Thursday, February 26, 2009

Pregnancy, HIV, and Sexual Morality: GOP Lamaker's Statement Causes Flap in Colorado , But Both Sides Are Being Hypocrites

Here's another "bah humbug" moment, courtesy of Dissenting Justice. Colorado lawmakers are considering proposed legislation that would require doctors to conduct HIV testing of all pregnant women. A woman could decline to submit to the test, but doctors would have to record her refusal in her medical records. The child's birth certificate would also state whether or not the mother submitted to the HIV test. The Colorado Senate website has a draft of the bill (note: the "marked up" document shows all of the edits to the bill).

Republican Senator Refuses to Help Promiscuous Women
Yesterday, the Colorado Senate passed the measure by a vote of 32-1. Despite the bipartisan support for the measure, a Republican senator's comments sparked partisan flames. Senator David Shultheis opposes the measure on the grounds that it would benefit "promiscuous" women:
"This stems from sexual promiscuity for the most part, and I just can't go there . . . ."

"We do things continually to remove the consequences of poor behavior, unacceptable behavior, quite frankly. I'm not convinced that part of the role of government should be to protect individuals from the negative consequences of their actions."
Earlier this week, another Republican state senator, Scott Renfroe, invoked the Bible and attempted to link "homosexuality" with murder during a debate on the extension of health benefits for the partners of gay and lesbian state workers. Together, the comments of Shultheis and Renfroe caused some Democrats to question Republican "leadership," even though the Senate Minority Leader, a Republican, co-sponsored the HIV-testing bill.

Some Democrats have also argued that individuals who are "pro-life" must support the bill in order to remain logically consistent. Former Governor Bill Owens, for example, argues that: "It's extremely inconsistent for any person who is pro-life to oppose this effort to potentially save the life of a child. . . ."

My Take: Both Sides Are Switching Sides a Bit
Let me state the obvious before continuing. I strongly disagree with Shultheis' position. Promiscuity is not the sole cause of HIV, and even if it were, this does not discredit the policy behind the legislation -- to provide appropriate medical care to pregnant women in order to prevent the transmission of HIV to their unborn children.

The Bill Places Fetal Health Above the Woman's Privacy
Despite my opposition to Shultheis, I disagree with the notion that only pro-lifers are switching sides. Pro-choice advocates (myself included) justify the right to an abortion on the grounds that the state should not inject itself into a woman's decisions related to her pregnancy, including whether or not she will terminate it. The woman's privacy interest is so strong that it defeats the state's interest in potential life until the moment of viability. And even after viability, abortion must remain available if it is necessary to protect the life or health of the mother. In sum, the right gives women a fairly strong liberty interest.

Liberals (and conservatives), however, support this measure which involves state regulation of medical decisions surrounding pregnancy. Although women have the right to decline testing, their medial records and their children's birth certificates will indicate whatever choice they make. Placing the decision in a woman's medical records will make it available for insurance companies as well. This contradicts the abortion rights discourse which places a premium on privacy and autonomy over pregnancy-related medical decisions.

The Bill Erodes the Privacy of HIV/AIDS Patients
Furthermore, progressives have always frowned upon mandatory HIV testing and have advocated anonymous testing upon request. The bill provides for mandatory testing - with a potentially weak escape hatch - but it does not offer anonymous testing. Pro-choice politicians have decided to compromise the autonomy of pregnant women in order to protect the health of potential life -- a position that conflicts with the reasoning of Roe v Wade (a decision I strongly support).

At least one liberal blogger has framed the issue the way I have. Ari Armstrong, of the blog Free Colorado, agrees that this legislation rests on logic that could undermine pro-choice arguments:
In recent years, Republicans opposed to abortion have been most interested in politically managing pregnancy care, as by trying to require ultrasounds prior to an abortion. . . .

If the state legislature "encourages" women to be tested for HIV, for the purported sake of the fetus, legislators open the door to future efforts to politically control medicine to restrict abortions. Leftists who endorse 179 while wanting to keep abortion legal are incapable of thinking in principle or seeing more than a few months down the legislative road.
Solution: Protecting Life Without Eroding Privacy
The incidence of pregnancy-related HIV transmission is extremely small. But if the state wants to lessen the rate (which is a valid goal), it should do so in a way that does not deprive women of privacy surrounding their test results. Recording the woman's decision on her child's birth certificate and medical records seems unnecessary and too great a restraint on privacy.

If the state, however, believes that the issue is so compelling that it should intrude upon the rights of pregnant women, liberals need to accept that they are compromising the liberty of pregnant women in order to promote a broader health policy agenda. Ultimately, liberals (and others) who support the bill might have the better argument. Nevertheless, when liberals only emphasize the potential health benefits to the fetus, they distort the reality that women will lose autonomy if the bill becomes a law. Finally, when liberals defend the proposed legislation by focusing exclusively on the the health of potential life, their arguments sound exactly like the rhetoric pro-lifers use when they oppose abortion.


