The Chief Justice of the United States
Roberts's Queer Reasoning on AIDS
David W. Webber The Nation September 26, 2005
On September 17, 1985, President Ronald Reagan held his first press conference since the public disclosure three months earlier that actor Rock Hudson had AIDS. Up to that point, Reagan had never spoken publicly about the epidemic, despite the fact that the first cases of AIDS had been reported more than four years earlier and more than 12,000 people had been diagnosed. But things changed with the disclosure of Hudson's diagnosis; Americans who had never given the epidemic any thought were now confronted with the chilling notion that anyone--a Hollywood actor or even a child--could get AIDS.
Reagan's staff, anticipating questions on the subject, prepared him to respond. Just as they expected, he was asked whether, if he had school-aged children, he would send them to school with a child who had AIDS. "I'm glad I'm not faced with that problem today," Reagan answered. He expressed his "compassion" for "the child that has this," while stating as a given that "he is now an outcast and can no longer associate with his playmates and schoolmates." Reagan continued, "It is true that some medical sources had said that this cannot be communicated in any way other than the ones we already know and which would not involve a child being in the school. And yet medicine has not come forth unequivocally and said, 'This we know for a fact, that it is safe.' And until they do, I think we just have to do the best we can with this problem."
Reagan's answer left many public-health and AIDS experts aghast. He had directly contradicted an advisory issued less than three weeks earlier by the federal Centers for Disease Control (CDC), stating that "casual person-to-person contact as would occur among schoolchildren appears to pose no risk."
But among those who must have been delighted with the President's answer was a 30-year-old attorney in the Office of White House Counsel. Five days before the press conference, he reviewed the presidential briefing materials and recommended deletion of a sentence encapsulating the CDC's conclusion: "As far as our best scientists have been able to determine, AIDS virus is not transmitted through casual or routine contact." In a memorandum, the Assistant Counsel to the President explained, "I do not think we should have the President taking a position on a disputed scientific issue of this sort. There is much to commend the view that we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be, and no scientist has said AIDS definitely cannot be so transmitted."
Exactly twenty years later, that lawyer, John G. Roberts Jr., would sit before the US Senate Judiciary Committee as the nominee for Chief Justice of the United States Supreme Court.
Roberts's speculation about "AIDS transmission" was as indefensible in 1985 as it is today. By 1983, scientists had identified a retrovirus as the cause of AIDS. This retrovirus, later named Human Immunodeficiency Virus (HIV), was known to infect only upon entering the bloodstream, directly or through mucosal membranes--not through intact skin. AIDS had been diagnosed only among individuals having intimate sexual contact with those infected, or those who were exposed to infected blood or blood products. There were no cases of AIDS identified among the caregivers and family members who were not sexual partners of those with AIDS. These patterns had been strong enough for the CDC to announce as early as November 1982 that both airborne and casual contact transmission were unlikely. Not everything was known about transmission by 1985, just as not everything is known to this day. But it is fair to say that casual contact transmission was not among the issues under debate in the scientific and medical community.
Roberts was not by any means alone, however, in expounding the idea that AIDS was transmitted by casual contact. In the mid-1980s, this view--more antigay mythology than live hypothesis--was used by what can best be described as far-right fringe propagandists aligned with conservative, antigay Christian organizations. In his memo, Roberts failed to name any of the "numerous commentators" who he said called the CDC's conclusion about transmission into question. One likely suspect is Paul Cameron, the religious right's favorite antigay propagandist.
Through his Institute for the Scientific Investigation of Sexuality, Cameron--whose thoroughly discredited "studies" led to his expulsion from the American Psychological Association in 1983 for violating ethical standards--urged widespread AIDS antibody testing and the quarantine of gay men. In August 1985, the month before Roberts authored his AIDS memo, Cameron had been hired as an adviser on AIDS by Representative William Dannemeyer (R-Cal.), also an outspoken opponent of the gay community. In his memoir of this period, Surgeon General C. Everett Koop wrote that Dannemeyer urged him to undertake a national program of testing to identify every seropositive individual in order to "wipe them off the face of the earth!"
Patrick J. Buchanan, White House Communications Director from 1985 to 1987, may have been another of Roberts's unnamed "commentators." Drawing heavily on Cameron's findings, Buchanan had called AIDS "nature's revenge on gay men," echoed Cameron's call to quarantine HIV-positive gay men and urged in his newspaper column that the 1983 Gay Pride Parade in New York City be canceled because of the risk of AIDS transmission.
Given the public's general lack of knowledge and concomitant fear level, the argument about casual contact was a large and effective stick with which these demagogues could beat the gay community. Roberts's AIDS memo puts him in the intellectual company of people like Cameron and Buchanan, and belies the mainstream news media image of Roberts as a highly principled, thoughtful legal intellectual of moderate, albeit conservative, views.
The basic argument Roberts advances in his memo is a logical fallacy, the argument ad ignorantiam. He states that the lack of proof that the casual contact transmission theory is false ("no scientist has said that AIDS definitely cannot be so transmitted") means that we should accept it as true. This thinking shifts the burden of proof to Roberts's opponents, who must now prove a negative proposition--that transmission can never occur from casual contact. Although the CDC had gone a long way toward proving that proposition, Roberts wanted to insure, as he said in explaining this point in his testimony before the Judiciary Committee, that they were "100 percent confident." This is an irrational and--in the context of deciding if kids should be kicked out of school--an especially mean-spirited approach to the problem of regulating risk. Roberts is unconcerned with the fact that the real harm resulting from excluding children would far outweigh the theoretical harm resulting from admitting them.
Roberts either failed to recognize, or simply did not care, that the President's endorsement of casual contact fears would have real-world results for thousands of people struggling to survive with AIDS. In the mid-1980s, at least six families of children with AIDS were forced to go to court to have their kids attend public schools. (The families of many other such children surely chose not to challenge their children's exclusion, fearing further discrimination and harassment.) Fighting AIDS phobia had a high price: The home of Indiana teen Ryan White was hit by gunfire, and the home of Florida teen Ricky Ray was destroyed by an arsonist.
Only two weeks before Reagan's press conference, White had been interviewed in the Washington Post about his lawsuit. "I really want to go to school," he said. "I know some kids would be scared at first. But I'm okay. As long as I am not going to make anybody sick, I don't understand why everyone is so upset and worried." Beginning in 1986, all of the families of children with AIDS were vindicated as judge after judge--relying on the same evidence available when Roberts wrote his memo--ruled in their favor.
During Roberts's Senate confirmation hearing, Senator Russell Feingold questioned the judge about his AIDS memo. In his defense, Roberts strangely noted that if Reagan's statement had "turned out to be wrong it could have been disastrous." But of course, Reagan's statement was wrong, and the hysteria it caused was disastrous. Either Roberts was being disingenuous or he has gained no further insight on the issue over the last twenty years.
The AIDS memo, obviously, is only one among many pieces of evidence bearing on Roberts's qualifications to be Chief Justice. Roberts's assistance to gay rights advocates in the 1996 Supreme Court case Roemer v. Evans suggests that he does not hold the virulently antigay attitudes prevalent twenty years ago in the Reagan Administration. Nevertheless, the 1985 memo--and Roberts's refusal to disavow it in any way in his testimony before the Judiciary Committee--is another source of profound discomfort with the idea that its author soon [became the] Chief Justice of the United States.
David W. Webber is editor of the treatise AIDS and the Law
and is counsel to the AIDS Law Project of Pennsylvania.
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