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Bar Journal - March 1, 1999

Bragdon v. Abbott: Analysis & Implications for People Living with HIV/AIDS & Other Disabilities

By:
 

In Bragdon v. Abbott,1 the United States Supreme Court reviewed a number of important issues for people living with HIV/AIDS and other disabilities. The case involved a Maine dentist who refused to fill a cavity for an HIV-infected patient, Ms. Abbott. While Ms. Abbott was infected with HIV, she was in the "asymptomatic" stages of the disease. The dentist claimed that filling Ms. Abbott's cavity posed a direct threat to him because of the risk of HIV transmission. Ms. Abbott sued the dentist under Title III of the Americans with Disabilities Act (ADA) which prohibits discrimination against individuals with disabilities in places of public accommodation.

The United States District Court in Maine ruled that the ADA protected Ms. Abbott and that the dentist could safely perform the relatively routine treatment of filling a cavity.2 Consequently, the court granted Ms. Abbott's motion for summary judgment.3 The First Circuit Court of Appeals upheld the decision.4 The United States Supreme Court reviewed two issues on appeal:

  1. Whether asymptomatic HIV-infection constitutes a disability under the ADA; and
  2. Whether an HIV-infected patient poses a direct threat to the health and safety of a treating dentist.

The Court answered the first question in the affirmative and remanded the case on the second issue for further analysis by the court of appeals.

ASYMPTOMATIC HIV-INFECTION

The threshold issue for the Court to decide was if the ADA protected Ms. Abbott, an individual with asymptomatic HIV-infection. Asymptomatic HIV-infection generally means that a person has been infected with the human immunodeficiency virus (HIV), but has not yet developed the serious signs or symptoms that ultimately occur as a result of infection. The Court determined that the ADA protected Ms. Abbott because asymptomatic HIV-infection is a physical impairment under the ADA that substantially limits the major life activity of reproduction.5

The Court's decision involved a three-part analysis:

  1. Whether HIV is a physical impairment as defined by the ADA;
  2. Whether reproduction is a major life activity under the ADA; and
  3. Whether Ms. Abbott's asymptomatic HIV-infection substantially limited the major life activity of reproduction.

PHYSICAL IMPAIRMENT

The Court first had to determine if asymptomatic HIV-infection is a physical impairment under the ADA. The Court turned to regulations interpreting both Title III of the ADA and Section 504 of the Rehabilitation Act of 1973, the ADA's predecessor, to aide in its decision.6

The original Rehabilitation Act regulations and the current ADA Title III regulations define a physical impairment as any "physiological disorder or condition" affecting one or more of an enumerated list of body systems including the "hemic and lymphatic systems."7

The Court, relying upon an array of medical evidence, found that HIV impaired an individual's hemic and lymphatic systems from the onset of infection by destroying white blood cells (also called CD4+ cells) and assaulting an individual's immune system.8 The Court noted that the virus was not dormant during the asymptomatic stage as was once thought by medical experts. Rather, an infected individual's lack of serious signs and symptoms during the asymptomatic stage is due to the virus' migration from the circulatory system into the individual's lymph nodes. While in the lymph nodes, the virus actively garners strength and silently infects white blood cells.9

The Court stated that the term "asymptomatic" is a misnomer in some respects because a number of muscular, dermatological and neurological disorders are often present during the "asymptomatic" stages of the disease along with frequent bacterial infections.10

Based on these findings, the Court concluded:

In light of the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease, we hold that it is an impairment from the moment of infection.... HIV infection must be regarded as physiological disorder with a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection.11

The Court found support for its decision in numerous lower court decisions and administrative agency interpretations that had consistently determined that asymptomatic HIV-infected constituted a physical impairment under both Section 504 and the ADA. For example, the Court noted that the Department of Justice, the agency charged with implementing and enforcing Title III of the ADA, and the Equal Employment Opportunity Commission, the agency charged with implementing and enforcing Title I of the ADA (which prohibits discrimination in employment) both added "HIV-infection (symptomatic and asymptomatic)" to the list of disorders constituting a physical impairment under the ADA in their regulations.12

Similarly, the Court noted that prior to the ADA's enactment, every court that had addressed the issue concluded that asymptomatic HIV-infection satisfied Section 504's definition of a handicap.13

MAJOR LIFE ACTIVITY

Under the ADA, a physical impairment alone is not sufficient. The individual's impairment must substantially limit a major life activity in order to be eligible for statutory protection. Ms. Abbott claimed that her HIV-infection substantially limited her ability to "reproduce and bear children."14 Federal courts have split on the issue of whether or not reproduction was a major life activity under the ADA.15 A majority of the Supreme Court resolved the issue by agreeing with the First Circuit's holding that reproduction was a major life activity under the ADA.