Critical Thinker said...

Yup, both are being idiots. The breakdown as you pointed out is when an individual's right to privacy directly effects the health and well being of others. HIV is a serious problem and combating its being spread should be tantamount. Protection of privacy is sheer stupidity if there is no one around to protect. As far as this being an abortion issue or rewarding promiscuous behavior is as equally ridiculous. Final thought, make the damn testing mandatory.

Darren Lenard Hutchinson said...

Hi, CT. Yes, the rate of prevention for infants is really high if mothers are tested. I actually think that most doctors probably do this anyway; also, this is a low category in terms of transmission.

Having said that, I tend to approach these issues from the political side. Ultimately, the law (even constitutional law) is shaped by politics. And if "we" want these types of policies, we should be honest about the trade-offs. So - I agree with you that anyone who denies the balancing of interests is not being honest (i.e., "stupid"). I'd rather debate whether or not we should make the trade-off than to waste energy pretending that no trade-off exists.

Headmistress, zookeeper said...

I agree that both sides are being idgits. But I am appalled at the idea of making the testing mandatory.
I object to treating all women with a one size fits all policy, so I object to a number of standard tests when I am pregnant because they are irrelevant to my lifestyle or my pro-life values, or my preference for hands off medical care.

I think it's a foolish practice to treat us all with that one size fits all approach, like issuing antibiotics because some kids get ear infections.

It is standard practice in many hospitals that you have to talk to a social worker simply for refusing a test or treatment you do not believe you or your baby require. Make the testing mandatory, and simply refusing it could be grounds for social services to investigate a family.

Darren Lenard Hutchinson said...

HZ - I also have problems with the mandatory and privacy issues.

Nell said...

And where does the mandatory testing for pregnant women end? What's next--mandatory drug testing, mandatory blood alcohol testing, mandatory caffeine testing? A good argument could be made that the costs to society of fetal alcohol syndrome are far greater than those associated with mother-to-infant transmission of HIV, but to the best of my knowledge, no one is yet suggesting that all pregnant women be monitored for alcohol consumption.

When we start treating pregnant women not as autonomous free agents but as vessels for the unborn, we might as well institutionalize them for the duration of the pregnancy. Either that, or assign a guardian ad litem to represent the fetus since the conflicts of interest are numerous and obvious.

I wonder how the "human personhood begins at conception" crowd would answer the question of conflict of interest between pregnant woman and fetus without relegating the fetus to second-class personhood.

Cranky Girl said...

This is a very good example of how we infantalize women in the US. Surely, we cannot take care of ourselves. Or our children.

Women are rarely afforded privacy when pregnant. I've seen pregnant friends berated for everything from being a vegetarian to eating "junk food" by total strangers. [And once the kid is born, heaven forbid she breast feeds the child in public!] This is a much more dangerous version of the same.

Why not treat this like doctors treat other "potential risks?" Inform the patient of the risk/benefit of the test and allow the patient to decide their own course of action. And because HIV/AIDS has its own stigma, continue to allow for anonymous (or at least confidential) testing. Adding a scarlet letter to the birth certificate and medical records is appalling!

I am a woman. I am a pro-choice activist. I am an HIV/AIDS activist. I am a feminist. I am queer. This issues touches all of these identities, yet I have seen little uproar from my peer group(s) on this issue.

What happened to true progressives? Why aren't folks losing their minds on this? Rendition? State secrets? Why aren’t the gay men I’ve worked with for years around HIV issues screaming about privacy? Why aren’t the feminists I’ve worked with on choice screaming at the thought of elevating a fetus to a state of personhood -- especially when it seems to supersede the mother’s. It seems too many are baying like sheep while Margaret Atwood's, "The Handmaid's Tale" becomes a reality.

Thank you once again for taking on an issue few seem willing to discuss. You continually illustrate why you are my favorite blogger.

Darren Lenard Hutchinson said...

Cranky Girl preached (in the good way):

I am a woman. I am a pro-choice activist. I am an HIV/AIDS activist. I am a feminist. I am queer. This issues touches all of these identities, yet I have seen little uproar from my peer group(s) on this issue.

What happened to true progressives? Why aren't folks losing their minds on this? Rendition? State secrets? Why aren’t the gay men I’ve worked with for years around HIV issues screaming about privacy? Why aren’t the feminists I’ve worked with on choice screaming at the thought of elevating a fetus to a state of personhood -- especially when it seems to supersede the mother’s. It seems too many are baying like sheep while Margaret Atwood's, "The Handmaid's Tale" becomes a reality.

