Public Health Arguments and Civil Rights Protections

For some time now gay civil rights (aka gay rights) activists have argued that same sex relationships and conduct should be decriminalized because evidence shows that in societies that don't do so there is a higher prevalence of HIV among gay men.

Let there be no doubt, the latter claim of fact is true. There is a fairly substantial body of social science evidence demonstrating that. Opponents of gay rights typically point to that higher prevalence - even in societies that have decriminalized - to bolster their opposition. They usually argue that if their society decriminalized same sexual relationships  (aka buggery, to use that lovely colonial phrase invented by the Brits) even more folks would engage in that high risk behaviour and things would get worse on the HIV fronts. That isn't true, demonstrably so. This will have little impact on these campaigners' messaging, because they're god people. Their opposition to homosexuality is driven by religious convictions plus almost certainly deep-seated other psychological issues. After all, these are the same people that like equating pedophilia and homosexuality. Evidence for that claim is also difficult to come by. There's a method to this madness though, and it's a successful madness. Whole countries (Jamaica and Uganda are just two examples) these days are in the thrall of moral panics when it comes to the matter of homosexuality.

Now, gay rights activists have resorted to engaging in similarly flawed arguments to further their political objectives. To be fair, unlike god people they at least have some evidence on their side (i.e. homosexuality isn't pedophilia, criminalization leads to higher HIV prevalence). However, none of that creates a case for gay rights. At least it shouldn't. Civil rights cannot be contingent on non-immutable characteristics. What if it turned out to be the case that decriminalization of homosexuality led to higher HIV prevalence? Should one then join god people and their campaigns? Civil rights case closed? Obviously not. The case for civil rights cannot be based on public health arguments.

The case for civil rights protections is always and necessarily so based on individuals' liberty entitlements to live their lives as they see fit, as far as self-regarding actions are concerned, on privacy rights, their right to associate with whoever consenting adult(s) they see fit, their entitlement to see their needs treated equally to comparable needs that led to rights heterosexual people enjoy, and a gaggle of other related arguments. None of these arguments are contingent on the truth or otherwise of particular public health matters. After all, where would one go once it was possible to eradicate HIV with a simple pill being taken, or once a working preventative vaccine existed? Too bad for gay rights then? I think not.

That's not to say that opponents of gay rights should not be called on their lies and deception. However, by turning their arguments on their head no case is made for gay rights either.

Addendum: 12:29pm, July 25, 2014 EST.

Of course, it is true that civil rights protections also extend to certain kinds of choices (e.g. religion) as well as other not immutable characteristics such as language. I stuck to immutable because that case is easier to make and it applies to homosexuality.

HIV Health Promotion Ethics and Pre-Exposure Prophylaxis

A lot has changed since the early days of HIV/AIDS. In the not so good old days an HIV infection pretty much constituted the end of the road for those infected. Most infected people died of one or another infection a healthy immune system would have been able to cope with. The public health messaging at the time was unequivocal: protect yourself and others by using condoms every time you have sex with someone whose HIV status is unknown to you. The ethical rationale for this was predicated on ideas such as Dan Beauchamp’s. He wrote, ‘public health should advocate a counter-ethics for protecting the public’s health, one articulated in a different tradition of justice and one designed to give the highest priority to minimizing death and disability.’[1] Libertarians such as the gay philosopher Richard D. Mohr didn’t buy into this story, questioning even whether the idea of ‘public health’ was intelligible to begin with.[2] He wasn’t the only critic of public health promotion campaigns. Patricia Illingworth warned more than two decades ago that AIDS health promotion campaigns could be hazardous to our autonomy.[3] She argued, persuasively to my mind, that many health promotion campaigns are manipulative and so they undermine autonomous decision-making by competent adults.

I cannot help but wonder whether we have come full-circle on this issue. Today we have medicines available that effectively control HIV. AIDS is so rendered a chronic manageable illness. These medicines have a truly remarkable side-effect. They are capable of rendering people with HIV infection, who take them, non-infectious for all practical intent and purposes.[4] Indeed, medication has come on the market offering something called pre-exposure prophylaxis. The idea here is basically that perfectly healthy people with a fairly high risk of contracting HIV take this medication to prevent the virus from taking hold in case they get exposed to it.

