Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-24T18:37:19.954Z Has data issue: false hasContentIssue false
  • English
  • Français

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

Published online by Cambridge University Press:  01 January 2021

Wendy E. Parmet
Get access Rights & Permissions [Opens in a new window]

Extract

The most remarkable thing about the U.S. Supreme Court's 1998 decision in Bragdon v. Abbott was that it was necessary at all. Seventeen years into the epidemic of the acquired immunodeficiency syndrome (AIDS), the Supreme Court, by a mere 5-4 majority, finally affirmed what most public health officials, health providers, and lawyers working with people with human immunodeficiency virus (HIV) believed all along: that individuals with HIV infection are entitled to the protections of antidiscrimination law, and that health care providers must respond to a patient's infection based on reason and science, not fear and prejudice. For individuals with HIV, and for those with other disabilities, the Court's ruling was a critical victory. But the very fact that the issues had to be decided by the Supreme Court and that only five justices joined the majority, shows the fragility of legal rights pertaining to HIV as well as the wide gulf between the perspectives of public health and those of public law.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 26 , Issue 3 , Fall 1998 , pp. 225 - 240
Copyright
Copyright © American Society of Law, Medicine and Ethics 1998

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Bragdon v. Abbott, ___ U.S.___, 118 S. Ct. 2196 (1998).Google Scholar
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.Google Scholar
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.Google Scholar
White v. Western School Corp., No. IP 85-1192-C (S.D. Ind. Aug. 23, 1985), available in LEXIS Genfed Library, Dist. File.Google Scholar
See Gostin, L.O. Lazzarini, Z., Human Rights and the Public Health in the AIDS Pandemic (New York: Oxford University Press, 1997): At 52.Google Scholar
Institute of Medicine, Confronting AIDS: Directions for Public Health, Health Care and Research: Update (Washington, D.C.: National Academy Press, 1988): At 63.Google Scholar
Presidential Commission on the Human Immunodeficiency Virus Epidemic, Report to the President (Washington, D.C.: Presidential Commission, 1988): At 119.Google Scholar
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.CrossRefGoogle Scholar
See Gostin, Lazzarini, supra note 5, at 44–49.Google Scholar
See, for example, S. 1575, 100th Cong. (1987).Google Scholar
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.Google Scholar
Presidential Commission, supra note 7, at 121.Google Scholar
Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994).Google Scholar
29 U.S.C. § 706(7)(b).Google Scholar
See Leonard, A., “Employment Discrimination Against Persons with AIDS,” University of Dayton Law Review, 10 (1985): At 691–96.Google Scholar
School Board of Nassau County v. Arline, 480 U.S. 273 (1987).Google Scholar
Id. at 282.Google Scholar
See Parmet, Jackson, supra note 3, at 17 n.79 (citing cases).Google Scholar
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).Google Scholar
Id.Google Scholar
Americans with Disabilities Act, Pub. L. No. 101–336, 104 Stat. 327 (1990), codified at 42 U.S.C. § 12101 et seq.Google Scholar
See Shapiro, J.C., No Pity: People with Disabilities Forging a New Civil Rights Movement (New York: Times Book, 1993): At 119–25.Google Scholar
See National Council of the Handicapped, Toward Independence (Washington, D.C.: National Council of the Handicapped, 1986): At 12, 18.Google Scholar
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.Google Scholar
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).Google Scholar
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).Google Scholar
See H.R. Rep. No. 485, pt. 2, at 31 (1990).CrossRefGoogle Scholar
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.Google Scholar
See Parmet, Jackson, supra note 3, at 21–22.Google Scholar
Id. at 22.Google Scholar
See, for example, United States v. Morvant, 843 F. Supp. 1092 (E.D. La. 1994).Google Scholar
See Burris, S., “Law and the Social Risk of Health Care: Lessons from HIV Testing,” Albany Law Review, 61 (1998): 831–96.Google Scholar
See Arline, 480 U.S. at 287–88.Google Scholar
See 28 C.F.R. § 36.104 (1998); and 29 C.F.R. § 1630.2(1)(2) (1998).Google Scholar
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.Google Scholar
See Parmet, Jackson, supra note 3, at 28–29.Google Scholar
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).Google Scholar
See 42 U.S.C. § 12181 et seq. (1994).Google Scholar
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.Google Scholar
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).Google Scholar
912 F. Supp. at 586.Google Scholar
See id.Google Scholar
107 F.3d at 938.Google Scholar
Id. at 938–43.Google Scholar
See “Memorandum to Arthur B. Culvahouse,” supra note 19.Google Scholar
See 107 F.3d at 940.Google Scholar
See id. at 942.Google Scholar
See id.Google Scholar
See id.Google Scholar
See id.Google Scholar
See id. at 942–43.Google Scholar
See id. at 938 n.2.Google Scholar
See Parmet, Jackson, supra note 3, at 35 n.264.Google Scholar
See Burman, W.J. Reves, R.R. Cohn, D.L., “The Case for Conservative Management of Early HIV Disease,” JAMA, 280 (1998): 93–95.CrossRefGoogle Scholar
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.Google Scholar
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).Google Scholar
Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (4th Cir. 1997) (plurality opinion) (en banc).Google Scholar
Runnebaum v. NationsBank of Maryland, 95 F.3d 1285, 1287 (4th Cir. 1998), rev'd en banc 123 F.3d at 156.Google Scholar
95 F.3d at 1285.Google Scholar
123 F.3d at 168.Google Scholar
See id.Google Scholar