Thank you! I don't where they are, but the silence is deafening. Many of them are just proving what I suspected all along: All they were doing for the last 8 years (or longer) was beating up Bush to make themselves feel good, without having any true commitment to change.

Nell said...

Cranky Girl--you are not alone.

I am a woman. I am a pro-choice activist. I am a feminist. I am a LGTB activist and I am straight.

I swear, the next old white guy I hear pontificating on women's reproductive rights is likely to feel the full force of my fist in his flabby belly. It is fundamentally undemocratic for predominately male legislatures to make law controlling women's bodies. But that's what the patriarchy is all about, isn't it?

Until women are represented in government in proportion to their representation in the population, there will be no gender equality.

Darren, I'm surprised you have no comment on my post w/r/t conflict of interest between pregnant women and the parasites residing in their wombs.

Can you tell this is a subject I'm kinda passionate about??

FLRN said...

HIV infection transfer during pregnancy is real and treatable the web site below lists the current State statutes and actions regarding HIV along with the prevalence of the disease. Florida leads the pack (sucks to be first) with 152 pediatric HIV cases to date. Colorado lags 100% behind with 2. In Florida we test with the right to refuse - simply because it is good HEALTH CARE! So while I understand the want to conduct mandatory testing with the option to refuse, I am confused by the need to place the refusal on the birth certificate - this in no way benefits anyone and further punishes the child who will with live with this notation for the next century.

I have to stand with Critical Thinker here - mandatory testing does not diminish anyone's autonomy - the woman is seeking medical care and she is exposing herself to healthcare providers and asking for assistance in the prenatal management of her child (albeit unborn) and herself.
HIV is a treatable disease and has serious care concerns, cost and risks associated as well as posing a threat to the very persons willing to treat them - the doctors and nurses providing care.

Don't get hung up on the issue just because it is HIV - we also test for DM, hepatitis, alpha fetal proteins, gonorrhea, syphilis, Chlamydia, strep, sickle cell, Tey-sachs, RH antibodies, Rubella, CMV, Toxoplasmosis, anemia, and diabetes. Why should HIV be excluded and given special attention in this mix when it is treatable and manageable?

Please don't throw the baby out with the bathwater on this issue, the focus should not be about "branding" the record it needs to be about "landing" comprehensive medical care. Finally let me ask where else would you lawyers prefer we record this if not the medical record - on the bathroom wall?

Darren Lenard Hutchinson said...

Hi, Nell. I am just getting the chance to respond to your comment.
I think there are several ways to frame these types of questions -- physical autonomy, privacy, and equality.

I have talked about the issue with a medical professional, and I also put on a "tort" law hat. A law could establish a legal standard of care; having HIV testing as a part of a formal medical protocol could help women in cases where doctors fail to provide information about the transmission of HIV to fetuses (and ways to prevent it).

I do not have time to research the subject, but I suspect that this is already an established standard of care in medicine. If so, this only sharpens the concerns of privacy and autonomy that we have been debating. The Colorado law would coerce women into doing what they already do with their doctors.

You are correct in noting the many ways in which the state could regulate women's bodies in order to protect "potential life." Regulating alcohol consumption, mandating pre-natal care (with or without government funding), etc.
Sometimes people lose sight of the big issue. If women choose not to terminate their pregnancies, then their choices and fetal health become intertwined.

But ensuring healthy childbirths does not require that our society reduce women to the status of incubators, subject to all manner of external control. Instead, providing information and education, expanding access to quality health care, and treating with any addiction and mental health issues would do a lot to help women make good decisions for themselves and their children. That sounds like autonomy, privacy and equality to me. Instead of following this approach, lawmakers often start with the fetus first and the woman secondarily.

Darren Lenard Hutchinson said...

FLRN - I was writing a post while you were writing yours.

As a constitutional law person it's hard to separate out coercive measures during pregnancy from other restraints (especially anti- abortion laws). Critical Thinker, I believe, agreed that all of the issues are there (even though he too supports mandatory testing).

In my original post, I said that if we as a society want these laws, we should at least admit to what we are doing. The only reason why "autonomy" is a real issue here is because state and federal governments regulate the healthcare industry. So, this is one of the moments where I would ask conservatives and liberals to examine that dimension. A lot of free market conservatives who are afraid of "big government" readily support this regulation; a lot of liberals might oppose it without thinking about how expanding HIV testing could help women who do not wish to terminate their pregnancies.

Having said this, I wonder if/believe that we can we can share the common goal of encouraging healthy choices in women in a way that is less coercive or damaging to privacy than the Colorado law. In any event, we have to at least admit that we are balancing the woman's privacy and autonomy against fetal health -- which makes this like the abortion debate (though not the same).

