People who are HIV-positive but asymptomatic are protected from discrimination under the 1990 Americans with Disabilities Act (ADA). That was the ruling in Bragdon v. Abbott, the first AIDS-related case to reach the Supreme Court and one with significant implications for healthy positive people and for everyone with HIV/AIDS.
The case began when Sidney Abbott, an HIV-positive Maine woman, went to a local dentist to have a cavity filled. Although she had no symptoms, Abbott revealed on a patient information form that she was infected with the virus. The dentist, Dr. Robert Bragdon, refused to perform the necessary procedure in his office.
Fearful of becoming infected himself, Bragdon offered to treat Abbott in a hospital, where he believed better safeguards were available to protect him from infection. The additional $150 cost for use of the hospital's facilities would, of course, be borne by the patient.
Instead of going to the hospital, Abbott took her dentist to court. She based her case on the ADA, contending that the law was enacted specifically to protect people like her from just this type of discrimination.
A major issue in the case was the definition of disability. Under the ADA, a person is disabled if he or she has a condition that "substantially limits one or more major life activities." Clearly, someone with impaired sight, hearing, or mobility is protected under the Act. Abbott, however, was completely asymptomatic, and the question was whether someone with HIV that had not progressed to AIDS was disabled within the meaning of the law. Her attorneys argued that the "major life activity" that was impaired by her HIV status was the ability to reproduce.
Bragdon contended that the virus itself impaired neither Abbott's ability to bear children nor her ability to care for herself. His attorney asserted that her choice not to have children so as to avoid the risk of infecting either her sexual partner during intercourse or her child in utero or during childbirth "confuses moral decision-making for physical disability." Both the U.S. District Court and the U.S. Court of Appeals for the First Circuit ruled in favor of Abbott.
Finally, in late June, the Supreme Court rejected Bragdon's appeal, finding that "the disease . . . causes immediate abnormalities in a person's blood, and the infected person's white cell count continues to drop throughout the course of the disease, even during the intermediate stage when its attack is concentrated in the lymph nodes. Thus, HIV infection must be regarded as a physiological disorder with an immediate, constant, and detrimental effect on the hemic and lymphatic systems."
In the majority opinion, Justice Kennedy, writing for the Court, took issue with the term "asymptomatic," calling it "a misnomer, . . . for clinical features persist throughout, including lymphadenopathy, dermatological disorders, oral lesions, and bacterial infections."
Addressing the issue of whether HIV's impact on Abbott's ability to have children constituted a disability within the meaning of the law, Kennedy wrote, "Nothing in the definition suggests that activities without a public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside the meaning of the word 'major.'" Referring to examples of "major life activities" set forth in the ADA and related laws, Kennedy said, "The inclusion of activities such as caring for one's self and performing manual tasks belies the suggestion that a task must have a public or economic character in order to be a major life activity . . . On the contrary, . . . reproduction could not be regarded as any less important than working and earning." Summing up, Kennedy stated, "The Act addresses substantial limitations on major life activities, not utter inabilities. Conception and childbirth are not impossible for an HIV victim but, without doubt, are dangerous to the public health."
A second issue in the case was whether Bragdon's refusal to treat Abbott in his office was a reasonable precaution to protect himself from contracting the virus. Although unable to offer any verified report of transmission of HIV from a patient to a dentist, and although the Centers for Disease Control and Prevention (CDC) has stated that the danger is so low it cannot be measured, Bragdon argued his right to use his own professional judgment in determining how best to ensure his own and his patients' safety.
The issue of possible threat to the doctor's health was not directly decided by the Court. While stressing that any refusal to provide treatment had to be based on medical and scientific fact and that "an individual physician's state of mind could [not] excuse discrimination without regard to the objective reasonableness of his actions," the Justices were unsure whether sufficient information had been presented to make that determination. They sent the case back to the Court of Appeals for further exploration of that point.
The ruling was applauded by advocates for the rights of people with HIV and other disabilities. According to Lambda Legal Defense and Education Fund AIDS Project Director Catherine Hanssens, "The Supreme Court unequivocally recognized the right of people with HIV and other disabilities to full protection from discrimination. I am heartened the Court saw that Congress intended the ADA to provide such broad protection -- that irrational discrimination should not be allowed to keep people with HIV from health care and services." Lambda and the Whitman-Walker Clinic acted as co-counsel for 16 major medical and public health associations and individual experts who were amici in the case.
Chai Feldblum, Georgetown Professor of Law and Counsel of Record on an amicus (friend of the court) brief on behalf of 59 disability, civil rights, and religious groups, echoed the sentiment: "The Supreme Court recognized that when Congress passed the ADA, it intended to protect people with HIV infection. Today, the Supreme Court reaffirmed that unjustified discrimination against people with HIV infection violates the law."
"With this decision, the Court has put medicine and law on parallel tracks," according to Timothy M. Westmoreland, Project Director of the HIV Law and Policy Study. "Medicine says get treatment early; the Court says antidiscrimination protections start at the moment of HIV infection."
Lambda Legal Director Beatrice Dohrn greeted the ruling by pointing out that "HIV is the quintessential disability that the ADA was meant to cover. Employers and health care providers should never be allowed to act on myths, stereotypes, and irrational fears to discriminate, yet those are the barriers people with HIV and AIDS continually face." Meanwhile, Lambda's Executive Director Kevin M. Cathcart looked to the future: "This ruling also ensures that, as medical advances allow more people with HIV to continue working, they can turn to the ADA for vital legal protection against employment discrimination. :
Back to the July 1998 Issue of Body Positive Magazine.