Fall 1998 Human Rights Magazine

By Zita Lazzarini

On June 25, 1998, the United States Supreme Court broke new ground, simultaneously deciding its first case related to AIDS and interpreting the Americans with Disabilities Act (ADA). In this case, Bragdon v. Abbott (118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998)), the Court held that HIV infection, at every stage from infection to final illness, meets the definition of disability under the ADA. The Court’s decision in this case ended months of debate about how it would treat the arguments for and against inclusion of asymptomatic HIV infection under the disability antidiscrimination provisions of the ADA. HIV advocates, disability lawyers, healthcare providers, and employers are only beginning to sort out the ultimate impact Bragdon will have on disability discrimination, HIV, and other areas of law.

This article briefly describes the Supreme Court’s opinion, considers Bragdon’s immediate impact on HIV-related discrimination law, and the possible long-term consequences the opinion may have outside the area of HIV law. Finally, the article asks whether we can expect traditional disability discrimination law, such as the ADA, to provide enduring protection from invidious discrimination against persons who are known to have or suspected of having an increased risk of future illness or disability.

Case History

Sidney Abbott has been infected with HIV since 1986. In 1994, she sought dental care at the office of Randon Bragdon in Bangor, Maine, and disclosed her HIV infection on the patient registration form. Dr. Bragdon informed her that he had a policy of not treating HIV-infected patients in his office. He offered to fill her cavity in a hospital setting, but she would have to pay the hospital fees. She declined to do so and sued him in federal court for discrimination under Title III of the ADA.

Both sides moved for summary judgment in the district court. The court granted Abbott’s motion. Bragdon appealed, arguing that Abbott could not show that asymptomatic HIV infection fit the definition of disability under the ADA and that even if HIV was a disability he could refuse to treat her because she posed a direct threat to him and his staff. The First Circuit Court of Appeals affirmed the grant of summary judgment holding that Abbott’s "HIV infection was a disability under the ADA, even though her infection had not yet progressed to the symptomatic stage" and that "treating [Abbott] in [Bragdon’s] office would not have posed a direct threat to the health and safety of others." (Bragdon, 107 F.3d 934, 939-48).

On the disability question, the Supreme Court affirmed the First Circuit, holding for Abbott that HIV infection, at every stage from infection to final illness, meets the definition of disability under the ADA. On the issue of direct threat, the Court held that it did not have sufficient information to determine whether summary judgment was appropriate. Consequently, the Court affirmed in part and vacated in part the First Circuit decision, remanding the case for review of the evidence on direct threat.

The majority opinion emphasized the serious and ongoing nature of the damage HIV causes to the immune system. The Justices concluded that even asymptomatic HIV infection easily met the first prong of the definition of disability—"a physical impairment." In this and several other areas the Court relied heavily on the body of regulations developed pursuant to earlier pieces of federal antidiscrimination legislation, the Federal Rehabilitation Act of 1973, and the Fair Housing Amendments Act of 1988. The Court stated, the language of the ADA itself "requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act."

Second, the majority considered whether Abbott’s physical impairment substantially limited a major life activity as construed by the ADA—in this case, reproduction. Here the Justices concluded that "[r]eproduction falls well within the phrase ‘major life activity.’" The Court found that HIV infection substantially limits a woman’s ability to reproduce in at least two ways: (1) In trying to conceive a child the woman puts her male partner at risk of infection, and (2) the woman risks transmitting HIV to her unborn child. The Court reasoned that the statutory requirement of "substantially limits" does not require that the major life activity be impossible. Although recent advances in medical treatment have significantly reduced perinatal transmission, "[i]t 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." The Court cited an unwavering record of both regulatory and case law that supported its conclusion that HIV infection met the criteria for disability.

The other major issue before the Court concerned how courts will examine evidence of whether a plaintiff poses a direct threat to others. The Court divided its analysis into two parts—first, whether Bragdon’s assessment of the objective facts was reasonable, and second, whether courts should defer to a healthcare provider’s professional assessment of risk.

The Court quickly disposed of the second, stating "risk assessment must be based on medical or other objective evidence," "[Bragdon] receives no special deference simply because he is a healthcare professional," and "[Bragdon’s] belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability."

