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Swartz, Omar --- "Neo-liberal legal morality and access to medicine: The case of AIDS" [2004] AltLawJl 50; (2004) 29(4) Alternative Law Journal 178

The case of AIDS


This article studies the connection between law and access to AIDS medicine.[1] In many parts of the world, AIDS is advancing to the point at which it will depopulate entire societies. This should cause anyone concern. As a species, we have suffered disease and famine, war and pestilence, and, to an extent, accept these phenomena as conditions of life. But this current depopulation is human death on a scale seldom experienced, and it is preventable. This is humanity at one of its most vulnerable moments. One reason human beings keep allowing all types of mass suffering to exist throughout the world is because the law often creates a different set of moral priorities than the ones that value human life. The study of the connection between law and access to AIDS medicine provides a clear instance of how nee-liberal legal morality prevents human beings from developing a species-wide identification in which the good of any one individual is tied to the good of humanity.

Scope of the problem

Acquired Immune Deficiency Syndrome (AIDS) was first identified in 1983. Since then, there have been more than 16.3 million deaths due to AIDS-related illnesses.[2] These deaths, however, are only the tip of the proverbial iceberg because the total number of infected persons worldwide has grown to more than 47 million and continues to rise.[3] These statistics underscore the point that AIDS is the most devastating health epidemic of the modern era. Extreme conditions such as this require a fundamental rethinking of the social and structural conditions that allow such crises to occur. To root out disease requires changes in our attitude about the structure of human society. Rational thinking requires that we adapt ourselves to new conditions and change our basic assumptions as to what is or is not possible. Then we must act and invest human potential with a sustained commitment

Within the developing world, the bleakness of the AIDS epidemic is compounded by other population-reducing diseases, such as malaria and ebola, which have gained an increased deadliness in recent years as under­resourced countries, deep in the AIDS crises, struggle to allocate limited health service resources. In the midst of such diseases, many countries are experiencing a disintegration of families, a breakdown of communities, and the deterioration of already delicate economic systems. Many of these countries have never fully recovered from centuries of colonialism. Unfortunately, in the United States, we largely do not have any perception of what life is like for people suffering in the developing world from poverty and disease. If we did, we might be more inclined to examine critically our compliance with a system that has contributed to such suffering and to do something to change the situation.

New drugs

On a more positive note, there is increasing hope for a better life for people infected with AIDS. Since 1996, new drugs such as Azidothymidine (AZT), a protease inhibitor, have dramatically improved the longevity and quality of life for HIV-infected people. More recently, the Food and Drug Administration approved a new class of medications, fusion inhibitors that prevent the HIV virus from gaining entry to the cells of the immune system.[4] For people lucky enough to have access to these medicines (which cost approximately US$15,000 a year for the typical AZT cocktail and US$20,000 for the new Fuzeon treatment), AIDS has gone from being a terminal disease to one that is, to

a degree, 'manageable'. Such medical breakthroughs have brought substantial hope to thousands of affluent sufferers of AIDS, for their loved ones, and for people fortunate enough to live in the developed world and to have health insurance (retired basketball star Earvin 'Magic' Johnson has been able to manage his HIV infection for over a decade). For those of us who have closely watched the evolution and impact of AIDS in the United States, the development of effective AIDS medicine is a basis for much rejoicing and optimism for the future. The lesson we learn from these medical

breakthroughs is that the AIDS epidemic one day can be controlled.

Access to drugs

Such optimism, however, on behalf of HIV-infected Americans gives way to desperation within the larger realties of AIDS-related human suffering that exist worldwide. As the moral centre of secular civilisation, the law has an obligation to be part of the solution of saving millions of people's lives. Instead, the law is often part of the problem of human suffering and despair, particularly when we consider inequalities of wealth, both nationally and internationally, and the effect that these inequalities have on people's health. As C. Everett Koop, former Surgeon General of the United States, once remarked, 'Poverty is at the base of almost all the problems I see in health'.[5] Another commentator notes that 'poverty is lethal'.[6]

