Monday, August 27, 2012

HIV Is A Disability Under the Americans With Disabilities Act: Bragdon v. Abbott (1998)

Sidney Abbott, with her attorney, c. 1995
In 1994, Sidney Abbott was attempting to get a cavity filled. She scheduled an appointment with Dr. Randon Bragdon, a Bangor, Maine dentist. In the paperwork she completed prior to the dental work, she indicated she was infected with HIV, but was "asymptomatic." Dr. Bragdon referred Ms. Abbott to his written policy that he did not treat HIV+ patients in his clinic, but he would be willing to treat her if she admitted herself to a hospital. He reported she would bear the financial burden of the hospitalization.

Ms. Abbott sued Dr. Bragdon, claiming he violated her rights under the Americans With Disabilities Act (ADA). She argued Dr. Bragdon discriminated against her due to her HIV status.

A lower court sided with Ms. Abbott, and in 1998, the case made its way to the US Supreme Court. The Court agreed with the lower court, deciding HIV and AIDS were disabilities under the ADA. They ruled that "asymptomatic" HIV infection constituted a disability as well.

In the majority opinion, the Court wrote, "(1) the woman's HIV infection, even in the so-called asymptomatic phase, was a disability under 12102(2)(A), because the infection was an impairment which substantially limited the major life activity of reproduction; but (2) remand was necessary because, although there were reasons to doubt whether the dentist had advanced sufficient evidence on the question of risk to the health and safety of others, (a) the Court of Appeals, in determining as a matter of law that the woman's infection posed no direct threat to the dentist's health and safety, might have placed mistaken reliance on various items of evidence, and (b) the Supreme Court, in accepting the case for review, had declined to grant certiorari on the question whether the dentist had raised a genuine issue of fact for trial, with the result that the briefs and arguments presented to the Supreme Court did not concentrate on the question of sufficiency of evidence."

In plain English, the Court decided HIV infection was a disability because it limited Ms. Abbott's reproductive ability (a "major life activity"). But, the Court also decided the case must be remanded to a lower court to determine whether or not the dentist was truly at risk for contracting HIV through his treatment of the patient.

This case set the precedent for HIV and AIDS to be considered disabilities under the ADA, which limits a person's potential to be discriminated against based on those conditions. Interestingly, what we know about HIV and AIDS today is that an HIV+ woman who is asymptomatic is likely to be able to "reproduce" without transmitting HIV to her baby. Thus, asymptomatic HIV infection is probably no longer strictly an ADA disability the way Bragdon v. Abbott defines it. However, there is also strong, clear evidence that a doctor who takes reasonable precautions with all patients is not at risk for contracting HIV.

Thanks for reading-- Max Wachtel, Ph.D.


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