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  •   Supreme Court Hears Arguments in AIDS Discrimination Case

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, March 31, 1998; Page A03

    The Supreme Court heard arguments yesterday in a case that will determine whether a law that protects the disabled from discrimination covers people infected with the AIDS virus but not yet showing its symptoms.

    The dispute is the first involving AIDS discrimination to be heard by the court, as well as its first review of the Americans with Disabilities Act. Gauging by their reaction yesterday, the justices are struggling with the confluence of the two.

    The case arose when Randon Bragdon, a dentist in Bangor, Maine, refused to fill the cavity of HIV-infected patient Sidney Abbott unless she would agree to have the procedure done in a hospital rather than his office. Abbott sued Bragdon for discrimination under the 1990 law, which prohibits doctors and others who serve the public from discriminating against people with disabilities.

    Abbott argues that unless people infected with HIV – estimated at 1 million – are protected from discrimination, they will be afraid to seek health care and thus worsen the epidemic. But the dentist contends doctors have a right to take precautions they believe are necessary to protect their own health.

    The disabilities law considers people covered if they have an impairment that "substantially limits one or more major life activities." And much of the dispute yesterday focused on whether people who have asymptomatic HIV are protected by the law.

    Bennett H. Klein, Abbott's lawyer, faced skepticism from some justices when he argued that Abbott, 37, is "disabled" because she is hindered in her ability to engage in sexual relations and have children.

    Abbott had successfully argued in lower courts that as a fatal disease, HIV changes the risks associated with reproduction and that any woman who is infected could transmit the virus not only to an unborn child but to her sexual partner. As a result, Abbott argues, her ability to reproduce is a major life activity that is impaired.

    "It all flows from the inevitable fact of the contagiousness of HIV and the fatalness of HIV," Klein told the justices.

    Some justices questioned whether reproduction is the kind of activity that Congress had in mind when it drafted the law, and included examples such as walking, seeing, hearing, breathing and speaking. Justice David H. Souter said that unlike breathing, for example, a person does not have to reproduce to survive. He also asked whether Klein was confusing "the moral limitation" Abbott placed on herself, so that she would not infect others, with a true physical limit on life's important functions.

    "I'm not sure that's what the statute is talking about," Souter said in a sentiment that was echoed in questions raised by Justice Antonin Scalia.

    But Justice Stephen G. Breyer seemed more sympathetic to Klein's position, suggesting that reproduction and sexual relations might be as central to some people's lives as walking and talking. He suggested that someone with bubonic plague who stays indoors so as to avoid infecting people might be considered disabled.

    John W. McCarthy, Bragdon's lawyer, maintained that reproduction was not a major life function as envisioned by Congress when it passed the disabilities law.

    He said the focus of the law is on activities that enable people to live independently day to day and to earn a living. "When you apply that test," McCarthy said, "reproduction doesn't fit on the list."

    While Klein emphasized that there never has been a documented case of an HIV-infected patient passing the disease onto a health care worker, McCarthy noted that several cases were under review by the federal Centers for Disease Control and Prevention when Abbott went to Bragdon four years ago. McCarthy said Bragdon acted in good faith in believing that he was at personal risk by treating Abbott in his office and noted that Bragdon offered to fill Abbott's cavity in a hospital.

    Justice Anthony M. Kennedy asked whether the court should consider that a person with HIV inevitably will have AIDS in a few years. McCarthy said the statute does not target future disabilities.

    As the first test of the disabilities law, the case of Bragdon v. Abbott is being closely watched by the medical community and other businesses, as well as by the gay rights community and people with infectious diseases. The American Medical Association has sided with Abbott, saying there is "no significant" risk that the virus can be transferred from patient to doctor or dentist. The American Dental Association is siding with Bragdon that people with HIV should not be considered disabled.

    © Copyright 1998 The Washington Post Company

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