MSZ (July 1987)
On its rise from viral sisease to state affair
As long as AIDS was not recognized as an infectious disease but was considered a rather exotic “acquired immune deficiency syndrome” mainly contracted by homosexual men and junkies, this disease was not particularly interesting. The possible causes of the immunodeficiency were thought to be the – alleged – usual lifestyles of male homosexuals: consumption of stimulants (amyl and butyl nitrite), excessive demands on the immune system made by taking preventive antibiotics for venereal diseases, excessive use of solariums, and intrusion of sperm into the bloodstream.
The national health guardians became alarmed once it was clear that AIDS is brought on by a virus (Human Immunedeficiency Virus – HIV) detected in quantities capable of infection in blood, sperm, and vaginal fluid (other body fluids – such as saliva, tears, sweat – in which the virus is also present in small amounts – are not considered infectious, at least so far). Once this finding became known, AIDS was no longer a marginalized phenomenon, but a public health problem. A new fatal infectious disease was discovered which is transmitted through sexual intercourse or direct contact with infected blood and moreover only breaks out after a latency period of mostly years during which the infected person is already a “virus carrier” – hence can infect others. The danger of an epidemic spreading to the so-called “normal population” was thus certain; and because of the long incubation period, healthcare policy makers feared that the number of illnesses would constantly grow.
I. State and epidemic
The feared AIDS death cases number and its further unhindered increase into the future was the sole reason for the state’s changed involvement in the AIDS issue. All mass diseases are of political interest to a modern state. They are carefully registered and monitored in healthcare policy. However, what this care looks like and how radically the eradication or containment of certain diseases is pursued, has nothing to do with the spread of the various “epidemics” or to their fatality rates. Law makers have clearly created a second criterion which distinguishes between epidemics caused by pathogens which are transmitted by infection and the well known, so-called “lifestyle diseases” which are caused by a customary way of life – the statistics show that year after year the number one cause of death among citizens is “cardiovascular diseases” and second place has for years gone to “cancers.” Such “epidemics” are treated when they have “broken out”; the associated ideal is called “prevention” and consists of reminding humanity of its “personal responsibility” to live a “healthy lifestyle.” In the case of infectious diseases, the “need for state action” is different: Here the state shows what it can do if it wants to prevent something.
1. The Federal Law on Infectious Diseases and the Law to Fight Sexually Transmitted Diseases
When it comes to infectious diseases with potentially fatal outcomes, the government makes healing mandatory by law. To this end, the government has compiled a catalog of measures for control and coercion that leave nothing to chance or even to the insight of those affected and their interest in health. When it has been established that the cause of a life-threatening disease is a transmissible bacillus or virus, the state organized health care system ceases to have the “character of an offer.”
Those affected, who are classified by law as “ill,” “suspected of being ill,” “suspected of being infected,” “carriers” and “suspected of being carriers,” must acquiece to the kind of “care” that our democratic community otherwise meets out to criminals, unwelcome foreigners, or enemies of the state. “The fundamental rights to physical integrity … freedom of the person ... freedom of movement ..., freedom of assembly ... and the inviolability of the home ... are restricted within the framework of paragraphs 1 to 3." (Section 10 (4) of the Federal Disease Act) Officials shall be categorically permitted access to and monitoring of “property, rooms, installations, facilities and vehicles of all kinds.” (Paragraph 10, Section 2) Persons suspected of being ill are obliged “to tolerate the necessary external examinations, x-ray examinations, blood samples, smears of skin and mucous membranes by representative of the health authority and to comply with summonses from the health authority and to provide the necessary examination material on request.” (Paragraph 10, Section 2)
Depending on the results of the examination, sick persons, carriers or suspected carriers may be prohibited from exercising their profession (paragraph 38). They may be “subject to observation.” Any change of residence must then be reported to the relevant health authorities (paragraph 36), or they must be “immediately isolated in a hospital or a segregation facility suitable for these diseases.” (Paragraph 37(1)) The “Law on the Judicial Procedure for the Deprivations of Liberty” comes into effect when the person concerned does not voluntarily comply with the orders or when “it is to be assumed from his previous conduct that he will not sufficiently comply with such orders.” (Paragraph 37 (2)) It goes without saying that “the segregated person has to obey the orders of the hospital or other quarantine facility and to tolerate measures which serve to maintain the proper operation of the institution or to secure the purpose of the accommodation. In particular, objects that could directly or indirectly help him escape may be taken away and stored elsewhere until he is released. Packages and written communications received or emanating from him may be opened and held back in his presence to the extent that this is necessary to secure the purpose of the accommodation.” (Paragraph 37, Section 3)
One consolation is left to the “isolated” – he may be allowed to see a pastor (Paragraph 37, Section 4). Lists as complete as possible naming all (potential) sources of infection must be made ready for the state’s epidemic control. A reporting system has been organized for this. The law currently stipulates about 50 diseases subject to reporting. Depending on infectivity and lethality, some diseases must already be reported as suspected, others will only be reported by the health authorities in the event of death.