In assessing the reasonableness of Bragdon’s estimate of risk, the Court noted "the views of public health authorities . . . are of special weight and authority . . .[but] are not conclusive . . . . [a] health professional who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis for deviating from the accepted norm." The Court, however, was not convinced that the two publications cited by the First Circuit (Centers for Disease Control and Prevention and the American Dental Association guidelines) provided adequate objective assessment of risk, focusing instead on infection control recommendations or statements of professional duty. Due to the court of appeals’ reliance on evidence that did not directly assess risk, the Supreme Court felt bound to remand the case for reconsideration, even though the Court maintained "[t]here are reasons to doubt whether petitioner [Bragdon] advanced evidence sufficient to raise a triable issue of fact on the significance of risk."

The dissenters disagreed with the majority that reproduction is a "major life activity." They argued the ADA defines "major life activities" by a "common thread . . . [as those] . . . activities [that] are repetitively performed and essential in the day-to-day existence of a normally functioning individual." Moreover, the dissent insisted it was Abbott’s choice, not the effect of HIV infection that prevented her from having children. They noted no evidence in the record that a person with HIV infection is unable to engage in sexual intercourse, give birth to a child or perform the manual tasks necessary to rear the child.

The dissenters agreed that the court of appeals failed to correctly consider the issue of direct threat, but disagreed with the majority’s suggestion that the views of public health authorities should be given special weight in making that determination. They concluded Bragdon had presented more than enough evidence to avoid a summary judgment on the issue of "direct threat," and on review, he will most likely prove that his assessment of risk was objectively reasonable and that his refusal of care was legal.

Immediate Impact for Persons Living with HIV/AIDS

Access to healthcare. For the estimated one million persons in the United States living with HIV/AIDS, Bragdon v. Abbott sends a clear signal that the corpus of antidiscrimination law can be mobilized to protect them from discrimination in access to healthcare and other public accommodations. Most importantly, that protection will be available whether or not an individual looks or feels sick or disabled.

Asymptomatic HIV infection under other titles of the ADA. The case also suggests that lower courts will rely on Bragdon’s precedent in enforcing equal treatment in employment and participation in government programs. Notably, the Court broadly construed protection against discrimination, reversing a trend in some lower courts that narrowed the definition of "disabled," especially in cases that appeared to lack merit for other reasons. (Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (Fourth Cir. 1997)).

The disability paradox. By holding that HIV infection from the moment of infection constitutes an impairment, the Court may have finally put to rest the paradoxical analysis that some HIV positive plaintiffs have faced—that their HIV infection makes them "sick" enough to require complex antiretroviral therapy, to worry about infecting their spouses or sexual partners, to redesign their lives to find specially trained healthcare providers—yet, not "sick" enough to be disabled under the law.

Reproduction as a major life activity. When HIV has such a substantial impact on the immune system—the body’s crucial defense against myriad illnesses—why should the Court debate whether or not it "substantially limits" reproduction? Both Justices Kennedy and Ginsburg noted that HIV’s impact could probably be traced to other "major life activities." The Court, however, confined its decision to reproduction, on which Abbott originally relied. Not all courts will feel bound to the same analysis. Some may rely on other life activities mentioned by the Justices, including the ability to care for one’s self and have intimate family relationships.

Future cases will determine whether defendants can successfully argue that reproduction is definitively not a major life activity for some individuals (e.g., postmenopausal women, gay men, or individuals who have chosen to be celibate or remain childless).

Direct threat. The First Circuit Court of Appeals must still review the evidence presented concerning whether Bragdon could reasonably decline to treat Abbott because she posed a direct threat. The Court effectively foreclosed the ability of individual healthcare providers to decline care based on their belief that a particular patient poses a direct threat. The Court left the door open, however, to providers who can present objective, scientifically credible evidence that refutes public health authorities’ guidelines and recommendations on the safety and risk of various procedures.

HIV, insurance, and other benefits. In the wake of Bragdon, advocates and others have questioned the impact the case will have on future decisions related to health, life, or disability benefits. Advocates hope that Bragdon will have a positive effect on their continuing efforts to have HIV infection defined as a qualifying condition for Medicaid. The Centers for Disease Control (CDC) estimates that between 400,000 and 650,000 people in the United States are infected with HIV, but not sick enough to qualify as having AIDS (Washington Post, June 26, 1998, A1). For people without insurance, Medicaid is often the only way to pay for increasingly expensive and complex HIV/AIDS therapies. Access to Medicaid requires an AIDS diagnosis. However, treating people before they develop AIDS can prevent significant opportunistic illnesses and hospitalizations. Advocates hope that the decision that HIV infection qualifies as an impairment throughout the course of the illness will bolster their argument that persons with HIV infection should not have to wait until they have AIDS to receive adequate medical care ("Medicaid Expansion," AIDS Policy and Law, Vol. 13, July 24, 1998).

