*

J.D., LL.D. (Hon.). The author is a Professor of Law at Georgetown University and a Professor of Law and Public Health at the Johns Hopkins University. He is the Co-Director, Georgetown/Johns Hopkins Program on Law and Public Health and is a member of the CDC Advisory Committee on HIV and STD Prevention. The views in this paper do not necessarily conform with those of the Centers for Disease Control and Prevention.

**

J.D., LL.M. The author is an Adjunct Professor of Law, Georgetown University Law Center. He is also a Fellow in the Greenwall Fellowship Program in Bioethics and Health Policy (supported by the Greenwall Foundation and jointly administered by Georgetown University and Johns Hopkins University).

The authors are grateful to Kathleen Maguire, R.N., J.D. (Georgetown/Johns Hopkins Program on Law and Public Health), Kathleen J. Lester, J.D./M.P.H. Candidate (Georgetown/Johns Hopkins Program on Law and Public Health), Ruqaiijah Yearby, J.D./M.P.H. Candidate (Georgetown/Johns Hopkins Program on Law and Public Health), Thaddeus Pope, J.D./Ph.D. Candidate (Georgetown University), Jennifer Phelps, J.D. Candidate (Georgetown University Law Center), Robert Vermylen, J.D. Candidate (Georgetown University Law Center), and Lisa G. Rothman, J.D. Candidate (Georgetown University Law Center), with special appreciation for the research of Mark Lowry, M.D., J.D. Candidate (Georgetown University Law Center), and Bill Tarantino, J.D. Candidate (Georgetown University Law Center). Special thanks to Karen Summerhill, J.D., Research Librarian, Jason Oyler, J.D. Candidate (Georgetown University Law Center), and Darren Hultman, J.D. Candidate (Georgetown University Law Center) of the Edward Bennett Williams Law Library Faculty Services for their research assistance.

1.

Historians have postulated that sexually transmitted diseases, principally syphilis and gonorrhea, were transported from the New World to Europe in the late fifteenth century. See Susan P. Connor, The Pox in Eighteenth-Century France, in THE SECRET MALADY: VENEREAL DISEASE IN EIGHTEENTH-CENTURY BRITAIN AND FRANCE 15, 17 (Linda E. Merians ed., 1996); see also infra Part II.A.1.a (discussing the development of contact tracing in response to syphilis).

2.

The term "venereal" disease derives from Roman mythology and pertains to Venus, the goddess of sexual love and physical beauty. The Middle English venerealle, and the Latin venereus refer to sexual intercourse and the genitalia. See THEODOR ROSEBURY, MICROBES AND MORALS: THE STRANGE STORY OF VENEREAL DISEASE 6 (1971).

3.

Connor, supra note 1, at 1; see also Deborah L. Shelton, STDs: Sex Turns Dangerous, AM. MED. NEWS, Feb. 3, 1997, at 12 (noting that the epidemic nature of STDs is reflected in the United States, which has the world's highest rates of STDs, with rates of infection at ten to fifteen times that of other industrialized nations).

4.

Women currently comprise the fastest-growing group of people with HIV/AIDS. See infra notes 302-03 and accompanying text.

5.

The history of contact tracing is closely related to the regulation of prostitution in the early sixteenth century through the process known as reglementation. See infra Part II.A.1.a).i)

6.

See COMMITTEE ON PREVENTION AND CONTROL OF SEXUALLY TRANSMITTED DISEASES, INSTITUTE OF MED., THE HIDDEN EPIDEMIC: CONFRONTING SEXUALLY TRANSMITTED DISEASES 151-52 (Thomas R. Eng & William T. Butler eds., 1997) [hereinafter THE HIDDEN EPIDEMIC].

7.

See WORLD HEALTH ORG., CONTROL OF SEXUALLY TRANSMITTED DISEASES 47-51 (1985).

8.

See Frances M. Cowan et al., The Role and Effectiveness of Partner Notification in STD Control: A Review, 72 GENITOURINARY MED. 247, 247 (1996).

9.

See infra notes 36-42 and accompanying text.

10.

The Contagious Disease Acts of 1864 and 1866 adopted compulsory registration as a method of controlling STDs; the statutes also ordered confinement for prostitutes. See Michael W. Adler, The Terrible Peril: A Historical Perspective on the Venereal Diseases, 281 BRIT. MED. J. 206, 206 (1980).

11.

The National Venereal Disease Act of 1938 adopted STD control measures proposed by the anti-venereal disease campaigner, the former Surgeon General Thomas Parran. Dr. Parran supported screening, case finding, treatment, and contact tracing for persons with syphilis as the only effective method of breaking the chain of disease transmission. As Parran stated in support of his aggressive national partner notification campaign against syphilis, the once rampant STD: "In no other respect is the [medical] practice in this country more reprehensible than in the failure of physicians, and even of public health clinics, to make diligent inquiry as to sources of infection and to use all available methods to bring these persons under treatment." Thomas Parran, The Eradication of Syphilis as a Practical Public Health Objective, 97 JAMA 73, 75 (1931); see also infra Part II.A.1.a).iii) (discussing the influence of Thomas Parran).

12.

See ALLAN M. BRANDT, NO MAGIC BULLET: A SOCIAL HISTORY OF VENEREAL DISEASE IN THE UNITED STATES SINCE 1880 150 (1985); see also infra Part II.A.1.a).iii) (discussing the use of "contact epidemiology" in syphilis treatment).

13.

See infra text accompanying notes 70-78.

14.

