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AIDS Project Director's Update
Bragdon v. Abbott: The Supreme Court Takes on HIV

by Catherine Hanssens

Spring/Summer 1998

Recent victories against AIDS/HIV discrimination are refreshing good news. These advances also serve as markers for how far we still have to go in the legal struggles of the epidemic. Lambda's AIDS Project recently initiated litigation against insurers who persist in unfair "capping" of HIV care; we joined in cases challenging discrimination in disability and retirement benefits, and we persistently advocated for sane, science-based policies on tracking and preventing HIV infection. We also were part of a critical battle waged all the way to the United States Supreme Court: whether HIV infection that has not developed into visible symptoms is a disability covered by the Americans with Disabilities Act, or ADA. The Court's decision, expected in early summer, will shape the way we contend with these issues in the future.

It is fitting that the Supreme Court's first case involving the ADA also is the first time an HIV discrimination case has been before the High Court. Fears and myths of others have plagued people living with HIV since the beginning of the epidemic, and for this reason HIV discrimination is a very appropriate example of the sort of irrationality the ADA was crafted to cure.

The ADA was intended to help those with disabilities who are fully capable of participating in the job market and social institutions and services, but historically have been shut out because they are victims of stereotypes and phobias. For people with HIV, most discrimination has been a product of unfounded fears of contagion. The particular stage of an individuals's illness matters little, once such irrational fears take hold. From doctors to produce clerks, people with HIV have lost their jobs not because of any physical inability to perform safely and well, but because they were feared as dangerous to have around. In the Bragdon case, Sydney Abbott's dentist rebuffed her simple attempt to have a cavity filled, all because he learned that she is HIV positive.

On March 30, when the U.S. Supreme Court heard the case, questioning by the justices raised both hope and concern. Justices Ginsberg and Breyer, and at times Kennedy, appeared to understand the underlying goals of the ADA, and the disabling impact of societal fears on those with HIV and other infectious diseases. However, in addition to the predictable hostility of Chief Justice Rehnquist and Justice Scalia (and the predictable silence of Justice Thomas), Justice Souter seemed moved by Dr. Bragdon's argument that Sidney Abbott is physically able to have sex and children, and that the risk of HIV transmission that accompanies these activities, therefore, is an issue of morality, not disability.

Our briefs had not rested on HIV's impact on reproduction as the sole basis of Abbott's disability. Regardless of whether HIV has visible symptoms, it has profound impact on numerous aspects of daily living. We also pointed out that the ADA provides strong protection for those who, like people living with HIV, are routinely regarded as disabled. But Justice Souter's concerns revealed a basic misconception about both HIV's impact and the broad scope of the ADA's protections.

And so while we prepare new challenges to the persistent problem of discrimination, we hold our breath and hope that, in the Supreme Court, law and logic will prevail.

This article was reprinted from the Spring/Summer 1998 edition of The Lambda Update, the tri-annual newsletter of Lambda Legal Defense and Education Fund.

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