While we should cheer the victories that enable many affluent HIV-infected people to live longer, healthier

lives, we should realise that their experience is atypical of the epidemic. The vast majority of people who suffer from AIDS do not have access to medicine. The experiences of those who do have access to health care should lead somehow to the future eradication f the disease and not simply represent an 'escape­ hatch' by which a few privileged people are allowed to purchase back their lives while so many poor perish in a preventable biological holocaust. As a citizen of South Africa, a nation mired in the epidemic, said, 'we accept that a richer person can have a better car or a better life, but there's something less acceptable about the rich being able to purchase more years of life'.[7]

Specifically, 95% of reported AIDS cases are in the developing world, in countries where people have median incomes of only a few hundred dollars a year.[8] Because AIDS treatments are so expensive, the majority of people infected with the disease suffer needlessly and die years before they should because they cannot afford access to life-sustaining medicine. Simply, the high Cost of AIDS medicine places it out of the reach of all but a small number of people on the planet. Sadly, this condition exists even when increased access to medicine like AZT can be seen as necessary from a cost/benefit analysis: AZT prolongs a person's ability to work and to be a productive member of society, and patients who receive the medicine require less treatment for opportunistic infections, as well as less hospital care.

Public control needed

This situation is in need of change; yet change comes slowly, if at all. More than ten years ago, Nicholas A.

Christakis and Morris J. Panner published a paper calling for public control over AIDS research so that the benefits of technology can be reaped by the majority of the people who need it. They argued that there needs to be public control over the pharmaceutical industry. The goal of such control is to bring 'a vaccine to

market in the most reasonable, equitable, and efficient manner possible'.[9] They note that the government's initial reliance on market forces to address the problem is not working and that 'the distinctive scientific and policy concerns related to an AIDS vaccine force a re­ evaluation of this reliance'.[10] As Christakis and Panner make clear, government control of the process of AIDS vaccine development is important for maximising research, testing, and distribution.

As things currently exist, however, many public health and scientific decisions about AIDS research and the distribution of AIDS-related medicines are made by the private sector, which operates under different assumptions of the social good than does government. According to free-market apologists, the market works because of human greed. People want to accumulate as much wealth as they can, so they make the effort to develop resources and manufacture products. While there is some truth to this, this is merely one side

of human industry, and greed may not be the best motivation when larger social and community values need to be supported. Major national and international policies involving people's health should not solely rest on the judgment of a handful of self-interested, unaccountable business proprietors who often do not act in the public interest.[11]

The 'common good' means for citizens of this country and of all countries, as AIDS is a world problem that demands a worldwide response by any country strong enough to undertake it to prevent the decimation of populations unable to self-manage the epidemic. Given the scope of human suffering caused by AIDS, it seems fitting to use this tragedy as an impetus for humanity to transcend its callousness toward many in its community, to expand its definition of 'community' to include all people of the world, and finally to acknowledge that a threat to human society anywhere is a threat to human society everywhere.

One dimension of the problem is that, in the Anglo­ American legal tradition, general legal doctrine asserts that individuals have no duty to rescue another whose life is in danger. Under this doctrine, no individual is responsible for anyone else or for the secondary or tertiary level effects of their actions. Under the guise of protecting the integrity of individualism, for example, Americans are individually not responsible for the pollution, poverty, environmental depredations, and other byproducts of the American way of life. Such extreme individualism is a disservice to our civilisation, and American society should be modified in the interests of the larger world community, as evidenced by the experience of AIDS victims.

'No duty of rescue'

The law defines our place in society and secures our relative privileges from the vicissitudes of what are, in essence, other people's needs or problems. This atomising of individuals is the ill with which this article takes issue. Today it is not enough simply to provide for one's family to be considered a good citizen. Further, it is no longer acceptable to pit families against each other

for dwindling cultural and financial resources. Instead, we must learn to think how we collectively can provide adequately for every family. This security requires that we extend our sense of moral obligation to others and reinvent our notion of community, accepting responsibility for increasingly larger numbers of people. The internalisation of this responsibility stands in stark contrast with the law as we understand the law today. Outside of their general tax obligations, for instance, people are encouraged by the law to ignore the world around us when there is no duty-bound connection between our prosperity or health and the suffering of others.