The Supreme Court adopted the First Circuit's reasoning that "the plain meaning of the word `major' denotes comparative importance and suggest[s] that the touchstone for determining an activity's inclusion under the statutory rubric is its significance."16 Using this definition, the Supreme Court found that reproduction fell "well within the phrase major life activity" because "reproduction and the sexual dynamics surrounding it are central to the life process itself."17

The Court rejected the dentist's argument that major life activities only covered activities which have a "public, economic, or daily character." The Court stated:

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 for purposes of the ADA. On the contrary, the Rehabilitation Act regulations support the inclusion of reproduction as a major life activity, since reproduction could not be regarded as any less important that working or learning.18

SUBSTANTIALLY LIMITS

The third part of the Court's analysis determined whether Ms. Abbott's asymptomatic HIV- infection substantially limited the major life activity of reproduction. Ms. Abbott claimed that her HIV-infection substantially limited her ability to reproduce because it "controlled her decision not to have children."19 The Court found that HIV-infection substantially limited reproduction in two ways. First, the Court stated that an HIV-infected woman who tries to conceive a child poses a "significant risk" of infecting her male partner.20 The Court cited studies showing that 20% of male partners of HIV-infected women become infected themselves.

Second, the Court stated that an HIV-infected woman risks infecting her child during gestation and childbirth (called perinatal transmission).21 The Court again cited medical studies demonstrating that women infected with HIV face a 25% chance of infecting their children during gestation or childbirth.

The dentist argued that these limitations were not substantial under the ADA and pointed to evidence suggesting that antiretroviral therapy could lower the risk of perinatal transmission to 8%. The Court found that the potential to mitigate the risk of perinatal transmission was not dispositive in this case because "it cannot be said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one's child does not represent a substantial limitation on reproduction." 22

The Court emphasized that the ADA did not require absolute limitations. "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. This meets the definition of a substantial limitation."23

The Court also noted that economic and legal consequences could place limitations upon an HIV-infected person's decision to reproduce. The Court cited the added costs for antiretroviral therapy, supplemental insurance, and long term health care as economic obstacles, and referenced the half-dozen states that prohibit HIV-infected persons from having sex as legal impediments.24

For these reasons, and because the dentist had failed to challenge Ms. Abbott's assertion that these factors actually controlled her decision not to have children, the Court found that Ms. Abbott's asymptomatic HIV-infection substantially limited the major life activity of reproduction in this case.

In the end, the disability definition does not turn on personal choice. When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable. For the statistical and other reasons we have cited, of course, the limitations may be insurmountable here. Testimony from the respondent that her HIV infection controlled her decision not to have a child is unchallenged. In the context of reviewing summary judgment, we must take it to be true.25

DIRECT THREAT

The Court left the second issue on appeal unresolved. The dentist argued that he could refuse to treat Ms. Abbott because her HIV-infection posed a direct threat to his health and safety. Under the ADA, a dentist could legitimately refuse to treat a patient if her HIV-infection posed a "significant risk to the health or safety others that [could not] be eliminated by a modification of practices or procedures."26 The dentist argued that the risk of a percutaneous needle stick and the spattering and misting of bloody saliva while filling the cavities created a significant risk of HIV transmission that could not be eliminated.27

Federal agencies such as the Centers for Disease Control (CDC) have often stated that it is safe to provide dental and other medical services to people with HIV/AIDS when universal precautions are followed. The lower courts in this case had relied upon the CDC's Dentistry Guidelines, and the American Dental Association's Policies on HIV, among other evidence, to conclude that there was not a substantial risk in providing dental services to Ms. Abbott as long as the dentist followed universal precautions.28

However, the Supreme Court stated that the court of appeals may have placed too much weight on these guidelines and policies which in and of themselves were not sufficient to carry Ms. Abbott's burden on summary judgment. The Court felt the best recourse was to remand the case for further factual development to determine if a triable issue of fact existed on the direct threat issue.29

The Court did clarify two important factors in the direct threat analysis. First, the determination of whether a direct threat exists must be made by reviewing objective medical evidence. The subjective belief of a treating physician is not entitled to credence by the Court. If a treating physician disagrees with the prevailing medical consensus regarding the likelihood of HIV transmission in a particular situation, he or she must rebut it by citing credible, objective evidence of their own.30

Second, only evidence available at the time a dispute arises may be considered. Thus, in this case, only evidence available in 1994, when the dentist refused to fill Ms. Abbott's cavity, could be used to determine if she posed a direct threat.31 This proved to be important because evidence by CDC officials attesting to the safety of treating HIV infected patients was not considered by the court of appeals since it was not available at the relevant time period.

