The Supreme Court Confronts HIV: Reflections on Bragdon v. Abbott

Bragdon v. Abbott , ___ U.S.___, 118 S. Ct. 2196 (1998).

See, for example, American Medical Association, Code of Medical Ethics (Chicago: American Medical Association, 1996–97 ed.): § 9.131; and American Dental Association, ADA Principles of Ethics and Code of Professional Conduct (Chicago: American Dental Association, 1995): At 2.

I have explored this issue further in Parmet W.E. Jackson D.J. , “No Longer Disabled: The Legal Impact of the New Social Construction of HIV,” American Journal of Law & Medicine, XXIII (1997): At 11–20.

White v. Western School Corp. , No. IP 85-1192-C (S.D. Ind. Aug. 23, 1985), available in LEXIS Genfed Library, Dist. File.

See Gostin L.O. Lazzarini Z. , Human Rights and the Public Health in the AIDS Pandemic (New York: Oxford University Press, 1997): At 52.

Institute of Medicine, Confronting AIDS: Directions for Public Health, Health Care and Research: Update (Washington, D.C.: National Academy Press, 1988): At 63.

Presidential Commission on the Human Immunodeficiency Virus Epidemic, Report to the President (Washington, D.C.: Presidential Commission, 1988): At 119.

See Parmet W.E. , “Legal Rights and Communicable Disease: AIDS, the Police Power, and Individual Liberty,” Journal of Health Politics, Policy and Law, 14 (1989): 741–71.

See Gostin Lazzarini , supra note 5, at 44–49.

See, for example, S. 1575, 100th Cong. (1987).

Martha Minow terms this problem the “difference dilemma.” In order to prohibit discrimination, the class being discriminated against must be recognized. Yet by noting the classes' distinctiveness, the laws that protect can end up reifying the very distinction the law tried to deny. See Minow M. , Making All the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press, 1990): At 145.

Presidential Commission, supra note 7, at 121.

Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994).

29 U.S.C. § 706(7)(b).

See Leonard A. , “Employment Discrimination Against Persons with AIDS,” University of Dayton Law Review, 10 (1985): At 691–96.

School Board of Nassau County v. Arline , 480 U.S. 273 (1987).

Id. at 282.

See Parmet Jackson , supra note 3, at 17 n.79 (citing cases).

See “Memorandum to Arthur B. Culvahouse Jr., Justice Department Memorandum on Application of Rehabilitation Act's Section 504 to HIV Infected Persons,” Daily Labor Report (BNA), No. 195, at D-1 (Oct. 7, 1988).

Americans with Disabilities Act, Pub. L. No. 101–336, 104 Stat. 327 (1990), codified at 42 U.S.C. § 12101 et seq.

See Shapiro J.C. , No Pity: People with Disabilities Forging a New Civil Rights Movement (New York: Times Book, 1993): At 119–25.

See National Council of the Handicapped, Toward Independence (Washington, D.C.: National Council of the Handicapped, 1986): At 12, 18.

See Drimmer J.C. , “Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and Social Policy for People with Disabilities,” UCLA Law Review, 40 (1993): At 1354.

See Americans with Disabilities Act of 1988: Joint Hearings on S. 2345 Before the Subcomm. on the Handicapped of Senate Comm. on Labor and Human Resources and the Subcomm. on Select Education of the House Comm. on Education and Labor, 100th Cong. (1988).

See Testimony of C. Everett Koop, Americans with Disabilities Act of 1989: Hearings Before the Senate Comm. on Labor and Human Resources, 101st Cong. 367 (1989).

See H.R. Rep. No. 485, pt. 2, at 31 (1990).

See Carlis M.D. McCabe S.A. , “Are There No Per Se Disabilities Under the Americans with Disabilities Act? The Fate of Asymptomatic HIV Disease,” Maryland Law Review, 57 (1998): 569–80.

See Parmet Jackson , supra note 3, at 21–22.

Id. at 22.

See, for example, United States v. Morvant , 843 F. Supp. 1092 (E.D. La. 1994).

See Burris S. , “Law and the Social Risk of Health Care: Lessons from HIV Testing,” Albany Law Review, 61 (1998): 831–96.

See Arline, 480 U.S. at 287–88.

See 28 C.F.R. § 36.104 (1998); and 29 C.F.R. § 1630.2(1)(2) (1998).

See, for example, Ellison v. Software Spectrum, Inc. , 85 F.3d 187 (5th Cir. 1996). For a discussion of these cases, see Burgdorf R.L. Jr. , “Substantially Limited Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability,” Villanova Law Review, 42 (1997): At 455–59.

