Awards of Courage
Nan D. Hunter, Esq.
Honoring with Pride 2000 Honoree
With tactical genius, deep intelligence, and moral vision, Nan D. Hunter blazed the trail toward the recognition of the civil and human rights of people with HIV/AIDS. In 1986, she became the first Director of the Lesbian and Gay Rights Project of the American Civil Liberties Union (ACLU), and shortly afterward, the first Director of the ACLU’s AIDS Project, where she played a major role in the successful effort to establish AIDS as a protected disability, among many other successes. From 1993 to 1996, as Deputy General Counsel to the U.S. Department of Health and Human Services, she was direct advisor to the Secretary and to the White House on matters of health care policy and law. In this capacity, she also had responsibility for the legal issues raised by the Clinton health care reform proposal. As a member of the Presidential Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Ms. Hunter helped draft the set of policy recommendations set forth in Quality First: Better Health Care for All Americans (1998). She is also co-author of Sexuality, Gender, and the Law (1997) and co-editor with William Rubenstein of AIDS Agenda: Emerging Issues in Civil Rights (1992). In 1988, she was awarded a grant by amfAR to act as principal investigator in a groundbreaking study of AIDS discrimination and policy, published as Epidemic of Fear (1990). Today, Ms. Hunter is Professor of Law at Brooklyn Law School, where she has taught since 1990.
In June of 1986, I left the Reproductive Freedom Project of the ACLU to head up our newly formed Lesbian and Gay Rights Project. It was originally founded to work on issues of privacy and equality for lesbians and gay men, but it very quickly became heavily orientated toward protecting the civil rights and civil liberties of people with HIV. There was a tremendous amount of loose and easy talk about quarantine, forced testing, mandatory reporting, and those sorts of draconian measures, and it was completely up in the air whether laws like that might simply roll through Congress and many of the state legislatures. It was a time of crisis.
The first summer of the new project, I spent a huge portion of my time writing a brief to the Supreme Court in the Arline case. This case involved a schoolteacher with tuberculosis who was fired, even though she was not contagious because she was receiving medication. The case did not have any obvious relationship to AIDS. But it quickly became the most important AIDS case in the country, because it involved a communicable disability. When the Supreme Court agreed to take the case, it became clear to me that they were going to take this opportunity to create the basic definitions of "disability," and that they were also going to determine whether an irrational fear of a particular illness could be used to deny a claim of discrimination. Ultimately, the case became completely overshadowed by AIDS politics, which was very clear when the Reagan Justice Department came into the case, filing a brief arguing that a defendant should be able to exclude people based on a fear of illness, even if the fear is irrational.
In the end, it turned out to be a gift that this case was litigated. It usually takes a number of years for a case to get to the Supreme Court, and AIDS cases were just beginning to be filed at that point. But this case had been in the pipeline for a long time, and the Court used it as an opportunity to reaffirm the rights of people with disabilities that were communicable, writing that they could not be discriminated against unless there was a real risk of the condition actually being transmitted under whatever conditions were relevant to a particular case. That decision, which came down in February of 1987, transformed AIDS law. It put the Supreme Court on our side in litigating cases for people with AIDS.
It was, without a doubt, a very scary time. In the spring of 1987, the Centers for Disease Control convened a huge conference in Atlanta on testing. I was the only person from any of the civil rights groups invited to speak at the conference, and I spoke at a panel on mandatory testing. It may have been Mathilde who got that invitation for me. In any case, it was so bizarre — I’ve never seen a conference like it, either in terms of its structure or how it was covered in the press. Because there was so much hysteria at that point in time, the press literally covered it like a political convention — I remember walking into the hall where I was to speak, and there were cameras from CNN. The proceedings were broadcast live for two days. Camera crews in the lobbies interviewed people as they walked by. It was a real circus.
Out of that conference came a series of proposals from the CDC that went up the chain of command in the Reagan administration. While they did recommend against mandatory testing, they also made other proposals that we disagreed with, that were written pragmatically, with the White House decision-makers in mind. These proposals were the occasion for what was probably the biggest showdown that Everett Koop had with others in the Reagan administration. What finally emerged was a compromise between Dr. Koop and the hardliners under which the federal government instituted mandatory testing for certain populations under federal control, especially federal prisoners and immigrants, but determined not to seek to enact any laws that would force states to take one position or another. There was no sound medical basis for singling out these two groups; they were just powerless people who ended up as sacrificial lambs. So the best outcome possible was to let each state decide how to proceed — we were very much aware that we would do much better with the states than we would at that point in time with the federal government.
As a result, we were forced to deal with AIDS issues in state legislatures, which is a very labor-intensive and time-intensive way to deal with legal issues. But one of the unique things about the ACLU is that it has an on-the-ground presence in every state in the union. I certainly couldn’t deal with trench warfare in fifty state legislatures by myself, but I was able to help organize and furnish ammunition to people who were fighting these battles in state legislatures. Not surprisingly, the outcome in the most progressive states was better than in the most conservative states. But the hysteria settled down eventually, and we did defeat the most extreme proposals, such as widespread mandatory testing or quarantine. There were many moments of shame, because many government officials were too cowardly to stand up for what was right, or even what was rational. But there were other instances in which principled people were able to hammer out proposals that got us through with a minimum of human rights violations, certainly many fewer than we feared at the beginning of the epidemic. On the other hand, the anti-gay bigots and the opportunistic politicians responded by trying to keep fear and ignorance alive for as long as possible, so that they could justify the most restrictive kinds of laws and policies. As the knowledge base grew, people of good will did prevail in most places, developing policy that was both humane and medically appropriate. Meanwhile, people who had the disease were facing death with great courage, and many people who did not have the disease simply gave over their lives to fighting for — what seemed at the time — the survival of our community.
The crisis certainly taught us many lessons. It was an extraordinary moment in that sense. It taught us that not everyone gets the same health care, and it taught us that simple anti-discrimination laws are not sufficient. It is important to have these laws, but I believe that every individual has a right to health care regardless of whether he or she can prove they are discriminated against because of some particular characteristic or another. And a tremendous amount of what happened was a consequence of people being virtually shut out of the health care system. As treatments improved, that problem got worse — there was a heightened contrast between people who had meaningful access and people who did not. AIDS was a report card on the American health care system, and in far too many categories, the system got an "F." My work with AIDS was the single thing that most inspired me to work for health care reform in the early years of the Clinton administration. It was an experience that made universal health care coverage a profoundly important issue for me.