See Jon K. Andrus et al., Partner Notification: Can it Control Epidemic Syphilis?, 112 ANNALS INTERNAL MED. 539, 542 (1990).

15.

See infra text accompanying notes 101-02.

16.

See infra Part II.C. and Table B.

17.

Acquired immuno-deficiency syndrome (AIDS) is the most severe manifestation of HIV. The spread of HIV has been documented to occur through direct exposure to contaminated blood and bodily fluids, other than saliva. Exposure to bodily fluids may occur through unprotected sexual activity, the introduction of contaminated blood into the bloodstream through the use of contaminated syringes and needles primarily by intravenous drug users (IDUs), and through perinatal transmission from mother to child. See ASSOCIATION OF STATE & TERRITORIAL HEALTH OFFICIALS ET AL., GUIDE TO PUBLIC HEALTH PRACTICE: HIV PARTNER NOTIFICATION STRATEGIES 1 (1988) [hereinafter ASTHO]. Remote transmission of HIV also has been documented to occur through blood transfusions and kissing. See Lawrence K. Altman, Case of H.I.V. Transmission Is First to Be Linked to Kiss, N.Y. TIMES, July 11, 1997, at A14. Despite remote instances of non-sexual infections, HIV has been classified legally as a sexually-transmitted disease since 1988. See infra note 226.

18.

SUSAN SONTAG, ILLNESS AS METAPHOR AND AIDS AND ITS METAPHORS 153 (1990).

19.

See generally LAWRENCE O. GOSTIN & ZITA LAZZARINI, HUMAN RIGHTS AND PUBLIC HEALTH IN THE AIDS PANDEMIC (1997).

20.

See, e.g., Chandler Burr, The AIDS Exception: Privacy vs. Public Health, ATLANTIC MONTHLY, June 1997, at 57, 57 (arguing that partner notification, or at least contact tracing, has been de-emphasized in relation to the HIV/AIDS epidemic to "accommodate civil-rights concerns").

21.

See WORLD HEALTH ORG., supra note 7.

22.

See infra Part II.C ; see generally Ronald Bayer & Kathleen E. Toomey, HIV Prevention and the Two Faces of Partner Notification, 82 AM. J. PUB. HEALTH 1158 (1992) (discussing the two approaches-duty to warn and contact tracing-to notifying sexual and/or needle sharing partners of possible risk).

23.

See GEORGE ROSEN, A HISTORY OF PUBLIC HEALTH 72 (1993) ("Among the new or apparently new diseases that characterize the sixteenth and seventeenth centuries, the one that loomed largest was syphilis."). Syphilis is a chronic infectious disease most commonly acquired by sexual contact with another infected individual. See Edmund C. Tramont, Treponema Pallidum (Syphilis), in PRINCIPLES AND PRACTICE OF INFECTIOUS DISEASES 2117, 2117-18 (Gerald L. Mandell et al. eds., 4th ed. 1995). Bacterial in nature, syphilis manifests through a variety of symptoms in several stages when untreated. See id. Initial symptoms include a relatively painless chancre (or lesions) on the sexual organs. See id. at 2121. Symptoms progress within weeks to include a severe skin rash of the palms and soles, oral lesions, fever, lymphadenopathy, headaches, and arthritis. See id. at 2122-23. Without treatment, the disease slowly progresses to the cardiovascular and central nervous system. See id. at 2118, 2125. Paralysis and mental disorders often occur as a result of the inflammation of the central nervous system. See id. at 2124-25. Death can result after years of build-up of scar tissue and tumor-like masses in vital bodily organs. See id. at 2121-25. The transmission of syphilis from mother to fetus, known as congenital syphilis, can result in miscarriage and stillbirths of infants, or permanent brain damage in surviving children who go untreated. See Susan Okie, Syphilis Cases in U.S. Near All-Time Low, WASH. POST, May 27, 1997, at H7.

24.

See WILLIAM ALLEN PUSEY, THE HISTORY AND EPIDEMIOLOGY OF SYPHILIS 12-13 (1933); Theodor Rosebury, Columbus and the Indians, MONTHLY REV., July-Aug. 1992, at 61, 68 (noting that "Columbus' crew probably did not bring syphilis to Europe").

25.

See ROSEN, supra note 23, at 72.

26.

See PUSEY, supra note 24, at 4-5.

27.

See ROSEN, supra note 23, at 72.

28.

The term syphilis was adopted for the disease from the poem of Italian physician, Girolamo Frascatoro, published in 1530, about the legend of a young shepherd, Syphilus, who was cursed with the disease for insulting the Roman god Apollo. See id. at 72-73; see also Negib Ayachi, The Cultural Origins of Disease, WASH. TIMES, May 18, 1997, at B7 (reviewing JON ARRIZABALAGA ET AL., THE GREAT POX: THE FRENCH DISEASE IN RENAISSANCE EUROPE (1997)).

29.

See ROSEN, supra note 23, at 73.

30.

See id. at 73-74. A 1496 decree of the Parliament of Paris required all infected persons to leave the city within 24 hours. See PUSEY, supra note 24, at 5-6. The Scottish Privy Council banished all persons in Edinburgh afflicted with syphilis to the Island of Inchkeith. See id.

31.

See ROSEN, supra note 23, at 74. Special hospitals or other treatment facilities were established in Wurzburg (1496), Freiburg (1497), and Hamburg (1505). See id. A Venetian ordinance in 1552 required all syphilitics to receive treatment at the Hospital of the Incurables. See id.

32.

See id. In 1497, Bamberg prohibited those infected with syphilis from entering churches and inns, or from having any contact with non-syphilitics; barbers in Rome were forbidden to serve known syphilitics. See id.

