Justices seem split on whether disability bias law covers HIV Court reviewing case of Maine dentist who refused to do filling


WASHINGTON -- The Supreme Court, taking up its first case about HIV patients who claim they were discriminated against by being denied treatment, appeared deeply divided yesterday over extending disability rights law to cover those individuals.

Eight of the nine justices spoke up during a hearing, and they seemed to be almost evenly split on whether to give individuals with HIV infection -- but no symptoms of AIDS -- the protected status of disabled persons under a 1990 federal law.

The court is reviewing the case of a Bangor, Maine, dentist who is under a court order not to refuse to do ordinary fillings for HIV patients. When it decides the case, later this spring or summer, the court is expected to issue a major ruling clarifying the Americans With Disabilities Act -- a ruling likely to affect individuals with diseases other than HIV infection.

But the hearing made it clear the court will have difficulty putting together a majority for a clear-cut result. The dividing point with the justices, it appeared, is whether a person with HIV infection must actually lose some physical function before he could be considered disabled, or whether it would be enough if he curtailed some activity -- like sex or bearing children -- for fear of infecting others.

Justices David H. Souter and Antonin Scalia, who appeared to be most skeptical about a broad interpretation that HIV patients qualify as disabled, suggested that curtailing one's activity may be only "a moral choice," not a disability.

Souter said at one point the 1990 law requires "a substantial limit upon activity" before one is counted as disabled, and that seems to mean loss of "a physical capacity to perform" such activities. A person with HIV virus, he said, could have sex, physically, but might decline out of a "self-imposed limitation."

John W. McCarthy, a Bangor attorney representing the dentist, Dr. Randon Bragdon, repeatedly told the court that disability should mean only an impairment of "the ability to achieve day-to-day independent living," such as breathing or eating.

Justices Stephen G. Breyer and Anthony M. Kennedy, in questions and comments that could align them on the other side, suggested that individuals with contagious diseases may in fact be limited in a way that makes them disabled if they take steps to avoid infecting others.

"Are you disabled," Breyer asked, "if you know if you get out of the house you'll give the whole city bubonic plague? I would think so."

Kennedy suggested that a person with a contagious disease like tuberculosis, who "stays away from other people" suffers from "an objective limitation on that person's ability to interact with other people in society."

A Boston lawyer, Bennett H. Klein, speaking for the HIV-infected patient whose tooth Bragdon balked at filling in his office, said it was the contagiousness of HIV that led to significant limitations on sufferers' ability to engage in many life activities, including reproduction and sex.

Bragdon told that patient, Sidney Abbott, that he had a general policy of not doing dental work in his office for HIV patients. He said he could do it at a hospital, which would cost more. He had never done a filling in a hospital and had no hospital privileges, the court has been told. He has been found to have discriminated against Abbott.

Klein also argued that, whether or not a person with HIV infection gives up any activities, his condition should always be counted as a disability.

Chief Justice William H. Rehnquist reacted skeptically to the patient's legal arguments, while Justices Ruth Bader Ginsburg and John Paul Stevens appeared to be leaning toward a fairly broad definition of disability. Justice Sandra Day O'Connor made non-committal remarks, and Justice Clarence Thomas said nothing.

Various disability rights groups have lined up on the patient's side, as has the American Medical Association, which argues that there is no significant risk to dentists if they take normal health precautions they should take with any patient. The American Dental Association has given Bragdon qualified support.

Besides deciding what disability means under the 1990 law, the court is expected to decide whether the law leaves it up to judgment of individual doctors as to when it is too dangerous to treat a patient with HIV infection.

The justices did not examine that point closely yesterday, but the dentist's lawyer, McCarthy, argued that "Dr. Bragdon believes that when he provides service in the face of the risk of death, he should be allowed to take additional precautions."

McCarthy disputes statistics -- cited by Justice Breyer -- that there is not one case of a patient's transmitting an HIV infection to a dentist.

Pub Date: 3/31/98

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