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State Justices Uphold AIDS Test Law : Health: High court lets stand appellate ruling affirming validity of statute that requires screening for convicted prostitutes.

TIMES LEGAL AFFAIRS WRITER

The California Supreme Court on Thursday rejected a challenge to the constitutionality of a 1989 state law requiring AIDS tests for convicted prostitutes.

The justices, in a brief order signed by Chief Justice Malcolm M. Lucas, declined to hear contentions that the law, enacted in a bid to curb the spread of the deadly disease within a high-risk group, invades the right to privacy.

The high court, without dissent, left intact a decision last December by a state Court of Appeal in the case of April Love, one of a group of convicted prostitutes in San Francisco who challenged the validity of the law.

In the first appellate ruling on the statute, the panel held that any intrusion on privacy rights was outweighed by the “obvious and compelling special need” to deter infected prostitutes from passing the disease on to others.

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The law, one of six such statutes in the country, requires that anyone convicted of soliciting or engaging in prostitution undergo tests for the AIDS virus. Results are then provided on a confidential basis to state health authorities and, upon request, to the local district attorneys, who are not to disclose the results of the tests unless they are needed for subsequent prostitution prosecutions.

Subsequent convictions of AIDS-positive prostitutes are to be treated as felonies, punishable by up to three years in prison.

Attorneys involved in the case said the law apparently is being enforced only sporadically throughout the state.

Thursday’s action marked the second time within a year that the courts have given a legal green light to recently enacted laws requiring AIDS testing. Last March, a state Court of Appeal in San Francisco upheld a 1988 ballot measure, Proposition 96, mandating tests for any criminal defendant who bites a law enforcement officer.

San Francisco Deputy Public Defender Grace L. Suarez, who represented the prostitutes in the Love case, expressed disappointment with the high court’s action but said an appeal to the U.S. Supreme Court was doubtful.

Suarez also lamented what she said would be the high cost of enforcing the testing requirement statewide--an estimated $500,000 annually--and said the money could be better spent on research. “It seems we have switched to a mode of trying to outlaw AIDS rather than find a cure for it,” she said.

State Deputy Atty. Gen. Joanne S. Abelson welcomed the court’s order. “Our position was that it was up to the Legislature--not the courts--to decide whether this was the right policy or not,” she said.

The case arose after Love and 10 others--eight women and two men--were convicted last year on misdemeanor prostitution charges and sentenced to probation. Ordered to take AIDS tests under the new law, the group balked and brought suit.

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The challenge to the law was rejected in lower courts but last fall, the state Supreme Court issued an order barring the law from being enforced against the group of San Francisco prostitutes while the Love case was sent back to a Court of Appeal for further review.

On Dec. 28, the appeal panel, in an opinion by Appellate Justice Timothy A. Reardon, upheld the law as a valid exercise of the state’s power to control a communicable disease.

Attorneys for Love then sought the review by the state high court.


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