33.

See id. at 73.

34.

See id.

35.

PUSEY, supra note 24, at 6-7.

36.

See VERLA L. BULLOUGH, THE HISTORY OF PROSTITUTION 166-72 (1964). In 1507, Faenza required that women desiring to be prostitutes first be examined to determine whether they were syphilitic. See ROSEN, supra note 23, at 73.

37.

See Rudolph H. Kampmeier, The Introduction of Penicillin for the Treatment of Syphilis, 8 SEXUALLY TRANSMITTED DISEASES 260-65 (1981). Accepted treatment involved multiple administrations of heavy metal preparations (particularly mercury). See id. at 260. The use of mercurial compounds was an extension of the treatment administered for infectious diseases having skin manifestations and had been used since the days of the Crusades when the disease known as "temporary leprosy" was transported back to western Europe. See id.; see also Ayachi, supra note 28, at B7 (noting that a mercury-based ointment and a remedy made of the bark of the exotic guaiac tree from South America proved ineffective).

38.

Frederick III abolished houses of prostitution in 1690 by deporting the women to workhouses, only to have them re-open in 1700. Henry VIII of England attempted unsuccessfully to suppress prostitution. Maria Theresa of Austria created a morals police, known as the "Chastity Commission," which proved corrupt and eventually was dismantled. See Ludwig Weiss, The Prostitution Problem in Its Relation to Law and Medicine, 107 JAMA 2071, 2071-72 (1906).

39.

In Great Britain, the Contagious Diseases Acts of 1864 and 1866 required the compulsory registration, supervision, and examination of prostitutes and allowed for compulsory hospital detention of those deemed as diseased. See Adler, supra note 10, at 206. In 1858, William Sanger, a prominent New York physician, strongly advocated that the United States adopt the Parisian system of compulsory medical inspection of prostitutes. He argued that in Paris, "the number of cases of disease and the virulence of its form have materially abated." John C. Burnham, Medical Inspection of Prostitutes in America in the Nineteenth Century: The St. Louis Experiment and its Sequel, 45 BULL. HIST. MED. 203, 205 (1971) (citation omitted).

40.

See EDWARD B. VEDDER, SYPHILIS AND PUBLIC HEALTH 233-35 (1918).

41.

See id. at 224-25. Abraham Flexner wrote in regard to the Paris examination:

All day long a dismal succession of groups of abandoned women file into the rudely equipped rooms, in which two physicians ply their repellent task perfunctorily. . . . Of the two physicians . . . one used a rubber glove, the other a rubber finger-in both cases the same for all; though wiped on a towel from time to time, neither was changed or cleansed. . . . I observed one of the physicians examine twenty-five to thirty girls without changing . . . and a number of those examined were adjudged "diseased."

Id. (internal quotations omitted).

Still others advocated abandoning reglementation while emphasizing the institution of marriage as an effective adjunct in the control of syphilis. See Rudolph Kampmeier, Syphilis and Marriage by Alfred Fournier, 8 SEXUALLY TRANSMITTED DISEASE 29, 30 (1981). Alfred Fournier, a renowned French professor of syphilology, wrote a treatise concerning the professional obligations of a physician to his patient and society in which he set forth numerous conditions in order to grant medical permission for one to marry. Fournier argued that when a physician assumes responsibility for giving medical permission to marry, his permission extends to the family "for behind that patient there is a young wife, there are children yet unborn, there is a family, there is society itself, to be shielded at the same time by [a physician's] prohibition." Id. at 29-30.

42.

But see Gerard Tilles et al., Marriage: A 19th Century French Method for the Prevention of Syphilis: Reflections on the Control of AIDS, 32 INT. J. DERMATOLOGY 767, 767 (1993) (citing P. DIDAY, EXPOSITION CRITIQUE ET PRATIQUE DES NOUVELLES DOCTRINES SUR LAS SYPHILIS: PARIS JB BAILLIERE ET FILS 501 (1858)). The French physician Diday proposed the mandatory free distribution of condoms in houses of prostitution. See id.

43.

See Burnham, supra note 39, at 206.

44.

Id. at 209.

45.

See id. at 206.

46.

Marvin S. Amstey, The Political History of Syphilis and Its Application to the AIDS Epidemic, 4 WOMEN'S HEALTH ISSUES 16, 17 (1994).

47.

See W.E. Harwood, A Practical Lesson In Reglementation, 47 JAMA 2076 (1906).

48.

See id. All expenses incurred by the women were borne by the keepers of the house, unless it was shown that the woman deliberately infected the man, in which case the costs of both the afflicted patron and her own bills would be paid by her. See id.

49.

See BRANDT, supra note 12, at 9.

50.

See Rudolph Kampmeier, The Continuous Treatment of Early Syphilis by Arsphenamine and Heavy Metals, 8 SEXUALLY TRANSMITTED DISEASE 224, 226 (1981) (citing J.E. Moore & A. Keidel, The Treatment of Early Syphilis, 39 BULL. JOHNS HOPKINS HOSP. 1 (1926)).

51.

The ethical conundrum was evident in the views expressed by Dr. Marion Potter, a female physician of the early twentieth century: "We have seen the wife murdered by syphilis contracted from an unfaithful husband, and an innocent woman its victim for life . . . ." Marion Craig Potter, Venereal Prophylaxis, 7 AM. J. NURSING 340, 349 (1907). Yet surprisingly Dr. Potter endorsed the need for medical confidentiality, defining the attempt of a health care provider to warn an infected spouse as "gossip." Id. at 350.

