The opinion of the court was delivered by: GESELL
This case arises from the Department of State's recent decision to expand its employee medical fitness program for all Foreign Service employees seeking to qualify or who have qualified for worldwide service abroad, by including mandatory testing of blood for the presence of the Human Immunodeficiency Virus ("HIV"), the cause of Acquired Immune Deficiency Syndrome ("AIDS") and related diseases. Plaintiff union, which represents some of the employees subject to the program, has moved for a preliminary injunction to bar this blood testing. Numerous declarations and other material have been filed and the issues have been elaborately briefed and argued.
Pursuant to the Foreign Service Act of 1946, as amended by the Foreign Service Act of 1980, codified at 22 U.S.C. §§ 3901-4026 (1982), the Department of State has established "a health care program to promote and maintain the physical and mental health" of Foreign Service employees and their families. 22 U.S.C. § 4084(a). Authority for requiring medical examinations is found in several sources. The statute provides specifically that the Department of State "shall prescribe, as appropriate, written, oral, physical, foreign language, and other examinations for appointment to the Service . . . ." 22 U.S.C. § 3941(b). Also, the health care program established by the Secretary "may include (1) medical examinations for applicants for employment, [and] (2) medical examinations and inoculations or vaccinations, and other preventive and remedial care and services as necessary, for members of the Service and employees of the Department who are citizens of the United States and for members of their families . . . ." 22 U.S.C. § 4084(b).
Medical concerns addressed by the examinations focus significantly on the commitment of Foreign Service employees to undertake worldwide duty. Congress has provided that "career members of the Service shall be obligated to serve abroad and shall be expected to serve abroad for substantial portions of their careers." 22 U.S.C. § 3984(a). The legislative history of this provision stresses that "availability for worldwide assignment must be clearly expressed and understood as a basic requirement for admission to the Foreign Service as well as for retention and promotion in the Foreign Service throughout the individual's career." H.R. Rep. No. 96-992, 96th Cong., 2d Sess., pt. 1, at 9 (1980); see also S. Rep. No. 96-913, 96th Cong., 2d Sess., at 46 (1980).
The Foreign Service employee medical fitness program is outlined in Volume 3, Section 680 of the Foreign Affairs Manual. It applies to all U.S. citizen Foreign Service employees and their eligible dependents, including spouses and unmarried children under age 21. The program implements the requirement that Foreign Service candidates and their dependents pass, prior to appointment, a comprehensive medical examination designed "to determine the presence of any physical, neurological, or mental condition of such a nature as to make it unlikely that they would be able to function on a worldwide basis." 22 C.F.R. § 11.1(e)(2) (1986). Current Foreign Services employees and dependents must repeat the examination roughly every two to three years principally upon change of tour of duty and, if significant health problems are detected, such employees are limited in assignments abroad to posts where medical facilities are adequate to care for their condition. The content of the examination is frequently changed to reflect evolving medical practice and experience. The examination has long included a variety of laboratory tests, including a number of tests done on blood extracted from each person subject to the examination. This blood testing has provided a wide range of general information about a person's health and has also allowed detection of a variety of diseases, both infectious and non-infectious, such as hepatitis, syphilis, sickle-cell anemia, and various forms of cancer.
In November 1986, following a detailed task force study lasting approximately a year and a half, the Department of State announced its decision to add to its medical examination procedure the challenged blood test designed to detect HIV infection by measurement of the presence of antibodies to the virus. This reflected its determination that HIV-infected persons are impaired and medically unfit for worldwide service, because such persons would be put at serious hazard by service at many posts where medical care is wholly inadequate to deal with HIV-related infection, and health and sanitary conditions are particularly hazardous to carriers of the virus.
As with other serious medical conditions, a finding of medical unfitness due to HIV infection accordingly bars new applicants from employment with the Foreign Service. Current employees and their families, on the other hand, are given limited medical clearances. The Department of State has determined that HIV-infected individuals showing no symptoms of related disease and without significant immune system dysfunction, as determined by further blood tests, are eligible for placement in the United States and 47 posts in 19 foreign countries which do not present unusual health hazards and where adequate medical care is believed to be available. Individuals in more serious condition are limited to United States service. No employee will be separated, and benefits will not be affected, by a finding of HIV infection.
The Department of State presented substantial medical evidence supporting its view that HIV-infected individuals placed on worldwide service status would be at significant and progressively serious medical risk. Although there is much still to be learned about HIV infection, it is clear that a substantial percentage of persons carrying the virus -- and perhaps a majority -- will probably develop any of a wide variety of medical problems, principally AIDS or the less severe AIDS-related complex,
in a relatively short period from date of infection. There is, moreover, credible medical evidence that HIV-infected individuals placed in countries with levels of infectious disease substantially higher than in the United States will experience enhanced stimulation of their immune systems, through either exposure to disease or to required live-virus vaccines, which can hasten development of AIDS or AIDS-related complex.
Plaintiff raises two major objections to blood testing for HIV infection which require comment.
First, it asserts that the testing constitutes an unreasonable search in violation of the Fourth Amendment to the Constitution and a severe privacy intrusion in violation of the substantive due process component of the Fifth Amendment. These arguments are closely related in their focus on the reasonableness of the testing program, and they draw on the view held by many experts that mandatory testing has little, if any, impact on the spread of HIV-related disease and the obvious fact that given the present intense national concern with AIDS there are often damaging psychological reactions caused when one learns he or she is carrying the virus which may trigger it, particularly when one has not voluntarily sought a blood test.
However, the testing program challenged in this case is not primarily directed at stopping the spread of HIV infection. Rather, its focus is on fitness for duty in a specialized government agency. The testing involves only an additional examination of a blood sample that the person undergoing an examination must provide as a matter of course under procedures already established for a number of years. On the evidence presently before the Court, inclusion of the test for HIV infection appears rational and closely related to fitness for duty. The Department of State has acted to ensure tests are conducted in a reasonable manner to protect privacy. While obviously psychological concerns of a deep personal nature may arise when a person is informed of HIV infection following a test, these concerns do not themselves raise constitutional privacy issues, especially as other serious diseases -- notably cancer -- that may be revealed by blood tests undoubtedly present similar concerns.
The Court must conclude on the present record that the likelihood plaintiff will prevail on the merits of its constitutional claim is insufficient to justify a preliminary injunction against the testing program.