Supreme Court Takes Case on HIV Bias Claim

WASHINGTON — For the first time, the legal status of the nearly 1 million Americans who are HIV-positive has reached the Supreme Court.

The justices announced Wednesday that they will decide this term whether people who have the virus that causes AIDS, but without symptoms of the disease, are protected from discrimination as disabled people.

The Americans with Disabilities Act makes it illegal for employers, public facilities or businesses to deny service or to otherwise discriminate against people because of their disability. While this includes those with AIDS, it has been unclear whether those who are simply HIV-positive are covered by the law.

Lawyers for the Boston-based Gay and Lesbian Advocates andDefenders are urging the high court to define disability broadly. Although those with an HIV infection may not at first glance look to have the “substantial mental or physical impairment” described in the law, they say these people sometimes suffer stigmatization or discrimination because of their condition.

“The ramifications of this case are enormous,” said Bennett H. Klein, an attorney for the group’s AIDS Law Project. “This [law] provides the only legal recourse for someone who is fired from a job, denied health care or even refused service in a restaurant simply because they are HIV-positive.

“It’s also important because more Americans are living with HIV now,” he added.

Recent estimates by the Centers for Disease Control and Prevention suggest that as many as 950,000 people are HIV-positive but have no symptoms of the disease.

The issue arose in a dispute between a Bangor, Maine, dentist and one of his patients.

On Sept. 16, 1994, Sidney Abbott went to see Dr. Randon Bragdon for a dental checkup. On her registration form, she disclosed that she is infected with HIV.

The dentist found a cavity in a back tooth. He then informed her that, because of her infectious condition, he would not fill her cavity in his office. He would, however, do the procedure for the same fee in a hospital that was a two-hour drive away. She would also have to bear the cost for the use of the facility, he said.

Abbott said she was undecided on what to do. She left, but two months later she filed a lawsuit in federal court alleging she was a victim of discrimination because of her disability.

The disabilities law allows people to seek court orders, but not damages, for being denied service in a place of “public accommodation,” such as a restaurant or a doctor’s office.

In his defense, Bragdon made two arguments. First, Abbott was not “substantially limited in a major life activity,” quoting the law. Secondly, a concern for safety justifies the extra precaution of using a hospital, he said.

His lawyers cited a provision of the law that says disabled people can be excluded from services where they present “a direct threat to the health or safety of others.”

“Every time Dr. Bragdon fills a cavity, there is a significant opportunity for him to be exposed to his patient’s blood,” the lawyers said.

Abbott’s lawyers responded by saying the risk to dentists is nil. “There has never been a documented case of HIV transmission from an infected patient to a dental health worker,” they said.

A federal judge in Bangor ruled for the patient, and the U.S. 1st Circuit Court of Appeals upheld that decision in March.

“We agree that Ms. Abbott is disabled within the purview of the [disabilities act] and that providing routine dental care to her (i.e., filling a cavity) would not have posed a direct threat to Dr. Bragdon’s health or safety,” wrote Judge Bruce Selya for a unanimous appeals court.

They concluded that Abbott was disabled in “a major life activity”--reproduction--because of her condition.

But the appellate judges stressed theirs should not be read as a sweeping ruling. They stopped short of saying all HIV-infected people are disabled, nor did they rule that doctors and dentists can never refuse service based on a potential risk to their safety.

“We recognize that cases of this kind are necessarily fact-sensitive,” Selya wrote. “Had the patient required a more invasive treatment or had the dentist proffered stronger evidence of a direct threat, the result may well have been different.”

The dentist appealed to the high court, and he was joined by lawyers for the American Dental Assn., which said its 140,000 members are left “in legal limbo” because of conflicting rulings on the issue.

The justices said they would hear the case of Bragdon vs. Abbott, 97-156, in late March.

A ruling can be expected by the end of June.

* ALARMING SPREAD OF AIDS: While cases decline in the U.S. and Europe, AIDS is spreading in the rest of the world much faster than earlier thought. A51