52.

See Elizabeth Temkin, Turn-of-the-Century Nursing Perspectives on Venereal Disease, 26 IMAGE: J. NURSING SCHOLARSHIP 207, 207-11 (1994).

53.

George P. Dale, Moral Prophylaxis, 12 AM. J. NURSING 22, 25 (1911).

54.

In 1911, Dr. George Dale, a social hygienist, summarized the changing focus: "We must insist that the man who has gonorrhea shall not marry until he is cured and in extreme cases in which the patient refuses to take this advice, if possible the innocent person should be given warning." George P. Dale, Moral Prophylaxis, 11 AM. J. NURSING 782, 782 (1911).

55.

The efforts of the American Expeditionary Force during World War I to control venereal disease among service members again centered on the regulation of prostitution, as well as the use of prophylactic treatment after sexual intercourse. See GEORGE WALKER, VENEREAL DISEASE IN THE AMERICAN EXPEDITIONARY FORCES 100-01 (1922). While the British found success with contact tracing among troops during the war, see G. THIBIERGE, SYPHILIS AND THE ARMY 196-97 (C.F. Marshall ed., 1918), American soldiers were reluctant to reveal the names of their sexual partners, see WALKER, supra, at 58-74. Contact tracing in the United States military was abandoned in favor of the imposition of military penalties, including court-martial and loss of pay, on soldiers who contracted venereal disease or failed to take the required post-coitus prophylaxis. See id.

56.

See BRANDT, supra note 12, at 123 (citation omitted). The Interdepartmental Social Hygiene Board developed comprehensive programs on the transmission and treatment of venereal diseases. One of its programs, the Program of Protective Social Measures, had an anti-prostitution agenda that called for the detention of infected prostitutes. When the Board lost its federal funding, this Program was transferred to the Department of Justice. See id.

57.

See Maurice A. Bigelow, Youth and Morals, 14 J. SOC. HYGIENE 1, 1-5 (1928) (arguing that there is not convincing evidence to prove any decline in sexual morality among youth).

58.

By the 1930s, one out of every ten Americans was infected with syphilis. See THOMAS PARRAN, SHADOW ON THE LAND: SYPHILIS 60 (1937). The cost of treating syphilis was greater than that of treating any other infectious disease, including tuberculosis, despite the fact that (1) the transmission route and agent for the disease were known (the organism, Treponema palladium, had previously been identified as the source of syphilis when transmitted through sexual encounters, see J.E. Moore & A. Keidel, The Treatment of Early Syphilis, 39 BULL. JOHNS HOPKINS HOSP. 1 (1926)); (2) there existed a diagnostic means, the Wasserman test, to identify the infected; and (3) a treatment that restricted transmission was available (the treatment developed by Salvarsan was effective although it was expensive and time-consuming, requiring a year to complete). See id.

59.

See Lynne Page Snyder, New York, the Nation, the World: The Career of Surgeon General Thomas J. Parran, Jr., MD, (1892-1968), 110 PUB. HEALTH REP. 630, 631 (1995).

60.

As the New York Health Commissioner, Parran had identified the legal measures necessary to combat the epidemic in conjunction with medical services. He wrote in a 1931 article championing the eradication of syphilis that

[l]egal aspects should include (a) notification of cases, particularly the lapsed cases; (b) notification of sources of infection; (c) compulsory treatment after other efforts have failed, and (d) quarantine of irresponsible persons. . . . Every state in the union has a law requiring the notification of all or of certain of the venereal diseases. . . . [However] notification of sources of infection is at present almost an unexplored field and yet this is a method by which other communicable diseases are controlled.

Thomas Parran, The Eradication of Syphilis as a Practical Public Health Objective, 97 JAMA 73, 75 (1931) (emphasis added).

61.

See BRANDT, supra note 12, at 133 (citing Thomas Parran & Lida J. Usilton, The Extent of the Problem of Syphilis and Gonorrhea in the United States, 14 AM. J. SYPHILIS 152 (1930)).

62.

See BRANDT, supra note 12, at 143-44. The Social Security Act of 1935 provided the Public Health Service with $8 million for state health care, 10% of which was directed toward combating syphilis. Additional funding required to conduct Parran=s national program was provided via the National Venereal Disease Control Act, passed in May 1938, which provided $15 million over a three-year period for syphilis control. See id.

63.

Parran used the press to communicate his message to the general public. His article, "The Next Great Plague to Go," illustrating the nature and extent of his projected program against syphilis, was published in the Reader's Digest and Survey Graphic. See Thomas Parran, The Next Great Plague to Go, 25 SURV. GRAPHIC 405, 405-11 (1936).

64.

One of the most effective examples of a mass screening program in relation to contact tracing was known as the Chicago project. See BRANDT, supra note 12, at 151-52. The Chicago Tribune publicized the public health effort to administer free blood tests. See id. With federal funding under the Social Security Act of 1935 and the Works Progress Administration, one-third of the city's population was tested for syphilis, resulting in 56,000 cases being identified and treated. See id.

65.

Case finding was conducted through mass screening programs-the so-called Wasserman dragnet. See id. at 152 (citing Paul de Kruif, Chicago Against Syphilis, READER'S DIG., Mar. 1941, at 23, 23-33).

66.

In 1935 Connecticut was the first state to pass a law requiring a blood test and physical examination for all prospective brides and grooms seeking a marriage license. See BRANDT, supra note 12, at 147-48. Many other states followed suit, but only required the groom to be tested. See id. Women's magazines at the time strongly endorsed these laws. See id. at 148 (citing Edward A. Macy, Marriages Insured Against Syphilis, 74 SURVEY 262, 262-63 (1938)).