I looked at the link you provided. It seems that most states (30) use an "opt-in" method, where testing is recommended. Some of those, it appears, test the child if the mother declines testing herself. I found this interesting discussion of the issue that took place when NJ changed from an "opt-in" to an "opt-out" state. Here's yet another one: Link.

Fascinating topic.

Theresa said...

I am glad I already had children for if I were to have a baby today right after birth I would Run Out everybody out of my room and away from me and the child. The State is almost taking ownership of our children for I have also been told that DNA testing is being done another new "law" that is supposed to study health research of children being born etc. Enough is enough for even pharmaceutical companies are also eyeing our female Uterus for what? future prescription profits? Leave us alone and stay away from our children they belong to us the families of America and not the bureacracies or the taxing State.

FLRN said...
This comment has been removed by the author.
FLRN said...

~~~From the link in your response NJ activists argued "1. Intrusion of privacy - 2. Sexist Assumptions: It suggests that women are not capable or responsible enough to judge whether they are at risk for HIV and determine whether they should be tested. 3. Undermines the Testing-Prevention Connection: Implying that mothers are not capable of making this decision for themselves 4.Racial Implications 5.Places Individual Women at Risk
Darren interesting links ~ but look what have you done, I am now following links to other places and getting sucked in, for the sake of discussion I will play- I don't however buy the author's five arguments at all! Let us remember the testing would be done on women seeking health care - this is a key point making it a medical issue- they have hired the care and this is the standard so the argument for intrusion of privacy has little bearing here in an opt-out situation.

2. The sexist assumptions argument also does not work here either - men have prostates and women do not~ Is it then "sexist" to make a prostate exam to asses the risk of cancer because he has a prostate the standard of care for males at their annual exam - not hardly. So why is it "sexist" to examine a woman's blood stream for a sexually transmitted disease that may have occurred at the same time that she became pregnant (as you may know pregnancy is also sexually transmitted) a disease that can kill her or her unborn child or potentially injure a health care worker handling her breast milk or bed linen??? During childbirth women leak - blood, stool, urine exposure to this becomes a public health issue.

3. Authors at your link believe HIV testing during pregnancy sends a message to women that they are not capable to judge whether they are at risk for HIV - Well duh this is true so the issue is what????- No one - man or woman is able to be 100% certain of the risk of HIV exposure unless you have can rig up a HIV test in your living room - you just don't know each person and their HIV status you and your partner have been with in a lifetime. No one person is fully able to determine their risk for HIV unless they have divine powers of perception and an FBI dossier collection to rival J.E. Hoover on all of their sexual partners. If this were possible to know and understand no woman would ever contract the virus in the first place.

4. Racial implications argument again - the testing does not target one group over another. Yes women of color have a higher incidence of disease most likely related to the fact that they are less likely to obtain quality health care education - thus testing and education during pregnancy may be the only opportunity to educate this group resulting in a unintentional benefit not discrimination. This also does not diminish self-confidence rather done correctly, it is empowering a woman with new knowledge and information that she may obtain within the privacy and security of the medical professional's office at a time when she is most vulnerable to the threat of the disease - during reproductive years when a woman is most likely to be sexually active.

5. The final argument that authors use is that HIV test may put the woman at risk for abuse. I assert just the opposite is true- if the results put the woman at risk of abuse than that risk was present before the test was even conducted. Pregnancy itself puts the women at higher risk of being a victim of domestic violence. Testing and the rlated counseling for a positive result could in fact prevent further abouseand injury. If the test is positive she has more to worry about than the threat of abuse, she is in danger of dying from certain death if her condition remains untreated. So it doesn't hold water to worry about the rattlesnake in the corner when the tiger is at the door.

The right to privacy is outweighed and trumped by public need for the health and well being of others. Stopping the spread and empowering through education and assistance is the only realistic tool to make this happen - separate the issues ~ as this is NOT Roe v. Wade.

Nell said...

IMO, we need to separate the standard of care within the medical community from the legislative mandate.

The problem with comparing prostate screening with HIV screening of pregnant women is that there is no predominately female legislative body mandating prostate screening for every male who presents himself to a doctor for health care services.

With respect to the public health issue, while I am very sympathetic to the protection of health care workers from exposure to infectious disease, until it is mandated that every patient admitted to a hospital for any reason whatsoever be subject to HIV testing, then I maintain that mandatory testing for pregnant women only is indeed sexist.

POZ said...

I think it is a good idea to have expecting mothers tested for HIV (too bad it cannot be anonymous results). If they find out they are HIV positive, they can almost eliminate (less than 1% chance) the chances of baby getting HIV by following the CDC guidelines (C-section birth, 6 weeks of AZT treatment for baby and mother) and making sure the mother doesn't breast feed (HIV virus can be transmitted through breast milk).


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