Racial minorities suffer disproportionately high rates of almost all major diseases including heart disease, diabetes, cancer, obesity, and HIV/AIDS. As a result, African Americans and other nonwhite populations in the United States live shorter and less healthy lives than their white counterparts. It is not race itself, however, that accounts for the elevated incidence of these diseases or their role in reduced life expectancy. Health disparities are ultimately caused by social inequality. In the United States, the distribution of income, education, access to health care, and other resources crucial to health correlate highly to race, with people of color tending to have less of each than whites. These social and economic inequalities create and perpetuate differential exposure to health risks through the entire course of life. Few diseases reflect this process as clearly as HIV/AIDS. Since its emergence in the early 1980s, the incidence of HIV has been higher for African Americans than any other racial or ethnic group in the United States. Although African Americans comprise only about thirteen percent of the U.S. population, they account for almost half of the people who contract HIV each year. Latinos contract HIV at nearly three times the rate of whites. The disparity in HIV infection rates between African American injection drug users and white injection drug users is among the most shocking in the country: African Americans who inject drugs are ten times more likely to be diagnosed with HIV/AIDS than white injectors. At a time when the Obama administration is developing a new HIV prevention strategy for the United States, and Congress has finally lifted its notorious ban on federal funding for syringe exchange programs, this Article considers the disparity in HIV among injecting drug users and the ways in which law and policy help create and perpetuate that disparity.
The analysis of how social conditions shape the level and distribution of health in a population is inevitably complex. While the relationship between social inequality and health disparities is empirically well-established, research cannot claim to have exhaustively catalogued the mechanisms through which social status influences health over a life course. The complexity is evident in the case of the HIV disparity among injection drug users (“IDUs”). Blacks and whites inject heroin and other illicit substances at a very similar rate, yet black IDUs are much more likely to contract HIV. From a social determinants perspective, we would expect some difference simply because, on average, blacks are poorer than whites. Poorer HIV outcomes are just one way in which their lower position in the social gradient expresses itself. Some of the difference comes from the feedback effects of higher prevalence over time: as the proportion of IDUs with HIV in a distinct subpopulation rises, so does the risk of infection for others in that sub-population. Differential access to treatment, which reduces infectivity, can work the same way, as can disparities in other diseases, like herpes simplex, that can mediate infection with HIV. These and other drivers of the HIV disparity are important, but our focus is narrower: our claim is that law has contributed significantly to creating and perpetuating this disparity, both by increasing the risks of drug use for black IDUs compared to white IDUs, and by hindering the scale-up of proven prevention measures which, properly funded and located, could substantially reduce disparate outcomes regardless of their cause. Thus we point in this Article to unhealthy policies and practices that can be changed now.
This Article begins in Part II by summarizing the evidence on two key points: that criminal laws and law enforcement practices have fueled disparities in HIV among IDUs and that syringe access initiatives like syringe exchange programs (SEPs) and unhindered pharmacy sales can prevent HIV among drug users without increasing drug use or other social problems. In Part III, we turn to the heart of our legal story. The racial and ethnic dimensions of the “War on Drugs” are well known and will only briefly be discussed. The adoption of a public health approach to drug control, focusing on prevention and treatment rather than arrest and punishment, could, if properly implemented, have a powerful effect on disparities. Most of our discussion, however, will focus on an area where immediate and dramatic change could and should happen within the national HIV prevention strategy and in the legislative agendas of state legislatures. In spite of the evidence and nearly two decades of experience, access to sterile syringes through SEPs and pharmacies remains the undernourished stepchild of HIV prevention. Politics, ideology, and the overall scarcity of prevention funding explain part of this lamentable situation, but as an immediate barrier to syringe access the law stands out both for its force and as an example of how disparities happen. We explain the various federal, state, and local restrictions on the implementation of SEPs. Our legal analysis is particularly attuned to how laws, regulations, and policies at each of the three levels of government end up influencing retail access to syringes and the local operation of SEPs.
The Conclusion follows: HIV can be prevented, but virtually everywhere proven HIV prevention strategies have been hindered or prohibited by law, poor funding, and weak political will. If we are serious about reducing racial disparities in HIV, there is one proven intervention that can and must be immediately adopted: make syringes available at pharmacies and syringe exchanges at a level and in the places necessary to reach minority IDUs, which means removing legal barriers, scaling up programs and services, and eliminating harassment and other police practices that discourage IDUs from carrying syringes and depress the effectiveness of SEPs.