67.

Legislation regarding prenatal testing was instituted to combat congenital syphilis with very positive results. See BRANDT, supra note 12, at 149-50. After enacting such legislation in California, the mortality rate for congenital syphilis fell from 6.50 cases per 1,000 to 0.15 cases per 1,000 from 1938 to 1945. See id.

68.

See Dudley C. Smith & William A. Brumfeld, Jr., Tracing the Transmission of Syphilis, 101 JAMA 1955, 1955-57 (1933); see also Dudley C. Smith, Practical Epidemiology of Syphilis, 107 JAMA 784, 784-86 (1936).

69.

See Smith & Brumfeld, supra note 68, at 1956. Parran strongly supported the requirements for contact tracing advocated by Dr. Smith and Dr. Brumfeld: "The authors have presented a new method in the control of syphilis, which to my mind is as important as the discovery of a new drug . . . . I am convinced that syphilis is kept alive by a series of local epidemics which can be traced and controlled." Thomas Parran, Abstract of Discussion to Tracing the Transmission of Syphilis, 101 JAMA 1957, 1957 (1933).

70.

See Allan M. Brandt, Editorial, Sexually Transmitted Disease: Shadow on the Land, Revisited, 112 ANNALS INTERNAL MED. 481, 481 (1990); Parran, supra note 63, at 405-11.

71.

See Kampmeier, supra note 37, at 260-61. As early as 1943, three scientists demonstrated the use of penicillin as a cure in experimental rabbits and human patients. See id. Soon after, John Hopkins Hospital in Baltimore and the University of Pennsylvania in Philadelphia undertook studies to confirm the scientists' findings. See id. at 260. Due to the urgency presented by the ongoing world war, human testing was conducted at an accelerated pace and by June 1944 the Penicillin Panel of the National Research Council's Subcommittee on Venereal Disease had reported that penicillin was effective in a) eliminating surface treponemas from open lesions in 12-18 hours; b) healing lesions at least as rapidly as arsenic; and c) creating seronegativity at about the same rate as with metal chemotherapy. See id. at 261.

72.

See id. at 261-65; see generally Syphilis Study Section, U.S. Pub. Health Serv., The Status of Penicillin in the Treatment of Syphilis, 136 JAMA 873 (1948) (discussing the uses of penicillin to treat syphilis).

73.

In 1947 the rate of syphilis was 270 new cases per 100,000 persons. See BRANDT, supra note 12, at 171. By 1957, the incidence rate had plummeted to 3.9 new cases per 100,000 persons. See id.

74.

In 1940 the death rate from syphilis was 10.7 deaths per 100,000 persons; by 1950 it was 5 deaths per 100,000 persons; and by 1970 it was 0.2 deaths per 100,000 persons. See id. Deaths from congenital syphilis plummeted from 5.3 deaths per 10,000 births in 1940 to 0.57 deaths per 10,000 births in 1950. See id.

75.

See Brandt, supra note 70, at 481 ("Parran's program met with considerable success, breaking the conspiracy of silence associated with [STDs] and attracting much needed attention and resources.").

76.

See Susan Okie, Syphilis Cases Hit 40-Year Low Across Nation: Area's Infection Rate Remains Among Highest, WASH. POST, May 25, 1997, at A1 (noting that the incident rate of reported syphilis cases across the United States was 4.4 cases per 100,000 persons in 1996, only slightly higher than the historic low of 3.9 cases per 100,000 persons that occurred in 1956 and 1957).

77.

See id. While 73% of U.S. counties reported no new cases of syphilis during 1996, half of the 11,624 cases reported in 1996 occurred in just 37 counties in the nation. See id. In addition, the CDC reports that the syphilis rate among African-Americans is approximately 60 times the rate of white Americans. See id.

78.

See id. ("'We are now sitting . . . with a [sic] historic opportunity to move to eliminate transmission of this disease within the United States'" (quoting Judith N. Wasserheit, director of the Division of Sexually Transmitted Diseases at the CDC)).

79.

See Centers for Disease Control & Prevention, U.S. Dep't of Health & Human Servs., Pneumocystic Pneumonia-Los Angeles, 30 MORBIDITY & MORALITY WKLY. REP. 250, 250 (1981).

80.

HIV presents new challenges because it is different from many traditional STDs. One important difference between HIV and most STDs is HIV's long latency period between infection and the onset of symptoms. See Centers for Disease Control & Prevention, Dep't of Health & Human Servs., Partner Notification for Preventing Human Immunodeficiency Virus (HIV) Infection-Colorado, Idaho, South Carolina, Virginia, 260 JAMA 613, 615 (1988). For the purposes of partner notification, individuals who agree to participate in contact tracing and notification programs may have to provide names and relevant information of past sexual and IDU contacts. See id. at 613. Even if a person can recall these contacts, finding the contacts can be difficult. See id. at 615. In addition, HIV/AIDS tracing and notification is plagued by anonymous contacts. See id. Partner notification programs for hepatitis B, which epidemiologically is similar to HIV infection, suffer because of the large number of anonymous sex partners, as well as the inaccessibility of the IDU population. See id.

81.

