High Court to Decide If HIV Is a 'Disability'

The Supreme Court today hears a case that may determine whether people diagnosed with the HIV virus qualify as "disabled" - and whether doctors, dentists, and other health-care workers can refuse them the same treatment afforded other patients..

The case is the high court's first ever concerning the status of patients diagnosed as carrying the AIDS virus. If the justices issue a sweeping decision, the ruling may also affect other Americans diagnosed with serious or life-threatening illnesses.

So far, two lower courts have ruled that HIV status - in which the patient is said to carry the AIDS virus but is not experiencing the full effect of the disease - is a "disability" covered by a 1990 act of Congress. The only other related US Supreme Court ruling on serious communicable diseases defines them as a "handicap."

This case was brought by Sidney Abbott, a resident of Bangor, Maine, after she visited the dentist in 1994. In filling out a form about her medical history, she noted that she was diagnosed as HIV-positive. The dentist, Randon Bragdon, told her she had a cavity that, because of her illness, he must fill at a hospital, not at his office. Feeling discriminated against, Ms. Abbott sued Dr. Bragdon under the Americans With Disabilities Act, which forbids public businesses from treating disabled people differently than they do others.

Under the standard definition, a physician or dentist may decide to refuse treatment if he or she determines a "direct threat" of physical harm.

In the lower court, Bragdon's lawyer said Abbott did not have a claim, arguing that HIV is not a disability. Under the 1990 definition by Congress, a person must have a condition that "substantially limits ... major life activities" to qualify. Abbott stated that not being able to have children, or at least the risk to her of having children given her status, qualifies as a severe limitation.

Quality of care

Groups trying to help HIV patients and others diagnosed with communicable diseases are concerned that a broad Supreme Court ruling - one that allows individual doctors and dentists to decide whom to treat, free from any guidelines - could result in a reduced quality of medical care for their clients.

"We're hoping a message will be sent to all health-care providers, that even though someone discloses an HIV diagnosis, they have a right to the same treatment in the most affordable manner," said Denis Cranson, executive director of the Eastern Maine AIDS Network in Bangor.

Safer treatment?

Having the cavity filled in the hospital would have cost Abbott $150 more than if she had been treated in Bragdon's office. Treating an HIV-infected person in a hospital is safer, Bragdon said, because there would be an air-transfer system to expel stagnant air, ultraviolet lights that kill viruses, and immediate access to medication in the event of exposure.

Abbott's lawyers and a large lobby of sympathizers say that Bragdon's fear of treating Abbott is irrational. They say that he acted out of an uninformed fear of HIV patients, and that he also has an unconscious set of prejudices against the lifestyles of gays and lesbians. Medical research, they say, shows that the threat to him is practically nonexistent if he takes routine precautions - a claim backed by both the American Medical Association and the American Dental Association.

Bragdon, in his reply brief, argues that because he acted out of good faith that a risk existed, he did not discriminate. He points to studies showing that the risk, while "low," is not "negligible." Not all dentists have answered surveys about their work, he says, and he points to seven dental-care workers who have contracted HIV while on the job. Then there is Bragdon's own experience of, as he says, poking himself clumsily with needles and sharp objects while treating patients, on occasion.

Medical experts and lobbyists on Abbott's side express concern that a Supreme Court ruling that constricts the definition of disability could result in a broad, slow withdrawal of support for assistance - not only for HIV patients but for others diagnosed as seriously ill.

On Bragdon's side, experts and interest groups suggest that inability to conceive a child - while important - is not comparable to the loss of major life activities such as walking, seeing, and breathing.

One corporate policy group argues that defining reproduction as a major life activity could be stretched to include any man or woman who is unable to have or bear children, a definition too broad, it argues.

A ruling is expected by June.