Amicus Curiae Brief — Bragdon v. Abbott
Supreme Court brief1998
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No. 97-156
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In the Supreme Court of the United States
OCTOBER TERM, 1997
RANDON BRAGDON, PETITIONER
U.
SIDNEY ABBOTT, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
LAWRENCE G. WALLACE
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
4 V"
QUESTIONS PRESENTED
1. Whether reproduction is a “major life activitſy]“
under the Americans with Disabilities Act (ADA), 42
U.S.C. 12101 et seq.
2. Whether asymptomatic individuals infected with
HIV are per se disabled within the meaning of the ADA.
3. Whether courts must defer to a dentist’s profes-
sional judgment in determining whether performing a
routine dental procedure on a patient infected with HIV
poses a direct threat to the health or safety of that dentist
or others, under 42 U.S.C. 12182(b)(3).
TABLE OF CONTENTS
11
. a
Argument:
I. Asymptomatic HIV infection is a “disability”
under the Americans with Disabilities Act ......
A. Reproduction is a “major life activity”
e
B. HIV infection substantially limits“
respondent's major life activity of
SEE b
Il. An asymptomatic HIV-infected patient does
not pose a “direct threat” to dental health
care workers following universal precautions
when performing routine dental care
. SS
TABLE OF AUTHORITIES
Cases:
American Dental Ass'n v. Martin, 984 F 2d 823
(7th Cir), cert. denied, 510 U.S. 859 (1993) ..........
Anderson v. Gus Mayer Boston Store, 924
F. Supp. 763 (E.D. Tex. 100)
Austin v. Pennsylvania Dep't of Corrections, 876
F. Supp. 1437 (E. D. Pa. 1998) . .
Baxter v. City of Belleville, 720 F. Supp. 720
.
Berk v. Bates Advertising USA, Inc., No. 94 Civ.
9140 (CSH), 1997 WL 749386 S. D. N. V. Dee. 3,
111 ——————————ů ů—ů—
(III)
10
11
16
F St
15
IV
Cases—Continued:
Bielicki v. City of Chicago, No. 97 C 1471, 1997
WL 260595 (N.D. Ill. May 8, 1997) .....
Bradley v. University of Texas M D. Anderson
Cancer Ctr., 3 F.3d 922 (5th (iw 1993), cert.
denied, 510 U.S. 1119 (1990 . . .
Cain v. Hyatt, 734 F. Supp. 671 (E. D. Pa.
ä ͤ¶ —— —
Chalk v. United States Dist. Ct., 840 F. 2d 701
n . 0. —
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) ............
Cortes v. Me Donald's Corp., 955 F. Supp. 541
Ii ie lie ed
Doe v. District of Columbia, 796 F. Supp. 559
. .
Doe v. Garrett, 903 F. 2d 1455 (11th Cir. 1990),
cert. denied, 499 U.S. 904 (1991) .
Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp.
i
Doe v. University f Maryland Med. Sys Corp.,
50 F.3d 1261 (4th Cir. 1995) . . . .
Eisenstadt v. Baird, 405 U.S. 438 (1972) ..............
Ennis v. National Ass'n of Bus. & Educ. Radio,
Inc., 53 F.3d 55 (4th Cir. 1995)
Erickson v. Board of Governors, 911 F. Supp.
SOS GC. TE, TD .
Gates v. Rowland, 39 F.3d 1439 (9th Cir.
— ͥ —
962 —— — 0 60
Hernandez v. Prudential Ins. Co., 977 F. Supp.
L ncnsscnnenccttnbetpnisiinunistecsenspescsces
Hoepfl v. Barlow, 906 F. Supp. 317 (E. D. Va.
112ü——.—
Krauel v. lowa Methodist Medical Ctr., 915 F.
Supp. 102 (S. D. Iowa 1995), aff d, 95 F.3d 674
ü 2
V
Cases Continued: Page
Leckelt v. Board of Comm vs of Hosp. Dist. No. 1,
714 F. Supp. 1377 (E.D. La. 1989), aff d, 909
Renee 19, 29
Me Wright v. Alexander, 982 F.2d 222 (7th Cir.