See Peter G. Pappas, Syphilis 100 Years Ago: Parallels with the AIDS Pandemic, 32 INT'L J. DERMATOLOGY 708, 708 (1993) ("The similarities between the two illnesses are striking in many respects. Both diseases are transmitted sexually. . . . Congenital infection is common to both illnesses . . . . Neither organism is routinely cultureable and the diagnosis of both diseases is based on clinical and serologic data."). In the beginning of the twentieth century the only reasonable therapy for syphilis was toxic mercurial compounds; likewise there is no curative therapy for HIV and the antiretroviral compounds are limited by toxicity. See id.; see also Brandt, supra note 70, at 482 ("[C]ontrolling HIV infection presents problems that are common to other sexually transmitted diseases such as syphilis . . . .").

82.

See Pappas, supra note 81, at 708-09.

83.

See id. at 709.

84.

See THE HIDDEN EPIDEMIC, supra note 6, at 49.

85.

See Lawrence O. Gostin & Zita Lazzarini, Prevention of HIV/AIDS Among Injection Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention, 46 EMORY L.J. 587, 650-51 (1997); see also Susan N. Blank et al., New Approaches to Syphilis Control: Finding Opportunities for Syphilis Treatment and Congenital Syphilis Prevention in a Women's Correctional Setting, 24 SEXUALLY TRANSMITTED DISEASES 218, 218 (1997) ("The nationwide epidemics of syphilis and (subsequently) congenital syphilis of the mid-1980s were fueled primarily by the emergence of crack cocaine use and the barter of sex in exchange for drugs or money." (citations omitted)).

86.

See THE HIDDEN EPIDEMIC, supra note 6, at 51-54.

87.

See John Potterat et al., Partner Notification in the Control of Human Immunodeficiency Virus Infection, 79 AM. J. PUB. HEALTH 874, 875 (1989) (estimating the costs of a nationwide HIV contact tracing program, assuming 100,000 new cases annually, at $20 million in 1989).

88.

See, e.g., Ronald Bayer, Public Health Policy and the AIDS Epidemic: An End to HIV Exceptionalism?, 324 NEW ENG. J. MED. 1500, 1501 (1991); Burr, supra note 20, at 58. But see Gabriel Rotello, Editorial, AIDS Is Still an Exceptional Disease, N.Y. TIMES, Aug. 22, 1997, at A23.

89.

See Burr, supra note 20, at 59 (noting that first efforts to combat AIDS relied on the volunteerism of the infected individual).

90.

See Bayer & Toomey, supra note 22, at 1159. As members of a stigmatized group, gays were highly suspicious of the true intentions of public health officials attempting to institute contact tracing and partner notification programs. See id. In 1985, San Francisco tried to institute a pilot program in which the health department would ask bisexual men to provide the names of their sexual partners so that they could be notified of their exposure. See RONALD BAYER, PRIVATE ACTS, SOCIAL CONSEQUENCES: AIDS AND THE POLITICS OF PUBLIC HEALTH 124 (1990). The gay community strongly opposed the plan it labeled "Orwellian." See id.

91.

The Northern California branch of the American Civil Liberties Union favored programs focusing on self-protection measures as opposed to voluntary notification. See BAYER, supra note 90, at 128.

92.

See, e.g., Burr, supra note 20, at 58-59; Nat Hentoff, Editorial, The AIDS Establishment's Conspiracy of Silence, WASH. POST, Oct. 1, 1994, at A23.

93.

See BAYER, supra note 90, at 129. Minnesota attempted to require notification of all partners of HIV-infected patients. See id. at 129-31. Opposition from the gay community, however, defeated the measure and ushered in a program of patient-initiated notification. See id.

94.

See ASTHO, supra note 17, at 9; Centers for Disease Control & Prevention, 1993 Sexually Transmitted Diseases Treatment Guidelines: Partner Notification and Management of Sex Partners (Sept. 24, 1993) http://wonder.cdc.gov/rchtml/Convert/STD/STDG3408.PCW.htm [hereinafter 1993 Treatment Guidelines].

95.

See Lawrence O. Gostin & William Curran, AIDS Screening, Confidentiality and the Duty to Warn, 77 AM. J. PUB. HEALTH. 361, 364 (1987). The 1988 Report of the Presidential Commission on the Human Immunodeficiency Virus recommended that the discretion of the health care provider be preserved with regard to partner notification and that the "decision to warn" be made on a case by case basis. See PRESIDENTIAL COMM'N ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC, REPORT OF THE PRESIDENTIAL COMMISSION ON THE HUMAN IMMUNODEFICIENCY VIRUS EPIDEMIC 129 (1988).

96.

Self-disclosure of HIV infection to new sexual partners was a major concern. One study reported only 52% of seropositive women and 31% of homosexual men reported their HIV-positive status to new sexual partners. See Gary Marks et al., Self-disclosure of HIV Infection to Sexual Partners, 81 AM. J. PUB. HEALTH 1321, 1321 (1991).

97.

See ASTHO, supra note 17, at 9. Variable factors across communities concerning the implementation of partner notification programs include financial resources, seroprevalence rates, awareness levels of at-risk populations, differing transmission rates, and the recency of exposure to HIV from an infected source. See id.; see also WORLD HEALTH ORG., GLOBAL PROGRAMME ON AIDS AND PROGRAMME OF STD, CONSENSUS STATEMENT FROM CONSULTATION ON PARTNER NOTIFICATION FOR PREVENTING HIV TRANSMISSION 3 (1989) ("In considering the decision to undertake partner notification as part of a comprehensive AIDS prevention and control programme, the following key local and national variables must be taken into account: (a) Epidemiology . . . ; (b) Resources . . . ; (c) Local Environment . . . ; (d) Existing AIDS Prevention and Control Activities . . . .").

98.