Venereal diseases are not subsumed by the state under the usual epidemics. To control them, the state has dedicated a separate law, by which it takes into account the difference between infection via coughing, shaking hands, or contaminated water and infection via birds. The general popularity of this intrinsically limited “transmission route” is well known – the legal measures for control and coercion take the appropriate forms: health surveillance of prostitutes; obligatory treatment and disclosure of sexual partners; prohibition of sexual intercourse; compulsory anonymous reporting of all diseases; compulsory reporting of unreliable patients by name; if necessary, compulsory presentation to the health authorities.
The rule of law leaves no question unanswered when it comes to epidemic control. In over 100 paragraphs, the laws enact rules for every conceivable case: From compensation for items destroyed in the course of decontamination, to reporting obligations which apply even to captains at sea, to provisions for the breastfeeding of sexually ill infants – everything has been considered.
And most importantly, the law makers have remembered to enact the penal and fine rules in Sections 63 – 71 of the Federal Epidemic Law. Health policy makers, too, are first and foremost politicians and, as such, do not have to distribute benefits – or else they would hardly have to “advertise” them with threats – but rather to enforce state concerns against private calculations by force of law. Threats of punishment which lend force to their work of epidemic hygiene make it completely clear that the law maker is guided here by only one interest and point of view: the state defines its infectious sick material as a public danger and counters this danger with precisely the means that a healthy state power holds as a universal stategy, that is, with prohibitions and punishments: anyone who evades state health care or fails to comply with his or her reporting or other duties will be convicted of an administrative offense (fines up to DM 50,000) or a criminal offense (imprisonment up to 5 years) according to strictly constitutional criteria.
2. The logic of the state’s epidemic control: No disease without social constraints
In a modern capitalist state like the FRG, there are no longer mass deaths from infectious diseases. In our latitudes, epidemics of plague, cholera, smallpox and puerperal fever belong to the “history of medicine” section, while tuberculosis and syphilis are under control. And that’s not because of federal epidemic laws (or their “natural legal predecessors”), but because of medical science’s advances in hygiene, antibiotics, and vaccines. State power has never been a substitute for effective therapy or prophylaxis. As far as dangerous transmissible diseases are concerned, it has used all its power to impose the use of the relevant scientific knowledge on its society. Every single virus or bacterial outbreak is regarded as a source of danger from which society must be protected at all costs, and must not be taken lightly – as e.g. a “residual risk.”
In the case of all other “health hazards,” the state health supervisors are by no means so petty, although (or precisely because) they have no illusions about the health status of their “body politic.” They know from their health statistics that healthy 40-year-olds – at least among the working population – are a distinct rarity in this country. The “infection” of the population with “cardiovascular damage,” degenerative skeletal diseases, rheumatism, cancer, and the so-called “psychovegetative syndromes” with and without stomach ulcers will stand any comparison with the spread of syphilis in officers’ casinos at the turn of the century or the AIDS virus in San Francisco. Rightly, however, no democratic health policy maker has yet to come up with the idea of applying the federal epidemic law’s standards of disease containment and prevention to the great “popular diseases” that are spread en masse among the people entirely without cantagion.