— ͤ ͤꝶͤ V lai a 15
Pacourek v. Inland Steel Co., 916 F. Supp. 797
„... 13. 15
Planned Parenthood v. Casey, 505 U.S. 833
—ʃ 0 3 V 8. 12
Ray v. School Dist. of Desoto County, 666
F. Supp. 1524 (M.D. Fla. 1987) . . . . . . 19
Rivera v. Heyman, No. 96 Civ. 4489 (PKL), 1997
WL 620837 (S. D. N. V. Oct. 7, 1997) . . 15
Runnebaum v. Nationsbank of Maryland, 123
een 15, 23
School Bd. of Nassau County v. Arline, 480
ST 14, 15, 18, 24, 25, 29
Skinner v. Oklahoma, 316 U.S. 535 (1942) 12
Soodman v. Wildman, Harrold, Allen & Dixon,
No. 95 C 3834, 1997 WL 106257 (N. D. III. Feb. 10,
— b ͤ—— aitinaet in 15
Stanley v. Illinois, 405 U.S. 645 (1972) 12
State v. Clausen, 491 N.W.2d 662 (Minn. Ct.
SE TD cdenceranatscaestnategtenecintnthitbitedtsiartsnesibininie 17
Sutton v. United Air Lines, Inc., 130 F.3d 893
„rr 18
Thomas v. Atascadero Unified Sch. Dist., 662
FP. Sapp. S76 (C.D. Cal. ehh. ee 15, 19
United States v. Board of Comm'rs, 435 U.S. 110
— —kͤ tal ie, 22
United States v. Castle, No. H-93-3140 (S.D.
3 PR eee 1
United States v. Morvant, 898 F. Supp. 1157
r 1
Zatarain v. WDSU-Television, Inc., 881 F. Supp.
240 (E. D. La. 1995), aff’d, 79 F.3d 1143 (5th Cir.
— EFTTA a Ue oe Oe 15
VI
Statutes and regulations: Page
Americans with Disabilities Act, 42 U.S.C. 12101
C6 BBG. carccrerecisnasressetentnsdaintcortnsecsocousenccnesecceceuveseuters 1,2
RR Oe een 18
CLI 2 5, la
II 33öÜ— 1 10
CIE cmbichattiestnvintbidietinnsdiscibiie 11. 23
Americans with Disabilities Act, Tit. III, 42 U.S.C.
00000 —— 4
r e e 4
II ED cthicchedlciiiesennntttsiittinmdttitiietizes 10
I ³ 6, 24, 29
fl ee 2, 10, la
I ceteenhienesviiictinenintadiindecetaintiedons 1
Rehabilitation Act Amendments of 1974, Pub. L.
No. 93-516, § 111, 88 Stat. 1619, 29 U.S.C. 706 ...... 19
28 C. F. R.:
Pt. 36:
. 2, 5, 12, 13, 1a
. ccscciciticintincciininineiantananatigiihinn 10
.. ee 11
. 2, Za
DK . 3a
. ⸗!... 3a
1 KKK 7, 25, 28, 4a
5 2. 4a
F ·[((T re 16, 17, 18, 21, 23
J h 24. 25
29 C. F. R.:
Section 1630 App
JJ 18
II.... 3
Gore. es 13
Miscellaneous:
Myron S. Cohen, HIV and Sexually Transmitted
Diseases, 98 Postgraduate Medicine 52 (1995) ....... 17
Vil
Miscellaneous—Continued: Page
H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990):
— ̃ —̃ p ꝛ ͤ ͤ ñ U 21, 23, 24, 25
—A ͤ—— Ä 21, 24, 25
Memorandum from Douglas W. Kmiec, Acting
Assistant Attorney General, Office of Legal
Counsel, to Arthur B. Culvahouse, Jr., Counsel
to the President (Sept. 27, 1988), reprinted
in Americans with Disabilities Act of 1989:
Hearings on S. 933 Before the Senate Comm.
on Labor and Human Resources, 101st Cong.,
(% —0̃ oi 19-20
In the Supreme Court of the United States
OcTOBER TERM, 1997
No. 97-156
RANDON BRAGDON, PETITIONER
Uz
SIDNEY ABBOTT, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
INTEREST OF THE UNITED STATES
This case raises important questions regarding the ap-
plication of the Americans with Disabilities Act, 42 U.S.C.
12101 et seg. (ADA), to individuals infected with the Hu-
man Immunodeficiency Virus (HIV). The Attorney Gen-
eral has statutory authority to enforce the ADA’s public
accommodations provisions, see 42 U.S.C. 12188(b), pursu-
ant to which the United States has brought two lawsuits
seeking to apply the ADA in circumstances virtually iden-
tical to those present here. The Department of Justice
has also issued extensive regulations and interpretive
guidance concerning two of the key provisions at issue in
this case: the definition of the term “disability” and the
proper application of the “direct threat” exception under
See United States v. Castle, No. H-93-3140 (S.D. Tex.) (consent
decree dated Sept. 22, 1994); United States v. Morvant, 898 F. Supp.
