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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
in Chalk and like cases.
Conclusion
The complex social realities of AIDS which have given rise to Proposition 96 have also given rise to careful scrutiny of petitioner's challenge to the statute. In the words of one New York court, "AIDS is a terrible and tragic reality in our . . . nation and world. Although many approach AIDS victims with sympathy and compassion, AIDS has all too frequently been the occasion for discrimination, stigmatization, and hysteria. As an institution which is and should be a bulwark against discrimination of all kinds, the court system must be especially wary about attacks on individual and social rights made in the guise of health-related AIDS claims. [para.] he potential for misuse . . . cannot be overlooked, particularly when coupled with possible racism or homophobia, given the composition of the major groups 'at risk' for AIDS." (Doe v. Roe, supra, 526 N.Y.S.2d at p. 726.) The "'devastating effects of [AIDS] and widespread lack of knowledge about it have produced deep anxieties, and considerable hysteria, about the disease and those suffer from it. . . .'" (Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal. App. 3d 1242, 1252 [261 Cal. Rptr. 197].)
"'AIDS is the modern day equivalent of leprosy. AIDS, or a suspicion of AIDS, can lead to discrimination in employment, education, housing and even medical treatment.'" (Rasmussen v. South Florida Blood Service (Fla. 1987) 500 So.2d 533, 537 [56 A.L.R.4th 739].)
Skinner itself was not decided without a dissenting voice cautioning that " istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation-camp cases, Hirabayashi v. United States 320 U.S. 81; Korematsu v. United States 323 U.S. 214 and the Red Scare and McCarthy-Era internal subversion cases, Schenck v. United States 249 U.S. 47; Dennis v. United States 341 U.S. 494 are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it." (Skinner, supra, 489 U.S. at p. 635 [103 L.Ed.2d at pp. 671-672, 109 S.Ct. at p. 1422], parallel citations omitted [Marshall, J., dis.].)
This is not such a case. The electorate has enacted a statute which is narrowly drawn to respond to a serious state interest. Rather than a blanket testing requirement of entire classes of persons, or an exclusion from society, occupation, or housing of persons infected with the AIDS virus, Proposition 96 applies only when (1) a person is charged in a criminal complaint with assaulting or otherwise interfering with a public safety employee and (2) the assailant's conduct has resulted in the transfer of bodily fluids to that employee. Testing cannot occur until a court is petitioned and holds a hearing, at which the court must find probable cause of a fluid transfer. Testing must be accomplished in a medically approved manner, and its results are subject to strict rules of nondisclosure.
We also note that petitioner is not a random, innocent victim of an uncontrolled testing scheme. Under the statutory procedure at issue, testing is permitted only on persons formally accused of assaults or other offenses against peace officers, firefighters and emergency medical personnel resulting in the transfer of bodily fluids. Persons committing criminal offenses are generally forewarned that they are subject to some intrusions on their civil liberties. For example, even prior to any conviction they are subject to arrest, to pretrial incarceration (subject to having to post reasonable
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