Technically, this would be feasible, but it is completely incompatible with all the national ambitions of an economic power like the FRG. The radicalism found necessary for containing epidemics would be brought to bear on occupational safety and working time regulations: This would be guaranteed to prevent most industrial accidents and reduce so-called wear-and-tear diseases – but it would also paralyze production in West German factories and offices. A legal ban on asbestos and the multitude of other long known about carcinogenic production materials would indeed reduce the cancer mortality rate – but also the profit rate of German companies. Planning for nuclear power plants according to the health policy standards that are used in the case of the fight against syphilis – that would make the national energy program impossible. And so on.
In all these cases, there is no governmental neglect. Responsible politicians are well aware of the pathogenic effects of quite normal everyday capitalist life, from the wear and tear on health caused by wage labor to the poisoning of natural living conditions. In extensive decrees, they have specifically set permissible limits on all kinds of poisons – that is, they have basically approved the poisoning of the country and its people – without having a “health police” monitor compliance with the maximum values. Through social legislation, they regulate the care of the victims of wage labor, who are allowed to eke out an existence either as “recognized as having an occupational sidease,” “early disability” or as pensioners with “normal wear and tear.” Etc. There can be no doubt that the state uses its force to make health a social goal. Democratic statesmen pursue the protection and promotion of the health of their people’s bodies as a service on behalf of the important goals of their society and not in opposition to them. The economical, profitable use of human labor power and nature guarantees a lot of diseases and thus offers enough reasons for the political power holders to worry about the people who have to stay fit for their unhealthy livelihoods. This shows the “conflicting aims” of the state’s health care: It wants to take care of people who have to be healthy for their working lives, but at the same time it does not want to hinder the goals they follow in their working lives and serve in a way that is not healthy for them at all. On the other hand, this is precisely how the “conflicting aims” have always been solved. Unarguable economic and political “objective constraints” forbid an effective prevention of common “epidemics” and demand instead that they be treated. It would indeed be paradoxical if the state’s disease prevention programs were to undermine the very social purposes for which the people have to be halfway healthy in the first place.
For exactly the same reason, things look completely different when bacilli or viruses can be combated as the cause of life-threatening diseases. Here, health policy makers know of no obstacle and no inhibition in becoming radical in matters of public health. If they must fear that their people will be (potentially) rendered useless by contagious diseases, the highest national interests dictate that every means of transmission be stopped. The private needs they override are never the legitimate interests of national economic growth; really no recognized “objective constraint” speaks for “permissive” limit values in matters of infection. As soon as “a mere bit of nature” in the form of a pathogen can be identified as the cause of a national epidemic, every means is mobilized to prevent a mass death that is socially completely useless and dangerous.
The logic of the state’s epidemic assessment and care is clearly illustrated by the example of tuberculosis. Under the name “consumption,” it was considered a “deficiency disease” and a typical “poor people’s syndrome” until the pathogen was discovered. This meant that TB was no longer a “byproduct” of poverty that had to be accepted, but an epidemic that had to be fought in the interest of the state. It is true that this infectious disease shows that certain living conditions, which are not at all due to nature and which weaken the human body’s defenses, must come into the mix in order for the tubercle bacilli to do their natural work. But that poverty is not the healthiest thing has been known long before the discovery of the TB pathogen. To act as if the so-called “context of social conditions,” in contrast to nature whose control is at best a question of time and invested research funds, have the character of – of all things – unalterable forces of nature, betrays no lack of cynicism on the part of the state’s health care.
The special case of AIDS: a disease without “good reason,” medically out of control
The decisive difference between the new infectious disease and the old, well-known diseases covered in the epidemic laws is that medical science can currently offer neither effective prophylaxis nor therapy for an infectious disease that is fatal.
