Senate Bill 179 would require pregnant women to be tested for HIV or opt out.
The fact that State Senator David Schultheis’s case against the bill is shameful and ludicrous does not imply that the bill is a good idea. In fact the bill represents an illegitimate use of state power to interfere in private medical decisions. It violates freedom of contract and private property. Moreover, the bill creates a dangerous precedent that could be further abused by those with more insidious agendas.
David Harsanyi writes:
I suppose, it’s possible to oppose a bill mandating HIV testing for pregnant women if you believe it’s a gratuitous coercion of the individual. But I can absolutely appreciate the argument that the state has a responsibility to protect children from the negligent behavior (and contracting HIV isn’t always a matter of reckless behavior) of adults. And since the bill features an op-out clause, I don’t see it as particularly worrisome.
I’m surprised that Harsanyi, a critic of the Nanny State, doesn’t take the “gratuitous coercion” of the bill more seriously.
Here’s what 179 actually says in modifying Statute 25-4-201, which already requires pregnant women to be tested for syphilis:
Every licensed health care provider authorized to provide care to a pregnant woman in this state for conditions relating to her pregnancy during the period of gestation or at delivery shall take or cause to be taken a sample of blood of the woman at the time of the first professional visit or during the first trimester for testing pursuant to this section. The blood specimen thus obtained shall be submitted to an approved laboratory for a standard serological test for syphilis and HIV. Every other person permitted by law to attend pregnant women in this state but not permitted by law to take blood samples shall cause a sample of blood of each pregnant woman to be taken by a licensed health care provider authorized to take blood samples and shall have the sample submitted to an approved laboratory for a standard serological test for syphilis and HIV. A pregnant woman may decline to be tested as specified in this subsection (1), in which case the licensed health care provider shall document that fact in her medical record.
Having the opt-out clause is much better than not having one. However, it’s still a bad bill.
The proper purpose of government is to protect individual rights, including the right to contract voluntarily. This bill instead violates the right of contract by placing political requirements on what should be a decision between doctors (and other care providers) and their patients.
Women know in advance whether they are at risk of HIV. My wife is at zero risk of HIV infection. To “encourage” her to get tested for HIV is ludicrous and insulting, insofar as legislators attempt to replace her judgment with their own.
Moreover, this is largely a solution in search of a problem. A Rocky Mountain News article begins, “The head of Denver’s HIV prevention program said Wednesday he doesn’t recall the last time an HIV-positive baby was born here.”
Paul Hsieh addresses the “nudge”-like opt-out allowance:
The basic premise of libertarian paternalism is that the government should use its power to “nudge” people into acting in their best interest, while leaving them the choice to “opt out.”
However, nudging represents an assault on freedom, because it undermines man’s basic tool of survival — his mind. By creating a default, libertarian paternalism in essence says, “Don’t worry — we’ll do your thinking for you.” Sunstein’s book explicitly compares Americans to a bunch of Homer Simpsons in need of such guidance. If Americans surrender their minds to the government, they become easy prey for demagogues and dictators.
Once we concede the legitimacy of “nudging,” nudges will inevitably escalate. Over time, libertarian paternalism will become less “libertarian” and more “paternalistic.”
Once it is accepted that the state legislature should be in the business of telling my wife (and all other women who may become pregnant) to get an HIV test, it is only a matter of time before a future legislator decides that the opt-out clause is useless.
In recent years, Republicans opposed to abortion have been most interested in politically managing pregnancy care, as by trying to require ultrasounds prior to an abortion. Former Governor Bill Owens criticized Schultheis on the following grounds: “It’s extremely inconsistent for any person who is pro-life to oppose this effort to potentially save the life of a child.”
If the state legislature “encourages” women to be tested for HIV, for the purported sake of the fetus, legislators open the door to future efforts to politically control medicine to restrict abortions.
Leftists who endorse 179 while wanting to keep abortion legal are incapable of thinking in principle or seeing more than a few months down the legislative road.
While I agree with you that state mandates for HIV testing are wrong and a violation of rights, I do believe that opt-out testing–as a hospital policy–has a lot of merit. As a physician specializing in Infectious Diseases I care for many HIV patients and while, as you say, most people know when they are at risk for HIV, some do not. Atleast 25% of those infected with HIV are unaware of their status and are capable of spreading the infection to others. Mother to child transmission of HIV is an event that should *never* occur (because of anti-retroviral therapy) in a 1st world country and having pregnant women tested (as part of the standard consent form, which already includes testing for other sexually transmitted diseases such as syphilis and Hepatitis B) is the best means to do so.