The New York “Baby AIDS Bill” created a requirement for mandatory, unblind testing of newborns for HIV. This law, and its associated regulatory infrastructure, is contrary to a number of deeply rooted substantive due process rights, including the right to refuse life-sustaining treatment and the right to privacy and bodily autonomy. When the state requires that a physician initiate care or treatment, the government exposes itself to liability under the state-created danger doctrine, particularly when resistance-prone conditions like HIV are involved. In this unique situation, the state’s requirement to initiate antiretroviral care without providing for its continuity puts infants living with HIV at a significant risk of developing treatment resistance. One solution to this constitutionally problematic health policy is to recognize a positive right to health care for these infants, as a means of mitigating the danger so long as the unblind testing and treatment requirement exists.
Positive Rights: The New York “Baby Aids Bill” as State-Created Danger,
71 Fla. L. Rev.
Available at: https://scholarship.law.ufl.edu/flr/vol71/iss2/6