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  •   Disability Law Covers HIV, Justices Rule

    By Joan Biskupic and Amy Goldstein
    Washington Post Staff Writers
    Friday, June 26, 1998; Page A01

    Americans with the AIDS virus won an important victory yesterday in their struggle for recognition, as the Supreme Court made clear for the first time that they are protected from discrimination under the nation's disabilities law from the moment they become infected.

    In a closely divided, 5 to 4 decision, the court ruled that all people who are HIV-positive, even those with no overt symptoms of the deadly disease, fall within the shelter of the Americans with Disabilities Act, the landmark federal law that prohibits discrimination in jobs, housing, medical care and other places that serve the public.

    The decision represents the high court's first ruling on an issue related to AIDS and its first major interpretation of the 1990 disabilities law. Influential as it may prove in the lives of people with HIV, the opinion could have an even more far-reaching effect by broadening the grounds on which Americans may claim to be disabled, according to legal experts familiar with the case.

    Seventeen years into the AIDS epidemic in the United States, the decision on HIV, coming from a generally conservative court, is a striking mixture of compassion and precise clinical understanding about a disease that often has been highly stigmatizing.

    "It reflects that this country has come a long way from moving from simple fear of this disease to a more realistic understanding," said Chai Feldblum, a Georgetown University law professor who filed a brief on behalf of AIDS activists, gay rights advocates and other civil rights organizations.

    AIDS activists predicted yesterday that the decision, involving a Maine woman whose dentist refused to fill her cavity unless she paid to have it done in a hospital, could have a beneficial effect on public health. Some predicted, for example, that it could encourage more people to get tested for the disease, secure in the knowledge that, even if they turn out to be HIV-positive, they no longer risk losing their jobs, homes or medical care.

    Some activists said the decision also may provide them greater leverage in trying to persuade the federal government to enable HIV-infected people to qualify for Medicaid, the government health insurance program for the poor. Right now, only people with full-blown AIDS are covered. But if the definition of disability under that law were changed to include those who are simply HIV-positive, it could enable more people to afford new classes of medications that can help many remain healthier for a longer period.

    Between 400,000 and 650,000 Americans are infected with the human immunodeficiency virus (HIV), but are not sick enough to qualify as having AIDS, according to the most recent estimates of the federal Centers for Disease Control and Prevention. It is unclear how many of those people are symptom-free – the group directly affected by the court's ruling.

    Until now, lower courts have consistently held that the disabilities act covered people with full-blown AIDS. As a result, coverage for that group was not in dispute. What the high court did yesterday, in Bragdon v. Abbott, was establish that Sidney Abbott was covered, too, even though she had no outward evidence of her infection. The ADA defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."

    Justice Anthony M. Kennedy, who wrote the majority opinion, was pivotal to the case's outcome, siding with the court's four more liberal members. He said it was a "misnomer" to refer to HIV as asymptomatic even in its early stages.

    "In light of the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease," Kennedy wrote, "we hold it is an impairment from the moment of the infection."

    Kennedy went on to say that Abbott's attorney, Bennett H. Klein, was correct in saying his client was impaired on the grounds that she could not, in good conscience, reproduce because she might transmit the virus to a fetus. "Reproduction and the sexual dynamics surrounding it are central to the life process itself," Kennedy said. "Conception and childbirth are not impossible for an HIV victim but, without doubt, are dangerous to the public health."

    In deciding that reproduction is grounds for a disability – and thus may not be discriminated against – the court may have made it easier for women to win insurance coverage for birth control or treatment for infertility, said Simon Heller, litigation director for the New York-based Center for Reproductive Law and Policy.

    "It's anybody's guess how far [employers] can be pushed," said Ann Reesman, a spokeswoman for the Equal Employment Advisory Council, a group of 300 large businesses that sided with dentist Randon Bragdon in the case. She cited the recent example of a television station news anchor who had contended that she ought to be let out of broadcasts that conflicted with her fertility treatments. "You can't exactly move the news," Reesman said.

    Bragdon, who refused to fill Abbott's cavity in his office in 1994, had argued that the ADA was intended to apply to impairments of more routine activities, such as one's ability to see, breathe or walk.

    John McCarthy, Bragdon's attorney, had also argued that his client could legally refuse to treat Abbott under a provision of the ADA that allows health care providers to turn patients away if treating them posed a risk to the doctor's health. The court said Bragdon must return to lower courts if he wants to prove he faced such a risk.

    The court's decision ratified the long-standing position of the Justice Department, which has regarded the AIDS virus, even among people without symptoms, as grounds for discrimination complaints under disability law. But relatively few people have pursued such cases. The department's civil rights office currently has 67 active cases involving discrimination complaints by HIV-infected people, 15 of them resembling Abbott's case in that they involved denial of health care services.

    But despite the Justice Department's position, discrimination has persisted. In one recent instance, a Beloit, Wis., day-care center refused to accept a 4-year-old boy who was HIV-infected but had no symptoms. In another case, a professor at Northeastern University in Boston went to court, contending that he had been denied tenure because he, too, was HIV-positive.

    By cementing that the ADA applies in such cases, yesterday's decision is "the most important legal victory for people with HIV in the history of the epidemic," said Daniel Zingale, executive director of AIDS Action, a leading advocacy group.

    Dissenting justices said that a person's claim of a disability should be evaluated on an individual basis and that Abbott had not shown she was impaired in a major life activity. Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, said reproduction does not rise to the level of major daily activities that Congress had intended to be included under the ADA.

    Justice Sandra Day O'Connor wrote separately that "the act of giving birth to a child, while a very important part of the lives of many women, is not generally the same as the representative major life activities of all persons."

    But Georgetown's Feldblum praised the majority, saying "there is now a confluence of law and medicine that can be very powerful."

    © Copyright 1998 The Washington Post Company

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