1157 (E.D. La. 1995) (summary judgment for the United States).
(1)
2
the ADA. See 42 U.S.C. 12186(b); 28 C.F.R. 36.104, 36.208;
28 C.F.R. Pt. 36 App. B.
The United States has additional interests in this case.
The Centers for Disease Control and Prevention (CDC)
have issued recommended infection control practices for
dentistry, which have been largely incorporated in an Oc-
cupational Safety and Health Administration rule
regarding exposure to bloodborne pathogens. See gener-
ally American Dental Ass’n v. Martin, 984 F.2d 823 (7th
Cir.), cert. denied, 510 U.S. 859 (1993). Moreover, the then-
Director of the CDC’s Division on Oral Health testified in
this case to the CDC’s position that persons infected with
HIV may be safely treated in a private dental office if uni-
versal precautions are employed. The United States has a
substantial interest in the deference to be accorded to
those judgments. For all these reasons, the United States
participated in this case as amicus curiae in both the dis-
trict court and the court of appeals.
STATUTORY AND REGULATORY PROVISIONS
INVOLVED
The relevant portions of the Americans with Disabili-
ties Act, 42 U.S.C. 12101 et seg., and of the regulations
promulgated by the Attorney General pursuant to the Act
are reproduced at Appendix, infra, la-8a.
STATEMENT
Petitioner is a dentist with a practice in Bangor, Maine.
This case arises from his refusal to provide routine dental
treatment to respondent Sidney Abbott, solely because Ms.
Abbott is infected with the Human Immunodeficiency
Virus (HIV).
1. HIV is the virus that causes Acquired Immune De-
ficiency Syndrome (AIDS). Pet. App. 3la. “People ex-
posed to HIV may contract the virus, and if so, will develop
HIV antibodies and become HIV positive.” Ibid. HIV dis-
3
ease compromises the body’s immune system and normally
leads to opportunistic infections, malignancies, and ulti-
mately death. But these symptoms do not appear all at
once. In fact, “[iJndividuals may carry HIV for several
years without manifesting the collection of symptoms
known as AIDS.” Jbid. Persons with such “asympto-
matie” HIV remain infectious, however. And, even during
the “asymptomatic” period, the HIV virus continues to
multiply and “create[] abnormalities in [their] blood and
lymphatic systems. Id. at 32a. HIV may be transmitted
by intimate sexual contact with an infected person, by
invasive exposure to infected blood, or from mother to
child during pregnancy, birth, or breast feeding. J.A. 87,
103. Persons cannot contract HIV through casual contact
with an infected individual. J.A. 103.
Both the Centers for Disease Control and Prevention
(CDC) and the Occupational Safety and Health Admini-
stration (OSHA) have addressed the question of how HIV-
infected patients may be safely treated in dental offices.
The CDC issued Recommended Infection-Control Prac-
tices for Dentistry in 1986 and revised recommendations
in 1993. Pet. App. 18la-199a. It also issued Recommenda-
tions for the Prevention of HIV Transmission in Health
Care Settings, including dentistry, in 1987. R. 53, Exh. 17.
And OSHA issued a final rule on Occupational Exposure to
Bloodborne Pathogens in 1991. 29 C.F.R. 1910.1030. Be-
cause health care workers cannot know with certainty
whether they are treating an infectious patient, those
guidelines dictate the use of “universal precautions“
infection control procedures under which every patient is
treated as if the patient carries an infectious bloodborne
pathogen (such as HIV or Hepatitis B). Pet. App. 183a;
J.A. 88, 103-104. The procedures include protective attire
and barrier techniques such as gloves, gowns, protective
eyewear, surgical masks and/or face shields; proper ster-
ilization of all dental instruments, including heat sterili-
4
zation of dental handpieces after each use; and proper
disinfection of the dental unit and operatory surfaces. Pet.
App. 185a-199a; J. A. 88-89, 103-105.
2. Respondent Abbott tested positive for HIV antibod-
ies in 1986; she was, however, “asymptomatic” at that time
and remained so at least until the time of the district
court’s judgment in 1995. Pet. App. 3la-32a. In September
1994, she arrived at petitioner’s dental office for a pre-
scheduled appointment. Id. at 3a. At the office, respondent
was asked to fill out a medical questionnaire. She
disclosed on that form that she had tested positive for
HIV. Ibid.; see J.A. 48-51. After petitioner examined re-
spondent and concluded that she had a cavity, he informed
her that “pursuant to his infectious disease policy, he
would not fill her cavity in his office.” Pet. App. 3a. He
stated that his policy was to treat people with infectious
diseases in a hospital setting, although at that time he in
fact did not have admitting privileges at any hospital and
had never inquired about obtaining such privileges at any
hospital. J.A.31. Petitioner offered to treat respondent at
a hospital at his regular fee, but informed her that she
would have to pay “whatever the hospital charged for the
use of its facilities.” Pet. App. 3a. Respondent refused the
offer. Ibid.
