This article discusses the development of the law surrounding whether a prisoner has a right under the Eight Amendment to HIV testing. Currently, twenty states require testing on demand and case law addressing the issue directly is limited. An inmate's right to adequate medical care stems from the Eight Amendment's prohibition of "cruel and unusual punishment" under "evolving standards of decency." This article discusses whether HIV testing should fall under those evolving standards.
With only two reported cases addressing HIV testing on demand, the author describes the gaps in the law in this area. Since Doe v. Wigginton, public knowledge of HIV has evolved and courts have noted the importance in preventing the spread of disease in prisons. Further, courts have recognized the duty of prison officials to take reasonable steps to contain or thwart the spread of disease, which should be applicable to HIV. The author argues that HIV testing in prisons would meet the standard set in Estelle v. Gamble, and that the evolving standards of decency and the risk faced by prison inmates to this life-threatening disease support the position that denying HIV tests on demand would be unconstitutional. This should be read in conjunction with other resources that note other concerns regarding HIV in prison settings, including the ability of prisoners to opt out of testing, and the need for correctional facilities to provide adequate medical services to HIV-positive inmates.
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