San Francisco Chronicle; Tuesday, March 31, 1998
Louis Freedberg, Chronicle Washington Bureau

The court's chambers were filled yesterday with representatives of dozens of AIDS advocacy organizations, as well as disability rights groups who believe the case has far-reaching consequences. They argue that the disability rights law should also apply to people who suffer from potentially fatal diseases like cancer, epilepsy and diabetes but who are outwardly functioning well.

Remarkably, this is the first time the Supreme Court has considered a case dealing with AIDS in the 17 years since the virus was detected. And the court has never been asked to clarify a landmark law intended to bar discrimination against the disabled in jobs, housing and "public accommodations," which include medical offices.

The court heard oral arguments yesterday in Bragdon vs. Abbott (No. 97-156), but a decision on the case is not expected before June. It was brought by Sidney Abbott, 37, who in September 1994 showed up for a dental appointment at the offices of Dr. Randon Bragdon in Bangor, Maine. On her medical history form, Abbott disclosed that she had tested positive for HIV, although at the time she was asymptomatic.

When Bragdon found a cavity, he told Abbott that he would not provide her with routine care and would treat her only at a local hospital better equipped to handle AIDS patients. Bragdon told her she would have to pay the additional cost of hospital care out of her own pocket.

MAJOR LIFE ACTIVITY

Instead of accepting the offer, Abbott sued Bragdon for violating her civil rights under the Americans With Disabilities Act. The act stipulates that a person must have a "physical or mental impairment" that "substantially limits that person in some major life activity" to qualify as disabled. The heart of the case rests on Abbott's claim that she was impaired in "the major life activity" of reproduction.

"The risk of passing the deadly disease to your sex partner or to your children represents a substantial limitation on procreation and parenting," her attorney, Bennett Klein, argued yesterday.

However, John McCarthy, the attorney representing Bragdon, argued that the law was not intended to cover someone who, like Abbott, "displays no symptoms whatsoever," is able to live independently and is economically self-sufficient.

Several justices indicated that they have trouble with Abbott's argument on at least two grounds. First, the law itself does not specifically mention "reproduction" as a major life activity, but it refers to other activities such as walking, eating and breathing.

Second, Justice David Souter suggested that Abbott had in fact made a "moral judgment" to limit her activities out of concern for her potential sexual partners and children, but she was not physically unable to have sex or conceive a child.

`MORAL MANDATE'

"This is a moral mandate your client has imposed on herself," said Souter.

Justice Anthony Kennedy countered by saying that if a person with highly infectious tuberculosis stays away from other people, "we don't call it a moral choice." And Justice Stephen Breyer said that people with bubonic plague would probably be regarded as disabled because they would be confined to their house -- even though they were not physically impaired from going anywhere they wished.

Another major point of contention was whether Bragdon ran a "direct threat" of contracting the AIDS virus from his patient. Under the 1990 law, a doctor is not required to provide treatment to a disabled person who poses a "significant risk to the health or safety of others that cannot be eliminated by a modification" of normal medical practices.

Abbott's attorneys argued yesterday that the risks to Bragdon were insignificant if he used normal precautions recommended by the American Dental Association, noting that there has been no documented case of transmission of AIDS from a patient to a dental worker. That argument seemed to resonate with at least one justice.

SOUND MEDICAL JUDGMENT?

"After 15 years, and hundreds of thousands of deaths, there isn't one case in which one of these dentists arguably contracted HIV from a patient," said Breyer. "How can you say your client exercised sound medical judgment?"

But Bragdon's attorney cited a Centers for Disease Control report that referred to seven dental workers with HIV, although the CDC could not account for how they might have contracted the virus.

"There is no place where the Centers for Disease Control says there is no significant risk" to treating AIDS patients, McCarthy said.

Outside the court, Bragdon defended himself by saying he is willing to treat people with AIDS, but only in the right medical setting. In front of a battery of TV cameras, he produced a copy of a 1988 journal that questioned whether gloves and other precautions adequately protect oral surgeons. "What is at stake is the ability of individual physicians to make their own decisions as to what is safe for him or his patients," Bragdon said. He said he bitterly resented the vilification he has endured at the hands of both AIDS and disability rights groups.

"This is the first time in medical history that someone has been ostracized for trying to make things safer for his patients," he said.

WHO IS DISABLED

The Americans With Disabilities Act, which Congress approved in 1990, defines someone as disabled if the following conditions are met:

-- A physical or mental impairment that substantially limits that person in some major life activity.*

-- A record of such an impairment; or the individual is regarded as having such an impairment. *"Major life activities" are defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working."

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