Wall Street Journal - November 28, 1997
Andrea Weigl

The case forces the justices to address highly emotional and divisive social questions over how people infected with human immunodeficiency virus, which causes AIDS, should be treated. People with AIDS already qualify as disabled under the law, known as the Americans with Disabilities Act. But courts are divided about whether the law covers people who have HIV but don't yet have AIDS.

If the justices rule that people with HIV are disabled, it would guarantee them access to the services of a variety of professionals and companies that might otherwise decline their business. Although many companies have shown no such reluctance, some proprietors and professionals, particularly in fields such as dentistry and health and fitness, have refused to serve HIV-infected people.

Separately, the high court agreed to review a federal law that requires the National Endowment for the Arts to consider the "decency" of arts projects before awarding grants, as well as a case involving the payment of union dues by nonmembers.

The director of the AIDS Law Project, Bennett Klein, says the social perception that today's advanced treatments mean HIV doesn't always progress to AIDS has led some courts to rule that the Americans with Disabilities Act doesn't apply to HIVinfected persons. Without that protection, people infected with the virus have no way of combating discrimination. "If [HIVinfected people] aren't covered under ADA, they have no legal recourse," said Mr. Klein, who represents the HIV patient in the case.

The case is also significant because, despite numerous requests, the high court has never before taken on a case involving the Americans with Disabilities Act. The law, passed in 1990, provides protection for disabled people both in the workplace and in the marketplace. Many businesses have complained that the act is ambiguous about how disabilities are defined and how they must be accommodated. Now, the justices will have their first opportunity to provide some guidance on those questions.

The case began in 1994 when Sidney Abbott, a Maine woman infected with HIV, sued her dentist for refusing to fill her cavity in his office. Her lawsuit argues that she is disabled under the ADA. If so, a dentist offering services to the general public could not legally deny her treatment.

Under the act, a person is disabled if a major life activity is "substantially limited." Ms. Abbott claims that reproduction is such an activity, and that she should qualify for protection because she cannot bear children without the risk of passing on the AIDS virus to her baby. Reproduction is not specifically listed as a major life activity in the ADA regulations, unlike hearing, seeing and breathing. But some federal courts have ruled that the law also applies to reproduction.

In this case, the trial and appeals courts both ruled that an HIV infection is a disability. The federal appeals court in Boston said that "reproduction -- one of the most natural endeavors -- fits comfortably within [the] sweep" of the law's list of major life activities. (Bragdon v. Abbott)

The decency case puts the court in the middle of the annual congressional debate about federal funding for controversial art projects. Congress added the standard in 1990 to limit funding that goes to projects with sexually explicit themes. The amendment requires the chairman of the National Endowment for the Arts to heed "general standards of decency and respect for the diverse beliefs and values of the American public" when awarding grants.

Four artists in California sued the NEA in 1990 when their funding applications were denied, saying the decency requirement limits freedom of expression. Both the trial court and the federal appeals court in San Francisco ruled that the decency standard was too ambiguous and violated the First Amendment.

The artists settled out of court in 1993 for about $250,000. But the case has continued on behalf of several civil-rights groups that are also listed as plaintiffs, including the American Civil Liberties Union, the National Campaign for Freedom of Expression and Georgetown University's Center for Constitutional Rights.

The government argues that the lower courts' ruling "prevents Congress from making a legitimate legislative choice respecting the expenditure of public funds, a matter over which Congress has broad power." The government and NEA want the justices to overturn the lower court's decision and reinstate the decency standard. (NEA v. Finley)

In other action, the justices agreed to decide whether nonunion employees have to exhaust the arbitration process when challenging union fees that they are required to pay. Nonmembers who are covered by collective-bargaining agreements may be required to pay dues for the union's efforts in reaching the accord.

The case may re-examine a 1986 Supreme Court decision involving a Chicago teachers union. That ruling mandated that nonunion employees must exhaust the "impartial decision-maker" process before pursuing their claims in federal court.

Five nonunion pilots with Delta Air Lines who paid fees to the Air Line Pilots Association filed a lawsuit in 1993. The trial court, relying on the Chicago decision, ruled that the pilots had to pursue arbitration. The federal appeals court in Washington reversed the lower court's ruling, citing disagreement among the other federal appeals courts about the application of the earlier Supreme Court decision.

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