3. Respondent then filed this action, alleging that peti-
tioner had violated Title III of the Americans with Dis-
abilities Act, 42 U.S.C. 12181 et seg. (ADA), which prohib-
its public accommodations from discriminating on the ba-
sis of disability. See 42 U.S.C. 12182. The parties filed
cross-motions for summary judgment on the issues of li-
ability and the ADA’s constitutionality. The district
court granted respondent’s motion for summary judgment
and denied petitioner’s. Pet. App. 3la-65a.”
2 The United States intervened in the district court to defend the
constitutionality of the ADA and also participated as amicus curiae
5
Under the ADA, the term ‘disability’ means, with re-
spect to an individual * a physical or mental impair-
ment that substantially limits one or more of the major
life activities of such individual.” 42 U.S.C. 12102(2). The
court held that respondent was disabled under that defini-
tion. Relying in part on regulations promulgated by the
Department of Justice, see 28 C.F.R. 36.104, the district
court concluded “that asymptomatic HIV constitutes a
physical impairment for the purposes of the ADA.” Pet.
App. 35a. The court also concluded that “[(rjeproduction,
one of the most fundamental of human activities, must
constitute a major life activity.” Id. at 37a. And the court
found that respondent’s HIV infection “substantially lim-
its” that major life activity. Jd. at 40a. That is because
“an HIV positive mother runs the risk of infecting her
child, during pregnancy, through childbirth or, if she
chooses to do so, through breast feeding,” and because re-
spondent’s HIV infection, by severely limiting her life ex-
pectancy, would likely limit her ability to engage in “the
process of caring for and raising a child.” Ibid. The court
also noted respondent’s “fear of harm to her immune sys-
tem.” Ibid.
Petitioner claimed that, even if respondent was disabled,
he need not provide her with the needed dental treatment
because such treatment would have posed a “direct threat”
regarding other issues in the case. The district court ultimately
granted summary judgment to Abbott with regard to petitioner’s con-
stitutional challenges to the application of the ADA, see Pet. App. 54a-
62a, and petitioner did not renew those claims on appeal. The United
States continued to participate as amicus curiae in the court of appeals
with regard to the remaining, nonconstitutional issues in the case.
After Abbott amended her complaint to include a claim under the
Maine Human Rights Act, the Maine Human Rights Commission in-
tervened as a plaintiff. R. 14, 23. The district court found that peti-
tioner’s conduct violated the Maine Human Rights Act for the same
reasons that it violated the ADA. Pet. App. 52a-54a.
6
to himself or others under 42 U.S.C. 12182(b)(3), which
provides that one who furnishes services need not “permit
an individual to participate in or benefit from [the pro-
vider’s] services * * * where such individual poses a di-
rect threat to the health or safety of others.” 42 U.S.C.
12182(b\(3). The term “direct threat” is defined in the
ADA as “a significant risk to the health or safety of oth-
ers that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary
aids or services.” Jbid. The district court held that
“treatment of [respondent] in [petitioner’s] office poses no
direct threat to the health or safety of others.” Pet. App.
5la-52a. Characterizing petitioner’s evidence on this point
as “conjecture”, the court based its decision on “the cur-
rent state of medical knowledge, deferſring] to the
reasonable medical judgments of public health officials.”
Id. at 45a.
4. The court of appeals affirmed. Pet. App. la-30a. The
court held “unhesitatingly that HIV-positive status, sim-
pliciter, whether symptomatic or asymptomatic, com-
prises a physical impairment under the ADA.” Id. at ba.
The court also held that reproduction is a “major life ac-
tivity.” The court explained that the “plain meaning of the
word ‘major’ denotes comparative importance,” and that
“reproduction, which is both the source of all life and one
of life’s most important activities, easily qualifies under
that criterion” as a major life activity. Jd. at 8a. The
court rejected petitioner’s arguments that “an activity
must be performed either frequently or universally before
it can be classified as a major life activity.” Jd. at 10a. The
court also noted that even if it assumed, favorably to peti-
tioner, that respondent had to show that reproduction is a
major life activity for her, see id. at 12a, “a fact finder
could reach no conclusion other than that reproduction, if
a major life activity at all, constitutes such for [respon-
dent],” id. at 13a.
