In response to a request from the Department of Health and Human Services, the Justice Department has issued a thoughtful memorandum on the question of disability rights and AIDS. HHS had received complaints from workers employed in hospitals and clinics alleging discrimination because they have AIDS or AIDS-related complex or because they test positive for AIDS antibodies. The question posed to the Justice Department was this: how does Section 504 of the Rehabilitation Act of 1973, which prohibits, in federally funded programs, discrimination based solely on handicap, relate to AIDS?
This question requires that two deeply held values be balanced against each other. AIDS patients deserve compassionate care and tion against discrimination based solely on their affliction. At the same time, the public justifiably relies on the government, as in the case of all contagious diseases, to take steps to contain its spread. The Justice Department memorandum reconciles this apparent conflict by advising that while an AIDS victim cannot be discriminated against solely because of his handicap, the law does not prohibit discrimination on grounds that his disease might be transmitted to others.
Is it reasonable for an employer or coworker to be afraid of an AIDS victim when it is so difficult to contract the disease? There are no certainties with AIDS, only probabilities. As recently as last November, for example, the Centers for Disease Control reported evidence of transmission only by blood or semen. Now scientists speculate that breast milk, saliva and other body fluids may be implicated. Estimates of the time the virus remains active outside the body have been revised upward. And researchers are still not certain how the disease is transmitted in such places as Africa and Haiti, where it is far more widespread than here.
The probabilities of contracting AIDS through casual contact remain minuscule but, as the Justice Department memorandum notes, "the extent of the harm that would be caused by a contagious disease bears an inverse relationship to the degree of risk of transmission that a normal person . . . can be required, to assume." A cold is easily transmitted, but its symptoms are temporary and relatively mild, so most people would not go to extraordinary lengths to avoid getting one. AIDS, though, is incurable, painful and invariably fatal. Medical knowledge about the disease and its transmission is incomplete. In this situation most people will go to extraordinary lengths to avoid risk of infection.
The Justice Department's interpretation of the law will surely be tested in court. But the memorandum is a good faith analysis of an extremely difficult legal and human problem. Now efforts must be accelerated to find other ways to help those who may not be able to rely on the 1973 law for protection.