Do HIV-positive pregnant women who plan on carrying their childrento term have a constitutional right to refuse HIV medication?

[Corcos, Christine]

The physician who knows the mother is infected can greatly diminish the odds of transmitting the infection to the infant by doing a caesarian and by giving a couple of doses of nevirapine (some kind of antiviral) one during delivery and another to the baby three days later, even if the mother refuses, or cannot get, the course of treatment throughout pregnancy. This  treatment thus goes to the baby, not to the mother (except right at delivery, when it goes to both) and seems to have a very good result. Physicians use the two shot course of treatment a great deal in African countries where they cannot provide pregnant mothers with long courses of antiviral drugs.  See http://www.unicef.org/aids/index_preventionMTCT.html   
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From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 1/4/2006 3:32 PM
To: conlawprof at lists.ucla.edu
Subject: Do HIV-positive pregnant women who plan on carrying their childrento term have a constitutional right to refuse HIV medication?



        Do HIV-positive pregnant women who plan on carrying their
children to term have a constitutional right to refuse HIV medication?
New Jersey Division of Youth & Family Servs. v. L.V., 2005 WL 3527274
(N.J. Super. Ch. Aug. 3), seemed to suggest yes; the court also rested
its decision partly on statutory grounds and partly on factual grounds,
but it did say that "The right to make that decision [as to what
medications she will take during her pregnancy] is part of her
constitutional right of privacy, which includes her right to control her
own body and destiny." 

        But I wonder whether the abortion right-to-privacy cases, to
which the court referred, are quite the right analogy -- why isn't the
better analogy the vaccination cases?  The government may demand that I
get a vaccine for a communicable disease that I likely do not yet have.
Presumably if I were known to be infected with a communicable disease,
and treatment would diminish my chances of spreading it to others, the
government would if anything have even more power. 

        Here, the mother is infected with a communicable disease; and
though it's a disease that fortunately isn't spread by casual contact,
it *is* often spread to unborn children.  If the mother plans on
carrying the child to term -- of producing a born, rights-bearing human
being who might carry a deadly disease because of exposure through the
mother -- why isn't mandating treatment of the mother at least as
constitutionally permissible as mandating vaccination?

        Eugene
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