There are all sorts of ethical issues that arise in the context of the proposition that healthy people should take drugs to prevent a future infection that might never happen to them in the first place, at a cost of thousands of dollars per year per non-patient. Still, epidemiological modeling suggests that this strategy could end the HIV pandemic in a generation or two. You can see why: If infected people take drugs that render them non-infectious and everyone at high risk for contracting the virus took the same class of drugs as a prophylactic against an infection, eventually new infections would decrease very significantly. In the absence of a preventive vaccine this might be our best shot at beating the virus.

The courts have not quite caught up with this new reality. HIV infected individuals with undetectable viral load, who have unsafe sex without telling their partners, still risk prosecution in many countries. But what about the public health promotion industrial complex’s response? Has it modified its campaigning on the issue? It turns out, the strongest condemnation of pre-exposure prophylaxis came from public health promotion people. They were primarily concerned that people in groups at high risk for HIV infection might take the medication and engage in unsafe sex.  There is a mindset at work that we might be better off threatening people with HIV sufficiently to scare them into having safe sex. Telling them the truth and risking that some might decide to take drugs efficiently protecting them against HIV in order to engage in unsafe sex doesn’t seem an option. Why would otherwise sensible people hold such views?  Well, they are concerned that a rise in unsafe sex could lead to people acquiring other sexually transmissible illnesses.[5] 
Even if that was true, surely any health care system ought to strive toward reducing the number of people with a serious infection such as HIV even if that meant accepting a higher number of people with mostly treatable infections such as syphilis, gonorrhea and the like. Bizarrely the suggestion has also been made that if gay men stopped using condoms courtesy of the risk-reduction the pre-exposure prophylaxis affords them, they would eventually be as sloppy with the medication itself.  It goes without saying that there is zero evidence to support this contention. As to the increased risk-taking alluded to a moment ago, available research suggests that pre-exposure prophylaxis goes hand-in-hand with only a slight increase in the likelihood of reduced condom use    .[6]

There’s also the usual rhetoric of ‘reckless’ behavior, which ignores that a decision to have unsafe sex can be a carefully considered choice. It is not that safe sex is a cost neutral activity. Surely there is a reason for why most people do not use condoms consistently.[7] Patricia Illingworth wrote an illuminating monograph defending the right of gay men and others to make such choices.[8]  

It seems Illingworth and Mohr had a point when they warned about the capacity of public health promotion activities to harm individual autonomy. To campaign against HIV pre-exposure prophylaxis in order to ensure that gay men don’t make safe sex related choices health promotion people disagree with seems ethically deeply problematic. Their task would surely be to persuade potentially risk taking people not do do so by outlining what risks, other than HIV, they would run if they did what they are contemplating doing. To use the threat of an HIV infection as a means to achieve other objectives, namely to reduce the incidence of other sexually transmitted illnesses, is a non-starter.

UDO SCHUKLENK

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[1] As quoted in Patricia Illingworth. 1990. AIDS and the Good Society. London: Routledge, p. 48.

[2] Richard D. Mohr. 1987. AIDS, Gays and State Coercion. Bioethics 1(1): 35-50.

[3] Patricia Illingworth. 1991. Warning: AIDS Health Promotion Programs May Be Hazardous to Your Autonomy. In: Christine Overall and William P. Zion. (eds). Perspectives on AIDS: Ethical and Social Issues. Toronto: Oxford University Press, pp. 138-154.

[4] Gus Cairns. 2014. No-one with an undetectable viral load, gay or heterosexual, transmits HIV in first two years of PARTNER study. March 04. http://www.aidsmap.com/No-one-with-an-undetectable-viral-load-gay-or-heterosexual-transmits-HIV-in-first-two-years-of-PARTNER-study/page/2832748 [accessed March 05, 2014]

[5] For a bioethical version of this concern see Richard M. Weinmeyer. 2014. Truvada no substitute for responsible sex. February 14 .Bioethics Forum http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=6777&blogid=140 [Accessed March 04, 2014]
[6] Martin Holt, Dean A. Murphy, Denton Callander et al. 2012. Willingness to use HIV pre-exposure prophylaxis and the likelihood of decreased condom use are both associated with unprotected anal intercourse and the perceived likelihood of becoming HIV positive among Australian gay and bisexual men. Sexually Transmitted Infections 88: 258-263.

[7] L.A. Scott-Sheldon, K.L. Marsh, B.T. Johnson and D.E. Glasford. 2006. Condoms + pleasure = safer sex? A missing addend in the safer sex message. AIDS Care 18:750-4

[8] Patricia Illingworth. 1990. AIDS and the Good Society. London: Routledge