public health, personal responsibility and the law
going back to the per-coitus transmission rate for HIV for a moment, i need to clear something up: i’m not advocating unprotected sex. not by any stretch of the imagination. i believe HIV-positive individuals have a responsibility to inform potential (and, where necessary, former) sexual partners; i believe individuals (regardless of HIV status) have a responsibility to protect themselves from STIs; and i also believe that there is a role for government in promoting public health.
what i am trying to get at — albeit clumsily — is the question of how to decide whether a public health issue rises to the level of a compelling state interest. quantitative methods such as cost-benefit analyses and risk assessments taking into account incidence, prevalence, transmissibility (in the case of infectious disease), availability/viability of prevention and/or treatment methods and direct and indirect public costs of same have more validity than public perception (often incorrect due to poor public education and/or media sensationalism) as bases for decision.1
furthermore, this should not be a static analysis. as the variables change (vaccines are developed, treatments improved, public KAP changes and so on) over time, the determination of the appropriateness of any given legal intervention should be re-evaluated. to use HIV as an example, what may have constituted a justifiable government intrusion in 1986 may no longer be justifiable in 2006.
cont’d (21 aug 06): another issue —
even if it were possible to come up with a magic equation that spit out some number quantifying the “compelling level” (for want of a better term) of a state interest, there would still be the necessity of defining a normative value that would be the cutoff point for justifiable government intrusion.
1 that said, i would be naive to ignore the political power of public perception (or nifty alliteration, for that matter) or activist groups. however, an impartial judiciary should be a counterbalance to irrational or excessive legislation promulgated by politicians primarily concerned with re-election.
to be continued…