See, e.g., 42 U.S.C. §§ 300dd-300ff-90 (1994), as amended by 42 U.S.C.A. §§ 300dd-300ff-90 (West Supp. 1997); see also David R. Holtgrave et al., Human Immunodeficiency Virus Counseling, Testing, Referral, and Partner Notification Services: A Cost-Benefit Analysis, 153 ARCHIVES INTERNAL MED. 1225, 1230 (1993) (concluding that the CDC's annual expenditure of more than $100 million in funding to states, territories, and cities for the provision of HIV testing, counseling, referral and partner notification services results in a net economic benefit to society).

99.

See Gary R. West & Kathleen A. Stark, Partner Notification for HIV Prevention: A Critical Reexamination, 9 AIDS EDUC. & PREVENTION 68, 69 (1997).

100.

Id. at 70.

101.

See CENTERS FOR DISEASE CONTROL & PREVENTION, HIV PNSS OPERATIONAL GUIDANCE DRAFT OUTLINE 1-8 (1997).

102.

See id.

103.

The federal government may lack the jurisdictional ability to mandate states to perform partner notification in light of the principles of "new federalism" elucidated by the Supreme Court in a series of decisions since 1976. See James G. Hodge, Jr., The Role of New Federalism and Public Health Law, 12 CLEV.-MARSHALL J. L. & HEALTH (forthcoming 1998) (on file with the Duke Journal of Gender Law & Policy).

104.

See Cowan et al., supra note 8, at 248.

105.

See 1993 Treatment Guidelines, supra note 94.

106.

See Cowan et al., supra note 8, at 248.

107.

See Franklyn N. Judson, Partner Notification for HIV Control, HOSP. PRAC., Dec. 15, 1990, at 63, 66 tbl.3.

108.

See 1993 Treatment Guidelines, supra note 94.

109.

See id.

110.

See id.

111.

See infra Part IV.A.1.

112.

See Judson, supra note 107, at 66.

113.

See Cowan et al., supra note 8, at 248.

114.

See id.

115.

This example is based on information and estimates provided by the CDC. See Centers for Disease Control & Prevention, U.S. Dep't of Health & Human Servs., Partner Notification and Confidentiality of the Index Patient: Its Role in Preventing HIV, 17 SEXUALLY TRANSMITTED DISEASES 113, 113-14 (1990).

116.

See id. at 113.

117.

See id.

118.

See id. at 114.

119.

See id.

120.

See id. at 113-14.

121.

See id. at 114.

122.

See RESTATEMENT (SECOND) OF TORTS § 4 (1965) (listing seven major factors that contribute to imposing a duty on a person: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant's conduct and the injury suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost, and prevalence of insurance for the risk involved); see also Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976).

123.

See Tarasoff, 551 P.2d at 342.

124.

See B.N. v. K.K., 538 A.2d 1175, 1179 (Md. 1988). Courts originally based the duty to disclose infection of an STD on the special and intimate nature of the sexual relationship; a duty first was imposed only in marital relationships. See, e.g., Crowell v. Crowell, 105 S.E. 206 (N.C. 1920) (finding that a woman had a legal cause of action where she became infected with a venereal disease by her husband who had hidden his true medical condition from her); Maharam v. Maharam, 510 N.Y.S.2d 104, 107 (N.Y. App. Div. 1986) (finding that a 31-year marital relationship gave rise to affirmative duty of a husband to inform his wife of his STD infection). The duty then was extended to non-married sexual partners. See, e.g., Kathleen K. v. Robert B., 198 Cal. Rptr. 273, 277 (Cal. Ct. App. 1984) ("The basic premise underlying these old cases-consent to sexual intercourse vitiated by one partner's fraudulent concealment of the risk of infection with venereal disease-is equally applicable today, whether or not the partners involved are married to each other."); Long v. Adams, 333 S.E.2d 852, 854 (Ga. Ct. App. 1985) (holding that the legal duty owed by one sexually active person to another "is the same one that every individual in this state owes another: the duty to exercise ordinary care not to injure others"); Duke v. Hausen, 589 P.2d 334 (Wyo. 1979) (finding a duty where parties had only a 17-day relationship). Today, most courts find that it is the foreseeability of risk and not the relationship that is most important. See, e.g., B.N., 538 A.2d at 1179 ("One who knows he or she has a highly infectious disease can readily foresee the danger that the disease may be communicated to others with whom the infected person comes into contact. As a consequence, the infected person has a duty to take reasonable precautions-whether by warning others or by avoiding contact with them-to avoid transmitting the disease.").

125.

Partner notification is not the only standard of care. The California Supreme Court in Tarasoff explained that the duty was to take whatever steps were reasonable under the circumstances. See Tarasoff, 551 P.2d at 340; see also William Sundbeck, Note, It Takes Two to Tango: Rethinking Negligence Liability for the Sexual Transmission of AIDS, 5 HEALTH MATRIX 397, 427-30 (1995) (noting that other standards of care include the duty to abstain, the duty to be tested, and the duty to wear a condom). Partner notification, however, is proposed as the standard of care least intrusive to privacy and the most practical. See id. at 429; see also Daniel M. Oyler, Note, Interspousal Tort Liability for Infliction of a Sexually Transmitted Disease, 29 J. FAM. L. 519, 528 (1990-91) ("A simple warning by the infected person of the disease is sufficient in most cases because it gives fair notice of the danger and thus fulfills the duty to use reasonable care . . . ."); Eric L. Schulman, Note, Sleeping with the Enemy: Combatting [sic] the Sexual Spread of HIV-AIDS Through A Heightened Legal Duty, 29 J. MARSHALL L. REV. 957, 971-76 (1996); Note, Standards of Conduct, Multiple Defendants, and Full Recovery of Damages in Tort Liability for the Transmission of Human Immunodeficiency Virus, 18 HOFSTRA L. REV. 37, 62-63 (1989). Some courts do not specify a standard of care. See, e.g., Long, 333 S.E.2d at 855. On the other hand, the duty may be defined by the legislature: many states make the transmission of an STD a criminal offense. See, e.g., CAL. HEALTH & SAFETY CODE § 120600 (West 1996); N.Y. PUB. HEALTH LAW § 2307 (McKinney 1993); see also State v. Lankford, 102 A. 63, 64 (Del. 1917) (finding a husband criminally liable for transmitting syphilis); Maharam, 510 N.Y.S.2d at 107 (using criminal statute to set standard of care); Cooper v. Hoeglund, 22 N.W.2d 450, 453-54 (Minn. 1946) (holding that violation of criminal STD transmission statute constitutes negligence per se).

