The amendment gained broad bipartisan support, including from the congressional Black Caucus and such progressive representatives as Ronald Dellums and Patricia Schroeder. In response, in May 1995 the CDC suspended its anonymous HIV Survey of Childbearing Women. According to one senior New York public health official, the state health department decided to continue its program of newborn surveillance without the $500,000 provided by the CDC. ''After Mayersohn began agitating," the official noted, sharply contrasting the state response to that of the federal public health agency, "it would not have been politically astute to pull it."
After Mayersohn and Velella reintroduced their mandatory testing bills, there was again a great deal of movement to strike a compromise before the end of the legislative session in early July. Late in the evening on one of the last nights of the session, a member of Assembly Speaker Silver's staff approached Mayersohn. The speaker was willing to amend the law to allow the health commissioner to order the HIV test, rather than mandate it by law. Mayersohn readily accepted the compromise. This time, as the legislative session drew to a close, Mayersohn was convinced that her position would prevail. As happened the previous year, though, the legislation that everyone expected to pass was not brought to the floor. According to various accounts, the speaker had been approached by Assembly Democrats opposed to mandatory testing, so he had decided instead to await the resolution of the Ackerman-Coburn amendment in the House of Representatives.
In September 1995, the state attorney general approached ABC to settle its lawsuit. Since the governor could not change the confidentiality statute by executive order, the state was limited to working within the bounds of an arrangement that included written informed consent. The two sides (absent the HIV Law Project) settled upon a compromise. The state would propose rules by which postpartum women would be approached for consent to have their infant's HIV status disclosed, and there would be a provision allowing a physician to conduct HIV testing if he or she determined that an emergency existed. According to ABC counsel Colin Crawford, in retrospect ABC "could have considered the possibility of voluntary testing following a compelled choice either to learn the results or not, far earlier than we did. We could have come to this realization, moreover, from working even harder than we did to try and accommodate the confidentiality and civil liberties of our opponents."
Richard Gottfried, chair of the Assembly Health Committee, was not unhappy with the settlement. "For some people, the ABC lawsuit gave legitimacy to Nettie's position. But, in fact, it was almost exactly what I would have wanted to have as state law." The only critical difference, according to Gottfried, was that the proposed rules would mandate directed HIV counseling only in state-regulated facilities (such as hospitals, clinics, and certain HMO practices), whereas the Silver-Tully bill he had cosponsored would require all physicians—whether regulated or not, public or private—to provide mandatory counseling.
In settling the lawsuit, Governor Pataki was quoted in the New York Times as