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  •   U.S. Asks High Court to Rule AIDS Virus a Disability

    By Joan Biskupic
    Washington Post Staff Writer
    Saturday, February 7, 1998; Page A06

    The Justice Department yesterday urged the Supreme Court to rule that people who are infected with the AIDS virus should be protected by the Americans With Disabilities Act, particularly because the virus interferes with reproduction and pregnancy.

    The government position came in a brief filed on the side of a Maine woman whose dentist denied her routine treatment in his office because she had the virus that causes AIDS. After dentist Randon Bragdon refused to fill a cavity for Sidney Abbott, she sued under the ADA, which protects people with disabilities from discrimination.

    The law covers anyone who has "a physical or mental impairment that substantially limits one or more major life activities." Abbott argued that she was disabled because she was substantially limited in the "major life activity" of reproduction because an HIV-positive pregnant woman risks transmitting the virus to her child.

    She also asserted that a person with the HIV infection, even without symptoms, should automatically be considered disabled. An appeals court ruled in her favor, but the Supreme Court recently agreed to hear Bragdon's challenge. The primary question for the high court is whether someone with HIV is substantially impaired.

    "There can be little dispute with the clear medical evidence that infection with the HIV virus constitutes an `impairment,' from the time the virus enters the body and begins to attack the blood and lymphatic systems," Solicitor General Seth Waxman asserted in the government's brief. Because the lower appeals court emphasized the virus's interference with reproduction, the government stressed that factor.

    "The infection limits the conditions and manner under which [a woman] can become pregnant, because it makes unprotected intimate sexual relations life-threatening for her partner. The infection also would threaten the life of a child, since it can be passed from mother to child before or during birth and during breast feeding."

    The Justice Department noted it has long considered the HIV infection a disability not only because of its affect on reproduction but also "because the reactions of others to infected individuals cause such individuals to be treated as though they are disabled."

    Bragdon's lawyer, John W. McCarthy, has argued that reproduction is not one of the "major life activities" envisioned by the Congress, such as walking or seeing. While the case of Bragdon v. Abbott is the first to test the scope of AIDS-related coverage under the 1990 ADA, the administration in other cases and actions has supported the idea that the anti-discrimination law protects people with HIV (human immunodeficiency virus).

    © Copyright 1998 The Washington Post Company

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