|
<<previous | index | next>> IX. PROTECTING ONE’S HEALTH: A HUMAN RIGHTIndividuals have a human right to obtain life-saving health services without fear of punishment or discrimination. This report documents three broad forms of state interference with proven and effective health services: interference with legal syringe exchange programs by way of police action or zoning regulations; prohibition of syringe exchange programs; and restrictions on alternative modes of syringe access such as nonprescription pharmacy sale of syringes. These actions all directly obstruct injection drug users’ ability to protect themselves from infectious disease and other health complications associated with drug use. For drug users with substance-related disabilities, whom international human rights law protects from disability-based discrimination, syringe access regulations pose a barrier to a wide range of essential health services and thus compromise their right of equal access to health care. The right to obtain health services without fear of punishmentThe International Covenant on Economic, Social and Cultural Rights (ICESCR), which has been signed but not ratified by the United States, recognizes in article 12 “the right of everyone to the enjoyment of the highest attainable standard of health.”227 The ICESCR requires all the steps necessary for “the prevention, treatment and control of epidemic . . . diseases,” which include “the establishment of prevention and education programmes for behaviour-related health concerns such as sexually-transmitted diseases, in particular HIV/AIDS.”228 Realization of the highest attainable standard of health not only requires access to a system of health care; it also, according to the U.N. Committee on Economic, Social and Cultural Rights, requires states to take affirmative steps to promote health and to refrain from conduct that limits people’s abilities to safeguard their health.229 Laws and policies that “are likely to result in . . . unnecessary morbidity and preventable mortality” constitute specific breaches of the obligation to respect the right to health.230 The government’s penalizing people for attempting to protect themselves from a deadly epidemic is blatant interference with the right to the highest attainable standard of health. There is no dispute as to the effectiveness of sterile syringes at preventing HIV, hepatitis C and other blood-borne infections. Public health experts are unanimous in the view that providing access to sterile syringes neither encourages drug use nor dissuades current users from entering drug treatment programs. The available evidence suggests that syringe access interventions may lead to abstinence by providing a gateway into drug treatment through referral by syringe exchange providers. In reality, the scarcity of treatment programs and the very nature of drug use guarantee that there will always be people who either cannot or will not stop using drugs. Penalizing this population for using sterile syringes amounts to prescribing death as a punishment for illicit drug use. Multilateral organizations such as the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have issued numerous non-binding guidelines and declarations on combating the spread of HIV through public health approaches to drug use. A WHO Fact Sheet on HIV prevention lists syringe exchange and pharmacy sale of syringes as “the two strategies that have proven effective” at reducing HIV transmission among injection drug users.231 At the June 2001 United Nations General Assembly Special Session (UNGASS) on HIV/AIDS, member states included in their final declaration of commitment a pledge to make available by 2005 “a wide range of prevention programs” including “sterile injecting equipment” and “harm-reduction efforts related to drug use.”232 The U.N. Commission on Narcotic Drugs (CND) has failed to support such efforts, but in March 2002 it adopted a resolution on HIV and drug use that “encourages Member States to implement and strengthen efforts to raise awareness about the links between drug use and the spread of HIV, hepatitis C and other blood borne viruses” and “further encourages [them] to consider the potential impact on the spread [of these diseases] when developing, implementing and evaluating policies and programs for the reduction of illicit drug demand and supply.”233 The 1998 UNAIDS/Office of the High Commissioner for Human Rights (OHCHR) International Guidelines on HIV/AIDS and Human Rights, which represent the consensus of governmental and nongovernmental experts as well as networks of people living with HIV/AIDS, recommend that national public health laws “fund and empower public health authorities to provide a comprehensive range of services for the prevention and treatment of HIV/AIDS, including . . . clean injection materials.”234 The Guidelines further urge that domestic criminal laws not impede efforts to reduce HIV transmission among injection drug users; specifically, the authorization of syringe exchange programs and the repeal of prohibitions