I wasn’t threatened with testing for the baby or anything, but the test was part of the “blood panel” that supposedly “all prenatal clinics do” on new patients. I simply opted out of HIV and a few other tests, initialed my form and moved on. Since I’m white and married, I assume I got less pressure than some of the other patients at the clinic. I also refused the other STD testing that they “offer” to new patients, and that refusal is noted in my records as well.

Finally, these women are not prosecuted or punished for not taking the test.

Their refusal is noted in their medical records.

If not, I cannot see how it protects fetuses (much less children) from anything.

Read Blake Scott’s book Risky Rhetoric: AIDS and the Cultural Practices of HIV Testing for an explanation of how testing does not equal treatment.

The knowledge of serostatus does not always (or even usually) help people get treatment.

Also, treatment costs an estimated $600,000 per baby, according to the public health agency. So, reducing that 25-30 to 1 or 2 would be a huge benefit. Aside from the fact that for those 22-25 kids, having HIV will be a defining disability for the rest of their lives.

Finally, these women are not prosecuted or punished for not taking the test. They just have to answer one way or the other. Now, personally, I think the default in organ donation should be “donate”. A person should have to consciously opt out rather than be presumed to want to deny another person the chance to live. Similarly, a pregnant person should have to consciously refuse rather than be presumed to be more worried about being tested for HIV than about the health impact on their kids. It’s about the default rule, and as long as people can deviate, I don’t see why the default should be a presumption that the person doesn’t care about health impacts to other people.

Aside from everything that’s already been pointed out, 20-30 babies a year born HIV+ in a state that contains Atlanta is not a public fucking health crisis. This is particularly true given the fact that HIV+ != dead. They’d save ten or twenty times that number of babies every year without standing at the edge of a very slippery slope indeed simply by expanding contraception and prenatal care programs’ availability to the poor. If the price tag the article quotes is accurate, it would also be far cheaper.

Now, we pro-choicers might get concerned about where this slippery-slope leads (cf. Jill’s comment), the sexism that too often lets guys off the hook even when we do neglegent things, or who defines what is a good faith effort (c.f. Ethyl’s comment) — concerns which I share, which is why I would be leary about such prosecutions. What’s odd is that so-called pro-lifers are not concerned about the “perverse incentives” (something conservatives usually worry about) of these sorts of regulations: what does that say about how much conservatives really believe their rhetoric about “perverse incentives” and/or how much the anti-abortion crowd really cares about taking constructive action to reduce abortions?

Well, right. And by prosecuting drug-addicted pregnant women, we place huge disincentives in their way of getting proper pre-natal care — and lack of pregnancy care is known to have even worse effects on babies than drug use does. If a woman thinks her doctor is going to report her to the police, she isn’t going to go to her doctor. If she knows she’ll be prosecuted after she gives birth, she has a huge incentive to terminate her pregnancy. And yet it is conservative “pro-lifers” who often argue in favor of these laws…

“Who do you think has a suit against the pharmaceutical companies? The Thalidomide babies? Or the women who took the drugs? Or Both?” (my answer is both).

What I meant to get at – we recognize that an action taken today may give way to legal liability for harms that occur in the future – even if the person who will suffer that future harm is not an individual today.

Are you familiar with the legal concept of ripeness? Meaning, essentially, that you can’t bring a claim until it’s ripe — that is, until all the elements that trigger the claim are in place. So, for instance, people exposed to asbestos can’t bring a claim for damages unless and until they actually get sick. Because not everyone who is exposed gets sick, and there’s no cause of action for fear of developing an illness you might never get. IOW, the claim isn’t ripe.

The claims of a fetus are not yet ripe because the fetus has not yet been born alive (so is not yet a person who can assert claims) and has not yet developed a condition for which a claim can be asserted. So, in the case of HIV testing in which the concern is that the mother, who may or may not be infected, might transmit the virus to the child, who might become infected, until that child is actually born alive and tests positive, that child just doesn’t have a ripe claim against anyone. While the fetus is in utero, all claims and all potential outcomes are still potential.

There’s also a rather large question about whether the mother’s refusal to submit to testing is a proximate cause of the injury, too, but that’s a whole ‘nother legal concept.