Bragdon v. Abbott: Is Asymptomatic Hiv a Per Se Disability Under the Americans With Disabilities Act? - Amy C. Reeder

• Citation: Vol. 50 No. 2
• Publication year: 1999

Bragdon v. Abbott: Is Asymptomatic HIV a

Per Se Disability Under the Americans with

Disabilities Act?

In Bragdon v. Abbott,¹ the United States Supreme Court held that asymptomatic HIV is a "disability" under the Americans with Disabilities Act ("ADA")² because it is a physical impairment that substantially limits the major life activity of reproduction.³ It further held that determining whether a plaintiff is entitled to relief requires objective and particularized evidence of the risks to the defendant under the "direct threat" provisions of the ADA.⁴ This Casenote focuses exclusively on the "disability" holding.

I. Factual Background

On September 16, 1994, Sidney Abbott went to Dr. Randon Bragdon's dental office in Bangor, Maine, for a dental appointment. She reported her HIV-positive status on the patient registration form and Dr. Bragdon examined her.⁵ During the exam Dr. Bragdon found a cavity and informed Ms. Abbott of his policy against filling cavities of HIV-infected patients in his office. He offered to fill the cavity at a hospital with no added fee for his services. Ms. Abbott would, however, be charged for using the hospital's facilities. Ms. Abbott declined.⁶

Ms. Abbott sued Dr. Bragdon under state law and ADA Title Ill's Public Accommodations and Services Operated by Private Citizens section.⁷ She alleged discrimination based on her disability—HIV infection.⁸ The United States and the Maine Human Rights Commission intervened as plaintiffs, and the parties filed cross-motions for summary judgment.⁹ The district court granted summary judgment for plaintiffs, holding that Ms. Abbott's asymptomatic HIV satisfied the ADA definition of disability because it substantially limited her major life activity of reproduction.¹⁰ As to the first prong of the ADA definition of a "disability," the district court, relying on the regulatory guidelines and judicial authority, concluded that asymptomatic HIV is a physical impairment."

The court, however, was more troubled by the second and third prongs of the analysis—whether plaintiff's asymptomatic HIV "substantially limits" one or more of her "major life activities."¹² The district court concurred with a majority of courts that "[reproduction, one of the most fundamental of human activities, must constitute a major life activity."¹³ The court was not persuaded that the regulations' failure to mention reproduction as a major life activity was dispositive on that issue; rather, it reasoned that the regulation is illustrative of major life activities, not an exhaustive list.¹⁴ Finally, the court relied on Ms. Abbott's statements in her deposition that fear of harm to her immune system, the risks of infecting her child, and the possibility of her child being motherless were all factors establishing that her asymptomatic HIV substantially limited her major life activity of reproduction.¹⁵

The United States Court of Appeals for the First Circuit affirmed the grant of summary judgment.¹⁶ The court's reasoning was very similar to the district court regarding the "physical impairment" prong of the analysis. The court held "unhesitatingly that HIV-positive status, simpliciter, whether symptomatic or asymptomatic, comprises a physical impairment under the ADA."¹⁷ Likewise, the court found that reproduction was a major life activity, citing societal norms, congressional intent, and the plain meaning of the words in the statute.¹⁸ The final hurdle, whether Ms. Abbott's impairment substantially limited that major life activity, was leaped without the individualized inquiry usually followed in ADA claims. Relying on empirical statistics rather than Ms. Abbott's contentions about the particular consequences she experienced, the court held that Ms. Abbott's HIV substantially limits her ability to reproduce.¹⁹ The Supreme Court granted certiorari and affirmed, holding that asymptomatic HIV is a disability that substantially limits the major life activity of reproduction.²⁰

II. Legal Background

Prior to the ADA, the primary legislation prohibiting discrimination against the disabled was the Rehabilitation Act of 1973 ("RHA").²¹ The RHA prohibits discrimination against "handicapped" persons participating in federally funded programs.²² The RHA definition of "handicapped"²³ is mirrored almost verbatim in the RHA's successor, the ADA. The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."²⁴ The similarities are so significant, and the purposes so intertwined, that Congress included a statutory provision directing that case law and regulations promulgated under the RHA should apply when interpreting the ADA.²⁵