Classic example

A classic example of the 'no duty to rescue' doctrine is Yan1a v Bigan.[12] Here the court held that the defendant was not liable in tort when he stood by and watched a man, with whom he was having a conversation, drown. Bigan, who owned a coal strip-mining operation, had, on his property, a large trench (4 to 5 m deep) that was created during coal extraction. This trench was half-filled with rainwater. To expel the water, Bigan installed a pump, which was submerged. Yania, who operated a nearby mining operation, came to visit Bigan to discuss a business matter. Bigan asked Yania to help him start the pump, which required Yania to descend into the water. Yania was neither told how deep the water was nor was he warned to be careful. As Yania flailed for help before he drowned, Bigan made no effort to help him.

The civil complaint filed against Bigan by Yania's widow was that Bigan should not have urged Yania into the water, that he did not warn Yania of the danger involved in starting the pump, and that he did not help Yania once it was clear that he was drowning. In rejecting the complaint the court explained that the mere fact that Bigan witnessed Yania in his peril, thrashing about in the water, did not impose on him any legal duty to rescue Yania. For legal responsibility to attach, Bigan would have to be legally responsible for placing Yania in the position of danger (for example, pushing him in or otherwise actively preventing help from aiding Yania while Yania drowned). Because Yania was an adult and was not feeble minded and because he worked in the same industry as Bigan and was presumed to have been aware of the dangers, the court concluded that Yan)a was responsible for his own actions in acting recklessly. The law, wrote the court, 'imposes no duty of rescue'.[13] In other words, Bigan's knowledge of Yania's plight did not confer on him any legal duty to act.[14]

Limited notion of individual responsibility

In short, within the Anglo-American legal tradition, one person is under no affirmative duty to rescue or to help another. As long as we do not take specific actions that the law recognises as culpable (for example, shooting someone under most circumstances), we are not considered to do anything wrong. If we happen to have something someone else needs in order to live, we have not violated the law in withholding it (or if it is legally permissible to pollute, we are not responsible for the harm created by that pollution). Simply, we are not responsible for the harms we cause unless there is a specific legal prohibition that we violated. But because the law cannot and should not anticipate every harm, some general principles of social responsibility need to be enforced. Otherwise, our notion of individual responsibility is so extremely limited as to be deadly (even catastrophic, when seen from an ecological perspective). Even W. Page Keeton, in his influential Tort Hombook, recognises that some of the decisions in this area of jurisprudence have been 'sickening'.[15] Some examples Keeton cites are expert swimmers or people secure on a boat who watch others drown when they could have saved them without threat to themselves, physicians who refuse to help a dying person, and individuals who watch others bleed to death or fail to give warning to a person who is walking into a dangerous machine.[16]

The problem with this extreme individualisation is that the law (and society in general) denies individual moral agency in collective misbehaviors. This is a dangerous condition, especially in a complex bureaucratic and industrial society where ecological and social harm can be quite severe without much culpable individual agency. According to Garrett Hardin, the way we structure our legal commitments assumes 'that decisions reached individually will, in fact, be the best decisions for an entire society. If this assumption is correct it justifies the continuance of our present policy of laissez-faire in reproduction'.[17] The problem Hardin is discussing is overpopulation, but his reason1ng applies for our purposes as well. The root of the problem is the acceptance of laissez-faire reasoning and the belief that individual decisions add up to the collective good. If this assumption is incorrect, notes Hardin, 'we need to reexamine our individual freedoms to see which ones are defensible.'[18] To illustrate his critique of this assumption, Hardin provides an example of what he calls the tragedy of the commons:

Picture a pasture open to all. It is to be expected that each herdsman will try to keep as many cattle as poss1ble on the commons. Such an arrangement may work reasonably satisfactorily for centuries because tribal wars, poaching, and disease kept the numbers of both man and beast well below the carrying capacity of the land. Finally, however, comes the day of reckoning, that is, the day when the long-desired goal of social stability becomes a reality. At this point, the Inherent logic of the commons remorsefully generates tragedy.[19]

As a result of this condition, individuals benefit most when they ignore the fact that what is good for the individual can be deleterious for society as a whole. Hardin's analysis is paradigmatic of the problems caused by our economic and social politics -the over-reliance on the individual as the target for assigning moral blame. In doing so, we ignore the ways in which larger social structures and institutions create situations in which significant human suffering becomes systemic. As individuals are encouraged only to think about themselves, the problems of collective life become exacerbated.

