17. Letter From Acting Secretary of State Whitehead to the Director of the Office of Management and Budget (Miller)1

Dear Mr. Miller:

I am writing with respect to the Department of Health and Human Services’ proposal to designate AIDS as a “dangerous, contagious disease”, excludable under Section 212(a)(6) of the Immigration and Naturalization Act (INA). For reasons stated below, the Department of State urges that the Notice of Proposed Rulemaking not be published at this time.

While the Department of State shares HHS’ desire to protect the health of the American public, and to minimize the economic costs of the AIDS epidemic to the United States, consular posts have reported that significant operational problems would arise in implementing the [Page 45]proposed rule.2 These relate in large part to the unavailability of the ELISA and Western Blot tests for AIDS in much of the world. Since the ELISA test apparently gives a high proportion of false positive results, especially when applied to Africans, the more expensive and still less available Western Blot test would often have to be used. Moreover, relatively few immigrant visas are issued by posts in areas where the incidence of AIDS, or of infection with the HTLV–III virus, appear prevalent. Thus, we question whether the relatively few seropositive individuals who could be excluded under this rule justify the expense involved in its implementation.

The Department also administers third-country processing of refugees from such nations as the Soviet Union, Vietnam and Cambodia. Provisions would have to be made, prior to adoption of the proposed rule, for the disposition of any individuals who might test positively for AIDS virus antibodies. It would be neither realistic nor humane to return these individuals to their country of origin.

Adoption of the proposed rule would also carry political risks. AIDS is seen in many nations as a cultural threat of Western origin, and the U.S. is widely perceived as the principal exporter of the AIDS virus. Not only would the proposed rule complicate bilateral relations, but it would put the U.S. in the position of contradicting the World Health Organization (WHO), which has stated that there is no justification for travel restrictions at this time. This could undermine the WHO AIDS program, which we are trying to encourage, and also invite reciprocal measures by other nations against the far greater number of American travelers.

HHS and State Department officials have met twice in unsuccessful attempts to resolve this issue.3 This Department continues to believe that the proposed rule is in direct conflict with the provisions of Section 2 of Executive Order 12291:4 it is not based on adequate information and it has not been demonstrated that the proposed benefits outweigh the potential costs. A realistic cost-benefit analysis is necessary before State could concur in the proposed rule. Such an analysis should include: (1) the cost (and to whom) of making testing facilities available at visa-issuing posts, bearing in mind the poor medical infrastructure and the lack of reliable electrical power and refrigeration in many areas; [Page 46](2) the implications for refugee programs; (3) the administration of, and possible waivers for, adjustments of the status of individuals already resident in the U.S.; (4) measures to prevent the use of fraudulent test results to obtain visas; and (5) consideration of the costs imposed by possible reciprocal actions directed against U.S. citizens. The number of individuals who would be excluded, based on data covering visa issuance and estimates of prevalence of infection by the HTLV–III virus at differing visa-issuing locations, could provide a reasonable estimate of the degree of protection the proposed rule would afford the U.S. public.

I would also point out that clinical AIDS is already excludable from the United States under Sections 212(a)(7) and 212(a)(15) of the INA on the grounds that an afflicted individual will be unable to work, unable to pay for medical care, and therefore likely to become a public charge. Confining the proposed rule to the exclusion of clinical AIDS, as defined by the Centers for Disease Control, would be medically sound and politically less sensitive. Training panel physicians at visa-issuing posts to recognize the sentinel diseases of AIDS may be much more cost-effective than use of currently available antibody blood tests.

This Department therefore urges that the Notice of Proposed Rulemaking not be published until the concerns raised above are thoroughly addressed. We are ready to pursue this matter further with you as necessary.5

Sincerely,

John C. Whitehead
  1. Source: Department of State, Subject Files, Other Agency and Channel Messages and Substantive Material—World Health Organization (WHO), 1986, Lot 90D36, 86 HLTH WHO Programs AIDS Jan–June. No classification marking. Drafted by Weeks on March 10; revised on March 12 and 17.
  2. See Document 16.
  3. See Document 14.
  4. Executive Order 12291, issued February 17, 1981, was created to “reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for Presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” (46 Federal Register 13193)
  5. In an undated information memorandum from Smith to Whitehead, Smith reported: “At a meeting last Friday of the Health Policy Working Group of the Domestic Policy Council a compromise was worked out, ad referendum, that fully meets our objectives. The agreement—subject to confirmation by HHS and State—is for AIDS to be designated a ‘dangerous, contagious disease,’ but without any requirement that all immigrants and refugees be tested for antibodies to the AIDS causing virus.” (Department of State, AIDS, 1984–1987, Lot 89D137, VISA/Immigration/Consular Affairs, etc.) In an April 18 action memorandum to Whitehead, Negroponte approved the compromise. Whitehead initialed his agreement on April 19. (Department of State, Central Foreign Policy File, P870002–0826)