The Department of Health, Education, and Welfare ("HEW") issued the first RHA regulations in 1977.²⁶ These regulations were duplicated, without change, by the Department of Health and Human Services and define "physical or mental impairment" as "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal; special sense organs; respitory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin, and endocrine . . . ."²⁷ This definition has been adopted by the current regulations promulgated for use with the ADA as well.²⁸

Courts first considered discrimination against people with HIV under the RHA. Every reported decision from the mid-1980s until the passage of the ADA in 1990 found that AIDS and asymptomatic HIV infection were handicaps within the meaning of the RHA or relevant state statutes.²⁹ Many of these cases did so without discussing how the individual's condition fell within the act.³⁰ In 1987 the Supreme Court first addressed whether a contagious disease was a disability under Section 504 of the RHA in School Board of Nassau County v. Arline.³¹ While the Court specifically declined to decide whether AIDS was a "physical impairment,"³² it held that tuberculosis was a disability under the RHA.³³ Justice Brennan, writing for the majority, reasoned that tuberculosis is a disability because it affects the respiratory system, a system included in the Health and Human Services regulation's definition.³⁴

Without a definitive answer by the Supreme Court on whether asymptomatic HIV is a disability under the RHA or the ADA, the circuit courts split. In Gates v. Rowland,³⁵ the Ninth Circuit held that HIV-positive inmates were entitled to protection against discrimination by prison officials.³⁶ Although the action was brought, in part, under the RHA, the court cited and discussed the term "disability" as it is used in the ADA.³⁷ The court deferred to the Department of Justice regulation implementing the ADA, which specifically includes "HIV disease (whether symptomatic or asymptomatic)" as a physical impairment.³⁸ The court's holding was very broad in that it did not require an individualized assessment of each plaintiff to find that asymptomatic HIV was a disability. Rather, it simply held "that a person infected with the HIV virus is an individual with a disability within the meaning of the Act."³⁹ The lower court opinions in Bragdon mirror this categorical approach to the disability question.

In accordance with ADA analysis in areas other than HIV, the Fourth Circuit adopted a much narrower, more individualized standard. In Ennis v. National Association of Business and Educational Radio, Inc.⁴⁰ the court held that "the plain language of [the ADA] requires that a finding of disability be made on an individual-by-individual basis."⁴¹ This distinction is significant because ADA decisions typically require plaintiffs to prove how their disability significantly limits a major life activity. In Ennis the court declined to find that plaintiff's asymptomatic son had a per se disability,⁴² stating that plaintiff must prove how her son's HIV-positive status substantially limited a specified major life activity.⁴³

Reaffirming Ennis, the en banc Fourth Circuit held in Runnebaum v. NationsBank of Maryland⁴⁴ "[t]he plain meaning of 'impairment' suggests that asymptomatic HIV infection will never qualify as an impairment: by definition, asymptomatic HIV infection exhibits no diminishing effects on the individual."⁴⁵ The court did, however, temper that assertion by observing that a case-by-case, individualized assessment of a party's particular impairment should be made.⁴⁶ The court held, unconditionally, that HIV does not substantially limit either procreation or intimate relations.⁴⁷

Thus, the circuits were split on when and whether asymptomatic HIV is an impairment covered under the ADA and, if so covered, whether reproduction qualifies as a substantial life activity that an impairment might substantially limit. Bragdon v. Abbott gave positive categorical answers to both questions.

III. Rationale of the Court

Justice Kennedy, writing for the majority, subdivided the disability analysis into three basic questions: (1) whether respondent's HIV infection was a physical impairment, (2) whether reproduction or child bearing, upon which respondent relied, constitutes a major life activity, and (3) whether such an impairment substantially limited that major life activity.⁴⁸ In construing these questions under the ADA, the Court was "informed" by interpretations of parallel definitions in the RHA and its regulations and agency interpretations.⁴⁹

The Court began by examining the ADA's definition of disability in light of its history under the RHA.⁵⁰ The majority asserted that Congress's repetition of the substantive definition of "handicap," contained in the RHA, equates with the ADA term "disability" and carries the implication that "Congress intended the term to be construed in accordance with pre-existing regulatory interpretations."⁵¹ This view is supported by case law⁵² and the provision in the ADA⁵³ that '"nothing . . . shall be...