The new Illinois AIDS notification bill might be unconstitutional, warns NIU law professor Lorraine Schmall.

The bill is being heralded by some as a model for future state law, but Schmall said she feels it only might be the result of legislative hysteria.

The legislation would require the Illinois Department of public Health to check the patient records of doctors, dentists, and other health care providers known to be infected with the HIV virus. The patients then would be notified that the health care provider is infected with HIV.

“I think what we’re talking about is the hysterical reaction of a lot of legislators to a very serious, but currently insoluble problem,” said Schmall, who is the author of “AIDS in the Workplace: Doctors, Lawyers, and Bosses.”

The proposal recently passed both houses of the Illinois legislature with overwhelming support. Gov. Jim Edgar has 90 days to sign the bill and has indicated he agrees in principle with the bill, but is concerned about the estimated $10 million cost for the first year to implement the law.

Schmall, who specializes in health care and civil rights law, argued, “at a time when our state is absolutely bankrupt, we are talking about spending $10 million on a project that is most likely ineffectual and quite possibly unconstitutional.”

The highly publicized reports of the five patients diagnosed as HIV-positive after being infected by a Florida dentist and other similar reports have fueled the requests for this type of legislation.

But five confirmed cases out of more than 182,000 reported nationwide do not justify the cost or the constitutional infringement it would entail, Schmall said.

There are problems particularly associated with AIDS that are not addressed by this legislation, she said. “One is that a person can test negative and still be HIV-positive because at the time of the test that person’s illness might be dormant.”

“A second problem is that AIDS is not contagious except at very specific times and through very discrete and very obvious methods of transmission,” she said.

In the Florida cases, federal health specialists know the victims got the virus from the same man but don’t know exactly how, she said.

“When we talk about a cost/benefit analysis, and when we talk about a Fourth Amendment right to privacy, we have to understand that (the state) must have a reasonable and particularized suspicion before (it) can act,” said Schmall.

“I believe voluntary testing, along with continued resources for training, education and prevention of AIDS, constitutes the most appropriate and effective course of action in combating the lethal virus,” she said.