San Francisco Chronicle; Friday, June 26, 1998
Louis Freedberg, Chronicle Washington Bureau

The narrowly divided court found that a Maine dentist who refused to treat a female patient who was HIV positive had violated the Americans with Disability Act, a landmark 1990 law protecting the disabled against discrimination in employment, housing and other areas of public life.

"From the moment of infection and throughout every state of the disease, HIV infection satisfies the statutory and regulatory definition of a physical impairment," said Justice Anthony Kennedy, writing for the 5-to-4 majority.

Advocates for the disabled say the ruling will also benefit even larger numbers of Americans who suffer from such diseases as diabetes, epilepsy, asthma and breast cancer but who display no symptoms because they have had successful treatment or are taking medication to control the disease.

Arlene Mayerson, directing attorney for the Disability Rights and Education Defense Fund in Berkeley, said she is "thrilled" at yesterday's decision. Until now, she said, most lower courts have interpreted far too narrowly the definition of disability.

"It is bizarre and ironic that as medical technology has improved and people can now live their lives fully, which was the intent of the Americans with Disability Act, that they would lose their civil rights protection and the courts would condone discrimination," said Mayerson. "It made no sense."

Remarkably, this is the first time the Supreme Court has ruled on a case dealing with the AIDS epidemic in the 17 years since the virus was detected. And it is also the first time it has clarified who is covered under the disability protection law.

According to people who work closely with carriers of the virus, discrimination is widespread, even in the Bay Area.

"I talk hourly and daily with people who face employment discrimination, people who are told they can't receive services, people who tell me a chiropractor or a massage therapist refuses to treat them," said Betsy Johnsen, an attorney with the AIDS Legal Referral Panel of San Francisco. "I hear about employers who say, `If I had known you had AIDS I would never have hired you,' or `You have AIDS, so I don't want you dealing with my customers.' "

The case was brought by Sydney Abbott, 37, who in 1994 went to Dr. Randon Bragdon in Bangor, Maine, for a dental appointment. On her medical history form, Abbott disclosed that she had tested positive for HIV, although she was then asymptomatic.

When Bragdon found a cavity, he told Abbott he would not provide her with routine care and would treat her only at a local hospital better equipped to handle AIDS patients. He told her she would have to pay the extra cost. The federal law defines someone as disabled if he or she suffers from a "physical or mental impairment that substantially limits that person in some major life activity." Abbott argued that she should be regarded as disabled because she was "impaired in the major life activity of reproduction" as a result of the virus.

"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, said before the court earlier this year. Some AIDS activists considered Abbott's legal strategy risky because the law does not specifically mention reproduction as a "major life activity." The majority of justices agreed with Abbott.

"Reproduction and the sexual dynamics surrounding it are central to the life process itself," wrote Kennedy. "If she tries to conceive a child, she imposes on her male partner a statistically significant risk of becoming infected, and she risks infecting her child during gestation and childbirth."

In a dissenting opinion, Chief Justice William Rehnquist strenuously disagreed that Abbott's decision not to have children represented an impairment.

"While individuals infected with HIV may choose not to engage in these activities," Rehnquist wrote, "there is no support in language, logic or in our case law for the proposition that such voluntary choices constitute a `limit' on one's own life activities."

Bragdon said he believed he was at risk of contracting the disease if he had treated Abbott in his office. He cited a Centers for Disease Control report that referred to seven dental workers with HIV, although the CDC said it could not account for how they might have contracted the virus.

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