The moral lacuna that leads to this condition allows for human deprivation worldwide and for the destruction of the natural world. Because of our individual and collective selfish actions and ambivalence, life on this planet is becoming increasingly precarious, while the law and the 'democratic governments of the world look askance at the structural causes of these phenomena. Rather than examining the unsustainability of our social organisation, such problems are deemed 'inevitable' and rationalised as the necessary byproduct of progress. Once positioned in this fashion, these problems appear to be beyond the power of the state to ameliorate.

In the Yania case, the social and economic relationships hidden in the background of the case are far more important than the legal relationship that the court found lacking between Yania and Bigan. For example, Yania had a family. But the interests of Yania's family in Yania's continued health or Yania's interest in living a longer life were not recognized by the court as being important An important assumption behind the law is that human beings are unconnected to history, community, or are otherwise uninfluenced by sociological forces beyond their control. The individual human is seen as monolithic and sovereign, an entity with no responsibilities except for those chosen freely.

Interdependence and community

In contrast, the approach to legal reasoning advocated in this article underpins second- and third-generation human rights - rights that focus on the needs and circumstances in which people find themselves. The goal of the law, under this view, is to emphasise the profound interdependence among people and between people and the natural world. While individuals matter, our understanding of any specific individual only can be understood in relationship to the community in which they and others exist. By recognising and honoring this interdependence, new social structures can be designed to encourage mutuality and cooperation. As we make the effort to treat each other differently in substantive ways, this interconnection eventually will become second nature and our moral habits will change. The awkwardness of treating people as ends in themselves and not as means or instruments gradually will give way, and our new moral ways of living and most human actions will be undertaken with the goal of advancing human solidarity, introducing a sense of rationality, sustainability, and compassion into our social structure.


Alternative ways of conceptualising such interests, identities, and possibilities can be imagined in the way the law helps to frame our responses to the AIDS epidemic. To see the problem of AIDS clearly and to see the inability of the law to deal with this problem, we must look at the part of ourselves that causes us to be less generous than we can or should be in caring about people with whom we do not immediately identify.

Affluent Americans find it difficult to empathise with the AIDS victims who live among them, just as they find it difficult to care, in general, about the suffering and sickness of the poor in the US. We have yet to evolve as a society to the point where we view domestic poverty as a national security issue and to treat the 'war on poverty' with an earnestness similar to how we treat the 'war on terrorism.' Increasingly, the poor are becoming an abstraction. The more they suffer, the less we are able we are to see them, and the more their humanity goes unrecognised.

When the poor become such an abstraction, horrible things can be done to them. For example, in many Latin American nations, such as Brazil and Honduras, death squads target street children - who are increasingly viewed as social inconveniences - for extermination. As one Non-Governmental Organisation (NGO) reports, 'the perpetrators of these murders are often state agents, members of the police or security forces'.[20] Along with civilians, these death squads are assisted by both the active and passive complicity of the government'.[21] According to this report, in Honduras alone, there have been approximately 1500 documented murders of street children since 1998.[22] Street children are labeled as 'vermin' and 'troublemakers' by security and business elites who, along with the national media, blame the street children 'for everything from violent crime to driv1ng away foreign investment and tourism'.[23] In other words, the abstraction of the poor is real, and it is deadly. While we have not reached this level of violence against the homeless in the United States, the problem of street children is worldwide -currently, some 100 million children grow up in similar environments. While homelessness exists in the United States the preferred way to manage the abstraction we call 'the poor' is to incarcerate them.[24]

Just as Bigan was not considered to be responsible for Yania's plight and death. Americans too easily ignore the sickness and poverty around them and dismiss it as being not 'our' problem. At the same time. we prevent the government from taking a more activist social approach in addressing the problem at a systemic level. For example, as a society, we reject taxation to support education and other social and health services and increasingly allow the government to ignore substantial populations of our citizens. Yet, as Jonathan M. Mann, the founding director of the World HealthOrganisation's Global Program on AIDS. reasons:

Since society is an essential part of the problem a societal­ level analysis and action will be required. In other words. the new public health considers that both disease and society are so interconnected that both must be considered dynamic. An attempt to deal with one, the disease, without the other. the society will be inherently inadequate.[26]