7
The court agreed with the district court that respon-
dent’s HIV infection “substantially limits” the major life
activity of reproduction. The court noted that petitioner
conceded “that an HIV-positive pregnant woman faces an
approximately 25% risk of transmitting the virus to her
child without AZT therapy and an 8% risk of viral trans-
mission with such therapy.” Pet. App. 14a. The court
ruled that “[nJo reasonable juror could conclude that an
8% risk of passing an incurable, debilitating, and inevita-
bly fatal disease to one’s child is not a substantial restric-
tion on reproductive activity.” Ibid. The court further
noted that “even if [respondent] gives birth to a healthy
child, she probably will not live long enough to complete
the task of raising the child to adulthood.” Jd. at 15a. The
court therefore held that “HIV-positive status is a physi-
cal impairment that substantially limits a fecund woman’s
major life activity of reproduction,” and that respondent is
therefore “disabled” under the ADA. Ibid.
Finally, the court rejected petitioner’s argument that
providing routine dental treatment to respondent would
pose a “direct threat” to himself or others. Relying in
part on Department of Justice regulations, see 28 C.F.R.
36.208(c), the court noted that the presence or absence of a
direct threat must be determined with respect to “an ob-
jective standard featuring the best evidence available at
the time [the provider] refuse[s] to render treatment to
disabled persons.” Pet. App. 18a. The court held that the
ADA requires “giv{ing] prima facie force to the views of
public health authorities,” while permitlting] a service
provider to challenge those views based on contrary, prop-
erly supported opinions voiced by other recognized experts
in the field.” Jd. at 21a. The court found that respondent
had produced “competent evidence of reasonable medical
judgments by public health officials, not contradicted by
other public health authorities” that providing routine
dental care to her “in an office environment does not pose a
8
direct threat to the dentist’s health.” Jd. at 24a. The
court ruled that each item of petitioner’s evidence to the
contrary “is too speculative or too tangential (or, in some
instances, both) to create a genuine issue of material fact.”
Id. at 29a. In addition, the court concluded that, even taken
together, petitioner’s evidentiary proffers “are likeWise
insufficient * * * to call into legitimate question the
lower court’s entry of summary judgment.” Ibid.
5. On November 26, 1997, this Court granted review
limited to the first three questions presented in the peti-
tion for certiorari.
SUMMARY OF ARGUMENT
Respondent, who is infected with the HIV virus, has a
“disability” covered by the ADA. There can be little dis-
pute with the clear medical evidence that infection with
the HIV virus constitutes an “impairment,” from the time
the virus enters the body and begins to attack the blood
and lymphatic systems. Thus, HIV infection is a disabil-
ity if that impairment “substantially limits” respondent in
the conduct of a “major life activity.” The court of appeals
correctly held that it does.
Reproduction is a “major life activity.” Congress’s use
of the term “major” requires an assessment of the relative
significance or importance of an activity in human life. As
the court of appeals held, the complex of activities consti-
tuting reproduction—including conception, birth, and
child-rearing—is one of the most significant activities in
which human beings engage. This Court has recognized
that choices about whether to bear or beget children are
“central to personal dignity and autonomy.” Planned
Parenthood v. Casey, 505 U.S. 833, 851 (1992). While re-
production is not universal and is not engaged in with the
same frequency as walking or breathing, it is the source of
all human life and is indispensable to its perpetuation. For
9
all these reasons, it is a “major life activity” for human
beings.
The ADA requires only that an impairment “substan-
tially limit”—not entirely eliminate all possibility of
engaging in—a major life activity. The court of appeals
therefore correctly held that respondent’s HIV infection
substantially limits the major life activity of reproduction.
The infection limits the conditions and manner under
which she can become pregnant, because it makes unpro-
tected intimate sexual relations life-threatening for her
partner. The infection also would threaten the life of a
child, since it can be passed from mother to child before or
during birth or during breastfeeding. Finally, the infec-
tion limits reproduction—and other major life activities as
well—by drastically shortening respondent’s life expec-
tancy and thereby limiting the likely duration of her
ability to engage in childrearing.
The holding that HIV-positive individuals are covered
under the ADA is compelled not only by the statutory
text, but also by the statute’s legislative history and ad-
ministrative interpretations. The definition of “disabil-
ity” is derived virtually verbatim from the Rehabilitation
Act. That Act had been construed by both courts and the
Department of Justice to cover asymptomatic HIV-
positive individuals. When Congress chose to adopt the
Rehabilitation Act coverage formula in the ADA, it was
well aware of the results that had been reached under the
Rehabilitation Act, and the committee reports expressly
endorsed those results and approved similar coverage for
HIV-positive individuals under the ADA.
