Court to rule on HIV legal status

WASHINGTON - Debating its first case involving the landmark federal civil rights law for the disabled, the Supreme Court appeared closely divided yesterday about whether the measure should protect all of the nearly 1 million Americans who have the AIDS virus or only those for whom the disease impairs walking, seeing, hearing or working.

A ruling, due by late June, also may determine whether the law will cover the millions of others who have diseases or conditions - such as cancer, heart disease, diabetes and epilepsy - that restrict their lives but do not always incapacitate them.

The case before the court concerns a Maine woman who had HIV but no symptoms of AIDS. But she contended she was disabled because she could not have children, for fear that the baby would be born with the virus.

Justice Stephen Breyer, taking a broad interpretation of what is a disability, seemed to agree with the woman's argument. "Isn't reproduction and sexual activity usually seen as an ordinary part of human life?" he asked.

But the court's leading conservatives, Chief Justice William Rehnquist and Justice Antonin Scalia, said they were skeptical of this open-ended approach.

"I don't understand that leap," Scalia snapped in response to a lawyer who argued that a fear of having sex or children is a disability, even without other symptoms.

Would someone be said to be disabled or impaired, Scalia asked, because they had a gene that was a precursor to a manic-depressive disorder and for that reason feared having children?

No, the lawyer conceded.

The case heard yesterday, Bragdon vs. Abbott, is a classic example of the small dispute that turned into a major test of the law.

Sidney Abbott went to Dr. Randon Bragdon's dental office in Bangor, Maine, on Sept. 16, 1994, for a checkup. On the patient registration form, she disclosed she had the AIDS virus.

The dentist examined her and said she had a cavity. While he would repair her tooth, Bragdon said he would do so only in a hospital. It would be safer for him, he said, although more costly to the patient.

She left and later filed a lawsuit under the Americans With Disabilities Act, charging he had discriminated against her because of her disease.

Abbott won before a federal judge in Maine and before the U.S. Court of Appeals in Boston. But the Supreme Court justices agreed to hear the dentist's appeal.

Abbott "is the classic example of a person who had no symptoms, no difficulties whatsoever" because of her HIV infection, John McCarthy, the dentist's lawyer, told the court.

In his brief, he cited the examples of former Los Angeles Lakers star Ervin "Magic" Johnson and Olympic diving champion Greg Louganis. Though infected with the AIDS virus, both turned in superior athletic performances, he noted. Surely they would not be seen as "disabled" persons, he argued.

McCarthy said the law should cover persons who have problems with "day-to-day independent living and economic self-sufficiency."

03-31-98