March 31, 1998 in Nation/World

Dentist Didn’t Discriminate, Court Told In Hiv Case

Laurie Asseo Associated Press
 

A dentist did not illegally discriminate against an HIV-infected woman when he refused to treat her in his office, the Supreme Court was told Monday in the first major test of a federal law that protects disabled people’s rights.

“Dr. (Randon) Bragdon believes that when he provides a service in the face of the risk of death he should be allowed to take additional precautions,” said his lawyer, John W. McCarthy.

Bragdon believed treating Sidney Abbott at a hospital would give him better protection against the virus that causes AIDS.

Bennett H. Klein, Abbott’s lawyer, said lower courts correctly ruled that Bragdon violated the Americans With Disabilities Act, which bars discrimination against the disabled in jobs, housing and public accommodations.

There is no documented case of a dentist contracting HIV from a patient, Klein said. HIV infection is always considered a disability because it interferes with someone’s ability to have children, he contended.

Four justices sparred over what kind of limit is created by HIV.

Justices David H. Souter and Antonin Scalia suggested an HIV-infected person faces a “moral choice” rather than an actual physical limit on their ability to have children.

“I’m not sure that’s what the statute is talking about,” Souter said.

However, Justice Anthony M. Kennedy said that if a person with highly infectious tuberculosis stays away from other people, “we don’t just call it a moral choice.”

Justice Stephen G. Breyer added that someone with bubonic plague would be considered disabled.

McCarthy said Abbott was a “classic example of a person who had no symptoms, no difficulties whatsoever” resulting from her infection.

The disability law aims to protect people whose disabilities affect their “day-to-day independent living and economic self-sufficiency,” McCarthy said.

However, Klein said that unless HIV-infected people have clear protections under the law, many will hide the fact that they have an fatal, incurable disease.

A decision in the case is expected by July. The justices must decide whether HIV-infected people who do not yet suffer symptoms of AIDS are considered disabled.

If they are, Bragdon argues that dentists must be allowed to use their own judgment on how, or whether, to provide them routine treatment.

The court never has decided a case involving an HIV-related issue or the disability-bias law, signed in 1990 by President Bush. The justices’ ruling could provide clues as to whether the law covers other kinds of disabilities, such as cases of epilepsy or diabetes that are controlled by medication.

The law says people are disabled if they have a physical or mental impairment that “substantially limits one or more major life activities” or are “regarded as having such an impairment.”

It also says disabled people can be treated differently if they pose a “direct threat to the health or safety of others.”

Abbott says all people with the HIV virus should be considered disabled because it interferes with their ability to have sexual relations and produce children.

But Bragdon contends reproduction is not a major life activity.

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