Stretching the Limits of the Ada: Asymptomatic Hiv-positive Status as a Disability in Bragdon v. Abbott, 118 S. Ct. 2196 (1998)

• Publication year: 2021

77 Nebraska L. Rev. 206. Stretching the Limits of the ADA: Asymptomatic HIV-Positive Status as a Disability in Bragdon v. Abbott, 118 S. Ct. 2196 (1998)

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Note*

Stretching the Limits of the ADA: Asymptomatic HIV-Positive Status as a Disability in Bragdon v. Abbott, 118 S. Ct. 2196 (1998)

TABLE OF CONTENTS

I. Introduction .......................................... 206
II. Background ............................................ 210
III. Analysis .............................................. 215
A. Physical Impairment Present ........................ 215
B. Reproduction Is Not a Major Life Activity .......... 216
C. No Substantial Limitation on Reproduction .......... 221
IV. Conclusion ............................................. 225

I. INTRODUCTION

On July 26, 1990, President Bush signed the Americans with Disabilities Act (fn1) [hereinafter the ADA] heralding the Act as a historic opportunity:

[The ADA] signals the end to the unjustified segregation and exclusion

of persons with disabilities from the mainstream of American life. As

the Declaration of Independence has been a beacon for people all over

the world seeking freedom, it is my hope that the Americans with

Disabilities Act will likewise come to be a model for the choices and

opportunities of future generations around the world.(fn2)

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He maintained that fears about the alleged vagueness of the ADA, or that it would lead to a litigation explosion were "misplaced."(fn3) Eight years have passed since the ADA was enacted and the warning cries of statutory vagueness have become all too real as revealed in conflicting litigation concerning the ADA's application to HIV-positive individuals.(fn4)

The ADA's definition of disability can be blamed for some of these problems. The ADA defines 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 an impairment."(fn5) The definition mirrors the definition of "handicapped" used in the Rehabilitation Act of

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1973 and the Fair Housing Amendments Act of 1988. (fn6) Rather than definitively listing disabilities in the Act, an individualized inquiry is required.(fn7)

Because much of the case law centers on the first prong of the disability definition, "a physical or mental impairment that substantially limits one or more of the major life activities . . ."(fn8), this Note likewise focuses on the first section of the definition. In the cases involving asymptomatic (fn9) HIV-positive persons who are asserting an ADA claim, the issue typically is: If the plaintiff is asymptomatic, how can he or she have a major life activity substantially limited? According to the Center for Disease Control (CDC), the number of HIV-positive Americans is as high as 900,000; and an estimated half of those are unaware of their infection.(fn10) Given the large numbers infected, the application of the ADA to asymptomatic HIV-positive persons has far-reaching consequences.

Bragdon v. Abbott (fn11) provides an explanation to the seeming contradiction of how an asymptomatic person can have a major life activity substantially limited. In Bragdon, the plaintiff, Sidney Abbott, was an asymptomatic HIV-positive patient of a Maine dentist, Randon Bragdon. Pursuant to an infectious disease policy, Bragdon told Abbott that he would fill her cavity in the hospital, not his office. Although his fee would remain the same, she would be required to pay any additional hospital charges. She refused and filed a complaint under the ADA.(fn12) The U.S. District Court in Maine granted summary judgment for Abbott.(fn13) Bragdon appealed, but the First Circuit affirmed the grant of summary judgment. The First Circuit agreed that Abbott was indeed disabled because her impairment of HIV infection substantially limited the major life activity of reproduction. She was limited in this major life activity because she feared passing the infec-

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tion to the child, impairing her own immune system through pregnancy, (fn14) and finally, because she feared that she might not live long enough to finish raising the child.(fn15) The court rejected the dentist's direct threat defense, holding that "Dr. Bragdon has failed to present meaningfully probative evidence that treating Ms. Abbott would have posed a medically significant risk to his health or safety."(fn16)

