The Americans with Disabilities Act: HIV Infection is Covered Under the Act

The Americans with Disabilities Act: HIV Infection is Covered Under the Act

98-599 A
July 10, 1998
CRS Report for Congress
Received through the CRS Web
The Americans with Disabilities Act: HIV Infection
is Covered Under the Act
(name redacted)
Legislative Attorney
American Law Division
Summary
In Bragdon v. Abbott, No. 97-156 (June 25, 1998), the Supreme Court held that
the respondent's asymptomatic HIV infection was a physical impairment impacting on
the major life activity of reproduction thus rendering the HIV infection a disability under
the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq. The Court also
examined the ADA's exception regarding a direct threat to the health or safety of others
and found that courts should assess the objective reasonableness of the views of health
care professionals by looking to the views of public health authorities but that these
views could be rebutted by citing a credible scientific basis for deviating from the
accepted norm. Bragdon was remanded for further proceedings regarding the question
of risk.
Bragdon v. Abbott has been heralded as a significant decision advancing the rights
of individuals who have asymptomatic HIV infection. It also has broader implications
on the ADA coverage of reproductive disabilities. This report will not be updated.
Background
In 1994 Dr. Bragdon performed a dental examination on Ms. Abbott and discovered
a cavity. Ms. Abbott had indicated on her registration form that she was HIV positive.
At that time, she was asymptomatic. Dr. Bragdon told her that he would not fill her cavity
in his office but would treat her only in a hospital setting. This would have resulted in
higher costs for Ms. Abbott since, although Dr. Bragdon would have charged his regular
fee, she would have had to have paid the hospital costs. Ms. Abbott did not find this
acceptable and filed a complaint under the ADA, a broad civil rights statute that prohibits
discrimination against individuals with disabilities. She prevailed at the district court and
court of appeals levels and at the Supreme Court on the issue of whether she was an
individual with a disability but the case was remanded for further consideration regarding
the issue of direct threat.
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The Americans with Disabilities Act
The Americans with Disabilities Act provides broad nondiscrimination protection
for individuals with disabilities in employment, public services, public accommodation
and services operated by private entities, transportation and telecommunication.1 The
ADA states that "the term 'disability' means, with respect to an individual--(A) a physical
or mental impairment that substantially limits one or more of the major life activities of
such individuals; (B) a record of such an impairment; or (C) being regarded as having
such an impairment."2 Although discrimination against such individuals is prohibited in
places of public accommodations such as doctor's offices,3 there are some limitations on
the reach of this nondiscrimination requirement. The most significant of these limitations
with regard to the issues presented by Bragdon is the exception for situations that pose
a direct threat to the health or safety of others. The term "direct threat" is defined in the
statute as "a significant risk to the health or safety of others that cannot be eliminated by
a modification of policies, practices, or procedures or by the provision of auxiliary aids
or services."4 It was created in an attempt to differentiate legitimate public health
concerns from prejudicial stereotypes.
Supreme Court's Decision
The Supreme Court held that Ms. Abbott's asymptomatic HIV infection was a
physical impairment impacting on the major life activity of reproduction thus rendering
the HIV infection a disability under the ADA. In addition, the Court held that when
interpreting the ADA, courts should assess the objective reasonableness of the views of
health care professionals by looking to the views of public health authorities but that these
views could be rebutted by citing a credible scientific basis for deviating from the
accepted norm and remanded Bragdon for further consideration on this issue. These
holdings were reached in a 5 to 4 decision, with Justice Kennedy writing for the majority.
Justices Stevens and Breyer joined in a concurring opinion and Justice Ginsberg filed a
separate concurring opinion. Chief Justice Rehnquist, joined by Justices Scalia and
Thomas, filed an opinion concurring in part and dissenting in part. Justice O'Connor filed
a separate opinion concurring in part and dissenting in part.
Definition of Individual with a Disability. Writing for the majority, Justice
Kennedy began by examining the issue of whether asymptomatic HIV infection
constitutes a disability under the ADA, parsing the statutory language and finding that Ms.
Abbott was covered under subsection (A) — having a physical or mental impairment that
substantially limits one or more major life activities. In reaching this holding, Justice
Kennedy used the following analytic framework: first, determining whether Ms. Abbott's
HIV infection was a physical impairment; second, determining the life activity affected
and whether it constituted a major life activity; and, third, determining whether the
1 For a more detailed discussion of the ADA see Jones, "The Americans with Disabilities
Act (ADA): An Overview of Major Provisions and Issues," CRS Rep. No. 97-242A(Feb. 12,
1997).
2 42 U.S.C. §12102(2).
3 42 U.S.C. §12181.
4 Id.

