Mandatory Premarital HIV Testing

By Elaine A. Lisko, Health Law & Policy Institute

At least six states are currently considering legislative bills requiring premarital HIV testing. (Arizona H.B. 2524, Indiana H.B. 1843, Mississippi S.B. 2022, South Carolina S.B. 301, Tennessee H.B. 953 and S.B. 948, and Texas H.B. 14 and H.B. 717). Such bills were first considered in the late 1980s. At that time, only two states, Illinois and Louisiana, enacted and enforced them. Louisiana repealed its testing statute seven months after it became effective; and Illinois repealed its statute twenty months after it became effective. Two other states, Missouri and Texas, adopted conditional, mandatory premarital HIV testing statutes. Missouri has retained its statute but does not actively enforce it. Texas repealed its statute in 1991.

The short life spans of the Louisiana and Illinois mandatory testing statutes are attributable to the constitutional and public policy problems inherent in such legislation. From a constitutional perspective, such legislation may violate an individualís right to due process or equal protection of law under the Fourteenth Amendment. It may also constitute an unreasonable search and seizure under the Fourth Amendment. Mandatory premarital HIV testing legislation raises due process concerns because it seeks to infringe upon the fundamental liberty interest of the right to marry. It raises equal protection concerns because it creates a class based upon an individualís decision to marry, again impacting the fundamental liberty interest of the right to marry. It raises Fourth Amendment concerns because the involuntary withdrawal of blood may constitute an unreasonable search and seizure.

From a public policy perspective, such legislation may subject an individualís confidential health information to disclosure and result in discrimination. As the number of individuals or entities having access to private medical information increases, the potential for unauthorized disclosures increases. Disclosures of an individualís HIV+ status have resulted in discrimination in employment, insurance, housing, and health care. The fear of disclosure and discrimination can have at least two serious side effects. It can deter individuals from revealing information necessary for proper diagnosis and treatment or from seeking any diagnosis or treatment. It can also deter individuals from entering into a marriage relationship.

Additionally, such legislation may divert significant public and private resources. Where the state bears the cost of the test, public dollars that could be spent on necessary HIV and AIDS health services and research are expended to uncover only a few cases, as the targeted population (i.e., couples contemplating marriage) has been shown to have a low prevalence for HIV. Where the individual bears the cost of the test, the individual may decide not to marry or to marry in a neighboring state that does not require testing. Marriages that occur across state lines result in a loss of revenue from the marriage license fee to the state with the mandatory premarital HIV testing statute and in a loss of income to marriage-related businesses (e.g., catering services, florists) in the state.

While the public health motivations behind mandatory premarital HIV testing legislation are commendable, they cannot be realistically achieved through mandatory testing. In large part, this is due to flaws in the legislative approachís underlying assumptions. First, the approach assumes that HIV testing is accurate. Reports of false-negative and false-positive results indicate otherwise. Moreover, a negative test result does not preclude the possibility of infection. Second, it assumes that, once informed of their HIV+ status, individuals will take the necessary precautions to prevent spread of the virus to their partners and avoid conception. It also assumes that these individuals have not already exposed their partners to the virus or borne children who have the virus. Third, because of the time lapse allowed between the date of testing and the date of application for the marriage license, it assumes that the individual who has undergone testing will not engage in any high risk behavior after being tested. Fourth, it assumes that a substantial number of cases will be uncovered. Experience shows otherwise, however. For example, during the entire period that the Illinois statute was in force, less than .02% of those tested were found to be HIV+.

Alternatives to mandatory testing include voluntary testing, education, and counseling. States that are concerned with HIV exposure in marriage have crafted legislation that incorporates one or more of these alternatives. For example, Georgia, Hawaii, Indiana, Virginia, and West Virginia require that each marriage license applicant be given information on HIV or AIDS, including a list of HIV test sites. (Ga. Stat. § 19-3-35.1(c), Haw. Rev. Stat. § 572-5(d), Ind. Stat. § 31-11-4-5(a), Va. Stat. § 20-14.2, and W. Va. Stat. § 16-3C-2(g)(1)). California requires the filing of a physician certificate that indicates that an HIV test was offered as part of the marriage application process. (Cal. Fam. Code § 4300(c)). Michigan requires that each marriage license applicant be counseled by a physician or other health care provider regarding the transmission and prevention of venereal disease and HIV. (Mich. Comp. Laws § 333.5119(1)).