The following article appeared on the front cover of the June 26, 1998 edition of the New York Times.

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June 26, 1998

Court Says Law Bars Discrimination Against H.I.V.-Infected


WASHINGTON -- People with H.I.V. infection can be covered by the federal law that bars discrimination on the basis of disability even if they have no symptoms, the Supreme Court ruled Thursday in a major victory for people with the virus that causes AIDS.

Voting 5-4, the justices agreed with a federal appeals court's ruling that a woman with asymptomatic H.I.V. infection, who was refused care in a dentist's office, met the definition of disability under the Americans With Disabilities Act.

The court stopped short of ruling flatly that H.I.V. infection is automatically covered by the disability law, a question that Justice Anthony Kennedy's majority opinion said was not necessary to the decision. There is no dispute that people with AIDS symptoms are disabled within the meaning of the 1990 law.

The majority held that the woman's decision not to have children because of her H.I.V.-positive status brought her within the law's definition of disability: an impairment that "substantially limits" one or more "major life activities." Reproduction is such an activity, Kennedy said.

Although the opinion's scope was limited, its tone suggested that in subsequent cases, all or almost all H.I.V.-positive people would be able to claim the law's protection. "Major life activities" is a broad phrase that should be broadly interpreted in light of the prospect of inevitable progression to a "dread and fatal disease," Kennedy said.

Beyond its application to the nearly 1 million people in the United States who are H.I.V. positive, the decision was important as the court's first substantive review of the 8-year-old disability law.

The court's analysis suggested that the law would also cover other conditions that some lower courts have regarded as beyond its scope, including infertility, well-controlled diabetes and cancer that is in remission after treatment. Kennedy said it was not necessary for a life activity that is compromised by an impairment to have a "public, economic or daily character."

The majority opinion was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Chief Justice William Rehnquist dissented, as did Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor. The dissenters said that reproduction was not a major life activity and that in any event the ability to have a child was not "substantially limited" by HIV infection in the way the law used that phrase.

The decision, Bragdon vs. Abbott, No. 97-156, was short of a complete victory for the patient, Sidney Abbott, who brought the lawsuit in 1994. After finding that she was covered by the law, the 1st U.S. Circuit Court of Appeals went on to rule that despite his fear of infection, the dentist, Randon Bragdon, had illegally discriminated against her by refusing to treat her in his office, in Bangor, Maine.

The justices vacated that final part of the ruling however, ordering the appeals court, which sits in Boston, to take further evidence on the question of risk. The disability act provides an exception under which a person with an infectious condition need not be treated if the condition "poses a direct threat to the health or safety of others," defined as a "significant risk" that cannot be eliminated by appropriate procedures.

Kennedy said that within the scope of this appeal, the Supreme Court had not been able to review evidence on this question. He said such evidence should be limited to "objective, scientific information," in particular the views of public health authorities.

This in itself was an important part of the ruling, because the court rejected Bragdon's argument that the judgment of risk could be made by the individual medical practitioner. Bragdon's personal views should receive "no special deference simply because he is a health care professional," Kennedy said, adding that "his belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability" if broadly accepted medical evidence was to the contrary.

Lawyers for Ms. Abbott said they were confident they would prevail in the renewed lower court proceedings, in light of the views of leading public health authorities on the safety of treating HIV-positive patients and the absence of evidence that any patient had ever transmitted H.I.V. infection to a dentist.

The Clinton administration, which entered the case in support of Ms. Abbott, told the court that the Centers for Disease Control and Prevention had "found the risk of H.I.V. transmission in the dental context so low as to be unquantifiable."

In his dissenting opinion, however, Rehnquist said that given evidence that patients had transmitted the virus to health care workers on 42 documented occasions, it was likely that Bragdon could establish that it was "objectively reasonable" for him to refuse to treat an infected patient in his office.

The dentist, alerted by Ms. Abbott's disclosure on a new-patient information form that she had H.I.V., had offered to fill her cavity in a hospital, where in fact he did not have privileges to practice. It was at that point that she filed suit.

Her lawyer, Bennett Klein of Gay and Lesbian Advocates and Defenders, a Boston public interest law firm, said he was "elated" by the decision, which he said would send a strong signal to lower courts that all HIV-positive people are protected under the law.

The 1990 law offers broad protection against discrimination on the basis of disability in employment and places of public accommodation, which are defined as including medical offices. A related law, the National Fair Housing Act Amendments of 1988, uses the same definition of disability to prohibit discrimination in housing.

Matthew Coles, director of the AIDS Project of the American Civil Liberties Union, said the decision was important in demonstrating that the court was willing to look at "the basic purpose of the Americans With Disabilities Act." Contrary to many narrow lower court interpretations, Coles said, the law was intended to be read "not like an antitrust regulation but like a civil rights law."

Ann Elizabeth Reesman, a lawyer here who filed a brief on behalf of an employer group urging the court to reject reproduction as a "major life activity," said the ruling had significantly broadened the scope of the law. Employers will most likely find the decision troublesome, she said, because "reproduction is such a broad term that it will be more difficult to tell who is covered and what employers' obligations are."


Copyright 1998 The New York Times Company

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