Annals of Health Law
ACHIEVING AN AIDS-FREE GENERATION
funding is not available to any SEP unless it can qualify under an
exception.115 Indeed, as discussed in Part II, HHS took this approach in its
Guidance and required documentation that local public health authorities and
law enforcement approved a location as “appropriate.” Congress could have
avoided this confusion with an affirmative statement ( i.e., HHS shall or may
fund SEPs, except . . .).116
Additionally, by granting authority to public health or law enforcement,
the modified ban created confusion about authority and responsibility for
SEPs. Specifically, the modified ban relied on local entities—”local public
health or local law enforcement authorities”117—to determine which
locations were “inappropriate” for SEPs and, thus, ineligible for funding.
However, the fundamental challenge for SEPs is that the priorities of a public
health agency differ from those of local law enforcement. 118 The modified
ban’s broad language not only fails to resolve this tension, but also
perpetuates it by dividing authority between these two groups without
providing a mechanism for balancing their competing priorities.
While public health agencies focus on the fight against HIV transmission
among IDUs, law enforcement agencies focus on the “fight against illegal
drug use.”119 Studies suggest rigid law enforcement policies and a lack of
collaborative training between law enforcement and SEP promoters erodes
the efficacy of SEPs and deters participation.120 Gaps in state and local SEP
115. “Where Congress explicitly enumerates certain exceptions to a general prohibition,
additional exceptions are not to be implied, in the absence of a contrary legislative intent.”
YULE KIM, CONGRESSIONAL RESEARCH SERVICE REPORT FOR CONGRESS, STATUTORY
INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS CRS-16–17 (2008) (quoting
Andrus v. Glover Const. Co., 446 U.S. 608, 616–17 (1980)).
116. For example, President Obama’s Executive Order 13505, titled Removing Barriers
to Responsible Scientific Research Involving Human Stem Cells, repealed the ban on federal
funding for hESC research by providing, “The Secretary of Health and Human Services . . . ,
through the Director of NIH, may support and conduct responsible, scientifically worthy
human stem cell research, including human embryonic stem cell research, to the extent
permitted by law.” Exec. Order No. 13505, 74 Fed. Reg. 10,667 (Mar. 9, 2009).
117. Consolidated Appropriations Act of 2010 § 505.
118. For example, the mission of the Fulton County, Georgia, Department of Health and
Wellness is “to promote, protect and assure the health and Wellness of the people of Fulton
County.” Health & Wellness, FULTON CNTY. GOV’T, http://www.fultoncountyga.gov/dhw-about (last visited Mar. 23, 2013). The mission of the Fulton County, Georgia, Police
Department is “to preserve life, protect property, and maintain order through a partnership
between the department and the citizens.” FULTON COUNTY POLICE DEP’T,
http://www.fultonpolice.org/ (last visited Mar. 23, 2013).
119. Steven R. Salbu, Needle Exchange, HIV Transmission, and Illegal Drug Use:
Informing Law and Public Policy with Science and Rational Discourse, 33 HARV. J. ON LEGIS.
105, 110 (1996). Some states attempt to write legislation authorizing SEPs within “potentially
hostile anti-drug laws.” Id.
