VII. Violation of the Right to Non-Discrimination in the Enjoyment of the Right to Health: Article 5(e)(iv)
ICERD requires states parties, when the circumstances so warrant, to take special and concrete measures to ensure the development and protection of racial groups for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.99 Moreover, under Article 5(e)(iv) of ICERD, the US is to eliminate racial discrimination and guarantee to everyone, without distinction, the right to public health.100
The US has failed to develop legislative or policy responses adequate to address the HIV/AIDS epidemic in the African-American community. In some instances, the US promotes laws and policies that deny services and care to many African-Americans with HIV/AIDS. These actions exacerbate the disproportionate effect of HIV/AIDS upon the minority community and violate the US governments obligations under ICERD.
Marked racial disparities in the prevalence of HIV/AIDS in the United States are well documented.101 The African-American experience is the most dramatic. African-American women in the US are diagnosed with HIV/AIDS at a rate 19 times higher than that of white women, and African-American men are diagnosed at a rate seven times higher than that of white men.102 A 2005 study in five US cities showed that 46 percent of African-American men who have sex with men were HIV-positive. HIV/AIDS is the leading cause of death of African-American women ages 25-34, and African-American women in all age groups have a 13 times greater risk of dying of HIV/AIDS than do white women.103 African-American children constitute 71 percent of all pediatric AIDS cases in the US.104
These statistics must be understood not in isolation but in the context of African-Americans as a marginalized group in American society. US government policy plays an important part in the environment of risk that fuels the epidemic in minority communities. One in four African-Americans lives in poverty.105 Among those living with HIV/AIDS, African-Americans are more likely than whites to be homeless or unstably housed and to lack a high school education.106 There is also a high prevalence of HIV infection in US prisons, where African-Americans represent 41 percent of the population. African-Americans are more likely than whites to have no medical insurance 107 and less likely to receive necessary anti-retroviral treatment even when presenting themselves for care.108
As HIV/AIDS rages through African-American communities, the response of the US government ranges from neglect to undermining potential solutions. There is no national HIV/AIDS plan and no comprehensive plan to address the epidemic in minority communities. Medicaid, which offers health insurance to low-income persons, denies eligibility until applicants are disabled from full-blown AIDS. The Ryan White CARE Act and the AIDS Drug Assistance Program (ADAP), designed to be safety nets for HIV/AIDS patients denied Medicaid eligibility, are chronically under-funded.109 This gap leaves many without access to medical care or life-saving medications. One in five new HIV infections among African-Americans is a result of injection drug use, yet the US government prohibits the use of federal funds for proven harm reduction programs such as needle exchanges.
The high incidence of HIV infection in African-American communities throughout the United States, and the failure to address these disparities through public health programs, raise serious concerns about the US governments adherence to its obligations under Article 5(e)(iv) of ICERD.
99 ICERD, Article 2.2.
100 ICERD, Article 5(e)(iv).
101 See, for example: Centers for Disease Control and Prevention (CDC), HIV/AIDS Surveillance Report, 2004, 2005, http://www.cdc.gov/hiv/topics/surveillance/resources/reports/2004report/pdf/2004SurveillanceReport.pdf (accessed February 1, 2008); CDC, Racial Ethnic Disparities in Diagnoses of HIV/AIDS- 33 States, Morbidity and Mortality Weekly Report, vol. 55, pp. 121-125 (2006), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5505a1.htm (accessed February 1, 2008); Robert E. Fullilove, National Minority AIDS Council, African-Americans, Health Disparities and HIV/AIDS, November 2006, http://www.nmac.org/nmac2/PDF/NMAC%20Advocacy%20Report_December%202006.pdf (accessed February 1, 2008); Open Society Institute, Improving Outcomes: Blueprint for a National AIDS Plan for the United States, 2007, http://www.soros.org/initiatives/health/focus/phw/articles_publications/publications/improving_20070430/improving_20070501.pdf (accessed February 1, 2008), p. 8; Joint United Nations Program on AIDS (UNAIDS) and the World Health Organization (WHO), Fighting HIV-Related Intolerance: Exposing the Links Between Racism, Stigma and Discrimination, 2001, http://www.safepassages.soton.ac.uk/pdfs/bpracism.pdf (accessed February 1, 2008), pp. 6-8; Center for HIV Law and Policy, Racial Disparities in HIV Care and Outcome: A Call for an Evidence-Based Response,May 2006.
102 National Alliance of State and Territorial AIDS Directors (NASTAD), A Turning Point: Confronting HIV/AIDS in African-American Communities, December 2005, http://www.blackaidsday.org/pubs_reports/ATurningPoint.pdf (accessed February 1, 2008), p. 1.
103 R. Levine et al., Black-White Mortality from HIV in the United States Before and After the Introduction of HAART Therapy in 1996, Journal of American Public Health (October 2007), 97: 1884-1892.
104 National Institutes of Health (NIH), HIV Infection in Minority Populations, April 2005, http://www.niaid.nih.gov/factsheets/Minor.htm (accessed February 1, 2008).
105 US Census Bureau, Statistical Abstract of the United States, 2007, 2007, http://www.census.gov/compendia/statab/2007/2007edition.html (accessed February 1, 2008).
106 National AIDS Housing Coalition, Transforming Fact into Strategy- Developing a Public Health Response to the Housing Needs of Persons Living with and at risk of HIV/AIDS, November 2006, http://www.nationalaidshousing.org/PDF/SummitIIPolicyPaper.pdf (accessed February 1, 2008), p. 1; Pan American Health Organization (PAHO)/WHO/UNAIDS, HIV and AIDS in the Americas: An Epidemic With Many Faces, November 2000, http://www.who.int/hiv/strategic/en/amr_map_rio.pdf (accessed February 1, 2008), p. 34.
107 NASTAD, A Turning Point, p. 2.
108 Center for HIV Law and Policy, Racial Disparities in HIV Care, p. 3.
109 In 2006, four people died while on the South Carolina ADAP waiting list. See, National Alliance of State and Territorial AIDS Directors, ADAP Watch, http://www.nastad.org/Publications/adapwatch.aspx (accessed February 1, 2008).