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Nation's High Court Issues Landmark Ruling on Federal Law and HIV

September 1998

A note from Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!

As of June 25, 1998, the United States Supreme Court's decision of Bragdon v. Abbott has provided positive answers to some of the key questions involving the extension of protection under the Americans with Disabilities Act of 1990 ("the ADA") to people infected with HIV but still asymptomatic. The Court's analysis, however, shakily patched together in no fewer than five separate opinions among the nine justices, falls far short of neatly resolving the issues presented.

At this point in the HIV epidemic, when infection rates continue to climb locally and nationally even as promising new drugs and advances in treatment have both improved the health of those already ill and kept many asymptomatic, the attention of the nation's HIV community and its advocates has for the past few months been kept riveted on the pending decision. In the case, the high court's first consideration of the legal issues raised by either AIDS or the ADA, the Court stood to answer the crucial question of whether or not the protections of the ADA extend to people infected by HIV but nevertheless lacking symptoms. Are such people "disabled" within the terms of that law, and thus entitled to the benefit of its protections against discrimination in employment and public services?

Since a growing number of people with HIV are not only remaining asymptomatic but also living longer and contemplating a return to work, and the ADA offers by far the most effective nationwide legal protections available, advocates realized the importance of the question and the massive potential of the ruling for either positive impact or severe damage. The Court's June 25 decision, generally hailed as a strong victory by HIV advocates, laid some of those concerns to rest as it ruled that people with HIV may be covered by the protections of the ADA even if they remain asymptomatic and have not yet been diagnosed with AIDS.

In a nutshell, the Court ruled that Sidney Abbott, an asymptomatic person with HIV, was protected by the provisions of the ADA and that her rights may have been violated in September, 1994 when a local dentist, Randon Bragdon, refused to fill a cavity discovered during a routine dental examination at his office in Bangor, Maine. She had disclosed in an office questionnaire her HIV-positivity, and the dentist declined to perform the simple procedure in his office on that basis. Citing his concerns as to "infection control," he offered to do the work in a local hospital at no extra charge for his services, but explained that she would be responsible for any additional fees charged by the hospital.

Reading between the lines, it is clear that Abbott was hurt and angered by Dr. Bragdon's actions, and felt that he was simply trying to get rid of her, or "dump her" as a patient, because she was HIV-positive. (It was later noted in the record, for example, that the dentist had enjoyed no privileges with local hospitals at the time of his offer.) Apparently furious about her inability to get simple medical treatment on the same terms as other patients, Abbott declined the dentist's offer and instead proceeded to sue him in federal court, arguing a violation of her rights under state and federal law. In the ensuing litigation, Dr. Bragdon countered in the lower courts with two primary arguments.

First, he argued that the patient's HIV-positivity, in the absence of any visible symptoms or illness, failed to qualify for protection as a defined "disability" under the ADA. If she showed no signs of illness, he contended, how could she be possibly be "substantially impaired" as required for protection under that law? As a backup argument, he contended that his refusal to render treatment was justified under ADA language excepting from its protections any services "posing a direct threat to the health and safety of others." In other words, he believed that filling the cavity could expose him or other patients to the risk of HIV infection, and that this fear justified his action.

In both lower federal courts, Abbott prevailed completely as each accepted her arguments and ruled on her behalf, rejecting Dr. Bragdon's arguments on the basis of summary judgment. Each court therefore found, upon reviewing the record, that as a matter of law (1) no question existed that Abbott was disabled within the meaning of the ADA in spite of her status as asymptomatic, and (2) that in light of prevailing scientific standards Dr. Bragdon had failed to establish or support his claim as to the "direct threat" to safety posed by the procedure.

First, examining the primary definition of "disability" under the ADA, both courts found Abbott protected because her HIV-positive status itself constituted a physical impairment substantially limiting one or more of her major life activities. Specifically, the courts focused upon and accepted her contention that HIV infection limited her ability to reproduce and to bear children, a "major life activity." Second, the courts found that available objective, expert, and scientific medical information undercut the dentist's assertions as to the danger of the procedure. In so holding, the courts ruled that his subjective fears had been insufficient to justify a refusal to treat.

Dr. Bragdon subsequently sought review of the case before the United States Supreme Court, the federal court of last resort, and was accepted. Since that Court agrees to review only a small fraction of the cases presented to it, even a simple granting of review is often carefully watched and can be laden with implications. (In each such case, an assumption arises that the Court views the case as one of great public importance, and in all likelihood disagrees with the ruling below and either seeks its reversal or dramatic clarification.) Accordingly, its acceptance of Dr. Bragdon's requested review immediately sent shock waves throughout the national community of people affected by HIV and their advocates.

Faced with the disastrous possibilities of high court rulings that the ADA excludes from its protections the HIV-positive but asymptomatic, or that individual health care providers or employers could legally withhold services or otherwise discriminate based upon their own idiosyncratic definitions of "direct threats to health and safety," the stakes were high and anxiety mounted among those carefully watching the case. Fearing the worst, several involved organizations filed legal briefs as "friends of the court" in support of Abbott's position, prominently including a joint effort of the Lambda Legal Defense and Education Fund and the Whitman-Walker Clinic of Washington, D.C. on behalf of sixteen other groups and individuals.

Thus was the stage set for the high court's ruling. First question: was Abbott "disabled" under the ADA? In evaluating the issue, the Court was bound by the arguments made in the lower courts and thus skipped over two alternative (and much simpler and more clear) definitions of the term contained within the Act. Under the ADA, one is entitled to protection as disabled not only if they suffer a physical impairment that substantially limits one or more of their major life activities, but also if they have 2) a record of such impairment; or 3) are regarded as having such an impairment. The third basis, being by far the most broad and therefore most effective, was apparently never addressed by the lower courts and therefore ignored by the Supreme Court.

In finding Abbott disabled the Court focused solely on the first prong, ruling in strong language that from initial onset HIV infection begins its relentless and devastating assault on the body's immune system, thus constituting per se and in every case a "physical impairment." Proceeding in its analysis, the Court agreed that "reproduction and child bearing" were indeed "major life activities" as argued by Abbott, and that the risks of transmission of her virus to the potential father or to the infant "substantially limited" those activities. The Court thus ruled favorably on her behalf, but left advocates scratching their heads as to the extent of the holding and its ultimate application to the wider range of people affected by HIV, including children, most gays, the elderly, and others not likely or unable to conceive.

Finally, the high court reversed the lower courts on the issue of "direct threat to health or safety," requiring a closer examination of the scientific evidence on the question of dental treatment and the risks of HIV. Remember: since the rulings under review followed the entry of summary judgment, meaning that no testimony had previously been taken on this question (other than written affidavits submitted to the courts) and that the decisions had been made as a matter of law, the high court's ruling in this respect was not as damaging as it might appear. It simply held that the importance of the issue justified and called for an evidentiary hearing in the trial court, involving the presentation of testimony and the submission of evidence. Specifically noting that a health care professional's assessment of risk must be "based on the objective, scientific information available" to the profession and not simply a good faith belief, the Court nevertheless returned that issue to the lower court for closer examination.

And that, for right now, is where we stand.

A note from Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!

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This article was provided by Paul Hampton Crockett, Esq..
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