The court uf appeals also correctly held that an asymp-
tomatic HIV-positive patient does not pose a direct threat
to dental health care workers performing routine dental
work. The Centers for Disease Control and numerous
other professional organizations have concluded that, be-
cause a dental worker can never be certain whether a
10
given patient is a carrier of bloodborne or infectious dis-
eases, universal precautions protecting against infection
should be followed during all dental work. Those same or-
ganizations have concluded that, if such precautions are
followed, it is safe to perform routine dental procedures on
HIV-positive individuals. Such reasonable medical judg-
ments, reached by those entrusted with the public health,
are entitled to substantial deference. To rebut those
judgments, petitioner was able to offer only unsupported
conjectures and hypotheses. Accordingly, the court of ap-
peals correctly held that performing routine dental work
on respondent would not have posed a direct threat to peti-
tioner or others.
ARGUMENT
I. ASYMPTOMATIC HIV INFECTION IS A “DIS-
ABILITY” UNDER THE AMERICANS WITH
DISABILITIES ACT
An individual has a “disability” for purposes of the
Americans With Disabilities Act if she has “a physical or
mental impairment that substantially limits one or more
of her] major life activities.” 42 U.S.C. 12102(2)A). HIV
infection clearly constitutes a physical “impairment,” for
it is a “physiological disorder or condition” that affects,
among others, the “hemic and lymphatic” system. 28
C.F.R. 36.104 (definition of “disability,” subpart (1)(i)).°
Under 42 U.S.C. 12186(b), Congress required that “the Attorney
General * * * issue regulations * * * to carry out the provisions of
[Title III of the ADA).” Although the definition of “disability” is not in
Title III. the definition does expressly apply to “this chapter,” which
includes Title III, and the definition is essential in construing and ad-
ministering Title III. See, e.g.,42 U.S.C. 12182(a) (“No individual shall
be discriminated against on the basis of disability in [public accommo-
dations}.”) (emphasis added). Accordingly, the Department of Justice
regulations are entitled to deference under Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984).
11
Department of Justice regulations implementing Title III
of the ADA specifically list HIV disease (whether symp-
tomatic or asymptomatic)” as an example of an “impair-
ment.” Ibid. (definition of “disability,” subpart (1)(iii)).
See App., infra, 3a. The court of appeals noted that peti-
tioner “does not seriously advocate an antithetical view,”
and held “unhesitatingly” that the status of being HIV-
positive, “whether symptomatic or asymptomatic, com-
prises a physical impairment under the ADA.” Pet. App.
6a (also citing cases). See also J.A. 55 (affidavit describing
“abnormalities” present in asymptomatic HIV infected
person).
The Department of Justice has also long taken the posi-
tion that asymptomatic HIV infection is a disability under
the ADA, either because it “substantially limits a major
life activity] of infected individuals or because the reac-
tions of others to infected individuals cause such individu-
als to be treated as though they are disabled under the
“regarded as” prong of the ADA’s definition of “disabil-
ity,” 42 U.S.C. 12102(2)(C). See pp. 19-21 & n.12 infra; see
also nn. 7, 16, infra. In this case, however, the courts be-
low did not reach any question concerning major life
activities other than reproduction that are limited by the
HIV infection, and they did not address the “regarded as”
test for disability. Both courts instead merely held that
respondent’s asymptomatic HIV infection substantially
limits respondent’s major life activity of reproduction.
For the reasons given below, that conclusion should be
affirmed.
A. Reproduction Is A “Major Life Activity” Under
The ADA
I. a. The court of appeals correctly held that reproduc-
tion is a “major life activity under the ADA. Dictionary
definitions, thoroughly canvassed by the court of appeals,
uniformly make clear that the plain meaning of the
12
word ‘major’ denotes comparative importance” and that
“the touchstone for determining an activity’s inclusion
under the statutory rubric [‘major life activities’] is its
significance.” Pet. App. 8a. As the court noted, “reproduc-
tion, which is both the source of all life and one of life’s
most important activities, easily qualifies under that
criterion.” Ibid. Indeed, petitioner concedes (Br. 34) that
“(oJbviously activities such as having sex, giving birth,
changing diapers, and loving and educating one’s children
are activities of paramount importance to many Americans
and in that sense are major life activities.”
