Bragdon v. Abbott --
Court Decision Addresses Application of
Americans with Disabilities Act to Individuals with HIV
By Laura F. Rothstein (c)
Health Law & Policy Institute
On June 25, 1998, the Supreme Court decided a case with major impact, when it determined in Bragdon v. Abbott, 1998 U.S. LEXIS 4212 (1998) that in this case, the individual plaintiff who is HIV positive, but asymptomatic is protected as an individual with a disability under the Americans with Disabilities Act of 1990. The Court remanded on the issue of whether individual health care providers could determine the extent of direct threat of patients with HIV.
The case involves Sidney Abbott, a woman with no symptoms of HIV, but who disclosed that she was HIV positive when seeking dental treatment from Randon Bragdon, a dentist in Maine. Dr. Bragdon examined her in his dental office, but refused to fill her cavity in his dental office, although he indicated that he would fill her cavity in only a hospital and that she would be required to bear additional hospital expenses. She brought suit under Title III of the Americans with Disabilities Act of 1990, which prohibits private providers of public accommodations (such as a private dentist) from discriminating against otherwise qualified individuals with disabilities on the basis of their disabilities.
To be protected under the ADA, an individual must have a substantial impairment to one or more major life activities, must have a record of such an impairment, or be regarded as having such an impairment. The ADA also permits differing treatment in cases where the individual seeking protection is not considered to be otherwise qualified, because the individual poses a "direct threat" to others.
Three issues were before the Court: whether reproduction is a major life activity (based on the claim that being HIV positive is a substantial impairment to reproduction and the argument that reproduction is a major life activity), whether individuals who are HIV positive are per se disabled because they are regarded as disabled, and whether health care providers should be given the discretion to determine whether a patient is a direct threat as long as the determination is reasonable in light of current medical information. For citations to cases involving health care and individuals with contagious and infectious diseases, see Laura F. Rothstein, Disabilities and the Law, Sec. 10.01, notes 29 and 32 (Westgroup 1997).
The Court decided these issues as follows. On the issue of whether being HIV positive, but asymptomatic qualifies an individual as being substantially limited in one or more major life activities, the Court held in this case that she was covered. The Court relied on the substantial body of legislative history, administrative agency guidance, and the applicability of Rehabilitation Act judicial interpretation to this issue. It determined that reproduction is a major life activity, and that Sidney Abbott had demonstrated that her ability to reproduce and to bear children was substantially limited by her HIV infection. The Court gave much attention to the progression of HIV infection on individuals and the immediate effect of the condition, regardless of whether there are obvious symptoms. What remains unresolved is whether a plaintiff who is HIV positive but asymptomatic, who is unable to prove a substantial limitation to reproduction is covered.
The Court declined to decide whether Ms. Abbott would have also been protected because she was "regarded as" substantially limited in a major life activity, the per se disability argument. Because the Court had already found her to be covered as having a substantial limitation, it determined that it had no need to address that issue.
On the direct threat issue, the Court noted that the issue had come before it by conflating two separate inquiries: 1) whether the health care professional was objectively reasonable, 2) in light of the available medical evidence. The Court determined that the record below did not clearly establish, as a matter of law, that Ms. Abbott's HIV infection did not pose a direct threat to the health and safety of others. The Court recognized the large body of authority indicating that there is not a substantial risk, but indicated that it had not been clearly established below whether there was adequate "scientific assessment" of such a risk, and remanded for a determination on that issue.
The decision was a 5-4 opinion, with Justice Kennedy writing the lead opinion. The dissenting opinions in the case asserted, among other things, that reproduction is not a major life activity and that even if it were, Ms. Abbott had not proven that she was substantially limited in such an activity.
The case has major implications for a wide range of life activities, including employment, housing, access to other health care providers, day care and educational programs, health and life insurance, treatment in correctional and criminal justice systems, and even transportation. Had the Bragdon Court decided that an individual who was asymptomatic HIV positive was not protected, this would have had a profound impact on the lives of such individuals and their families.
