The San Francisco Examiner; March 30, 1998
Dan Freedman, Examiner Washington Bureau

At issue before the court was the case of Sidney Abbott, 37, of Bangor, Maine, who was denied treatment by a dentist, Dr. Randon Bragdon in a routine 1994 visit to his office. Bragdon, fearing possible transmission of the virus that causes AIDS, offered to treat Abbott in a hospital at a $150 extra cost.

Abbott declined the offer and sued Bragdon for violating her rights under the 1990 Americans with Disabilities Act. The law prohibits job and other discrimination against the disabled, which it defines as someone with a "physical or mental impairment that substantially limits one or more of the major life activities."

Abbott said that having HIV had led her to avoid having children, which she said is a major life activity.

The case is being closely watched by AIDS activists, advocates for the disabled, the medical profession and employers as a test of what constitutes a disability and how far the 1990 law goes in protecting those who claim to be disabled. The high court is expected to issue a ruling in July.

In oral arguments, Bragdon's lawyer, John McCarthy of Bangor, argued that major life activities are functions that pertain to "day to day independent living" and economic self-sufficiency, things such as walking, talking and breathing.

"Why not reproduction?" Justice Stephen Breyer inquired. Reproduction and sexual activity are "regarded in this society as major activities of human life." The 1990 law would cover someone with an eating disorder or someone who cannot feel, so why should reproduction not also be included, Breyer asked.

Justice David Souter, often a swing vote on cases involving contentious social issues, asked whether Abbott's choice not to have children should be considered a disability in the same way that someone who is infertile might be seen as disabled.

Is it a moral choice?

Abbott's "responsible moral judgment" is not equivalent to "the physical limitations that the statute speaks of," Souter said.

Bennett Klein, Abbott's lawyer, said lower courts correctly ruled that Bragdon violated the disability act, which bars discrimination against the disabled in jobs, housing and public accommodations.

There is no documented case of a dentist contracting HIV from a patient, Klein said. HIV infection is always considered a disability because it interferes with someone's ability to have children, he contended.

"Reproduction is not simply an act of conception," Klein said. "It also involves raising a child." Abbott has argued that fear of premature death also led her to forsake childbirth.

"That's a fine statement," Souter said. "But I'm not sure that's what the statute is talking about."

Breyer bridled at the distinction. "Are you disabled under the act if you know that if you go outside, you'd give the whole city bubonic plague?" Klein answered yes, and Breyer added, "I'd think so too," which evoked laughter in the packed Supreme Court chamber.

Right to health care

Justice Anthony M. Kennedy said that if a person with highly infectious tuberculosis stays away from other people, "we don't just call it a moral choice."

Justice Ruth Bader Ginsburg suggested something even more fundamental might be at issue: the right of the disabled to health care. "That person needs monitoring and is impeded from getting it," Ginsburg said to McCarthy. "Why doesn't that qualify?"

Before McCarthy could finish his answer, Chief Justice William Rehnquist broke in, asking, "There's nothing in the record that shows Ms. Abbott had to go to the dentist more regularly than anyone else?"

McCarthy said no.

The lawyers and justices also debated Bragdon's contention that he was exercising his own individual medical judgment in offering to treat Abbott at a hospital.

"After 15 years and hundreds of thousands of deaths (from AIDS), there isn't one case in which a dentist (or dental technician) documentedly caught AIDS from a patient," Breyer said. "If that's so, how can you say (Bragdon) exercised reasonable medical judgment?"

Bragdon v. Abbott is the court's first foray into the HIV issue and the landmark 1990 law, more commonly identified as the legal underpinning for rules that public buildings and elevators must afford easy access to people who are blind, deaf or use wheelchairs. See: Abbott v. Bragdon

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