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Supreme Court HIV Case Tests Disability Law


WASHINGTON — Debating its first case involving the landmark federal civil rights law for the disabled, the Supreme Court appeared closely divided Monday about whether the measure should protect all of the nearly 1 million Americans who have the AIDS virus or only those for whom the disease impairs activities such as walking, seeing, hearing or working.

A ruling, expected by late June, also may determine whether the law will cover the millions of others who have diseases or conditions--such as cancer, heart disease, diabetes and epilepsy--that restrict their lives but do not always incapacitate them.

The case before the court concerns a Maine woman who has HIV but no symptoms of AIDS. She contends that she is disabled, however, because she cannot have a child for fear that it would be born with the virus.

Justice Stephen G. Breyer seemed to agree with the woman's argument. "Isn't reproduction and sexual activity usually seen as an ordinary part of human life?" he asked.

But the court's leading conservatives, Chief Justice William H. Rehnquist and Justice Antonin Scalia, said they were skeptical of this open-ended approach.

"I don't understand that leap," Scalia snapped at a lawyer who argued that a fear of having sex or children is a disability, even without other symptoms.


Would someone be said to be disabled or impaired, Scalia asked, because they had a gene that was a precursor to a manic-depressive disorder and for that reason feared having children?

No, the lawyer conceded.

The case heard Monday (Bragdon vs. Abbott, 97-156) is a classic example of a small dispute that turns into a major legal test.

Sidney Abbott went to Dr. Randon Bragdon's dental office in Bangor, Maine, on Sept. 16, 1994, for a checkup. On the patient registration form, she disclosed that she had the AIDS virus.

The dentist examined her and said she had a cavity. Although he agreed to repair her tooth, Bragdon said he would do so only in a hospital. It would be safer for him, he said, although more costly to the patient.

She left and later filed a lawsuit under the Americans With Disabilities Act, charging that the dentist discriminated against her because of her disease.

Abbott won before a federal judge in Maine and before the U.S. court of appeals in Boston. But the Supreme Court justices agreed to hear the dentist's appeal.

Abbott "is the classic example of a person who had no symptoms, no difficulties whatsoever" because of her HIV infection, John W. McCarthy, the dentist's lawyer, told the court.

In his brief, he cited the examples of Los Angeles Lakers star Earvin "Magic" Johnson and Olympic diving champion Greg Louganis. Though infected with the AIDS virus, both turned in superior athletic performances, he noted. Surely they would not be seen as disabled, he argued.

McCarthy said the law should cover people who have problems with "day-to-day independent living and economic self-sufficiency."

But Bennett H. Klein, a Boston lawyer for Gay & Lesbian Advocates & Defenders, said Congress intended to protect all those with "an incurable, fatal disease" such as AIDS.

The two attorneys also sparred over the possible risk to the dentist's health.

Klein said there is "no documented case" of a dentist contracting HIV from a patient. But McCarthy said the Centers for Disease Control and Prevention have investigated seven cases in which dental workers may have contracted HIV through their work.

For the high court, the case also offers a test of whether to interpret a law based on the intent of Congress or by the words in the statute.

The 1990 law was hailed by its sponsors on Capitol Hill and by then-President Bush as establishing a broad shield to protect people with disabilities from unfair treatment. Private employers, public agencies and public businesses, such as a dental office, are covered by the law.

Congressional sponsors said they wanted to ensure equal opportunities for all people with physical or mental disabilities. They condemned unfair discrimination based on "false presumptions, generalizations . . , ignorance and irrational fears."

The debate on the measure made clear that they were particularly concerned about bias and discrimination against those with the virus that causes AIDS.

Despite these broad purposes, however, the law defines a disability somewhat narrowly. It says a disability is a "physical or mental impairment that substantially limits one or more of the major life activities." It also says a person who is "regarded as having such an impairment" can qualify.

In its enforcement regulations, the Justice Department has defined "major life activities" as "walking, seeing, hearing, speaking . . , learning, working and caring for one's self."


In Abbott's case, the U.S. court of appeals in Boston said "reproduction" is a major life activity and her decision not to have children constitutes a disability.

Clinton administration lawyers, joined by the American Medical Assn. and several AIDS activist groups, sided with Abbott and urged the court to read the statute in line with its broad purpose. The city of Los Angeles, which passed the nation's first law against discrimination based on AIDS, also urged strong legal protections for those with HIV.

In recent years, however, the Supreme Court has tended to read laws narrowly, based on their words rather than on the intent of Congress.

McCarthy, the dentist's lawyer, played to that theme. "We rely on the statute," he said more than once.

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