MAP Legal Services provides advice, direct representation and referrals to a network of volunteer attorneys for HIV-related legal matters, including estate planning, family law, discrimination, social security, immigration and employment-related concerns. Participants must be HIV-positive, meet financial eligibility requirements and complete our legal intake process. MAP also provides brief consultation to HIV service providers and family members on HIV-specific legal topics.

We hope you find this update informative and useful! If you have any comments or suggestions, please contact Caroline Palmer, Staff Attorney, at cpalmer@mnaidsproject.org or (612) 373-9174. If you do not wish to receive future editions of MAP Legal News, or if you would like your name added to the list, please contact Dan Kelly, Legal Services Assistant, at dkelly@mnaidsproject.org or (612) 373-2426.

In this issue:

• Updates on HIV-related Case Law
• Legal Issue of the Month: Minor's Consent Law
• Spotlight on MAP Legal Services Volunteer Jerry Burg
• Corrections Systems Advocacy Report on HIV and Corrections Available

We have no recent cases from the United States Supreme Court, the Eighth Circuit or Minnesota District to report. Here are some interesting cases from Minnesota and around the country:

From "Bill Would Let HIV Patients Donate Organs," Ginny Skalski, Associated Press, March 12, 2004:
The Illinois House recently passed a bill allowing persons with HIV to donate their organs to other persons with HIV. If the Senate passes the bill, Illinois will become the first state to allow organ transplants between individuals with HIV. Organ donor experts and physicians backing the bill say such a move will help prolong lives; opponents claim that there are not enough controls in place to prevent transplant in an uninfected persons. The Illinois State Medical Society has expressed opposition because the organization wants to include language protecting doctors from liability if HIV is accidentally transmitted during surgeries. Representative Larry McKeon (D-Chicago), who is HIV-positive, proposed the bill after conversations with his doctor at Northwestern University.

From "Minnesota Ordered to Repay Welfare Clients $300,000," Paul Gustafson, Star Tribune, March 3, 2004:
Minnesota must refund money to 8,200 welfare recipients who live in subsidized housing. Their benefits were cut last year before the state obtained the necessary federal government approval to do so. A one-time payment of $50 is due to each recipient, totaling about $300,000. Ramsey County Judge Judith Tilsen also barred Minnesota from trying to recover payments to 6,700 welfare recipients who have disabled family members, totaling $862,000. Legal Aid attorneys successfully argued that the state needed to obtain prior approvals from the United States Department of Agriculture before implementing the benefit cuts approved by the 2003
legislature. The state claimed that it did not need approvals but sought and received them anyway after the suit was filed on behalf of welfare recipients in June 2003. The state is considering whether to appeal the decision or may combine food and cash payments under the Minnesota Family Investment Program in order to sever its ties to
federal food stamp programs.

From "Edina Surgeon Infected with HIV Disciplined by State Board," Associated Press, February 18, 2004:
The Minnesota Board of Medical Practice disciplined a surgeon after he cut his finger on a rod in a patient's elbow during an arthroscopic procedure. The suspension of his license was stayed provided he followed a list of 20 orders, including allowing other members of the surgical team to align bone fragments and suture whenever possible. The doctor and operating room staff cleaned his hand and he put on new gloves, however the doctor removed the rod from the patient's elbow without making an attempt to disinfect it. The doctor later notified the patient of a possible
blood exposure to HIV; follow-up tests on the patient were negative. The doctor admitted that he did not always follow the safety procedures dictated by the board in 1997 when he was diagnosed with HIV. These procedures included a "no touch" passing technique when handling sharp instruments.

From "Arizona Surgeon Who Refused to Operate on HIV-positive Patient Agrees to Justice Department Settlement," Daily HIV/AIDS Report Kaiser Network, February 11, 2004:
According to a lawsuit filed by a patient, an Arizona surgeon refused to operate "because of the risk of HIV exposure and infection" to the doctor, his staff and family. The United States Department of Justice took the position that the doctor violated the Americans with Disabilities Act and the doctor agreed to pay $120,000 to the patient and $20,000 to the government as part of a consent decree to avoid a lawsuit. In addition, every employee of the physicians group where the doctor practices must complete at least three hours of training on the treatment of HIV-positive patients, and the clinic must implement a policy "threatening termination to any employee who refuses treatment based on a patient's HIV status." The doctor denied any wrongdoing and is not being disciplined or investigated by Arizona's Medical Board.

