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HIV-AIDS LAW IN NORTH DAKOTA
Chapter 228 Senate Bill No. 2202 (Senator Waine)
An Act to amend and reenact subsection 6 of section
23-07.5-02 of the North Dakota Century Code, relating to testing for the
human immunodeficiency virus.
North Dakota the first state to confine people suspected of having HIV,
Governor Edward Schafer today signed a controversial measure that gives
judges the power to detain a person without a hearing, and force that
person to take a blood test for HIV.
The American Civil Liberties
Union, which is considering a legal challenge, said the law serves no
public health purpose, and is a serious violation of due process and the
Fourth Amendment's guarantee against unreasonable searches and seizures.
"This law is way over the
top," said Keith D.
Elston, executive director of the ACLU of the Dakotas. "It completely
violates people's most basic rights, while addressing none of the health
Under the measure, a person
who believes that another individual has "significantly" exposed them to
blood may secure a state court order confining that individual for up to
five days, during which time a judge can rule on whether to order a HIV
The legislation specifies a
"person" as a police officer, firefighter, emergency medical technician,
health care worker or a patient -- in other words, practically anyone
could be detained. The law also allows a person to be imprisoned even
though no criminal charges have been filed.
"This measure gives courts
the unprecedented power to jail doctors, patients and ordinary citizens
for something as unsubstantiated as a hunch,"
said Matt Coles, director of the ACLU's National AIDS Project.
"Even people accused of
the most heinous crimes are jailed only after some official has
determined there is probable cause,"
Coles said. "Then they are entitled to a fair hearing within a couple
of days. Surely, the possibility that someone has HIV is not a reason to
disregard basic due process."
The law also provides no
guidance to courts on how the results of the forced HIV test will be
kept confidential, raising important questions about individual privacy,
according to the ACLU.
The controversy stemmed from
an incident in Minot, North Dakota where a police officer was exposed to
blood during an emergency call. The officer later noticed a scratch on
his forearm and requested the subject to be tested for HIV. The subject
tested positive, but the officer has not.
"The only way that
officers and others can know if they haven't been infected is to get
Coles said. "While it may satisfy our curiosity to know the other
person's HIV status, those results don't tell us anything about our own