Miami Herald (MH) - Sunday, March 29, 1998
Aaron Epstein; Herald Washington Bureau

When the justices convene for oral arguments Monday, they will for the first time delve into the nature of AIDS and the Americans with Disabilities Act of 1990, which protects the disabled against discrimination in jobs and services.

The case, which arose from a dentist's refusal to treat a patient infected with the virus that causes AIDS, asks the justices to decide several important questions:

Does the law, which unquestionably applies to people suffering from AIDS, also cover people in the early stages of the disease who have no symptoms? Are they disabled? What is a "disability?"

Also, should judges defer to medical professionals who think it too risky to treat a patient with an infectious disease -- or trust the opposing opinions of public health experts?

Wide implications

The court's answers, expected by July, could affect doctors, dentists and other providers of health care as well as cost-conscious health insurers, employers, and an array of people with diabetes, cancer, epilepsy, tuberculosis, HIV or other serious impairments who as yet display no symptoms.

Even if the court's decision were limited to those afflicted with human immunodeficiency virus, the impact would still be significant. According to the federal Centers for Disease Control and Prevention, 650,000 to 900,000 Americans live with HIV, a virus that destroys the body's natural resistance to disease.

Sometimes it takes only a few months, sometimes as long as 15 to 20 years, to develop symptoms of AIDS. The average is 10 to 12 years.

The legal controversy before the Supreme Court began on a September day in 1994 when Sidney Abbott, a former Air Force medical technician, walked into a dentist's office in Bangor, Maine, for a scheduled appointment and filled out a standard registration form. On the form, she checked a box that said she had tested positive for HIV.

The dentist, Randon Bragdon, examined her and discovered a cavity near the gum line. But he declined to fill the cavity, explaining that under his infectious disease policy, he would treat her only in a hospital, not in his office. She would have to pay the hospital costs.

Abbott refused and filed suit under a provision of the Americans with Disabilities Act barring "public accommodations" -- a term that includes workplaces, health facilities and schools -- from discriminating on the basis of a disability.

Disability is issue

But does a person such as Abbott, 37, have a disability, which the law defines as "a physical or mental impairment" that "substantially limits one or more of [an individual's] major life activities"?

Abbott's lawyers persuaded two federal courts that she does.

They said an HIV infection is an impairment that hampers major life activities -- reproduction and parenting. Abbott, they explained, could not take the risk of transmitting the incurable HIV virus to a fetus and might not live long enough to raise a child to adulthood.

With recently approved drug therapy, the risk to a fetus can be reduced from 25 percent to 8 percent, medical experts said.

"No reasonable juror could conclude that an 8 percent risk of passing an incurable, debilitating and inevitably fatal disease to one's child is not a substantial restriction on reproductive activity," a Boston-based federal appeals panel declared in granting a pretrial victory to Abbott.

The panel also rejected Dr. Bragdon's assertion that providing dental treatment to Abbott would have been a "direct threat" to him or others.

Risk is evaluated

As of June 1997, there were 52 cases in which HIV was transmitted from patients to health-care providers. But the American Medical Association, citing "the lack of a single documented case of HIV transmission from patient to dentist," called the risk to dentists "not significant."

The American Dental Association, while supporting Bragdon, said it is unethical for a dentist to refuse to treat an individual solely because of that person's HIV or AIDS. Such patients may be safely treated in private dental offices when ordinary infection control procedures are used, the dental association said.

On appeal to the nation's highest court, Bragdon's lawyer, John W. McCarthy of Bangor, said Congress never envisioned that people who decide not to have sex or raise children could be considered disabled and entitled to protection against discrimination.

Abbott's supporters -- including the Clinton administration and numerous disability, civil rights, religious and health groups -- said HIV infection dramatically alters the lives of all victims from the earliest stages.

Always watch for outdated information. This article first appeared in 1998. This material is designed to support, not replace, the relationship that exists between you and your doctor.

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