on syringe possession should be considered.235 These nonbinding recommendations, however, are not reflected in the multilateral antidrug conventions discussed above. The right of equal access to health care for people with disabilitiesIn General Comment no. 14on the right to the highest attainable standard of health, the Committee on Economic, Social and Cultural Rights repeatedly stresses the importance of equality of access to health care without discrimination.236 According to the committee, “health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds.” The prohibited grounds include both “physical or mental disability,” “health status,” and any “other status” that has “the intention or effect of nullifying or impairing the equal enjoyment or exercise of the enjoyment or exercise of the right to health.”237 General Comment no. 14 echoes the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, which require states to ensure that persons with disabilities “are provided with the same level of medical care within the same system as other members of society.”238 Many, though not all, injection drug users suffer from amphetamine dependence, opioid dependence, and other substance-related disabilities.239 These conditions, like alcoholism, are characterized as diseases by the American Medical Association.240 The Americans with Disabilities Act (ADA), which restricts disability-based discrimination in employment, government services, and public accommodations, includes drug and alcohol addictions as disabilities. However, the ADA only covers people with drug addiction who are in recovery, not current users of illegal drugs.241 U.S. courts have recognized addiction as a “chronic and relapsing disease with prolonged effects on the brain.”242 Addiction is a defining personal characteristic that for many is unchangeable. Like people distinguished by their gender, race, or sexual orientation, people with substance-related disabilities have historically encountered many forms of stigma, hatred, and discrimination in their daily lives. In its General Comment no. 5 on persons with disabilities, the Committee on Economic, Social and Cultural Rights sets forth a broad definition of disability-based discrimination:
The Committee on Economic, Social and Cultural Rights recognizes that people with disabilities may be prevented from realizing their right to the highest attainable standard of health by laws that neglect, ignore, or disparage their condition. For example, a law that prohibited certain kinds of prenatal care (such as the use of midwives) might, because it neglected the health needs of pregnant women, be considered a form of disability-based discrimination. Similarly, if drug paraphernalia laws had the effect of denying insulin-dependant diabetics access to sterile injection equipment, few would doubt that they discriminated on the basis of physical disability. This would be particularly true if the law stemmed from “neglect, ignorance, prejudice and false assumptions” about the health needs of the affected population. Injection drug users with substance-related disabilities are a population with distinct yet often neglected health needs. Their condition requires specific kinds of primary health care such as treatment for wounds and abscesses, as well as special emergency care in the case of potentially fatal overdose. Substitution therapy, including methadone, is another form of health care that is uniquely suited to people with substance-related disabilities. Certain kinds of disease prevention, such as vaccinations for hepatitis A and B, testing and counseling for sexually transmitted diseases, and programs that provide access to sterile syringes, are also recommended and effective health interventions for this population. Whatever the intent of syringe access laws, their precise impact is to interfere with these health services.244 Denied access to sterile syringe programs, many people with substance-related disabilities find themselves unable to obtain sterile syringes and protect themselves from fatal diseases. They live with untreated wounds, poor access to health information, and sporadic testing and counseling for sexually transmitted diseases. Lacking the support and ancillary services provided by sterile syringe programs, they might be less likely to obtain treatment for their addiction. “Programs like this give me hope,” one syringe exchange client in San Diego told Human Rights Watch. “I went from being a suicidal, paranoid scumbag to someone who felt better about himself.”245 Syringe access laws also promote the idea that injection drug users do not care about their health, thus contributing to the stigmatization of a vulnerable and marginalized population. The principal justification for banning sterile syringe programs—that they encourage drug use—ignores both the purpose and effect of these programs and the health needs of those who use them. Far from sending a “zero tolerance” message about drug use, syringe access laws imply that injection drug users are a population that is unworthy of basic health care and disease prevention. 