their employees, the

employees' interest in safety must be balanced against

the privacy and equal protection interests of persons

who have or are perceived to have AIDS, whether

they are fellow employees or patients, clients, inmates

or detainees. The risk of AIDS shall not be used as

a pretext for discriminatory treatment.

If a person does not believe that he or she can

competently perform his or her job duties because

of a perceived or known risk of AIDS/ARC, that

employee is entitled to request some practical form

of reasonable accommodation including transfer away

from the assignment where such a present or perceived

risk exists.

Quarantine, Surveillance,

and Compulsory Tracing

he ACLU also believes that quarantine for

AIDS prevention constitutes a deprivation

of liberty which cannot be justified on

medical grounds. Current medical research

indicates that the only known means of AIDS

transmission are through exchange of blood or blood

products and certain kinds of sexual behavior. No

cases resulting from casual contacts have been

reported. Under these circumstances, neither AIDS

patients nor sero-positives pose a risk of imminent

physical danger to others on a routine basis.

In addition, less restrictive alternatives to quaran-

tine which provide more effective approaches to the

prevention of AIDS transmission exist, such as blood

donor screening and education about safe sex and

about the use of non-sterile needles in intravenous

drug use.

For these reasons, routine generalized quarantine

of people with AIDS or sero-positives is an

inappropriate response to the AIDS crisis and presents

. a grave threat to the civil liberties of persons who

have already been subjected to discrimination in our -

society.

Epidemiological studies are an essential element in.

effective AIDS research. However, the ACLU opposes

any measure designed to compel involuntary disclosure

of sexual contacts, and any unconsented disclosure

or unauthorized use of such information when

voluntarily provided. For these same reasons, the

ACLU opposes any generalized surveillance of persons

with AIDS or persons who have sero-positive results

for HTLV-III tests or screenings.

Drug Laws

ecause it is known that the use of

contaminated drug paraphernalia is the

cause of the spread of AIDS/ARC among

intravenous drug users, and because the

ACLU views drug addiction as an illness and not as

criminal behavior, the ACLU endorses the concept

of legalization and distribution at low or no cost of

sterile drug paraphernalia among I-V drug abuser

populations. (Policy 209 and 213)

ACLU-NC POLICY ON AIDS and CIVIL LIBERTIES 3

Public Schools

S

t least four different civil liberties interests

are involved in establishing public school

policy for providing education to children

with Acquired Immune Deficiency Syn-

drome, and with AIDS-Related Complex or other

_ evidence of infection with the AIDS virus.

First and foremost, there is the right of children

with AIDS to a free, suitable education, to the fullest

extent possible in the regular educational facilities

attended by other children.

Second, children required by compulsory attendance

laws to attend school may contend that their. right

to a safe and healthy environment while doing so is

impaired if children capable of transmitting the AIDS

virus attend school with them. Third, the privacy rights

of children who have AIDS or are believed to be

carriers of AIDS may be threatened both by demands

that their name be publicly revealed so that other

children can avoid contact with them for health reasons

and, more sensibly, by requirements that the names

of children who have or are carriers of AIDS be

revealed to certain school authorities so that they can

make decisions regarding both their education and

the protection of children and staff with whom they

come in contact. Finally, issues regarding access to

government records and openness of government

decision-making will arise to the extent that the privacy

rights of children thought to be AIDS carriers support

protecting from public disclosure their names and

precise circumstances, and therefore require that

specific decisions concerning them cannot be made

in public or revealed to the public.

The ACLU believes, based on current medical

information, that it is entirely feasible to reasonably

accommodate these various interests.

A. Right to Education

First, as a general rule, the same principles should

govern the education of a child with AIDS or ARC

which apply to other children with a physical disability. (c)

In other words, such children should, to the maximum

extent possible, be educated alongside other children,

in regular classrooms; if their own physical condition

does not so permit (as opposed to fear of contamination

of other children), such children are entitled to a free,

appropriate public education in the least restrictive

special facilities or, if necessary, at home or in the

hospital. There may, however, be special circumstances

which might justify removal of such children from

the regular classroom; those circumstances, based on

current medical information, would be those in which

direct exposure of other children or staff to feces,

urine, blood, saliva or other bodily fluids of affected

children cannot be avoided except by removal of the

child from the classroom. (Such circumstances might

include a child who is not toilet-trained, or a child

with open sores or skin eruptions which cannot be

covered.) If the school believes that such circumstances

. May exist, it should provide the child's parents with

the opportunity to produce medical evidence to the

contrary, and should order the child removed from

the regular classroom over his or her parents' objection

only if there is no other feasible alternative that

reasonably protects other children and staff. Moreover,

where such a decision is made, it should be reviewed

periodically, to consider whether either changes in the

child's circumstances or changes in the state of medical

knowledge render the original decision no longer

justified. The ACLU believes that the circumstances

which would justify removal of AIDS patients or

carriers from the regular classroom for the protection

of others should be extremely limited if staff are trained

in proper hygiene regarding the handling of such

common occurrences as accidents and involuntary

urination by children.

