Annals of Health Law
ACHIEVING AN AIDS-FREE GENERATION
permanence. Its quick reinstatement confirmed the need for more forceful
and lasting endorsement of SEPs. In support of the argument that the federal
government must act to legally and financially support SEPs, this Article first
looks to other ways the federal government has influenced local policy
through its own actions. It next considers what affirmative endorsement for
SEPs should look like.
A. Lessons from Other Federal Funding Examples
The federal government has limited powers—primarily the authority to
tax, spend, and regulate interstate commerce enumerated in the
Constitution.143 The Tenth Amendment reserves all remaining powers to the
states. In particular, protection of public health is traditionally a state power.
Accordingly, the federal government cannot directly authorize or prohibit
policies for public health programs such as SEPs. However, it can and does
indirectly influence policy through funding decisions.144 When Congress
banned federal funds for SEPs, it symbolically disapproved of the
programs.145 This position appeared to gain support when, in 1993, after
reviewing a University of California-San Francisco study declaring that SEPs
deserve federal funds, the CDC made no statement regarding federal funding.
Health officials interpreted the inaction as skepticism.146 President Obama
countered those positions when he modified the ban after promising support
for HIV prevention and SEPs.147
143. LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 78 (2d ed.
144. Salbu, supra note 119, at 117 (observing that federal laws aim to control funding
“[b]ecause direct public health policy traditionally falls within the states’ police powers”).
145. Congress banned funding for syringe and needle exchange programs in 1988, in the
wake of President Reagan’s “War on Drugs.” See Health Omnibus Programs Extension of
1988, Pub. L. No. 100-607, 102 Stat. 3048 (1988) (codified at 42 U.S. C. § 300ee-5 (2006)).
146. Salbu, supra note 119, at 117–19, 168–69 (reviewing federal actions and their
influence on the success of authorizing SEP).
147. See, e.g., Fears, supra note 129. AIDS advocate Ronald Johnson, who considered the
legislation to remove the funding ban, emphasized the “recognition by the federal government
of the proven cost-effectiveness and impact of syringe exchange as a very important tool for
prevention of HIV infection and viral hepatitis.” Id. The CDC described the studies of cost-effective as follows: “At an average cost of $0.97 per syringe distributed, SEPs can save
money in all IDU populations where the annual HIV seroincidence exceeds 2.1 per 100 person
years. The cost per HIV infection prevented by SEPs has been calculated at $4,000 to $12,000,
considerably less than the estimated $190,000 medical costs of treating a person infected with
HIV.” Syringe Exchange Programs, supra note 16 (footnotes omitted). Similarly, President
Obama stated that his repeal of the ban on federal funds for human embryonic stem cell
research “restore[d] our commitment to science.” President Barack Obama, Remarks at the
Signing of Stem Cell Executive Order and Scientific Integrity Presidential Memorandum
(Mar. 9, 2009), available at http://www.