126.

See Schulman, supra note 125, at 973 ("The general rule is that one who knows, or should know, that he or she is infected with an STD, has a duty . . . at least to warn a sexual partner of the infection prior to sexual contact."); see also Estate of Behringer v. Medical Ctr. at Princeton, 592 A.2d 1251, 1281 n.19 (N.J. Super. Ct. Law Div. 1991) ("If a physician has a duty to warn third parties of the HIV status of patients who may be, for example, sexual partners of the patient, it could legitimately be argued that the risk of transmission would similarly require the surgeon to warn his own patients.").

127.

See infra Part II.C.2 (discussing an HCW's "privilege to warn").

128.

See, e.g., MICH. COMP. LAWS ANN. § 333.5114a(3) (West 1992) (creating criminal sanctions for failure of infected person to inform sexual contacts of infectious condition prior to engaging in sexual relations).

129.

See, e.g., Reisner v. Regents of the Univ. of Cal., 37 Cal. Rptr. 2d 518 (Cal. Ct. App. 1995); DiMarco v. Lynch Homes-Chester County, Inc., 583 A.2d 422 (Pa. 1990). Even in the few states where HCWs are not required statutorily to notify at-risk individuals of the identity of the source of exposure, see, e.g., CAL. HEALTH & SAFETY CODE § 120980(a) (West 1996) (permitting, under California's HIV/AIDS disclosure statute, health care workers to inform only at-risk persons that they possibly have been exposed to the virus, without identifying through what source), the identity of the infected person can be revealed by the mere circumstances of notification as with contact tracing programs.

130.

See Duke v. Housen, 589 P.2d 334, 340-41 (Wyo. 1979); Minor v. Sharon, 112 Mass. 477, 487 (Mass. 1873).

131.

See Schulman, supra note 125, at 971 ("The law on transmission of communicable diseases dates back over 100 years, and includes cases imposing civil liability for transmission of such diseases as smallpox, typhoid fever, tuberculosis, whooping cough, scarlet fever, and even recently, valley fever."); see also Louis A. Alexander, Note, Liability in Tort for the Sexual Transmission of Disease: Genital Herpes and the Law, 70 CORNELL L. REV. 101, 119 (1984) ("[E]arlier precedent . . . articulated the principle that a person who negligently exposes another to infectious disease should be liable for damages."); Deane Kenworthy Corliss, Comment, AIDS-Liability for Negligent Sexual Transmission, 18 CUMBERLAND L. REV. 691, 699 (1988) ("[A] significant body of case law has developed over the last century to guide litigants in pursuing a cause of action grounded in negligence."); Celia M. Fitzwater, Comment, Tort Liability for Sexual Transmission of Disease: A Legal Attempt to Cure "Bad" Behavior, 25 WILLAMETTE L. REV. 807, 810 (1989) ("Beginning in mid-nineteenth century England, courts began to punish persons who knowingly exposed others to an infectious disease.").

132.

See Hendricks v. Butcher, 129 S.W. 431, 432 (Mo. Ct. App. 1910) (holding that a person afflicted with smallpox has a duty to "so conduct himself as not to communicate [the] disease" or a "duty to keep away from other persons, or should other persons approach him, to notify them of the fact so that they might protect themselves"); see also Crim v. International Harvestor Co., 646 F.2d 161, 164 (5th Cir. 1981) (holding that an auto manufacturer who brought a Texas car dealer to the Arizona desert to test drive had a duty to warn of valley fever); Capelouto v. Kaiser Found. Hosps., 500 P.2d 880 (Cal. 1972) (allowing recovery for contraction of salmonella); Lawrence v. Commonwealth, 127 S.W. 1013 (Ky. Ct. App. 1910) (imposing criminal liability for going on public highway while knowingly infected with smallpox).

133.

See, e.g., Smith v. Baker, 20 F. 709 (C.C.S.D.N.Y. 1884) (holding defendant, the parent of several children, liable for negligent transmission of child's whooping cough where defendant failed to tell the owner of a boarding house that the children were diseased).

134.

See, e.g., Earle v. Kuklo, 98 A.2d 107, 108-09 (N.J. Sup. Ct. App. Div. 1953) (involving a defendant who rented a second floor apartment to plaintiff without disclosing that she, her husband, and her daughter who occupied the first floor of the apartment building were infected with tuberculosis).

135.

See Smith, 20 F. at 709.

136.

See, e.g., Gilbert v. Hoffman, 23 N.W. 632, 634 (Iowa 1885) (finding innkeeper negligent for allowing guests to frequent hotel with knowledge of presence of smallpox).

137.

See, e.g.