As a communicable disease, AIDS nevertheless falls under the Federal Epidemic Diseases Act. In paragraph 1 of the law, the law makers have succinctly placed all diseases caused by pathogens that can be transmitted directly or indirectly to humans under its special care. A list of diseases by name was deliberately omitted in order “to ensure that, for example, when previously unknown infections occur, measures for their prevention and control can be initiated without time-consuming legal changes.” (Walter Bachmann: The LAV/HTLV III infection in the current epidemic law, in: Deutsches Ärzteblatt, 83rd volume, issue 49, 3.12.86).
Application of the epidemic law to an HIV infection is clearly an issue for jurists:
“A prostitute infected with Aids immunodeficiency, who has pursued her activity despite an epidemic police ban, has been sentenced ... by a Munich district court to two years imprisonment.” (Frankfurter Rundschau, 8.5.87)
However, AIDS is not – so far – one of the diseases subject to reporting as listed by name in Section 3 of the Federal Epidemic Diseases Act and in Section 1 of the Sexually Transmitted Diseases Control Act. This point is the primary focus of the heated public debate currently being waged over the AIDS issue by national disease control experts. It goes without saying that the legislators can expand the catalog of diseases about which they want immediate notification, with or without the names of the affected persons, at any time. As befits a constitutional state, it has allowed itself to do so in a separate paragraph 7 of its epidemic law. If the health guardians have not yet declared AIDS a disease subject to reporting, this is not due to any imperfections in the previous legislation, but to an interim political decision.
From the very beginning, the inspection of the infectious disease AIDS has been carried out according to the criteria of disease wardens who clearly know how to distinguish their point of view from that of helping and protecting the afflicted. The peculiarities of the new epidemic – “clinically healthy” virus carriers can, before they show symptoms, be responsible for the spread of a deadly infection for years, against which there is no medical remedy – immediately raises the crucial health policy question of how to deal with registered virus carriers. There is no shortage of state resources; according to the logic of epidemic legislation, potential spreaders of a disease that is particularly detrimental to public health should be kept in “segregation facilities” for the duration of their infectiousness. Since treatment of the disease can’t be compulsory as it does not yet exist, the conclusion is obvious that HIV-positive persons have to be “kept in isolation” for the rest of their lives. This is not said out loud by any politician, but it has occurred to all of them. The only argument made against this is that the danger of infection is not now so widespread among the public and in general; it exists only in blood transfusions, in the noted intimate and intensive mucous membrane contacts and in similar cases, so it is not quite on the same level as TB or cholera. This gives health policy makers something to think about and a lot to do.
Coda: Basic rights in case of an epidemic
Strangely enough, it seems obvious that a “freedom restricting” state power is a suitable recipe for the case of an infectious disease; the quarantine and the police guarding the quarantine center is the most humane way of representing the necessity of the state, even more perfectly than the stupidity of drivers on the freeway, which, as is well known, also calls for an entire state apparatus, including the chancellor and NATO membership. In this case, equating a rational necessity with a legal coercive measure is even more foolish than other types of circular political arguments: “What would you do about human stupidity?” This reflection on the “basic rights” which in the event of an epidemic have to be “restricted” shows how people think: human beings get elevated into absolute legal personalities only to then be interpretated as subject to unpredictable, in principle reckless, absolute whims which, in the interest of a prosperous coexistence, must be controlled by the equally principled and absolute threats of a predictable superior force and can’t be controlled any other way. So force as a general form of social interaction is ideologically justified, not its rational purpose proven. Suitable ideological inventions – such as, in this case, the notoriously senseless spreader of infections or the infection-crazed nihilist – are supposed to make this justification plausible, but only prove the opposite: the generality of lawful force does not come into existence because of them. This “derivation” always requires the interesting assumption that the construction of such exceptions would capture the essence of freedom which the bourgeois state is so proud of granting. There might even be something to it – even if in a quite different sense than the ideology wants to say. People who have been brought up as subjects of the law actually get used to conforming their wills to cases of legally permitted or forbidden whims. And it is precisely them, the state’s subjects, who are the basis of calculation for its measures in the epidemic laws. For these, the state completely foregoes any consideration of the will or even the factor of reason.