From "Cirque du Soleil Offers to Rehire Acrobat Fired Over Having HIV," Lee Romney, Los Angeles Times, January 31, 2004:
Cirque du Soleil planned to offer to rehire acrobat Matthew Cusick after the United States Equal Employment Opportunity Commission determined there was reasonable cause to believe the circus discriminated against Cusick because of his HIV status. The circus also plans to draft an anti-discrimination policy protecting the rights of HIV-positive performers, with the help of the San Francisco Human Rights Commission. Cusick, who is represented by Lambda Legal, may still pursue a lawsuit depending on whether Cirque du Soleil agrees to change its policies about HIV-positive performers and whether the company makes Cusick a satisfactory offer during mediation.

From "Kansas Court Backs Harsher Sodomy Sentence," John Hanna,
Associated Press, January 30, 2004:
In a 2-1 decision the Kansas Court of Appeals has ruled that the state can punish illegal sex with children when homosexual acts are involved. The ruling rejected the
appeal of Matthew R. Limon who was sentenced to more than 17 years in prison for having sex when he was 18 with a 14-year-old boy. If Limon's partner had been a girl the longest he could be sentence is one year under the state's "Romeo and Juliet" law that allows for lesser penalties when one partner is 19 or under and the other partner's age is within four years. The American Civil Liberties Union represented Limon and argued that the different sentences amounted to unconstitutional discrimination, especially in light of the 2003 United States Supreme Court decision striking down state sodomy laws (including the Kansas law). The Court of Appeals held that lawmakers could reasonably justify using different penalties "to prevent the gradual deterioration of the sexual morality approved by a majority of Kansans . . . [and] . . . encourage and preserve the traditional sexual mores of society. . . . Medical literature is replete with articles suggesting that certain health risks are more generally
associated with homosexual activity than heterosexual activity." The dissenting judge wrote that the state had no rational basis for the difference in sentencing, writing: "We grant deference, not blind acquiescence to legislative findings. This blatantly discriminatory sentencing provision does not live up to American standards of equal
justice."

Hunt v. Ortiz et al., No. 03-1419, 84 Fed. Appx. 34 (10th Cir., 12/17/2003): The Tenth Circuit upheld a decision dismissing a Colorado prisoner's claims relating to discipline he received for refusing to submit to a blood test for HIV disease. According to the court, there is no constitutional violation when a prisoner is forced to undergo
HIV testing. William Hunt received a disciplinary write-up and was subsequently convicted of violating the prison's rules, earning him suspended sentence of 10 days segregation. He was placed on probation for 90 days. Aside from the constitutional violations alleged, Hunt also claimed that he was retaliated against because of his refusal to provide a blood sample when he was disciplined for his refusal, his
prison job was taken away, and he was denied permission to use the prison's law library. The court upheld the dismissal of all of the claims as well although it disagreed with the lower court's characterization of Hunt's challenge to the testing and subsequent disclosure of his refusal to take the test to non-medical personnel as
frivolous. The court also upheld the portion of the lower court's decision concluding that Hunt failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995.

Fusco v. American Airlines, Nos. 03-15890, 03-15893, and 03-15897, petitioners' brief filed (9th Cir., 12/16/2003): Three HIV-positive applicants for flight attendant positions asked the Ninth Circuit to review a decision granting summary judgments to American Airlines on their claims that the airline's pre-employment medical screening
process violated the Americans with Disabilities Act, California anti-discrimination law, and the state's constitution. The three attendants had job offers rescinded when they disclosed their HIV status to the airline after blood tests revealed each man had an
elevated mean corpuscular volume signaling several possible conditions including HIV. The airline claimed that the offers were rescinded because the men failed to provide "full and correct information" during the application process. The claimants argue that American's policy of conducting medical testing before offering a bona fide position violated the state's Fair Employment and Housing Act that prohibits such pre-employment screening. They also claim that the American's reason for denying them the flight attendant job was not legitimate because the medical exam was invalid. The Legal Aid Society-Employment Law Center filed an amicus curiae brief on behalf of the claimants, adding that the airline's action violated the men's privacy.

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Legal Issue of the Month: Minor's Consent Law

The Minor's Consent Law has come under increasing attack in recent legislative sessions, with attempts to repeal in both the House of Representatives and the Senate this year. Although the Senate Health and Family Security Committee voted recently to support the current law, the repeal came up on the Senate floor and was defeated. It is likely, however, that the repeal will continue to come up in the legislature. Visit the MAP Public Policy Web site (see information later in this newsletter) to find out how you can become involved in protecting Minnesota's Minor's Consent Law.

The law, which was enacted in 1971, is designed to increase timely access for minors seeking medical or mental health care. Teens can seek certain medical services without parental consent, including emergency medical care, inpatient mental health care, drug or alcohol abuse evaluation and treatment, contraceptive care and pregnancy care (not including abortions). Studies show that if parental knowledge
were required, only 15 percent of minors would seek care for sexually transmitted infections. Eighty percent of unmarried adolescent females would not seek birth control if parental notification was required but fewer to one percent would discontinue sexual relations.

