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  •   Court Rules Bias Law Covers HIV

    By Laurie Asseo
    Associated Press Writer
    Thursday, June 25, 1998; 5:02 p.m. EDT

    WASHINGTON (AP) -- In a decision praised by gay rights advocates and the disabled, the Supreme Court ruled Thursday that people infected with HIV can sue under a key anti-discrimination law even if they have no visible AIDS symptoms.

    The 5-4 ruling said a woman whose dentist refused to fill a cavity at his office because she was HIV-positive is covered by the Americans With Disabilities Act, the 1990 law that protects the disabled against discrimination in jobs, housing and public accommodations.

    ''HIV infection, even in the so-called asymptomatic phase, is an impairment which substantially limits the major life activity of reproduction'' and therefore qualifies for coverage under the disability law, Justice Anthony M. Kennedy wrote for the court.

    It was the high court's first ruling involving the human immunodeficiency virus, which causes AIDS.

    President Clinton praised the decision, saying it ''reinforces the protections offered by the landmark Americans With Disabilities Act for Americans living with HIV and AIDS.''

    Jennifer Middleton, of the American Civil Liberties Union's AIDS Project, predicted the decision will help people with other disabilities -- such as cancer, epilepsy and diabetes -- who sometimes have had trouble convincing lower courts they are covered by the disability law.

    And Daniel Zingale of AIDS Action, a network of organizations that provide health care and services to AIDS patients, called the decision HIV patients' ''greatest legal victory since the beginning of the epidemic.''

    The decision set aside a federal appeals ruling that said dentist Randon Bragdon violated the anti-discrimination law when he refused to fill Sidney Abbott's tooth at his office because she carries the virus that causes acquired immune deficiency syndrome.

    While the justices ruled that Abbott was covered by the ADA, they ordered lower courts to reconsider whether Bragdon violated the law.

    Those courts previously had said Bragdon did not show the treatment would have been unsafe.

    Bragdon's lawyer, John W. McCarthy, said he was pleased Bragdon was being given a new chance to make that argument. ''This is not to say ... that dentists shouldn't treat HIV-positive patients,'' McCarthy said, adding, ''If there's a risk, they should get to decide for themselves what they want to do.''

    The Act says people are disabled if they have a physical or mental impairment that ''substantially limits one or more major life activities.''

    But it also says disabled people can be treated differently if they pose a ''direct threat to the health or safety of others.''

    In deciding whether a health-care provider has violated the disability-protection law, ''courts should assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments,'' Kennedy said.

    The views of public health authorities such as the U.S. Public Health Service ''are of special weight and authority'' but not conclusive, Kennedy said. A health care professional who disagrees with such a medical consensus ''may refute it by citing a credible scientific basis for deviating from the accepted norm,'' he said.

    Public health authorities say there is no documented case of a dentist contracting the AIDS virus from a patient. But Bragdon contended he should be allowed to use his own judgment on how to safely treat such patients.

    Bragdon's lawyers also argued that bearing children should not be considered a major life activity similar to seeing, walking and hearing.

    Nonetheless, the court ruled that, ''Reproduction falls well within the phrase, 'major life activity.''' A person's HIV infection limits that activity because of the risk that she may infect her partner or the child, he said.

    Kennedy's opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. In a separate opinion, Stevens and Breyer said they would have gone further and ruled that Bragdon did violate the law by refusing to fill Abbott's cavity in his office.

    Dissenting in part were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor.

    © Copyright 1998 The Associated Press

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