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AIDS Law Updates

By Catherine Hanssens, Esq.

Fall, 1995

Federal Court of Appeals Vindicates "Hot and Sexy" AIDS Education

Parents and children who sued the creator of a school AIDS education program about safer sex failed to persuade a federal court of appeals that the program was unconstitutional and equivalent to sexual harassment because it violated their religious beliefs. The First Circuit Court of Appeals (covering ME, MA, NH, RI and Puerto Rico) rejected arguments that the program violated parents' constitutional rights to the free exercise of religion and to control their children's exposure to sexually-explicit material, or that it constituted sexual harassment. The Rutherford Institute, a conservative, anti-gay legal organization based in Virginia, supported the litigation on behalf of the plaintiff parents and children and vowed to seek review of the decision by the U.S. Supreme Court. This important case provides authority for other school administrators and jurisdictions hoping to offer similar programs. Brown v. Hot, Safe and Sexy, Inc., 10/23/95.

Nebraska Appeals Court Returns Child to Foster Mother With HIV

A state appeals court in Nebraska concluded that removing a child from his foster parents solely because the foster mother has AIDS is not in the child's best interests. The court reversed the state department of social services decision that it was preferable to place the three-and-a-half year old boy with "healthy" foster parents than to allow him to witness the potential death of his foster mother (with whom he had lived since three months old). The court believed the child's interests were not served by replacing one possible tragedy, the death of his foster mother, with the loss of both parents with whom he shared a strong bond. In re John T., 10/3/95.

Federal Appeals Court Invalidates Denial of Benefits for HMO Member With AIDS Receiving Emergency Care Outside Service Area

The Fourth Circuit Court of Appeals rejected a trial court decision which effectively forced persons with AIDS to choose between travel and continued health care coverage. Jeffrey Bernstein was a member of a managed care health plan (CapitalCare) in his hometown of Washington, D.C. who was denied payment for emergency hospital care while visiting his brother in New York. CapitalCare claimed that because Bernstein had advanced HIV disease, his hospitalization for previously-undetected CNS lymphoma was reasonably foreseeable, and therefore Bernstein had the obligation to stay in, or return to, Washington, D.C. for treatment by a group area provider. The appeals court noted that the foreseeability of a particular illness depends on myriad factors and is a complex medical determination which qualified doctors, not judges, should make. Left undisturbed, CapitalCare's decision to deny payment would have required a person living with AIDS to remain home-bound and isolated from family and friends in order to ensure ccontinued health care coverage. Bernstein v. CapitalCare, 12/4/95.

Catherine Hanssens is the AIDS Project Director at Lambda Legal Defense and Education Fund, a national organization committed to achieving the full recognition of the civil rights of lesbians, gay men, and people with HIV/AIDS through impact litigation, education, and public policy work.

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