Supreme Court to Decide
HIV-Positive Status Is Disability Under the ADA
By Ronald Turner
In its first case involving an interpretation of the Americans with Disabilities Act ("ADA"), the United States Supreme Court will hear oral argument on March 30, 1998 in Bragdon v. Abbott, No. 97-156, and will consider the following three questions: (1) whether individuals infected with the human immunodeficiency virus ("HIV") who have no symptoms are disabled within the meaning of the ADA; (2) whether reproduction is a major life activity within the meaning of the statute; and (3) when deciding whether invasive procedures on infectious patients should be performed in an office setting, whether courts should defer to the professional judgment of health care providers.
The Court will review a March 5, 1997 decision of the United States Court of Appeals for the First Circuit (see 107 F.3d 934 (1st Cir.), cert. granted, 118 S.Ct. 554 (1997)). In that case, Sidney Abbott sought dental treatment at the private office of Dr. Randon Bragdon. Completing a patient registration form, Ms. Abbott stated that she was HIV-positive; at that time, she had no symptoms of Acquired Immune Deficiency Syndrome ("AIDS"). Dr. Bragdon, following his infectious disease policy, refused to treat Ms. Abbott in his office and informed her that he would only provide treatment (the filling of a cavity) in a hospital setting. While Ms. Abbott would be charged the dentist's regular fee, she would also be responsible for any additional hospital costs. Ms. Abbott sued under Title III of the ADA, alleging that the dentist's refusal to treat her in his office constituted unlawful discrimination by a private entity in a place of public accommodation.
The First Circuit held "unhesitatingly that HIV-positive status . . . whether symptomatic or asymptomatic, comprises a physical impairment under the ADA." The court also concluded that Ms. Abbott's HIV infection substantially limited her major life activity of reproduction. In the court's words, "it is clear that [her] HIV-positive status has a profound impact upon her ability to engage in intimate sexual activity, gestation, giving birth, childrearing, and nurturing familial relations. Our society has long recognized the fundamental importance of each element of this cluster of activities, and our jurisprudence reflects this bias."
Furthermore, the First Circuit concluded that filling Ms. Abbott's cavity in Dr. Bragdon's office did not pose a medically significant risk to the dentist's health or safety. The court rejected Dr. Bragdon’s argument that courts should defer to a service provider's judgment as long as that judgment appeared to be reasonable in light of then-current medical knowledge. The First Circuit noted that the Centers for Disease Control and Prevention and the American Dental Association have determined that routine dental care for HIV-positive individuals is safe where infection control procedures are employed. In the court's view, this is "competent evidence of reasonable medical judgment by public health officials, not contradicted by other public health officials, to the effect that affording routine dental care (such as filling cavities) to HIV-infected patients in an office environment does not pose a direct threat to the dentist's health."
The United States Court of Appeals for the Fourth Circuit has disagreed with the First Circuit's view that asymptomatic HIV infection is a disability under the ADA. In Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (4th Cir. 1997) (en banc), the Fourth Circuit ruled that an asymptomatic HIV-positive bank employee did not have an impairment and therefore was not disabled within the meaning of the statute. The Supreme Court will consider these opposing views, and the important issues of disability law discussed above, in its forthcoming decision in Abbott.