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impairment substantially limited the major life activity. He then noted that the ADA's
definition was "drawn almost verbatim from the definition of 'handicapped individual'
included in the Rehabilitation Act" and that the ADA specifically states that the ADA
shall not be construed to apply a lesser standard than the standards applied under title V
of the Rehabilitation Act and its regulations.5
The first question Justice Kennedy examined was whether Ms. Abbott's
asymptomatic HIV infection constituted a physical impairment. After a detailed clinical
discussion of HIV infection, Justice Kennedy concluded that "in light of the immediacy
with which the virus begins to damage the infected person's white blood cells and the
severity of the disease, we hold it is an impairment from the moment of infection." Next,
Justice Kennedy turned to the issue of whether the physical impairment affected a major
life activity. Ms. Abbott had argued that her HIV infection placed a substantial limitation
on her ability to reproduce and to bear children and Justice Kennedy had "little difficulty"
concluding that reproduction was a major life activity since "reproduction and the sexual
dynamics surrounding it are central to the life process itself." The ADA was found not
to be limited to the aspects of a person's life which have a public, economic or daily
character. The breadth of the term "major" "confounds the attempt to limit its
construction in this manner."
The final issue regarding the definition of individual with a disability was whether
Ms. Abbott's physical impairment was a substantial limitation on the major life activity
of reproduction. After an evaluation of the medical evidence, Justice Kennedy concluded
that Ms. Abbott's ability to reproduce was substantially limited in two ways: (1) an
attempt to conceive would impose a significant risk on Ms. Abbott's partner, and (2) an
HIV infected woman risks infecting her child during gestation and childbirth.
Justice Kennedy found that the reasoning used above to find that asymptomatic HIV
infection was a physical impairment that placed a substantial limitation on a major life
activity was confirmed by consistent agency and judicial interpretation. He noted that
"every agency to consider the issue under the Rehabilitation Act found statutory coverage
for persons with asymptomatic HIV." The legislative history of the ADA, which cited the
section 504 interpretations, was also seen as buttressing the Court's conclusion. In
addition, the administrative guidance issued for the ADA was found to indicate that
asymptomatic HIV infection should be covered.
Direct Threat Exception. The other major issue addressed by the Court in
Bragdon involved the interpretation of the ADA's direct threat exception. Even with the
finding that Ms. Abbott was an individual with a disability, Dr. Bragdon could have
refused to treat her or insisted on treating her in a different setting if her condition
"pose[d] a direct threat to the health or safety of others."6 Direct threat is defined in the
ADA as "a significant risk to the health or safety of others that cannot be eliminated by
5 Section 504 of the Rehabilitation, 29 U.S.C. §794, prohibits discrimination against
otherwise qualified individuals with disabilities in any program or activity receiving federal
financial assistance, the executive agencies or the U.S. Postal Service. Section 504 and its
regulations served as a model for the ADA which expanded these protections to entities that did
not receive federal funds.
6 42 U.S.C. §1212(b)(3).