B. Right to Safe Educational

Environment

Second, the ACLU believes that if the policy outlined

above is followed, the right of public school children

generally to a safe and healthful educational

environment will be protected. To the extent that

children or their parents irrationally believe otherwise,

or choose to disbelieve present medical knowledge on

the ground that it may prove to be in error, the ACLU

does not believe that they have any civil liberties

interests entitled to protection. However, the ACLU

does believe that, as medical knowledge develops,

parents and children are entitled to have school boards

review their AIDS policy periodically to assure that

the protections against exposure are consistent with

that developing knowledge.

C. Privacy of Medical Records

Third, the ACLU agrees that, as with other

communicable diseases, the ordinary complete privacy

Right to Treatment

he ACLU recognizes that the treatment of

AIDS is a rapidly emerging and changing

area of medical care. The ACLU believes

that under no circumstances can any

individual with AIDS be denied access to adequate

medical treatment for HTLV-III-associated disease.

Medical care is widely recognized as a basic necessity.

In addition, the government has a responsibility to

see that adequate health care is available for all persons

with AIDS. An increase in the number of AIDS

patients in custodial populations and among low

income groups will place significant strains on existing

governmental resources for health care resulting in

unequal treatment of specific groups of our population.

The ACLU therefore supports the creation of special

legislation permitting increased public funding for

AIDS treatment.

The ACLU also recognizes that AIDS represents

a unique medical condition in that the disease 1s

uniformly fatal once contracted. Although the public

interest is generally protected by current methods for

testing new and experimental drugs, in this instance

we support a broadening of federal policy on new

drug testing to permit more widespread clinical trials

and more compassionate use of experimental drugs.

Insurance

he ACLU opposes the differential treatment

of persons applying for insurance by carriers

of health-and life insurance on the basis of

race, sex, sexual orientation, marital status,

location of residence, national origin, alienage or

immigrant status.

of medical records must be suspended to the degree,

but only to the degree, necessary to protect the health

of others who might be infected through in-school

contacts. In general, this means that requirements that

school officials be informed of AIDS diagnoses are

valid, because of the need to assess whether any of

_ the very limited circumstances which would justify

removal from regular educational activities are present.

However, such information should be kept confidential

within the school community, and should be

transmitted only to those school officials and staff

members who are directly involved with deciding

whether those circumstances are present for a given

individual child; the number of such officials and staff

members should be kept to an absolute minimum.

The ACLU believes that much decision-making in this

area can be done on a generic rather than an individual

basis, so that there should be no need for such public

officials as school board members to be informed of

the names or circumstances in which, because of

challenges by parents to the decisions of the school

site officials or otherwise, more remote officials will

be faced with decisions as to particular children. Under

those circumstances, an exception to principles

regarding public decision-making would be warranted.

D. Privacy Rights of AIDS

Victims

Fourth, as already indicated, the ACLU believes

that the privacy rights of AIDS victims, particularly

given the current hysteria regarding the AIDS threat,

outweigh the right of the public to particularized

information regarding children with AIDS attending

public schools; in most circumstances, those privacy

rights would also be unreasonably endangered by

expuraged information as well, such as that of giving

the number of AIDS victims attending schools but

leaving out their names or the schools attended.

However, the public is entitled to have access to the

meetings at which generic AIDS policy is made and

to documents describing such policy.

fl

4 ACLU-NC POLICY ON AIDS and CIVIL LIBERTIES

AIDS: Further Information

Medical/Scientific

SF AIDS Foundation: primary source for up-to-

date medical and educational information. 333

Valencia St., 4th Floor, San Francisco, 94103,

415-864-4376.

Legal

BALIF AIDS Legal Panel: Bay Area Lawyers for

Individual Freedom has volunteer attorneys

primarily to write simple wills, create durable

powers of attorney for health care, and provide

related legal services for persons with AIDS/ ARC;

also education for attorneys on AIDS legal issues.

415-864-8286.

Gay Legal Referral Service: referral to attorneys

who handle legal needs for gay and _ lesbian

communities, including AIDS-related issues. c/o

BALIF, PO. Box 1983, San Francisco, 9410].

415-621-3900.

American Civil Liberties Union: the ACLU is a

nationwide organization devoted to the defense and

promotion of civil liberties and a long-time leader

in the working for lesbian and gay rights. In addition

to developing model public policy and public.

education efforts, the ACLU is engaged in a wide

range of activities related to AIDS discrimination.

_ In Northern California this includes:

cent Litigation: selective litigation to establish

constitutional rights;

cent Complaint Desk: informal advice and referrals

by telephone for all types of civil liberties

problems (Monday-Friday, 10 am-3 pm);

cent Lobbying: advocacy in the California legisla-

ture; and

cent Gay Rights Chapter: monitoring AIDS

discrimination issues, and education and

outreach within the lesbian and gay

communities. :

Address: /663 Mission Street, Suite 460, San

Francisco, 94103, 415-621-2488.

Legislative Office: 1/27 //th Street, Suite 605,

Sacramento, 95814, 916-442-1036.