Mann's sentiment is frequently repeated elsewhere throughout the AIDS literature. For example, Chris Beyer writes, 'AIDS does discriminate; it is now clear that HIV spreads faster where social life is chaotic, poverty endemic and rights violated'.[26] Mann elaborates how. in each society he has studied around the world, those 'people who, before HIV/AIDS arrived, were marginalized, stigmatised and discriminated against, became over time those at highest risk of HIV infection ... HIV is now becoming a problem mainly for les exclus, the "excluded ones", living at the margin of society.'[27] For a society to have such 'margins' means that our notion of humanity has broken down or that we use the word 'humanity' as a trope to demand special privileges for ourselves but do not wish to extend those privileges to others.

[*] OMAR SWARTZ teaches in the Department of Communication, University of Colorado at Denver

© 2004 Omar Swartz


[1] An earlier form of this article appeared as Omar Swartz, 'Law and Access to AIDS Medicine Critical Thoughts' (2000) 5 Holy Cross Journal of Law and Public Policy 63-85.An expanded version of this paper will appear in Omar Swartz, The Rule of Law, Property, and the Violation of Human Rights A Plea For Social Justice, ch 5 (in press)

[2] National Center for HIV, STD and TB Prevention, <www.cdc gov/hiv/stats htm#1ntemational> at 30 July 2004

[3] Stephanie Wasserman, HIV/AIDS Facts to Consider. 1999 (Washington, DC National Conference of State Legislatures, 1999) 12

[4] 'FDA Approves New AIDS Drug',' Associated Press, 16 March 2003, <http://edition

condltlons/03/14/ruds drug!> at 11 August 2004 For a first person nanrat1ve on how the AIDS epidemic has 'turned' since 1996 for a certain small segment of the US population, see David Stanford, 'Back to the Future One's AIDS Tale Shows How Quickly Epidemic Has Turned' (8 November 1996)The Wall Street Journal A12. The irony here, of course, is that in the US, the overall social structure is not being threatened by the AIDS epidemic as it is in other countries

[5] Quoted in Ken Badley, Worldviews The Challenge of Course (1996) 210

[6] Nortin M Hadler, 'Laboring for Longevity' (1999) 41 Journal of Occupation and Environmental Medicine 617 Hadler also argues that disaffection is also lethal, and that 'the less advantaged must have access to jobs that promise to sustain their self­ respect', 618

[7] Quoted in Mark Heywood and Morna Cornell, 'Human Rights and AIDS in South Africa From Right Margin to Left Margin' (1998) 2 Health and Human Rights 77

[8] lbid

[9] 'Appropriate Collaboration Between Industry and Government in the Development of an AIDS Vaccine' (1989) 17 Law, Medicine, and Health Core 131

[10] lbid

[11] lbid 135.

[12] Yania v Bigan 155 A 2d 343 (1959).

[13] Ibid 346.

[14] In the determination of a duty, the law has made a distinction between action and inaction or between 'misfeasance' and 'nonfeasance.' Liability for misfeasance may extend to any person to whom harm may reasonably be foreseeable as a result of another's conduct Liability for nonfeasance, on the other hand, requires some definite relationship between the parties so that social policy justifies the imposition of a duty to act

[15]Prosser and Keeton on Torts (5th ed, 1984) 375.


[17]'The Tragedy of the Commons' (1968) 162 Science 1244.


[19]'The Tragedy of the Commons' above n 17, 1244

[20]My information for this program comes from the website of the New York-based Covenant House, an Independent NGO ded1called to the rehabilitation and defense of street children in South and Central America from a 17 December 2002 story in the Digital Freedom Network See all 30 July 2004




[24]See Anthony M Platt, The Politics of Law and Order' (1994) 21 Social Justice 3-13 (discussing the privatisation of justice and security and the boom industry of prison construction).

[25]'Human Rights And Aids The Future of the Pandemic' (1996) 30 The John Marshall Law Review 201

[26]'Burma and Cambodia Human Rights, Social Disruption and the Spread of HIV/AIDS, (1998) 2 Health and Human Rights 85

[27]'Human Rights and AIDS, above n 25, 203

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