Date: Wed, 22 Jul 1998 14:38:43 -0700 (PDT) From: Ron Buckmire Subject: more in bragdon Date: Fri, 26 Jun 1998 18:05:14 -0400 (EDT) From: Kenneth Sherrill To: kenslist Subject: What the Supreme Court Decision says, what it means (fwd) Bob Munk is an old friend from Paris Gym days in the late 1970s, and a methodologist. he's now an AIDS Activist from the southwest. Ken ---------- Forwarded message ---------- Date: Fri, 26 Jun 1998 17:40:39 -0400 (EDT) From: Bob Munk To: Multiple recipients of list Subject: What the Supreme Court Decision says, what it means SUPREME COURT RULES: HIV IS A DISABILITY The Supreme Court issued its decision in Bragdon V. Abbott, Case No. 97-156, on June 25, 1998. By a 5 to 4 vote, the justices affirmed that HIV infection is a disability, and that reproduction is a "major life activity" under the Americans with Disabilities Act. The case was sent back to the lower courts for further consideration of when a disability might constitute a threat to the health and safety of others. The ADA Definition of Disability The Americans with Disabilities Act defines a covered disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment." In all cases, it is necessary to demonstrate not only the presence of a physical or mental impairment, but also that this impairment limits a major life activity. The justices found that "HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease." The court rejected the argument that disability must be assessed on an individual basis. Regarding impairment of a major life activity, the justices found that reproduction is a major life activity. Some observers of this case have asked whether this focus on reproduction would limit the applicability of the ruling. The language of the decision suggests that it will not: "Given the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry . . . We have little doubt that had different parties brought the suit they would have maintained that an HIV infetion imposes substantial limitations on other major life activities." However, the Supreme Court decides cases only on the grounds raised and considered in lower courts. On this point, the justices rejected the argument that "major life activities" had to have a public, economic, or daily character. The ADA definition requires that the disability create a "substantial limitation" on a major life activity. The court's decision was that an HIV-infected woman who tries to have a child exposes the man to a significant risk of being infected, and risks infecting her child during gestation and childbirth. Although lawyers argued that a woman might simply choose not to have children, the court found that "the disability definition does not turn on personal choice. When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable." The justices provide further evidence that they do not intend their decision to be construed too narrowly. The opinion states, "Our conclusion is further reinforced by the administrative guidance issued by the Justice Department. . . [which] added 'HIV infection (symptomatic and asymptomatic)' to the list of disorders constituting a physical impairment." Assessing Risks to the Health and Safety of Others The provisions of the ADA do not apply in cases where accommodating a disabled person would constitute a direct threat to the health and safety of others. In this case, Dr. Bragdon argued that he should be able to rely on his own good-faith belief that a risk existed. The court found that the assessment of risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and must be based on medical or other objective evidence. While acknowledging that the views of public health authorities are of "special weight and authority", the ruling states that they "are not conclusive", and that "A health care professional who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis for deviating from the accepted norm." In sending the case back to lower courts, the Supreme Court suggested that the Court of Appeals had placed too much reliance on 1993 CDC Dentistry Guidelines and the 1991 American Dental Association Policy on HIV. The justices noted that these two documents do not assess the level of risk of transmission of HIV, and that a professional organization is not a "public health authority." The Court of Appeals is being asked to review the case and determine whether Dr. Bragdon had grounds for arguing that providing dental services would have created a direct threat to the health and safety of others. This part of the ruling makes it clear that a health care provider may not rely on a personal good-faith assessment of risk, but must base the assessment on credible scientific evidence. It does, however, provide the possibility that services could be denied based on "dissident" scientific views if the court found them to be credible. Protection for People with HIV Infection The court's decision in Bragdon v. Abbott makes it clear that people with HIV infection are covered by the provisions of the Americans with Disabilities Act. There is no question that HIV infection itself is a disability, and the justices seem prepared to accept that HIV infection creates a "major impairment" in a broad range of "major life activities". Without a scientific basis for believing that a person with HIV constitutes a risk to the health and safety of others, it will be extremely difficult for health care providers, employers, or places of public accommodation to discriminate against people with HIV. The full text of the Supreme Court decision can be found on the internet at: http://www.findlaw.com/casecode/supreme.html, choosing the link to Browsing: 1998 Decisions, and then selecting the case "Bragdon v. Abbott [No. 97-156]". ********** To unsubscribe, send mail to majordomo@queernet.org; put a line saying unsubscribe kenslist in the body. (This may fail if your address has changed since you signed up; if so, or for other assistance, contact kenslist-approval@queernet.org.)