Supreme Court to hear first ADA and HIV case

By Thomas L. Hafemeister, JD, PhD
Law/Psychology Program, Department of Psychology
University of Nebraska?Lincoln

The U.S. Supreme Court recently agreed to hear a case in which a Maine dentist was found to have violated the Americans with Disabilities Act (ADA) by refusing to provide routine care in his office to a patient who was asymptomatic HIV-positive. This case, Abbott v. Bragdon, No. 97-156 (CA1, 107 F.3d 934, 65 LW 2592) (66 USLW 3384), will be the court?s first review of a case involving the ADA, which Congress passed in 1990 to protect people with disabilities from discrimination. The court also will address for the first time whether a person with HIV, but otherwise asymptomatic, qualifies as disabled under federal law.

Sidney Abbott was HIV positive but manifested no overt symptoms of HIV or AIDS. During a routine examination, her dentist discovered a cavity. He told Abbott that, based on his infectious disease policy, he would only fill her cavity in a hospital. He would charge his regular fee, but she would have to pay extra costs for use of the hospital?s facilities. Abbott instead filed a lawsuit, alleging that this violated the ADA. The United States Court of Appeals for the First Circuit agreed with Abbott.

The Supreme Court has accepted three questions for review:

Is reproduction a major life activity within the meaning of the ADA?

The ADA was established, in part, to prevent ?places of public accommodation,? such as dental offices, from denying services to individuals on the basis of a disability. Under the ADA, a person is disabled if a major life activity, such as hearing, seeing and breathing, is ?substantially limited.? Abbott asserts that reproduction is a major life activity and her HIV status limits this activity because she cannot bear children without the risk of passing the virus to her child. The ADA doesn?t list reproduction among its examples of major life activities. However, the First Circuit found that this was not an exclusive list and that reproduction is a major life activity. Furthermore it found that because HIV-positive pregnant women face an 8 percent risk of transmitting the virus to their children even when they?re receiving medical treatment, this constitutes a substantial restriction on reproductive activity. The federal courts have split on this issue.

Are asymptomatic individuals infected with HIV per se disabled within the meaning of the ADA?

The First Circuit in this case adopted a per se rule that HIV-positive status, whether symptomatic or asymptomatic, constitutes a physical impairment. This means that future plaintiffs with HIV will be assumed to qualify for ADA protection. The Fourth Circuit has rejected a per se rule, however, and recently found that asymptomatic HIV didn?t qualify as a disability at all. The dissent from the Fourth Circuit argued that the virus? gradual destruction of an individual?s immune system constitutes a physical impairment.

Should courts defer to the health-care provider?s professional judgment, as long as it is reasonable in light of then-current medical knowledge?

Under the ADA, a place of public accommodation does not have to serve individuals who pose a direct threat to the health or safety of others. The dentist argues there is a significant opportunity for him to be exposed to a patient?s blood while filling a cavity, and, when working on patients with HIV, this exposure places him and his staff at risk of contracting HIV and entitled him to employ alternative procedures. Filling the cavity at a hospital enabled him to use the facility?s superior infection-control procedures, including its ability to filtrate the aerosol mists of water, blood and bloody saliva generated by the use of high-speed dental drills. He asserts this decision represented a reasonable professional judgment based on medical knowledge at the time and that the Supreme Court has recognized the value and necessity of deferring to professional judgment in similar circumstances. The First Circuit, however, rejected this argument, noting that health-care providers are not entitled to demand absolute safety.

Implications for psychology

This case raises many questions of interest to psychologists. What is the scope of federal laws protecting people with disabilities from discrimination? Will the Court?s position on asymptomatic HIV set parameters for mental disabilities without overt physical symptoms? Where will the Court set the balance between the rights of individuals with disabilities and service providers? When can a provider treat a client differently because of a relatively remote, albeit highly dangerous risk of harm? What level of deference must be given to professional judgments, and what constitutes a reasonable professional judgment? To what extent can public health officials dictate acceptable risks for service providers?

?Judicial notebook? is an effort by the Courtwatch Committee of APA?s Div. 9, the Society of the Psychological Study of Social Issues, to encourage involvement by psychologists in judical decision-making.