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a modification of policies, practices, or procedures or by the provision of auxiliary aids
or services."7 After examining the Court's decision in School Board of Nassau County
v. Arline, 480 U.S. 273 (1987), Justice Kennedy determined that "the existence, or
nonexistence, of a significant risk must be determined from the standpoint of the person
who refuses the treatment or accommodation, and the risk assessment must be based on
medical or other objective evidence." Dr. Bragdon had the duty to assess the risk of
infection "based on the objective, scientific information available to him and others in his
profession. His belief that a significant risk existed, even if maintained in good faith,
would not relieve him from liability." Thus, there was no special deference accorded to
Dr. Bragdon because of his professional status.
The question remained as to how to determine if Dr. Bragdon's actions were
reasonable. Justice Kennedy observed that "in assessing the reasonableness of petitioner's
actions, the views of public health authorities, such as the U.S. Public Health Service,
CDC, and the National Institutes of Health, are of special weight and authority."
However, Justice Kennedy found that the views of these entities were not necessarily
determinative and could be refuted by citing a credible scientific basis for differing from
the accepted norm. The Court of Appeals determination of this issue was examined and
found to have placed mistaken reliance on the CDC Dentistry Guidelines and the 1991
American Dental Association Policy on HIV.8 The Supreme Court remanded the case for
further consideration on this issue. "We conclude that the proper course is to give the
Court of Appeals the opportunity to determine whether our analysis of some of the studies
cited by the parties would change its conclusion that petitioner presented neither objective
evidence nor a triable issue of fact on the question of risk."
Concurring Opinions. Two concurring opinions were filed: one by Justice
Stevens who was joined by Justice Breyer and one by Justice Ginsburg. Justice Stevens
wrote that he would have preferred an outright affirmance of the Court of Appeals
decision but joined with Justice Kennedy to provide a majority opinion. Justice Ginsburg
agreed with the majority and stated that "No rational legislator, it seems to me apparent,
would require nondiscrimination once symptoms become visible but permit
discrimination when the disease, though present is not yet visible."
Dissenting Opinions. Chief Justice Rehnquist, joined by Justices Scalia and
Thomas, dissented in part and concurred in part. He dissented from the majority, finding
that Ms. Abbott had failed to demonstrate that any of her major life activities were
substantially limited by her HIV infection. First, it was noted that the issue of whether
reproduction is a major life activity should be answered with regard to the individual in
question and he further observed that there was no evidence, that absent the HIV
infection, Ms. Abbott would have had or considered having children. Second, the Chief
Justice found that reproduction was not a major life activity since reproduction is not
essential in the day-to-day existence of a normally functioning individual. And, even if
7 Id.
8 The CDC Guidelines recommend certain universal precautions but do not assess the level
of risk. The American Dental Association Policy on HIV is not that of a public health authority
and Justice Kennedy observed that it was not clear the extent to which the policy was based on
an assessment of ethical and professional duties and the extent to which the policy was based on
a scientific assessment of the risk.

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reproduction was a major life activity, the dissent found that asymptomatic HIV infection
does not substantially limit that activity. The Chief Justice concurred in the remand on
the direct threat issue but disagreed with the majority with regard to its conclusion that
the views of public health officials are entitled to special weight. He observed that "the
credentials of the scientists employed by the public health authority, and the soundness
of their studies, must stand on their own."
Justice O'Connor wrote a separate opinion, dissenting in part and concurring in part.
She agreed with the dissenting opinion of the Chief Justice that Ms. Abbott's claim of
disability should be evaluated on an individualized basis and that Ms. Abbott did not
prove that her asymptomatic HIV infection substantially limited one or more of her major
life activities. Justice O'Connor also agreed with the decision to remand on the direct
threat issue.
Implications
Bragdon has implications for other legal issues beyond its basic holding that Ms.
Abbott's asymptomatic HIV infection is a disability under the ADA. Prior to the Court's
decision, the courts of appeal had been split on the issue of whether reproduction is a
major life activity.9 In arriving at its holding, the Court specifically found that
reproduction was a major life activity thus resolving this issue. In addition, the Court's
holding that asymptomatic HIV infection is covered under the ADA, would appear to
indicate that other asymptomatic conditions may also be covered. For example, in Ryan
v. Grae & Rybicki P.C., 135 F.3d 867 (2d Cir. 1998), the second circuit held that a woman
with ulcerative colitis was not an individual with a disability since she was asymptomatic
most of the time. However, the majority's language regarding "the immediacy with which
the virus begins to damage the infected person's white blood cells" may create a standard
which might not be met by all asymptomatic conditions.
The Court also provided a framework for future analysis of issues involving the first
prong of the definition of disability. First, a court is to determine whether a condition is
a physical impairment; second, the life activity affected and whether this is a major life
activity are to be determined and; third, a determination shall be made concerning whether
the impairment substantially limits the major life activity.
The Supreme Court remanded the case to the first circuit for further consideration
of the issue of what constitutes a direct threat under the ADA. Although the majority
found that there was no special deference accorded to Dr. Bragdon because of his
professional status, the question of how to determine if his actions were reasonable was
less clear. The decision of the first circuit on remand, will be significant in determining
this issue.
9 See e.g., Krauel v. Iowa Methodist Medical Center, 95 F.3d 694 (8th Cir. 1996)(Finding
that the ability to reproduce is not a major life activity).

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