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The law is starting to bend in favor of those who have been singled out by the tests. Forty-two states and the District of Columbia have antidiscrimination laws against the handicapped; some state courts and executive actions have extended the protections of these statutes to people branded by their blood-test results. Delaware's attorney general recently forced the Nemours Foundation to drop its policy of transferring out seropositive patients from its Wilmington hospital. Municipalities have also been using their antidiscrimination ordinances. In New York City last March, an administrative judge awarded $26,647 to a man who was refused treatment by his longtime dental clinic. Some states, including California, Florida, Massachusetts and Wisconsin, have laws restricting the use of AIDS tests as an employee-screening device and directing that lab results be kept confidential. Last week New York joined the list by completing action on its version of a confidentiality bill.
Test victims are also getting help from the federal courts. Although last year one federal bench rejected a Fourth Amendment challenge to a State Department employee-testing policy, in March another decided that the < mandatory testing of workers by a Nebraska health agency violates the amendment's ban on unreasonable searches. In June a federal district court in Los Angeles produced a major victory for foes of AIDS tracing in addressing the claim of a gay man who was tossed out of an alcohol rehabilitation program at Centinela Hospital in Inglewood, Calif. Judge Pamela Ann Rymer ruled that a person fingered by an AIDS test can be protected by the federal Rehabilitation Act of 1973, which bars discrimination against the handicapped by institutions receiving federal funds. "For the first time, a federal court has ruled that fear of contagion cannot form the basis for discrimination against seropositives," says Mickey Wheatley of the Lambda Legal Defense and Education Fund, a gay-rights group.
Predictably, such legal developments have encouraged a backlash. One of the most volatile battles is now raging in California. The state's stringent confidentiality law is being challenged by a proposition on the November ballot. It would require that public-health officials be informed of all positive AIDS tests and that all sexual partners of those who test positive be traced and alerted. The measure's chief proponent, Republican Congressman William Dannemeyer, says he wants to correct the state's "absurd policy" of turning a "public-health issue into a civil rights issue." But Benjamin Schatz, a lawyer with National Gay Rights Advocates, calls the proposition an "AIDS hysteria law." The referendum measure, which has a good chance of passing, could affect the anti-discrimination movement nationwide. Few things are as influential in framing a developing legal landscape as some solid election returns.