Data on effectiveness of HIV treatment during pregnancy
atpreventing the ...
AAsch at aol.com
AAsch at aol.com
Sat Jan 7 11:50:27 PST 2006
With all due respect to the participants in this thread and its relatives, I
have to disagree with the analysis of the issue of forcing antiretroviral
drugs on HIV+ pregnant women.
First, such a coercive policy not only implicates the right to refuse
medical treatment extant in vaccination cases, but also substantially burdens a
woman's right of reproductive choice. This burden has not been adequately
addressed because it's been described at the wrong level of generality (e.g., Prof
Volokh's argument that a woman may have "a special right to abort her fetus,"
but not a "right to shorten and worsen that person's life."). In fact, the
real burden is on a woman's choice not to have an abortion.
Punishing women for exercising their fundamental right to reproductive
choice in favor of childbirth by taking away a fundamental right to refuse medical
treatment implicates two fundamental rights. What is that, double strict
There are similar analyses of proposed open adoption record laws because
forcing disclosure of birth parents' identities to adoptees ends up punishing
women for exercising their fundamental right to reproductive choice in favor of
childbirth by taking away a fundamental right to privacy. The leading case
rejecting this analysis is Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997),
but, in its rejection, the 6th Circuit recognized "the freedom to decide whether
to carry a baby to term." See this link/address:
In addition, I fail to see why the government is in a better position to
make this decision than a pregnant woman in conjunction with her doctor. While
taking AZT during childbirth seems like the best choice to me, there are a
variety of factors that might cause a particular woman to make a different
choice. AZT has side effects, including anemia and liver problems, to which some
women might be particularly sensitive. AZT is a class C drug for pregnant
women, meaning its negative effects on the fetus are mostly unknown. Women may
have religious objections or even aichmophobia.
Punishing women for choosing to carry a child to term by removing their
rights may end up coercing more women into choosing abortions. In addition, forced
medical treatments tend to cause some patients to avoid medical care at
all. When women avoid prenatal care, their risks and the risks to their babies
increase. Or should we just force prenatal care, too? Maybe it's a "modest
proposal" to just detain women who choose childbirth in hospitals for the safety
of their unborn children?
Finally, on the subject of whether a pregnant woman or the legislature is in
a better position to make this decision, I would include the following fact:
When women choose to carry a child to term rather than have an early term
abortion, they are choosing to increase their own risk of death more than 90
times (fewer than 1 death per 1 million early term abortions vs about 9.1
deaths per 100,000 live births as described at
_http://www.drhern.com/fulltext/ency/paper.htm_ (http://www.drhern.com/fulltext/ency/paper.htm) ). Shouldn't we
trust the woman already making that sacrifice more than a bunch of politicians
in the legislature?
In a message dated 1/5/2006 11:10:57 PM Pacific Standard Time,
VOLOKH at law.ucla.edu writes:
1. An HIV+ pregnant woman's failure to treat the HIV inflicts a
15-23% chance of her communicating the disease to the child. I don't
know the precise life expectancy of HIV+ children (and I'm not sure that
it's even knowable), but my guess is that, even with modern drug
treatment, it's not too high, perhaps 20 on average if they're really
A "cigarette smoking husband" creates how large a risk to the
child? Of how large a reduction in life expectancy?
Surely even the most robust form of underinclusiveness analysis
would have no problem with the law's treating the two differently, no?
Perhaps other government actions aimed at restricting slight health
risks created by the mother's conduct are vulnerable to this argument.
But the one we were discussing, I think, is literally orders of
2. For all I know, New Jersey might well make HIV therapy
available to all pregnant women who can't themselves afford it. It
would surely surprise me if the relevant agency here indeed (a) left
women who want the drugs but can't afford them unhelped, but (b) forced
women who don't want the drugs to take them (presumably paying for them
if the women couldn't buy them themselves). Do we have any reason to
think that New Jersey is indeed pursuing such an odd approach?
But say even that New Jersey decided not to provide HIV
treatment to any indigents, but only required women who could afford it
-- for instance, because their medical insurance covered it -- to take
such treatment. Even that would strike me as quite constitutional. The
mother is essentially poisoning her unborn child, and avoidably so
(since she can afford the treatment). It seems to me that a state may
well outlaw such poisonings that are avoidable by the poisoner, even if
it doesn't decide to spend tax money to help avoid still more such harm.
New Jersey surely *may* provide free medical care of various sorts; but
it has no obligation to do so, and its failure to do so doesn't absolve
parents of the duty to provide medical care that they can afford
(especially when the medical care here is necessary to minimize the risk
that they themselves will communicate a disease to their children).
Yvette Barksdale writes:
> One problem with these kinds of laws is that the state's
> choices, although seemingly sound when viewed in the abstract
> (protecting the health of unborn fetuses), are often
> discriminatory - singling out pregnant women for choices
> that could harm there fetuses, while leaving other similarly
> harmful choices untouched (cigarette smoking husbands, for example).
> For example, given these stats shouldn't the state be
> concentrating its energy on making sure that pregnant women
> who want to take the therapy have access to it - for example
> ensuring the funding and availability of such drugs for
> pregnant women who want to use them.
> However, in this case, the state is instead focussing its
> energy on ordering the few pregnant women who, learning of
> these stats, would nevertheless not want to use the drug,
> from doing so. Doesn't this undermine the bona fideness of
> the state's claim that it is concerned about the interests of
> the child, as opposed, perhaps to finding another platform
> for fighting the abortion battle, or for finding additional
> ways to criminalize, rather than help prevent, the negligent
> choices of confused pregnant women.
> If so, then is the state's real interest compelling here?
> Many people analyze these types of cases as equal protection,
> gender bias cases, because these laws are often premised on
> the assumption that pregnant women are supposed to have a
> higher moral responsibiltiy to their unborn children than
> either the child's fathers, or the society in general.
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Thu 1/5/2006 6:58 PM
> To: conlawprof at lists.ucla.edu
> Subject: Data on effectiveness of HIV treatment during
> pregnancy atpreventing the child from being born with HIV
> By the way, according to the NIH,
> http://www.niaid.nih.gov/factsheets/womenhiv.htm, "In the
> United States, approximately 25 percent of pregnant
> HIV-infected women who do not receive AZT or a combination of
> antiretroviral therapies pass on the virus to their babies.
> If women do receive a combination of antiretroviral therapies
> during pregnancy, however, the risk of HIV transmission to
> the newborn drops below 2 percent." A fact sheet from UCSF's
> Center for AIDS Prevention Studies is a little less sanguine,
> but basically not that far off; it suggests the risk falls
> from 25% to 4-10%.
> A mother's refusal to take the drugs during pregnancy
> thus yields a 15%-23% extra probability that she will infect
> the child. (Note that this isn't a 15%-23% *relative*
> increase in risk of infection; it's a 15%-23% *absolute*
> increase in risk of infection, or a
> 2.5- to 13-fold relative increase.)
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof