Science and Law: Bragdon v. Abbott: How does HIV fit into disability law?

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BRAGDON v. ABBOTT
524 U.S. 624 (1998)

In the previous post, we discussed how the Rehabilitation Act prevented a woman with tuberculosis from being fired without proper risk evaluation thanks to the act’s protections of handicapped persons. This decision helped set a precedent for a later case in 1998, 8 years after the passage of the Americans with Disabilities Act, where the Supreme Court would now be forced to interpret the ADA and determine how it applies to a person infected with HIV.

Case Background

On September 16, 1994, Sidney Abbott went to the office of Randon Bragdon in Bangor, Maine for a dental appointment. She had been infected with HIV since 1986, and indicated her infection on the patient registration form. Upon examining Abbott, Bragdon discovered a cavity, which would require further dental work. At this time, Abbott’s HIV infection had not caused severe symptoms, but nonetheless Bragdon informed Abbott of his policy not fill cavities for HIV-positive patients. However, Bragdon expressed willingness to complete the procedure if it were done in a hospital setting. He would charge no additional fees himself, but Abbott would be required to cover the fees for using hospital facilities. It was this dispute that compelled Abbott to take Bragdon to court.

The relevant law and how it was interpreted and applied

While the Rehabilitation Act of 1973 only covered the federal government, federal contractors, and recipients of federal funds, the Americans with Disabilities Act of 1990 expanded these protections, outlawing discrimination against handicapped persons by private employers, public entities, and public accommodations. The term “public accommodation” was defined to include “professional office of a health care provider,” and thus, Abbott argued, meant that Bragdon’s refusal to provide care qualified as unlawful discrimination. However, Abbott first needed to prove to the court that HIV should qualify as a disability under the ADA. Similar to the Rehabilitation Act, 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 impairment; or

(C) being regarded as having such impairment.

Based on subsection (A) alone, the court found that an HIV infection did indeed meet the definition of disability, similar to how Arline’s tuberculosis met the Rehabilitation Act’s definition of handicapped person. This also required clarification of the term “major life activity.” Abbott argued that HIV substantially limits her ability to reproduce, due to the risk of passing the infection to her spouse or child, a line of reasoning which the court accepted.

However, another subsection of the act includes an exception to this rule, centering around the central idea of a “direct threat”:

Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.

This clause essentially prevents employers, workers, doctors, and others from being forced to expose themselves to potential public health risks, such as a person with a contagious illness or mental condition that could cause violent tendencies. However, this subsequently requires expert evaluation to determine what constitutes a “direct threat.” To understand this, we also need some background on HIV.

HIV, the human immunodeficiency virus, as its name suggests, weakens the human immune system. The virus essentially hijacks the sufferer’s immune system to replicate itself, and over time the number of T-lymphocytes (a kind of white blood cell, also known as CD4+ cells) decreases, leading to increased vulnerability to a variety of diseases.

The disease can be transmitted through certain types of interactions with an infected person, including:

  • Sexual intercourse – contact with semen, vaginal fluids, and blood during intercourse can all result in infection.
  • IV drug use – residual blood on used needles is a common cause of infection.
  • Pregnancy – shared blood circulation can infect a fetus, as well as an HIV-positive mother’s breast milk.

However, some common misconceptions have arisen, and there are several types of interactions which do not transmit the virus, including:

  • Mosquitoes – HIV does not survive long outside the human body, and so it cannot be spread this way.
  • Casual contact – hugging, shaking hands, and other interactions that do not result in exchange of bodily fluids cannot transmit the virus.
  • Contact with saliva – unlike several other bodily fluids, saliva does not transmit the virus, although if an HIV-positive person has open wounds in their mouth, blood mixed with the saliva could result in infection.
  • Touching items previously touched by an HIV-positive person – again, because the virus cannot survive long outside the body, it is virtually impossible to become infected this way.
  • Receiving or giving blood/organs – While blood transfusions did cause numerous cases of HIV infection, particularly in hemophiliacs, current medical standards and practices prevent transmission through proper sterilization and screening.