227 ICESCR, art. 12(2)(c). 228 Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The right to the highest attainable standard of health,” November 8, 2000, para. 16. The Committee on Economic, Social and Cultural Rights is the U.N. body responsible for monitoring compliance with the International Covenant on Economic, Social and Cultural Rights. 229 Ibid., para. 8. 230 Ibid., paras. 33, 50. 231 World Health Organization, “Fact Sheet 12: Strategies for Prevention of HIV,” [online] http://www3.who.int/whosis/factsheets_hiv_nurses/fact-sheet-12/ (retrieved June 12, 2003). A more detailed WHO endorsement of harm reduction strategies, including syringe access interventions, can be found at http://www.who.int/hiv/topics/harm/reduction/en/ (retrieved June 12, 2003). 232 United Nations General Assembly, “Declaration of Commitment on HIV/AIDS,” June 27, 2001. 233 Commission on Narcotic Drugs, “Human immunodeficiency virus/acquired immune deficiency syndrome in the context of drug abuse,” Resolution 45/1, March 15, 2002. 234 OHCHR/UNAIDS, HIV/AIDS and Human Rights: International Guidelines (1996), Guideline 3, para. 28(a). 235 Ibid., Guideline 4, para. 29(d). 236 Committee on Economic, Social and Cultural Rights, “General Comment No. 14,” paras. 12(b), 18, 26. 237 This strengthens the guarantee of nondiscrimination in Article 2(2) of the ICESCR, which states that “States Parties… undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” In its General Comment No. 5 on Persons with disabilities, the Committee on Economic, Social and Cultural Rights notes that “other status” in article 2(2) “clearly applies to discrimination on the grounds of disability” (para. 5). Although the United States has not ratified the ICESCR, discrimination on the basis of disability is prohibited by domestic law and may also be prohibited under international conventions to which the United States is party. Article 26 of the ICCPR requires states parties to prohibit discrimination on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.” While disability is not specifically enumerated in article 26, its mention in other international treaties and in human rights jurisprudence suggests it is properly considered an “other status” for the purpose of the ICCPR. The Human Rights Committee, in its Concluding Observations for Australia in 2000, used the antidiscrimination provisions of the ICCPR to emphasize states parties’ duty to protect the disabled. Discrimination on the basis of disability has also been recognized and condemned by the Committee on the Elimination of Discrimination Against Women, particularly in relation to the obstacles faced by disabled women and girls in establishing their reproductive and sexual rights. See Committee on the Elimination of Discrimination Against Women, “General Recommendation 18: Disabled Women” (10th Sess., 1991). 238 Standard Rules on the Equalization of Opportunities for Persons with Disabilities, A/RES/48/96, 85th Plenary Meeting 20 December 1993, rule 2, para. 3. 239 According to the American Psychiatric Association, amphetamine and opioid dependence are characterized by a destructive pattern of amphetamine or opioid use, leading to significant social, occupational or medical impairment. Other diagnostic criteria include amphetamine or opioid tolerance; withdrawal; greater use than intended; unsuccessful efforts to cut down or control use; great deal of time spent using or recovering from hangovers; reduction in social, recreational or occupational activities; and continued use despite knowledge of significant problems. See Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV) (American Psychiatric Association, 1994), [online] http://www.psychologynet.org/dsm.html (retrieved May 22, 2003). 240 The history and acceptance of the disease model for addictions is described in Gregory E. Skipper, M.D., “The Addicted Attorney: The Counselor Needs a Counselor,” 62 Ala. Law. 130, 130-32 (2001). 241 42 U.S.C. section 12114; see also, Hoffman v. MCI Worldcom Communications, Inc., 178 F. Supp. 2d 152, 155 (D. Conn. 2001), stating that “drug and alcohol addiction satisfies the disability prong” of the ADA, but rejecting an ADA claim because the plaintiff was a drug user at the time of dismissal from employment. 242 See, e.g., Robinson v. California, 370 U.S. 660 (1962). 243 Committee on Economic, Social and Cultural Rights, “General Comment No. 5,” para. 15. 244 The fact that certain addictive substances may be illegal, or that many drug users are not in recovery, does not change the discriminatory impact of denying injectors equal access to HIV prevention services and other forms of health care. The illegality of controlled substances justifies sanctions against the possession and distribution of those substances; it does not provide a rational basis for restricting access to health programs that in no way contribute to drug use or drug-related crime. 245 Human Rights Watch interview, San Diego, California, February 5, 2003.
|