In the area of employment, the courts have generally prohibited discrimination on the basis of HIV (Laura F. Rothstein, Disabilities and the Law, Sec. 4.09, p. 314), with the exception of health care providers who perform invasive procedures, such as surgeons and surgical assistants (Disabilities and the Law, Sec. 10.04).
Housing issues involve both discrimination in the rental or sale of housing and the use of zoning and private deed restrictions to preclude group homes in residential neighborhoods, including group homes for hospice care for individuals with HIV. These cases have been consistently decided to protect individuals with HIV against housing discrimination (Disabilities and the Law, Sec. 7.14). These cases have relied on both the Americans with Disabilities Act and the Fair Housing Act Amendments of 1988, which defines individuals with disabilities virtually the same as the ADA.
A number of cases in addition to Bragdon have addressed denial of health care services to individuals with HIV, and these have uniformly been decided in favor of the plaintiffs. (Disabilities and the Law, Sec. 10.01, footnote 12).
Educational programs, from day care through K-12 and including higher education have all been the subject of litigation involving children and students with HIV and whether they are protected under the ADA. In virtually all cases, courts have found these individuals to be protected under the ADA and/or Section 504 of the Rehabilitation Act, which applies to programs receiving federal financial assistance. Disabilities and the Law, Sec. 2.09 (K-12 Education), Sec. 3.25 (Higher Education).
Differing health insurance benefits for individuals with HIV has been the subject of much unresolved litigation addressing the issue of whether a health insurance provider may cap benefits for individuals with a specific disability. This issue has substantial complexity beyond issues addressed by the Bragdon case. (Disabilities and the Law, Sec. 10.02.)
In the criminal justice system, the issue of HIV has been addressed in the context of whether prisoners with HIV have the same rights to programs such as overnight visitation, segregation within prison populations, access to health care, and participation in certain prisoner work programs. These issues have generally focused on the unique safety and security issues of the correctional system, and the assumption has generally been that the individual with HIV has been considered to be disabled within the ADA definition. (Disabilities and the Law, Sec.9.10, footnote 51). In Yeskey v. State of Pennsylvania, No. 97-634, 1998 U.S. LEXIS 3888 (June 15, 1998), the Supreme Court held that state prisons are programs covered under Title II of the ADA. See also Supreme Court Decides Yeskey Case.
In the area of transportation, the effect of the decision involves whether airlines, mass transit, and other transportation providers can discriminate against individuals on the basis of HIV. Disabilities and the Law, Secs. 8.02, 8.08, 8.15, 8.16. One recent case held that an individual with AIDS affecting his ability to walk was entitled to a reduced fare on the metro system. Hamlyn v. Rock Island County Metropolitan Mass Transit District, 986, F. Supp. 1126 (C.D. Ill. 1997). The Bragdon decision does not reach the issue because the plaintiff in Bragdon was not seeking a reasonable accommodation, only nondiscrimination. It is important to note that when one falls within the third prong of the definition -- "regarded as having an impairment" -- the individual is not entitled to reasonable accommodations, only nondiscrimination.
The Bragdon case could also have impact on the issue of "associational disability". The ADA prohibits discrimination against individuals based on their association with those covered under the ADA. Application of Bragdon in this instance would prohibit the owner of an office building from terminating the lease of or refusing to lease to health care providers who treat patients.
Had the Court ruled that individuals with HIV who are asymptomatic were not covered, there would certainly have been Congressional efforts to amend the ADA definition. Given the current Congressional politics, the outcome of such efforts would have been far from certain.
The case leaves unresolved a number of issues that continue to plague the courts -- whether infertility is a disability (which could have impact on access to Viagra and to fertility treatments and accommodation in the workplace to receive fertility treatments), and whether other health impairments that are also potentially stigmatizing (such as cancer, epilepsy, and diabetes) should be per se within the definition of being "regarded as" impairments or treated as substantially limiting major life activities within the reasoning of Bragdon. (Disabilities and the Law, Secs. 4.08, 4.09).