See id. at 171.Google Scholar
See id. at 173.Google Scholar
See Scalia, A., A Matter of Interpretation: Federal Courts and the Law: An Essay (Princeton: Princeton University Press, 1997): At 3–47.Google Scholar
123 F.3d at 169.Google Scholar
See Parmet, Jackson, supra note 3, at 16.Google Scholar
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.CrossRefGoogle Scholar
Arline, 480 U.S. at 288.Google Scholar
See id.Google Scholar
See id.Google Scholar
See id.Google Scholar
42 U.S.C. § 12182(b)(3) (1994).Google Scholar
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.Google Scholar
See Prewitt, B., “The ‘Direct Threat’ Approach to the HIV-Positive Health Care Employee Under the ADA,” Mississippi Law Journal, 62 (1993): At 722.Google Scholar
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.Google Scholar
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).Google Scholar
See Levin, B.W., “Treatment Choice for Infants in the Neonatal Intensive Care Unit at Risk for AIDS,” JAMA, 265 (1991): 2976–80.CrossRefGoogle Scholar
See Burris, S., “Dental Discrimination Against the HIV-Infected: Empirical Data, Law and Public Policy,” Yale Journal on Regulation, 13 (1996): 1–104.Google Scholar
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.Google Scholar
See Amicus Curiae Brief of the American Medical Association for Respondents at 12, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. 2196.Google Scholar
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.Google Scholar
Id. at 48.Google Scholar
See Reply Brief for Defendant at 6, 107 F.3d at 934.Google Scholar
See id. at 38.Google Scholar
See 107 F.3d at 947.Google Scholar
See 912 F. Supp at 591.Google Scholar
107 F.3d at 946–48.Google Scholar
See Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. 554 (Nov. 26, 1997).Google Scholar
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.Google Scholar
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.CrossRefGoogle Scholar
See Brief for Respondent at 7–11, Bragdon v. Abbott,___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See 42 U.S.C. § 12201 (1994).Google Scholar
See Brief of Infectious Disease Society of America, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See Amicus Curiae Brief of the American Medical Association for Respondents, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See Amicus Curiae Brief of the Elizabeth Glaser Pediatric AIDS Foundation for Respondents, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See Amicus Curiae Brief of the United States, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See Amicus Curiae Brief of the AIDS Action Council for Respondents, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See Amicus Curiae Brief of the American Dental Association for Petitioner, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See id. at 1–2.Google Scholar
See Bragdon v. Abbott, U.S. Supreme Court Official Transcript at 2, Mar. 30, 1998, 1998 WL 141165.Google Scholar
See Brief for Respondent at 12–13, Bragdon v. Abbott, ___ U.S. ___, 118 S. Ct. at 2196.Google Scholar
See 118 S. Ct. at 2204.Google Scholar
See id. at 2202, quoting 42 U.S.C. § 12201(a).Google Scholar
45 C.F.R. § 84.3(j)(2)(1) (1997).CrossRefGoogle Scholar
118 S. Ct. at 2203.Google Scholar
Id.Google Scholar
Id. at 2204Google Scholar
Id.Google Scholar
Id. at 2205.Google Scholar
Id. at 2204–05.Google Scholar
See Brief for Petitioner at 31, Bragdon v. Abbott, No. 97–156, ___ U.S. ___, 118 S. Ct. 2196.Google Scholar
118 S. Ct. at 2214–15 (Rehnquist, C.J., concurring in part and dissenting in part).Google Scholar
See id. at 2205.Google Scholar
Id.Google Scholar
See id. at 2206.Google Scholar
See id.Google Scholar
Id.Google Scholar
See 42 U.S.C. § 12201(a) (1994).Google Scholar
118 S. Ct. at 2206.Google Scholar
See id.Google Scholar
See id. at 2206–07.Google Scholar
See id. at 2207, citing “Memorandum to Arthur B. Culvahouse,” supra note 19.Google Scholar
Id.Google Scholar
Id. at 2208.Google Scholar
See id.Google Scholar
Id.Google Scholar
See id. at 2209.Google Scholar
See id. at 2208.Google Scholar
See id. at 2214 (Rehnquist, C.J., concurring in part and dissenting in part).Google Scholar
Id. at 2210.Google Scholar
Id.Google Scholar
See id. at 2211.Google Scholar
See id.Google Scholar
See id.Google Scholar
See id.Google Scholar
See id. at 2211–12.Google Scholar
See id. at 2213.Google Scholar
Id. at 2212.Google Scholar
See id. (Stevens, J., concurring).Google Scholar
See id. 2217 (Rehnquist, C.J., concurring in part and dissenting in part).Google Scholar
See id.Google Scholar
See id.Google Scholar
See id. at 2202–09.Google Scholar
See id. at 2206.Google Scholar
Id. at 2205.Google Scholar
Id. at 2213 (Ginsberg J., concurring).Google Scholar
See id. at 2214.Google Scholar
See 28 C.F.R. § 36.104 (1998).CrossRefGoogle Scholar
See EEOC Compliance Manual (CCH), § 902.5 (Mar. 14, 1995) (citing definition of disability).Google Scholar
See, for example, Gaddy v. Four B. Corp., 953 F. Supp. 331, 337 (D. Kan. 1997).Google Scholar
See 118 S. Ct. at 2206.Google Scholar
See id. at 2212.Google Scholar
See supra notes 66–69 and accompanying text.Google Scholar
See 118 S. Ct. at 2214, 2217 (Rehnquist, C.J., dissenting).Google Scholar
Id. at 2212.Google Scholar
See Arline, 480 U.S. at 287.Google Scholar
See 118 S. Ct. at 2210.Google Scholar
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).Google Scholar
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.Google Scholar
See EEOC Compliance Manual, supra note 149, § 902.Google Scholar
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.Google Scholar
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.CrossRefGoogle Scholar
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.Google Scholar
See Lazarus, E., Closed Chambers (New York: Random House, 1998): At 468–69.Google Scholar
See Parmet, supra note 8.Google Scholar