Impact on non-HIV disabilities

Infertility. Bragdon supports certain efforts by persons suffering from infertility to gain protection under the ADA. Since reproduction is a "major life activity," as defined by the ADA, conditions that substantially limit an individual’s ability to reproduce (e.g., infertility or reduced fertility), or create public health risks from efforts to conceive or bear a child should, logically, qualify as disabilities under the ADA. (The New York Times, July 5, 1998, Sec. 4, at 6). Infertility as a disability might also cover any person who, although able to bear or conceive children, would place either his or her child or partner at serious risk of harm in the process, as well as individuals who could bear children, but would seriously risk their own health by doing so.

Bragdon, however, did not directly address the question of infertility as a disability, nor did it explicitly resolve a split among lower federal courts over whether infertility was covered under the ADA (Pacourek v. Inland Steel, 916 F. Supp. 797 (N.D. Ill. 1996); Zatarain v. WDSU- Television, 881 F. Supp. 240 (E.D. La. 1995)). For now, lower courts must decide how to apply Bragdon to infertility. Courts will be confronted with the following questions, among others: how to distinguish between an impairment that causes infertility and the "natural infertility" that follows menopause in women; how broadly to interpret the "reasonable accommodation" standard that requires employers to provide flexible work schedules, part-time positions, and transfers within the company for employees trying to combine infertility treatments and work; and whether to require companies to offer infertility treatments if they offer pregnancy, maternity, paternity, and/or adoption benefits.

Other asymptomatic conditions. By interpreting the ADA to include asymptomatic HIV infection even though the "impairment" identified was damage to the immune system that could not be seen or felt and did not necessarily limit the plaintiff’s ability to undertake most daily activities, Bragdon opened the door for ADA claims from potential plaintiffs with a wide range of other conditions. These include persons with well-controlled diabetes, cancer that is in remission, and specific types of mental illness that require ongoing treatment but do not impair patients in many activities.

Genetic markers suggesting a predisposition to disease. Coverage of persons with genetic markers for future illness, under the ADA remains unsettled. Neither federal courts nor the EEOC have answered the question directly.

Some commentators have argued that the corpus of antidiscrimination law should be applied to protect persons from discrimination based on genetic information. Our society has not determined the proper uses of genetic information. Should insurers, employers, educational institutions, and government agencies use the information to deny individuals education, employment, insurance, or opportunities for government services or benefits? If we permit institutions to make decisions about us based on our genes, how great a degree of certainty should we require they demonstrate?

Wrongful Discrimination

Justice Kennedy, in his review of the science of HIV disease, emphasized the active nature of HIV disease at every stage. He detailed the damage that HIV does to the immune system even during the period when the person with HIV feels well and functions normally. While his analysis is both a clear and cogent explanation of a complex disease process, it may have obscured a more fundamental point—the discrimination Sidney Abbott faced had more to do with prejudice and fear than with the nature and level of her disability or scientific and epidemiological evidence of the risk she posed to Dr. Bragdon and his staff.

Conclusion

After Bragdon, most, if not all, people with HIV infection will be covered, and it will be up to healthcare providers, employers and others to show that denial of any individual service or opportunity is justified based on a case by case analysis of objective scientific information on the level of risk each individual poses. Baseless fears or beliefs, even those of healthcare professionals, will not be sufficient to justify discriminatory treatment. Nor will good faith protect those who rely on poor science, from liability under the ADA.

Bragdon does not answer, definitively, what evidence of risk justifies discriminatory action by healthcare providers or others. Nor does it answer how courts will treat other conditions including infertility, diabetes, cancer, and mental illness which share some, but not all, characteristics with asymptomatic HIV infection. Finally, it fails to provide clear guidance for how courts might approach the next great hurdle in disability and discrimination law—how to permit or limit the use of genetic information about individuals.

Zita Lazzarini is Director of Medical Humanities, Health Law and Ethics at the University of Connecticut Health Center. She has taught courses on health law, AIDS-related law, and human rights.

 

As published in Human Rights, Fall 1998, Vol. 25, No. 4, p.15-18.