Three years ago, I was invited by the Hastings Center to prepare a position paper asserting that patients had the right to be protected against exposure to HIV in health care settings. Believing, rather naively I fear, that I was being asked to defend the rights of patients, I happily accepted. My paper examined such areas as the patient's right to be informed if her surgeon was HIV-infected, along with the prevailing professional duty of health care providers to protect patients from avoidable harms.

When I arrived at the debate forum, I looked up to see my friends—humane public health officials, civil libertarians, and AIDS activists—on the other side of the table. It dawned on me that the debate was not about patients’ rights at all, but about restricting the employment rights of HIV-infected health care professionals. Still, I argued at that time, and have continued to assert in the Centers for Disease Control review process, that HIV-infected health care professionals ought to refrain from the practice of seriously invasive procedures.

In July 1990, the federal Centers for Disease Control (CDC) reported the first case of possible transmission of the Human Immunodeficiency Virus (HIV) to a patient from an HIV-infected health care worker. The transmission may have occurred during an invasive dental procedure performed on her by a dentist who had AIDS, and in January 1991, the CDC reported possible HIV transmission during dental procedures to two other patients of the same dentist. Further, the recent revelation that a respected surgeon at a major medical center performed many surgical procedures while infected with HIV created substantial public concern. These cases call into question the prudence of allowing infected workers to continue performing medical and dental procedures that involve some risk, however slight, of transmitting HIV infection to patients. Whether HIV-infected workers should be excluded from practice of their profession because of a remote risk to patients relates directly to levels of tolerable risk in health care delivery and in social policy.

Last July 26, amidst much fanfare, President Bush signed the Americans with Disabilities Act of 1990 (the “ADA”). The Act, which President Bush aptly called “the world's first comprehensive declaration of equality for people with disabilities,” breaks new ground. Seeking to ensure the dignity and legal equality of an estimated 43 million disabled Americans, the Act is both broad and visionary. Regulating areas as diverse as transportation, employment, communications, health care and public accommodations, it suggests a new understanding on the part of Congress about the nature of discrimination. It also both answers and raises numerous questions about the role of law in the face of disease and disability.

The ADA is modeled upon many prior laws, most especially the Rehabilitation Act of 1973. Included in the Rehabilitation Act are several provisions ancestral to the ADA. Secs. 501 and 503 of the Rehabilitation Act place affirmative obligations on the federal government and its contractors to employ the disab1ed.

Medical advances in new reproductive technologies continue to raise complex legal and ethical issues. Last October, a California Superior Court judge issued his opinion on the first contested case in this country involving gestational surrogacy. Upholding the surrogacy contract as valid and declaring that the genetic parents had exclusive custody and parental rights, Judge Richard Parslow observed:

I contend that we must put part of the genie back into the bottle. Gestational surrogacy is not an acceptable option for the extension of in vitro fertilization (IVF). This is not a reaction to the facts of the California case, but rather a recognition that the medicalization of surrogacy as a reproductive technology attempts to legitimize a practice that professionals should not support.

On June 25, 1990 the U.S. Supreme Court ruled for the first time in a right to refuse medical treatment case. The court's holding (by a majority of five of the nine justices) was essentially as follows: The right to liberty, which is explicitly mentioned in the Constitution, encompasses a person's decision to reject life-sustaining treatment; competent people are entitled to reject life-support and states are therefore prohibited from preventing people from making that choice. States may, however, regulate the exercise of the right, to ensure that the decision to stop treatment is indeed what the patient would have wanted. Asking for “clear and convincing evidence” of an incompetent patient's wishes (which means a demonstration that the person herself deliberately and thoughtfully made the decision in advance, or perhaps formally appointed someone else to make that decision for her) is a legitimate form of regulation by the state: It furthers the quest for what the person would have wanted and protects incompetent individuals from decisions made by others which might be influenced by the others’ interest instead of being based solely on what the individual would have wanted.

On June 25,1990, seven years after Nancy Cruzan lapsed into permanent unconsciousness following a car accident, the United States Supreme Court handed down its landmark decision in Cruzan v. Director, Missouri Department of Health. The decision provided the Court's first ruling on the right to forgo life-sustaining treatment, addressing both the right of individuals to decide for themselves and the right of family members to decide on their behalf.

Inextricably linked to the Court's holding on individual rights were questions about the authority and responsibility of each state to fashion policy for treatment decisions on behalf of incompetent patients. The Cruzun case presented an opportunity for the Court to comment upon and reshape the patchwork of laws that define the right to decide about life-sustaining treatment in states across the country.

For the better part of the last decade, the major goal of health care policy has been to reduce health care costs. This has raised fears that the quality of care may suffer, as providers cut corners in response to cost containment pressures from the government and other third-party payers.

These concerns over quality in turn have increased interest in the complex systems that monitor and regulate health care quality. Three main questions have been raised about the ability of the quality assurance systems to assure the quality of care. First, they may not be sufficiently effective, especially given the threat to quality posed by efforts to contain costs. For example, quality assurance has been criticized for focusing on a small number of aberrant physicians and hospitals—a so-called “bad apples” approach—rather than on improving the overall quality of care and for failing to identify more than a handful of the poor quality providers believed to exist.

This article returns to a war waged for the better part of this century-between the theories of punishment and rehabilitation in impeding the drug epidemic. Today, the terms of the war are recast as supply-side policies based upon law enforcement, destroying crops in source countries, interdiction and increased sentencing, and demand reduction based upon prevention, education and treatment.

The war on drugs has reached a feverish pitch. New policies and statutes have tightened the grip of supply-side policies, with images of battle and hate-mongering which go beyond the vilified drug lords and governments which harbor them, to the middle men, the dealers, and even the users. The in-vogue policies of user accountability and zero tolerance make it acceptable to direct the state's formidable powers at drug dependent persons themselves. Drug dependent persons have profound physical and psychological problems, and are primarily concentrated in poor, minority urban areas.

The last several years have witnessed a growing intensity in the debate over abortion in the United States. Although the issue has never been far from the public eye, with the Supreme Court's decision in Webster v. Reproductive Health Services in 1989, it assumed a new urgency as it appeared more possible that the Court might reverse Roe v. Wade, the 1973 case guaranteeing a woman a right to an abortion. Moreover, this urgency was not confined to the United States. The same several years also saw an increase in abortion-related legal developments in other industrialized countries of the world: Belgium, Canada, Romania, and Bulgaria significantly liberalized abortion laws; England made changes that take notice of recent medical knowledge on fetal survival and fetal handicap; France became the first country in the world to approve the potentially revolutionary abortion drug RU 486; and Ireland reaffirmed its opposition to abortion.