Since the Supreme Court remanded this part of the case back to the First Circuit Court of Appeals, the issue is in legal limbo. While there is language in the Supreme Court and the original First Circuit opinion indicating that the First Circuit will decide that any potential risk to the dentist was sufficiently reduced or eliminated by universal precautions, the issue may well go back to the Supreme Court for final review.

IMPLICATIONS

The Court's ruling that the ADA protects individuals with asymptomatic HIV-infection is not a surprise. The decision comports with the way state and federal agencies such as the Department of Justice, the Equal Employment Opportunity Commission, and the New Hampshire Human Rights Commission have interpreted the ADA and its predecessor, the Rehabilitation Act, for years. It is now officially the law of the land.

The Court's ruling reaches well beyond the public accommodation (Title III) provisions of the ADA and has important ramifications for people living with HIV/AIDS and other disabilities. For example, other provisions of the ADA which protect against discrimination in employment (Title I) and in governmental services (Title II) use the same definition of disability as the public accommodation provisions (Title III), as does the Fair Housing Act (which prohibits discrimination in housing) and Section 504 of the Rehabilitation Act (which prohibits discrimination by agencies that receive federal funding such as public schools). Thus, individuals with asymptomatic HIV-infection now meet the statutory definition of physical impairment under these provisions of the ADA and other statutes and can seek protection from discrimination in a variety of situations.

The Court's ruling that reproduction is a major life activity under the ADA also has broad implications. Previously federal courts issued varying decisions on the issue.32 While the Court determined that reproduction was a major life activity under the ADA, the opinion did not clearly define the contours of the term "reproduction." The majority opinion did not do much to define the term beyond including childbirth and "sexual dynamics surrounding" reproduction. The First Circuit was a bit more clear on the topic including "intimate sexual activity, gestation, giving birth, childrearing, and nurturing familial relations" in its use of the term reproduction.33

The dissenting opinion, by Chief Justice Rhenquist, chided that majority for its use of the term reproduction and its failure to clearly define it.

Calling reproduction a major life activity is somewhat inartfull. Reproduction is not an activity at all, but a process. One could be described as breathing, walking, or performing manual tasks, but a human being (as opposed to a copier machine or a gremlin) would never be described as reproducing. I assume that in using the term reproduction, respondent and the Court are referring to the numerous discrete activities that comprise the reproductive process, and that is the sense in which I have used the term.34

The unclear definition of reproduction leaves a variety of open questions. For example, is sexual relations, an obvious part of reproduction, covered as a major life activity by itself, or does the term only encompass sex for the purposes of procreation? If it is the latter, can gay men and women, or heterosexual men and women who do not intend to have children, seek protection under the act?35

There is reference in the Supreme Court's opinion to previous Department of Justice cases interpreting Section 504 of the Rehabilitation Act to include "sexual relations" as a major life activity by itself.36 However, the Court did not squarely decide the issue and future cases will have to flesh out a number of questions on this issue.

While Abbott dealt with the limitations HIV-infection placed upon a female's ability to "reproduce" (which added the unique concern of directly transmitting the virus to a child during childbirth), there is language in the opinion in dicta indicating that the result would be the same for a male who decided not to "reproduce" because of HIV-infection (partially because the male could infect his female partner who could infect the child).37 Thus, the Court's opinion may be extended to cover males and females in future cases.

Moreover, the Court's decision means that individuals with disabilities, not just asymptomatic HIV-infection, can seek protection under the ADA, the Fair Housing Act, and Section 504 if their physical or mental impairment substantially limits their reproductive activities. For example, individuals undergoing fertility treatment may now be protected by the ADA.38 The Court's decision could also encompass individuals who carry genetic disorders such as Sickle Cell Anemia or Down's Syndrome.

The controlling factors in future cases will be whether or not the individual can prove that their impairment meets the definition of a mental or physical impairment and whether the impairment actually places a substantial limitation upon reproduction. The latter analysis is very fact specific and turns in large part on the individuals' subjective assertions about their own actions.

For example, in Abbott both the First Circuit and the Supreme Court placed great weight in the fact that the dentist failed to contest Ms. Abbott's testimony that her HIV-infection "controlled her decision not to have children." 39

Given the subjective and private nature of such a decision, it may well be difficult to contest in most cases. Nevertheless, it is the plaintiff's burden to demonstrate that their asymptomatic HIV-infection, or some other impairment, actually placed a substantial limitation upon the major life activity of reproduction in order to seek protection under the ADA.