Bragdon appealed to the United States Supreme Court, which vacated the First Circuit's decision and remanded on the direct threat issue.(fn17) In a 5-4 decision, the Supreme Court held that HIV infection, whether symptomatic or asymptomatic, is a disability under the ADA because it is a physical or mental impairment which substantially limits the major life activity of reproduction.(fn18) HIV infection impairs the hemic and lymphatic systems, thus meeting the physical or mental impairment requirement.(fn19) According to the Supreme Court, reproduction is a major life activity because of its significance.(fn20) The Court found that Abbott was substantially limited in her reproductive activities because of the risk of HIV transmission during sexual relations and during gestation and childbirth.(fn21)

This Note will point out the problems with the Bragdon decision and ultimately argue that an asymptomatic HIV-positive person is not disabled under the first definition of disability contained in the ADA; that is, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."(fn22) An asymptomatic HIV-positive individual is not disabled within that definition because, even though he or she suffers from a physical impairment, the impairment does not substantially limit any major life activity.(fn23) Although this Note rejects the argument that reproduction is a major life activity (fn24) even assuming arguendo that reproduction is a major

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life activity within the meaning of the ADA, the ability to reproduce is not substantially limited. Any limitation comes not from the physical impairment itself, but from the individual's reaction to the disease.(fn25)

II. BACKGROUND

When Plaintiff Sidney Abbott went to defendant Dr. Randon Bragdon's office for a dental visit on September 16, 1994, she had been HIV positive for eight years.(fn26) She indicated her status on the patient registration form and was asymptomatic at the time. When Dr. Bragdon discovered that Ms. Abbott had a cavity, he informed her that he would treat her in the hospital, rather than at his office, pursuant to his infectious disease policy. Although he would charge his regular fee, Abbott would be responsible for any additional hospital costs. She refused and filed suit under the ADA.(fn27)

The U.S. District Court granted summary judgment in favor of Abbott, finding that she was disabled as a matter of law.(fn28) Using the first prong of the disability definition, the District Court concluded that asymptomatic HIV infection does constitute a physical impairment, (fn29) citing the interpretive ADA guidelines (fn30) and case law.(fn31) The

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court found that reproduction was a major life activity under the ADA by focusing on the fundamental nature of reproduction and also by concluding that the interpretive guidelines that listed major life activities (but did not include reproduction) were merely an illustrative rather than exhaustive list.(fn32) Finally, the District Court found the required substantial limitation. The court noted, "[b]y requiring an individual's physical or mental impairment to substantially limit a major life activity, the statute does not contemplate a complete inability of that individual to engage in a particular major life activity."(fn33) Abbott was substantially limited in her ability to reproduce because childbirth poses health risks to an HIV-positive mother. An HIV-positive mother might infect her child through pregnancy, childbirth, or breastfeeding. The court also found that Abbott's ability to reproduce was limited because an HIV-positive mother might die before she could complete her child's upbringing.(fn34) Bragdon appealed the grant of summary judgment for Abbott.(fn35)

The First Circuit similarly agreed that Abbott was disabled under the ADA's first definition of disability.(fn36) With little discussion, the First Circuit held that she easily met the requisite physical or mental impairment required under the ADA.(fn37) Providing support for this finding were both Equal Employment Opportunity Commission Regulations, which state that the term "physical impairment" includes HIV,(fn38) and case law.(fn39) Although the First Circuit acknowledged,

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"[t]he question of whether reproduction in large constitutes a major life activity under the ADA is not free from doubt,"(fn40) it ultimately concluded that reproduction was a major life activity. Using the dictionary definitions of "major" as "greater than others in importance or rank," the court decided that the significance of reproduction, "which is both the source of all life and one of life's most important activities," easily satisfies the major life activity requirement.(fn41) Bragdon argued that reproduction was a lifestyle choice and that major life activities do not include lifestyle choices, or "activities that many people decide never to do."(fn42) The First Circuit rejected this argument and further did not agree that an activity must be done frequently,(fn43) or universally to constitute a major life activity.(fn44) Bragdon next argued that Abbott was not disabled "unless reproduction [was] a major life activity for her."(fn45) Although the court recognized the need for an individualized inquiry into whether a person was disabled, it rejected the notion that "a...