See Parmet Jackson , supra note 3, at 28–29.

For example, the Social Security Act defines disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1) (1994).

See 42 U.S.C. § 12181 et seq. (1994).

See, for example, Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1321–22 (E.D. Pa. 1994); and “Memorandum to Arthur B. Culvahouse,” supra note 19.

See Abbott v. Bragdon, 912 F. Supp. 580, 585 (D. Me. 1995) aff'd, 107 F.3d 934 (1st Cir. 1997) aff'd in part and vacated sub nom. Bragdon v. Abbott, 118 S. Ct. 2196 (1998).

912 F. Supp. at 586.

See id.

107 F.3d at 938.

Id. at 938–43.

See “Memorandum to Arthur B. Culvahouse,” supra note 19.

See 107 F.3d at 940.

See id. at 942.

See id.

See id.

See id.

See id. at 942–43.

See id. at 938 n.2.

See Parmet Jackson supra note 3, at 35 n.264.

See Burman W.J. Reves R.R. Cohn D.L. , “The Case for Conservative Management of Early HIV Disease,” JAMA, 280 (1998): 93–95.

Moreover, if a highly demanding individualized analysis is required, it is unclear whether individuals with acquired immunodeficiency syndrome (AIDS) itself would be found to have a disability. AIDS, after all, is merely an epidemiological label used to monitor the virus. Many individuals whose infection meets the definition of AIDS still can work, care for themselves, and lead independent lives. The type of analysis applied in cases such as Runnebaum would question whether all such individuals can actually show a substantial limitation of a major life activity.

See Cortes v. McDonald's Corp. , 955 F. Supp. 541 (E.D.N.C. 1996); and Garcia v. Vinson and Elkins, No. H-94-1670 (S.D. Tex. Sept. 28, 1995).

Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (4th Cir. 1997) (plurality opinion) (en banc).

Runnebaum v. NationsBank of Maryland , 95 F.3d 1285, 1287 (4th Cir. 1998), rev'd en banc 123 F.3d at 156.

95 F.3d at 1285.

123 F.3d at 168.

See id.

See id. at 171.

See id. at 173.

See Scalia A. , A Matter of Interpretation: Federal Courts and the Law: An Essay (Princeton: Princeton University Press, 1997): At 3–47.

123 F.3d at 169.

See Parmet Jackson , supra note 3, at 16.

See, for example, District 27 Community School Board v. Board of Education , 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986). See also Parmet W.E. , “AIDS and the Limits of Discrimination Law,” Law, Medicine & Health Care, 15 (1987): At 67–69.

Arline, 480 U.S. at 288.

See id.

See id.

See id.

42 U.S.C. § 12182(b)(3) (1994).

See Sullivan B. , “When the Environment is Other People: An Essay on Science, Culture and the Authoritative Allocation of Values,” Notre Dame Law Review, 69 (1994): At 617–18.

See Prewitt B. , “The ‘Direct Threat’ Approach to the HIV-Positive Health Care Employee Under the ADA,” Mississippi Law Journal, 62 (1993): At 722.

See “Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures,” Morbidity and Mortality Weekly Report, 40, RR-8 (July 12, 1991): At S6.

See, for example, Doe v. University of Maryland Medical System, Corp. , 50 F.3d 1261 (4th Cir. 1995); and Bradley v. University of Texas M.D. Anderson Cancer Ctr. , 3 F.3d 922 (5th Cir. 1993) (per curiam).

See Levin B.W. , “Treatment Choice for Infants in the Neonatal Intensive Care Unit at Risk for AIDS,” JAMA, 265 (1991): 2976–80.

See Burris S. , “Dental Discrimination Against the HIV-Infected: Empirical Data, Law and Public Policy,” Yale Journal on Regulation, 13 (1996): 1–104.

See Bolyard E.A. Bell D.M. , “Universal Precautions in the Health Care Setting,” in DeVita V. Jr. , eds., AIDS: Etiology, Diagnosis, Treatment and Prevention (Philadelphia: Lippincott-Raven, 4th ed., 1997): At 656.

See Amicus Curiae Brief of the American Medical Association for Respondents at 12, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. 2196.

Joint Appendix at 45, Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997), aff'd and vacated sub nom. Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. 2196.

Id. at 48.

See Reply Brief for Defendant at 6, 107 F.3d at 934.

See id. at 38.

See 107 F.3d at 947.

See 912 F. Supp at 591.

107 F.3d at 946–48.

See Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. 554 (Nov. 26, 1997).

