A Brief Overview of Bragdon v. Abbott
On June 25, 1998, the U. S. Supreme Court issued its decision on a case that many had been watching closely. Bragdon is the first case in which the Supreme Court has addressed HIV, and also the first time the high court has reviewed a case interpreting the Americans With Disabilities Act (ADA), the federal law adopted in 1990 to eliminate discrimination against people with disabilities in the workplace, in public accommodations, and by government entities.
The case, Bragdon v. Abbott, began when Randon Bragdon, a dentist in Maine, refused to fill a cavity for Sidney Abbott because her intake form indicated that she was HIV positive. Abbott had no outwardly visible symptoms of HIV. Although Bragdon later told Abbott, and argued to the courts, that he would treat her in a hospital setting so that he could take "extra precautions," Bragdon never had admitting privileges at a hospital and never explained what these extra precautions might be.
Abbott won her ADA claim against Bragdon in the federal trial court and later in the Court of Appeals for the First Circuit. Bragdon then petitioned the U.S. Supreme Court to review the case, which agreed to examine the following questions: 1) whether asymptomatic HIV is a disability under the ADA, so that people without visible symptoms can claim the protection of the law; 2) whether reproduction is a major life activity under the ADA; and 3) whether courts should defer to a health care professional's judgment that providing treatment to a particular patient poses a direct threat of harm to the professional.
In order to secure protection from discrimination under the ADA, an individual first must show that she has 1) an impairment which 2) substantially limits 3) a major life activity, or that the individual is regarded as having such an impairment by the person who is discriminating against her. Although the Supreme Court stopped short of concluding that HIV is always, automatically, a disability for purposes of coverage under the ADA, it did note that the concept of "asymptomatic HIV" is something of a misnomer because of the virus' constant, destructive activity and therefore HIV is always an impairment under the ADA. By a vote of 5 to 4, the majority of the court then concluded, as Sidney Abbot had argued in this case, that HIV represented an impairment which substantially limits reproduction, and that reproduction is a major life activity under the ADA. The majority also held that medical professionals are not entitled to any special treatment or deference to their views when they are defendants in a discrimination case. However, the Court determined that the record needed to be clarified as to the Court of Appeals conclusion that treating Sidney Abbott did not pose a direct threat to Dr. Bragdon, and sent the case back to the Court of Appeals for further proceedings on this issue.
Answers to Some Common Questions After Bragdon
Q: After Bragdon, are all people with HIV covered under the ADA?
A: The Bragdon decision did not say that HIV is always a disability under the ADA, although it did say that Abbott's HIV is a disability according to the ADA definition because it substantially limited her major life activity of reproduction.
Q: What does reproduction have to do with getting access to a dentist under the ADA?
A: Nothing, but the ADA only protects people with a disability as it is defined under the ADA, i.e., a person with an impairment that substantially limits one or more major life activities. In the Bragdon case, Sydney Abbott argued that she was a person with a disability under the ADA because after she became infected with HIV she decided that she would not have children because of the risk of passing the virus on to others, and that therefore her HIV infection substantially limited the major life activity of reproduction.
Q: Why did the Supreme Court in Bragdon focus on how HIV limits reproduction as the basis for coverage under the ADA?
A: The Supreme Court said that because Abbott had relied on HIV's impact on reproduction as the basis for coverage as a person with a disability under the ADA, it would limit its analysis to that. On that point, it easily concluded that reproduction is a major life activity and that HIV substantially limited this major life activity because of the risk of infection to both the sexual partner and the child.
Q: Doesn't Bragdon, and its reliance on HIV's impact on reproduction as the basis for finding it a disability, leave gay men, seniors and children out in the cold in terms of ADA protection?
A: No. The Court also noted that "reproduction and the sexual dynamics surrounding it are central to the life process itself," and elsewhere offered support to the conclusion that HIV's impairment of sexual activity is sufficient proof of a covered disability under the ADA. In addition, the Court clearly suggested that HIV limits other major life activities, saying, "We have little doubt that had different parties brought the suit they would have maintained that HIV infection imposes substantial limitations on other major life activities." (Some possible alternatives are, for example, HIV's impairment of caring for oneself, human intimacy, the ability to travel, the ability to participate fully in society.)
The ADA also protects persons who may or may not actually have a disability but who are regarded as having a disability by others. The Bragdon case did not address this, but people living with HIV, whether visibly symptomatic or not, usually experience discrimination because people regard them as having a condition that makes it dangerous to be around. Regulations interpreting the ADA state that persons qualify for ADA coverage on the basis of being "regarded as" having a disability when they are limited in their ability to do things only because of the attitudes of others, a situation which very aptly describes the discrimination which people with HIV routinely face.
Q: Why did the Supreme Court send the case back to the Court of Appeals?
A: The justices sent the case back for the lower court to reconsider the evidence related to Bragdon's argument that it was okay to refuse to treat Sidney Abbott because her HIV posed a "direct threat" to his health and safety. Although the Court observed that Bragdon's evidence on this was pretty skimpy, it said that two documents on which the lower court relied when it rejected Bragdon's argument weren't compelling enough to deny Bragdon a trial on this issue. The Court clearly suggested that all the lower court needed to do was to clarify what evidence it relied on in concluding that Bragdon had failed to present evidence of a direct threat.
Q: If a doctor truly believes that she or he is at risk of infection by treating a person with HIV, could that doctor still be required to treat the person under the ADA?
A: Yes. A good faith belief that a person with HIV poses a "direct threat," even if the person who believes it is medically trained, is not a sufficient basis after Bragdon to refuse treatment to someone. The Court in Bragdon said that the views of public health officials, armed with scientific information rather than personal opinions, get deference on this issue.
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