The development of the illness can be broken into three main periods:

  • Acute/Primary HIV infection – this initial stage typically lasts about 3 months, and is characterized by symptoms similar to mononucleosis, including fever, headache, swollen lymph nodes, muscle pain, and other symptoms.
  • Asymptomatic Phase – This period, which in reality is not entirely asymptomatic, is when the virus migrates from the circulatory system into the lymph nodes, accounting for the relative diminish of noticeable symptoms. However, the virus thrives in the lymph nodes, and continues to decimate the person’s T-lymphocytes. This phase usually lasts 7 to 11 years, although it can continue on much longer for some.
  • Acquired Immunodeficiency Syndrome – After a person’s CD4+ cell count drops below 200 cells/mm3 of blood or 14% of total lymphocytes, an HIV-positive person is considered to have AIDS, which generally lasts until the end of the person’s life.

Clearly, we have established the need for an evaluation of risk to determine whether or not Abbott is a “direct threat” to Bragdon. For the purposes of this case, the district court relied on affidavits submitted by Dr. Donald Wayne Marianos, Director of the Division of Oral Health of the Centers for Disease Control and Prevention, which asserted that a dentist could safely treat an HIV patient as long as the dentist followed a set of guidelines contained in the CDC’s Recommended Infection-Control Practices for Dentistry. The Court of Appeals, while not relying on Marianos’ affidavits, nonetheless affirmed this decision, citing the 1993 CDC Dentistry Guidelines and the Policy on AIDS, HIV Infection and the Practice of Dentistry. However, the Supreme Court felt it was necessary to clarify these guidelines, which we will see later in their writings.

In their decision, the court quoted the language from the ADA regarding a “direct threat,” which is defined 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.” This sets a relatively high bar for Bragdon, as he would need to prove that it would not be possible for him to accommodate Abbott.

Not surprisingly, the court referenced the previous case we discussed, School Board of Nassau County v. Arline, and further elaborated on how a court should evaluate an alleged “direct threat”:

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. The views of these organizations are not conclusive, however. A health care professional who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis for deviating from the accepted norm.

The Supreme Court in this case raised the standard for expert testimony from both sides, pointing out that performing the procedure in a hospital per Bragdon’s offer could not be shown to reduce the chance of transmission. Furthermore, the court questioned the exhaustiveness of the measures offered in the CDC guidelines and its lack of risk assessment, as well as the authoritativeness of the American Dental Association Policy on HIV, since it is not a public health authority. The court also cited the lack of conclusive studies and testimony in the materials provided to them, leading to the decision that the case should be remanded to the Court of Appeals to give them an opportunity to reevaluate the studies cited by both parties.

Follow-up and analysis

On remand, the First Circuit actually ruled in Abbott’s favor, determining that based on all available evidence, using the recommended precautions would nullify any significant risk of HIV transmission, meaning that the “direct threat” claim would not excuse Bragdon from his duty to treat Abbott despite her HIV infection.

In the author’s opinion, the Supreme Court made a correct judgment by stepping in to assess whether or not the lower courts had done their job in evaluating all of the studies the two parties had cited before deciding whether a healthcare professional might be exposed to an infectious disease, while on the other hand a handicapped person may be denied a medical service and be subjected to further stigma. This was part of the role the courts played in helping people with certain conditions and disabilities overcome unfair prejudices and stigmas, and like Arline, helped set important precedents for future disability cases.

Sources:

https://medlineplus.gov/ency/article/000594.htm

https://www.law.cornell.edu/supct/html/97-156.ZO.html

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About jslachman381

I'm a Yale graduate who majored in History of Science, Medicine, and Public Health.

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One Comment on “Science and Law: Bragdon v. Abbott: How does HIV fit into disability law?”

  1. ชุดตรวจเอชไอวี Says:

    I think that they should have the place to disclose it but i don’t think it should have the option to filter, because people lie all time on profiles anyway… I always like the option of “Ask Me” cause it shows if the people that are contacting you are actually worried…

    Like

    Reply

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