CONCLUSION

The Supreme Court's decision is a very important step towards protecting the rights of people living with HIV/AIDS. It is now clear that the ADA protects individuals with HIV-infection even if they are currently asymptomatic. Individuals living with HIV/AIDS who experience discrimination in public accommodations such as dentist's offices, or in employment or governmental services should seek protection by contacting an organization or attorney who can help them assert their rights.

ENDNOTES

1.

141 L.Ed. 2d 540 (June 25, 1998).

2.

Abbott v. Bragdon, 912 F.Supp. 580, 587-591 (D.Me.1995).

3.

Id. at 595-96

4.

107 F.3d 394 (1st Cir. 1997)

5.

The ADA protects individuals who have:

  1. a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
  2. a record of such an impairment; or
  3. being regarded as having such an impairment.

42 U.S.C. 12102(2).

Since the Court found that individuals with asymptomatic HIV-infection were covered by the first prong of the definition, the Court did not consider the applicability of the other two. 141 L.Ed. 2d at 553.

6.

Many of the provisions of the ADA and the Rehabilitation Act are virtually identical and, therefore, interpretations of one law are often used to aide interpretation of the other. The ADA expressly states that it is to be construed to apply at least as much protection as provided by the Rehabilitation Act. 42 U.S.C. 12201(a).

7.

45 C.F.R. 84.3(j)(2)(i); 28 C.F.R.  36.104.

8.

141 L.Ed. 2d at 554-556.

9.

Id. at 556.

10.

Id.

11.

Id.

12.

Id. at 562-63

13.

Id. at 561.

14.

Id. at 557.

15.

Compare Pacourek v. Inland Steel Co., 916 F.Supp. 797, 804 (N.D.Ill.1996) (finding that reproduction is a major life activity); Erickson v. Board of Govs. of State Colleges, 911 F.Supp. 316, 323 (N.D.Ill.1995) (same); Cain v. Hyatt, 734 F.Supp. 671, 679 (E.D.Pa.1990) (same) with Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir.1996) (holding that reproduction is not a major life activity) and Zatarain v. WDSU-Television, Inc., 881 F.Supp. 240, 243 (E.D.La.1995) (same).

16.

141 L.Ed. 2d at 557.

17.

Id.

18.

Id. at 558.

19.

Id. at 559.

20.

Id. at 558.

21.

Id. at 558-59.

22.

Id. at 559.

23.

Id.

24.

Id. The Court cited six states with statutes that prohibit HIV-infected persons from having sex, regardless of consent. The states are Iowa, Maryland, Montana, Utah, Washington, and North Dakota.

25.

Id.

26.

42 U.S.C. 12182 (b)(3).

27.

141 L.Ed. 2d at 567; 107 F.3d at 943.

28.

107 F.3d at 946-48.

29.

141 L.Ed. 2d at 568.

30.

Id. at 564-65.

31.

Id. at 565.

32.

See footnote 15.

33.

107 F.3d 934, 939.

34.

141 L.Ed. 2d at 570 n. 2.

35.

Even if a narrow definition of reproduction develops in subsequent cases, individuals with asymptomatic HIV-infection may be able to successfully argue that the disease substantially limits other major life activities. The Supreme Court noted in its opinion that HIV-infection had a "profound impact on almost every phase of the infected person's life." 141 L.Ed. 2d at 557.

Justice Ginsberg elaborated in her concurring opinion stating:

HIV infection, as the description set out in the Court's opinion documents, has been regarded as a disease limiting life itself. The disease inevitably pervades life's choices: education, employment, family and financial undertakings. It affects the need for and, as this case shows, the ability to obtain health care because of the reaction of others to the impairment.

Id. at 568-69.

It is also possible for individuals with asymptomatic HIV-infection to seek protection under the ADA if they are "regarded as" having an impairment, even if their impairment does not actually substantially limit a major life activity.

36.

141 L.Ed. 2d at 560.

37.

Id.

38.

See Pacourek v. Inland Steel Co., 858 F.Supp 1393 (N.D. Ill. 1994).

39.

107 F.3d at 942; 141 L.Ed. 2d at 559. Ms. Abbott stated in deposition that "I have made the decision after I tested positive [for HIV] not to have children because of the risk of infecting the child and the risk of impairing my own immune system, and also the fact that this baby probably wouldn't have a mother after a while." 107 F.3d at 942.

The Author

Attorney Scott F. Johnson is an associate with the firm of Stein, Volinsky & Callaghan, Concord, NH.

 

 

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