Additional copies of

AIDS and Civil Liberties

L] Please send me

AIDS and Civil Liberties

L] Please send me information on ACLU

membership.

additional copies of

Name

Address

City Zip

_ACLU-NC AIDS Policy, 1663 Mission Street,

Suite 460, San Francisco, 94103.

Prisons

ossibilities for the transmission of AIDS in

custodial facilities exist between inmates and

between inmates and custodians. Procedures

to protect custodial workers are covered

under the general and special employment policies (see

Item VII B). Transmission between inmates can occur

through consensual or non-consensual sexual conduct

and intravenous drug use. Custodial institutions have

an obligation to protect those in their custody from

sexual violence. Protection from sexual violence will

provide inmates and detainees protection from the risk

of AIDS in jails, prisons and mental hospitals. Inmates

desiring to engage in consensual sexual relations should

not be prevented by institutional policies from engaging

in risk-reducing behaviors.

A. Inmates Rights to Information

ACLU believes that inmates in custodial facilities

have a right to detailed and accurate information and

guidance on how to avoid contracting AIDS. This

includes information which discusses in detail the risks

of sharing needles, which defines casual contact

concretely in the context of the institutional

environment, and which clearly describes safe and

unsafe sexual practices. Inmates should have access

to condoms.

B. Testing and Screening in

Prisons

With regard to testing and screening procedures,

the HTLV-II test only measures a person's condition

at one point in time. Because of the uncertain time

_ lag involved, an individual may be in the process of.

converting to a sero-positive status although the test

procedure will have a negative result. Further, an

individual who is sero-positive will not necessarily

develop AIDS but may be more likely to convert to

full-blown AIDS with repeated exposure to the HTLV-

Ill virus. All inmates, therefore, need protection from

exposure to the AIDS virus regardless of whether

they test poiitive or negative. Repeated testing would

be necessary to derive accurate information about each

inmate. Mandatory testing is consequently not likely

to produce usable information in a manner which

outweighs the potential for discriminatory action by

custodial authorities. In any event, as with any health

problem, custodial institutions have an obligation to

provide adequate diagnosis and care for inmates who

develop or believe they are at risk of developing AIDS/

ARC.

The ACLU therefore opposes the routine mandatory

testing of inmates and detainees. Not only are the

test results no more informative in this setting than

elsewhere, but also there are no practicable measures

available for treating those who test positive.

C. Rights of Persons with AIDS

The ACLU does not oppose removal of inmates

diagnosed with AIDS from the general inmate

population for their own protection but such inmates

should not be deprived of access to visitation privileges,

law libraries, exercise, correspondence, vocational and

educational programs, or other privileges available to

the general inmate population.

The ACLU supports availability of confidential

HTLV-III testing coupled with educational programs

for those inmates who request it.

Military

he ACLU opposes the use of mandatory

AIDS testing even in the military setting.

However when testing and screening for

exposure to the virus associated with AIDS /

ARC is performed, it should be performed only with

the written consent and express knowledge of any

person serving in the military or any civilian employee

of the U.S. Department of Defense or related agency.

Notice of such testing should be given to inductees,

enlistees and active duty personnel within a reasonable _

time prior to the testing or screening. If the screening

is performed as part of a routine medical surveillance

or at any other time, the persons subject to the

screening must be advised of their rights to 1) be

informed of the results of the testing or screening,

2) receive any and all appropriate medical counselling

and treatment, and 3) be advised of their military

or employment status pending further medical testing

in the event of a positive or inconclusive test result.

When the results of an AIDS/ARC screening or

test are either positive or inconclusive, the individual

who has been the subject of the test shall be provided

with any and all appropriate medical follow-up

necessary to confirm the initial test results. Any

statements made during the course of the treatment

shall be treated as confidential medical information

and may not be used for any other purpose without

the written knowledge and consent of the individual.

Evidence of test results may not be used to justify

disciplinary. actions including firing, discharge or

imprisonment. Such information may only be used

in proceedings related to retirement, resignation or

discharge with the consent of the individual. -

Where the AIDS/ARC screening or test is

performed as a condition of entry into military service,

those persons found to have positive and confirmed

test results shall be provided any and all appropriate

counselling and referrals for treatment. Fitness for

active.duty for any person whose test results do not

confirm exposure or an active AIDS/ ARC condition

shall be determined on an individual basis. All public

records explaining the refusal to accept or retain any

persons subjected to such a screening for AIDS/ ARC .

shall be treated as confidential medical information

and not be used for any other purpose without the

knowledge and consent of the individual. Such records

shall describe the reason for refusing to accept or retain

any person as a general medical reason without specific

reference to AIDS or ARC...

These standards should apply to any AIDS/ ARC

screening performed upon civilian employees or

applicants for civilian military employment.

Adopted by the ACLU of Northern California Board

of Directors, February, 1986.

This policy was developed by the ACLU-NC Ad Hoc

Committee on AIDS and Civil Liberties: Anne

Jennings, Chair; Nancy Clarence, Marsha Berzon,

Milton Estes, Steven Owyang, Tom Reilly and Howard

Moore; Dorothy M. Ehrlich and Daphne Macklin,

staff.