While parental involvement is always desired and adolescent health care professionals typically go out of their way to assist young people in developing strategies for informing their parents -- there are instances when a parent or guardian fails as an advocate for their young person's well being or, in the most extreme cases, poses a
threat to the minor's safety. Some parents make decisions for their children based on their own belief systems, preferences and lifestyles without considering the unique circumstances their children may face. A clash in values or beliefs, or the presence of abuse in the home, could deter a young person from seeking health care. When an unstable family life is part of the problem, the need for confidential health care become all the more important because teens in these situations tend to be at greater risk for substance use, STDs, and other sexual health concerns like HIV. The Minor's Consent Law ensures that young people who do not have a supportive family environment can still access potentially life-saving care. The proponents of a repeal ignore this critical fact. The current law does allow health care professionals to inform parents or guardians about a minor's health status in situations in which failure to inform them would jeopardize the health of the minor.

Attacks on Minor's Consent Laws may also be unconstitutional. There are several court cases acknowledging the privacy rights of adolescents, particularly older teens, in the context of abortion. Blanket restrictions that do not provide any alternative such as
judicial bypass, health care provider discretion, or age group distinction are susceptible to constitutional scrutiny. Strong arguments can be made that the restrictions on access to health care actually defeat the state's interest in protecting minors. In Hodgson v. Minnesota, for example, the Supreme Court struck down a Minnesota
law requiring that a minor seeking an abortion notify both parents, whether or not both have assumed responsibility for her upbringing because it served no state interest and was unconstitutional; the state's interest, in the court's opinion, would be fully served by a one-parent notification requirement. 497 U.S. 417 (1990). Likewise, the Court found Missouri's parental consent requirement for a minor to obtain an abortion to be unconstitutional because, though not "every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy," the state had insufficient
justification for the blanket restriction. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). And finally in the Baird cases, while the court upheld the notion of vulnerable minors and parental rights to make decisions with respect to the family, the court also determined that the state could not make parental consent
mandatory without some alternative, such as a judicial bypass, that would allow minors to obtain the treatment they need. Bellotti v. Baird, 428 U.S. 132 (1976) and Bellotti v. Baird (II), 443 U.S. 622 (1979).

Further, the legal system contradicts itself in terms of minors' rights. For example, in states where adolescents can become emancipated, the right to consent to medical treatment is part of the court-mandated freedom created by the emancipation order. Minors who are married or are in the armed forces have the same right. These
scenarios challenge the assumption that parents are always the best equipped to make decisions for minors and that minors cannot make important life choices on their own.

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Spotlight on MAP Legal Services Volunteer Jerry Burg

Longtime volunteer Jerry Burg practices in the areas of family, criminal, landlord/tenant, and employment/civil rights law. His represents clients in divorce cases as well as non-traditional couples struggling with break-up and custody disputes, and has litigated the issue of setting aside second-parent adoptions. He also advises
individuals who are planning life partnerships and surrogacy. Burg represents employees and employers in matters involving discrimination, contracts, non-compete, trade secret, wage and unemployment issues, and he provides diversity training to various entities, focusing on sexual orientation. His employment-related cases
have also included representation of professionals in formal disciplinary proceedings. In the area of criminal law Burg represents men ticketed and/or arrested in cruising situations, in addition to other criminal violations, and has assisted numerous individuals in civil harassment proceedings. Burg has extensive litigation experience
in federal and state court, as well as within several administrative agencies. Along with his law partner, Rebecca Heltzer, Burg provides governmental relations services for clients, advocating and lobbying as needed at the state and municipal levels. In 1993 Burg lobbied to amend the Minnesota Human Rights Act to include sexual orientation and then used the new protection to sue his former employer for sexual orientation discrimination; the case settled 14 months later. Burg has been practicing law since 1990 and is a graduate of the University of Minnesota Law School. He is currently an adjunct faculty member at William Mitchell College of Law. Burg can be reached at Heltzer & Burg, (612) 333-4858.

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MAP Corrections Systems Advocacy Needs Assessment Report

Nationally, rates of HIV and Hepatitis C are higher in prisons than in the general population. While the recorded number of prisoners in Minnesota is low, most believe the actual numbers are much higher. Minnesota AIDS Project's recently completed needs assessment report compiles interviews, observations and research to offer
recommendations for a framework to address and serve Minnesota offenders with HIV. If you would like to receive a copy of this report please contact Caroline Palmer, Staff Attorney, at (612) 373-9174 or cpalmer@mnaidsproject.org.

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Last Updated: Tuesday, April 3, 2007
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