June 08, 2004,
EDITOR'S NOTE: This article first appeared on National Review Online on October 23, 2003.
Next month, CBS will air The Reagans, a new mini-series, and there is growing concern, based on circulating scripts, that the portrayal will be biased or, worse, inaccurate. The New York Times has reported, for example, that "the script . . . accuses Mr. Reagan of having no interest in addressing the AIDS crisis, but of asserting that the patients of AIDS essentially deserved their disease."
This is historical distortion. Indeed, if uncorrected, it may well fit the very definition of libeling a public figure: reckless disregard for the truth.
How Ronald Reagan viewed AIDS was of particular importance to me, since the former president tasked me with advising him on certain legal aspects of AIDS policy. In the late 1970s and 80s, AIDS was not well known to the general public, and there was considerable uncertainty in the medical community about how AIDS was transmitted. Researchers at Harvard had suggested that transmission by saliva was possible, and there was a good deal of public hysteria driven by the thought that the fatal illness could be spread by such casual contact. Schools were denying entrance to children with the disease, and some hospitals even declined to treat AIDS patients.
It was the Reagan administration that cut through this misinformation and, after careful deliberation, concluded that AIDS patients were entitled to be treated as "handicapped" under federal laws that protect such individuals from discrimination.
This would have been a courageous act for any president, but it was even more so for President Reagan. Given the medical uncertainty and the fact that AIDS was transmitted largely through sexual promiscuity, President Reagan not only needed to educate the public, but also to encourage his core political base to have charity toward those who consciously engage in morally questionable behavior.
He didn't hesitate to do so. When an initial legal inquiry suggested that those with AIDS might not be eligible for civil-rights protection because employers and others could assert a legitimate "fear of contagion," whether or not that fear was reasonable or scientifically verifiable, it was President Reagan who appointed a commission on AIDS that ultimately asked for that legal thinking to be re-examined.
As the former president's constitutional legal adviser, this was primarily my responsibility, but President Reagan also appointed many other helpful and intelligent voices that helped bring about the right result. C. Everett Koop, President Reagan's surgeon general, readily conceded the medical uncertainties of the time, but in typical Koop style, he also rendered a medical judgment free of political bias. Said Dr. Koop: Those with AIDS, even those in the earliest stages of the disease, have abnormalities or impairments of the immune system which could affect a major life activity, such as the prospect for giving birth to a healthy baby.
Having obtained the best available medical information, the president concurred with my legal opinion that, as a matter of law, individuals with AIDS were entitled to existing civil-rights protections and could be excluded from those protections only where they could be shown, on an individual basis, to pose a threat to the health or safety of others or to be unable to perform their required jobs.
As anticipated, this result was not uniformly embraced. Yet president Reagan and his White House staff saw it as so important that they convened a major press conference at the Justice Department to highlight the opinion. The conference took place in October 1988 not an ideal time to be announcing controversial news, as President Reagan was then campaigning for the election of his then-vice president, George H. W. Bush.
When a reporter at the conference demanded to know "Why is it good to extend protection to people with AIDS?" and "Why is it good to include this group with people in wheelchairs and crutches?", Reagan gave a straightforward answer: Because that is the law as we believe Congress wrote it. "We have fairly interpreted the statute," he said.
The historical record is plain: Ronald Reagan was not indifferent toward those who suffered with AIDS; rather, having taken an oath to "take care that the laws are faithfully executed," he did just that even when it was of no discernible political benefit to him or his party, and reasonable minds could and did disagree. History should be retold, not rewritten.
Douglas W. Kmiec is Caruso Chair and professor of constitutional law at Pepperdine University and former constitutional legal counsel to Presidents Reagan and George H. W. Bush. The full story of the AIDS inquiry can be found in his book, The Attorney General's Lawyer.