This Court’s decisions have made clear the significance
of reproduction in human life. Reproduction involves not
only the act of conception, but also the physical processes
facilitating conception, the ability to engage in sexual ac-
tivity leading to conception without endangering oneself
or one’s partner, and the child-rearing and nurturing rela-
tionship following conception. “Our society has long rec-
ognized the fundamental importance of each element of
this cluster of activities.” Pet. App. 7a. The “decision
whether to bear or beget a child,” Eisenstadt v. Baird, 405
U.S. 438, 453 (1972), involves the most intimate and per-
sonal choices a person may make in a lifetime, choices
central to personal dignity and autonomy.” Planned Par-
enthood v. Casey, 505 U.S. 833, 851 (1992). Indeed, repro-
duction has been recognized as “one of the basic civil
rights of man.” Skinner v. Oklahoma, 316 U.S. 535, 541
(1942). The interests in raising one’s children are simi-
larly deep-rooted, see Stanley v. Illinois, 405 U.S. 645, 651
(1972), and decisions relating to procreation, reproduction,
and childrearing are constitutionally protected. Planned
Parenthood, 505 U.S. at 851.
The applicable regulations also support the conclusion
that reproduction is a major life activity. Under Section
36.104, t he phrase major life activities means functions
such as caring for one’s self, performing manual tasks,
13
walking, seeing, hearing, speaking, breathing, learning,
and working.“ As tiv wording of the regulation makes
clear, that list is not exhaustive, but rather was intended
to elucidate just how important an activity must be in or-
der to be regarded as “major.” Reproduction is clearly as
important as many of the activities on that list, and there-
fore “fits comfortably within” the sweep of the regulation.
Pet. App. 9a. Indeed, the same regulation defines “physical
* * * impairment” to include Jalny physiological disor-
der or condition * * * affecting [the] reproductive
[system].” 28 C. F. R. 36.104. To inquire whether a physio-
logical disorder impairs the reproductive system is logi-
cally equivalent to asking whether it affects reproduction.
Hence, if even a substantial limitation on reproduction
were not covered under the ADA because reproduction is
not a major life activity, then including reproductive dis-
orders as “impais:2ents” under the ADA would be entirely
inefficacious; such impairments could never be relevant to
a finding of disability under the ADA. Therefore, the
regulation plainly contemplates that reproduction is a ma-
jor life activity. See Pet. App. 9a; Pacourek v. Inland
Steel Co., 916 F. Supp. 797, 801-802 (N.D. Ill. 1996).
b. Petitioner argues (Br. 14) that “the focus of the
ADA is on public, not private family life,” and (Br. 29) that
Congress in enacting the ADA was not “contemplating
the obstacles faced by persons suffering from reproductive
disorders, such as impotence and infertility.” Congress,
however, chose to use the term “major life activities” in
the ADA, not some other term—such as “economically
significant activities” or “activities in public life“ that
would have been more susceptible to the construction peti-
tioner urges. And, of course, the focus of the Act’s protec-
This list is drawn from the regulations issued under the Rehabili-
tation Act of 1973. See 45 C. F. R. S4. 30% i) (defining major life ac-
tivities).
14
tions remains on discrimination encountered in public life,
rather than in private family life. For some categories of
reproductive disorders, there may be little basis for con-
cern that individuals with those disorders will suffer dis-
crimination. In cases in which individuals with such dis-
orders do suffer discrimination—as, for example, when the
disorders are caused by an infectious agent and others re-
act irrationally to fear of contagion—protection under the
ADA fits well within the letter and purposes of the stat-
ute.
This Court in School Board of Nassau County v. Ar-
line, 480 U.S. 273 (1987), rejected an argument analogous
to that which petitioner advances here. Arline was de-
cided under the Rehabilitation Act, which defined covered
(“handicapped”) individuals in terms virtually identical to
the definition of covered individuals (using the term
“disability” instead) in the ADA. See 480 U.S. at 279. The
plaintiff in that case was covered because she suffered
from tuberculosis, a disease that in acute form substan-
tially limited her respiratory system, i. e., the “major life
activity” of breathing. See id. at 281. Just as in this case,
however, the plaintiff did not suffer discrimination because
that major life activity was impaired. Instead, again as in
this case, the plaintiff suffered discrimination because the
defendant feared (irrationally) that the plaintiff's impair-
ment would be contagious. This Court held that such dis-
crimination was within the ambit of the Rehabilitation
Act: “Allowing discrimination based on the contagious
effects of a physical impairment would be inconsistent
with the basic purpose of § 504, which is to ensure that
handicapped individuals are not denied jobs or other bene-
5 See 480 U.S. at 281 n.6 (noting defendant’s argument that adverse
action was taken against plaintiff “not because of her diminished physi-
cal capabilities, but because of the threat that her relapses of tuberculo-
sis posed to the health of others”).
