Data on effectiveness of HIV treatment during pregnancy atpreventing the ...

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  
scrutiny?

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:

_http://laws.lp.findlaw.com/6th/970051p.html_ 
(http://laws.lp.findlaw.com/6th/970051p.html) 

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?

Allen Asch

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
lucky.

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
magnitude different.

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).

Eugene

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. 
>  
> yb
> 
>  
>  ________________________________
> 
> 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.)
> 
>       Eugene

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