See Closen M.L. , “The Decade of Supreme Court Avoidance of AIDS: Denial of Certiorari in HIV-AIDS Case and Its Adverse Effects on Human Rights,” Albany Law Review, 61 (1998): 897–988.

See Pierce R.J. , “The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State,” Columbia Law Review, 95 (1995): At 749.

See Brief for Respondent at 7–11, Bragdon v. Abbott,___ U.S. ___, 118 S. Ct. at 2196.

See 42 U.S.C. § 12201 (1994).

See Brief of Infectious Disease Society of America, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.

See Amicus Curiae Brief of the American Medical Association for Respondents, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.

See Amicus Curiae Brief of the Elizabeth Glaser Pediatric AIDS Foundation for Respondents, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.

See Amicus Curiae Brief of the United States, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.

See Amicus Curiae Brief of the AIDS Action Council for Respondents, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.

See Amicus Curiae Brief of the American Dental Association for Petitioner, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.

See id. at 1–2.

See Bragdon v. Abbott, U.S. Supreme Court Official Transcript at 2, Mar. 30, 1998, 1998 WL 141165.

See Brief for Respondent at 12–13, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.

See 118 S. Ct. at 2204.

See id. at 2202, quoting 42 U.S.C. § 12201(a).

45 C.F.R. § 84.3(j)(2)(1) (1997).

118 S. Ct. at 2203.

Id. at 2204

Id. at 2205.

Id. at 2204–05.

See Brief for Petitioner at 31, Bragdon v. Abbott, No. 97–156, ___ U.S. ___, 118 S. Ct. 2196.

118 S. Ct. at 2214–15 (Rehnquist, C.J., concurring in part and dissenting in part).

See id. at 2205.

See id. at 2206.

See id.

See 42 U.S.C. § 12201(a) (1994).

118 S. Ct. at 2206.

See id.

See id. at 2206–07.

See id. at 2207, citing “Memorandum to Arthur B. Culvahouse,” supra note 19.

Id. at 2208.

See id.

See id. at 2209.

See id. at 2208.

See id. at 2214 ( Rehnquist C.J. , concurring in part and dissenting in part).

Id. at 2210.

See id. at 2211.

See id.

See id.

See id.

See id. at 2211–12.

See id. at 2213.

Id. at 2212.

See id. ( Stevens J. , concurring).

See id. 2217 ( Rehnquist C.J. , concurring in part and dissenting in part).

See id.

See id.

See id. at 2202–09.

See id. at 2206.

Id. at 2205.

Id. at 2213 (Ginsberg J., concurring).

See id. at 2214.

See 28 C.F.R. § 36.104 (1998).

See EEOC Compliance Manual (CCH), § 902.5 (Mar. 14, 1995) (citing definition of disability).

See, for example, Gaddy v. Four B. Corp. , 953 F. Supp. 331, 337 (D. Kan. 1997).

See 118 S. Ct. at 2206.

See id. at 2212.

See supra notes 66–69 and accompanying text.

See 118 S. Ct. at 2214, 2217 ( Rehnquist C.J. , dissenting).

Id. at 2212.

See Arline, 480 U.S. at 287.

See 118 S. Ct. at 2210.

But see Elliston v. Software Spectrum, Inc. , 85 F.3d 187 (5th Cir. 1966) (noting that a woman with breast cancer who continued working does not have a disability).

See, for example, Miller P.S. , “Genetic Discrimination in the Workplace,” Journal of Law, Medicine & Ethics, 26 (1998): 189–97; and Rothstein M.A. , “Genetic Privacy and Confidentiality: Why They Are So Hard to Protect,” Journal of Law, Medicine & Ethics, 26 (1998): 198–204.

See EEOC Compliance Manual, supra note 149, § 902.

See Gostin L.O. Weber D.W. , “The AIDS Litigation Project: HIV/AIDS in the Courts in the 1990s, Part I,” AIDS and Public Policy Journal, 12 (1997): 105–21.

See Parmet W.E. , “From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public,” American Journal of Legal History, 40 (1996): At 476.

Of course, public health officials may feel different about measures that they may take to thwart the epidemic. Thus although many health officials oppose discrimination as practiced by Bragdon, they may endorse named reporting or partner notification, viewing them not as discriminatory but as sensible public health strategies. See Gostin L.O. Hodge J.G. , “The ‘Names’ Debate: The Case for National HIV Reporting,” Albany Law Review, 61 (1998): 679–742. To others, however, such strategies may be viewed as stigmatizing and, in their own way, discriminatory.

See Lazarus E. , Closed Chambers (New York: Random House, 1998): At 468–69.

See Parmet , supra note 8.