15
fits because of the prejudiced attitudes or the ignorance of
others.” 480 U.S. at 284. The same conclusion follows
here.
e. Petitioner also contends (Br. 36) “that reproductive
activities, for human beings, are largely moral and life-
style choices, in contrast to walking, seeing, hearing,
speaking, and breathing.” For similar reasons, two dis-
trict courts have held that reproduction is not a major life
activity because it is not undertaken with the frequency of
activities such as eating, walking, and breathing, and
because not all people choose to do it. See Krauel v. lowa
Methodist Medical Ctr., 915 F. Supp. 102, 106 (S.D. Iowa
1995), aff'd, 95 F.3d 674 (8th Cir. 1996); Zatarain v. WDSU-
Television, Inc., 881 F. Supp. 240, 243 (E.D. La. 1995), aff'd
mem., 79 F.3d 1143 (5th Cir. 1996).°
6 The vast majority of courts that have reached the issue have con-
cluded that reproduction is a major life activity. See, eg., Berk v.
Bates Advertising USA, Inc., 1997 WL 749386, at *5 n.3 (S.D.N.Y. Dec.
8, 1997); Hernandez v. Prudential Ins. Co., 977 F. Supp. 1160, 1164
(M.D. Fla. 1997); Bielicki v. City of Chicago, 1997 WL 260595, at *3
(N. D. Ill. May 8, 1997); Soodman v. Wildman, Harrold, Allen & Dixon,
1997 WL 106257, at *5 (N.D. Ill. Feb. 10, 1997); Pacowrek v. Inland
Steel Co., 916 F. Supp. 797, 801-804 (N. D. Ill. 1996); Erickson v. Board
of Governors, 911 F. Supp. 316, 320-823 (N. D. III. 1995); Dee v. Kohn,
Nast & Graf, P. C., 862 F. Supp. 1310, 1318-1321 (E.D. Pa. 1994); see also
Me Wright v. Alexander, 982 F.2d 222, 226-227 (7th Cir. 1992) (under
Rehabilitation Act); Rivera v. Heyman, 1997 WL 620887 (S.D.N.Y. Oct.
7, 1997) (under Rehabilitation Act); Doe v. District of Columbia, 796 F.
Supp. 559, 568 (D.D.C. 1992) (under Rehabilitation Act); Thomas v.
Atascadero Unified School Dist ., 662 F. Supp. 376, 379 (C.D. Cal. 1987)
(under Rehabilitation Act); Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D.
Pa. 1990) (construing same language under Pennsylvania Human Rela-
tions Act). Aside from Krauel and Zatarain, the only other court that
has concluded that reproduction is not a major life activity is Cortes v.
Me Donald's Corp., 955 F. Supp. 541, 545-546 (E.D.N.C. 1996). In Run-
nebaum v. Nationsbank of Maryland, 123 F.3d 156 (1997) (en banc), the
Fourth Cireuit recently addressed this issue, but no opinion was joined
16
Petitioner’s contention is mistaken. Initially, insofar
as reproduction includes raising one’s children, it is an
activity that may and often does occupy a large portion of a
parent’s waking life, particularly while the children are
young. In any event, nothing in the statute suggests that
an activity need be undertaken with any particular degree
of frequency or universality in order to be considered
“major.” As the court of appeals noted (Pet. App. 8a), stan-
dard definitions of the term “major” refer to significance
or importance, not frequency or universality. The per-
petuation of human life qualifies. Moreover, the regula-
tions list activities such as “working” or “learning” that
would presumably be viewed as “moral and lifestyle”
choices under petitioner’s cramped definition. For exam-
ple, many people—including the retired, those who choose
to be full-time parents, and those who simply choose not to
work—do not have employment. Nonetheless, even peti-
tioner does not suggest that “working” is not a “major life
activity.”
B. HIV Infection “Substantially Limits” Respondent's
Major Life Activity Of Reproduction
The court of appeals also correctly held that, at least for
fertile women of childbearing age, HIV infection “substan-
tially limits” engaging in the “major life activit{y]” of
reproduction.’ A person is “substantially limit{ed]” in an
by a majority of the judges. See id. at 170-171 (opinion of Williams, J.);
id. at 183-185 (opinion of Michael, J., dissenting).
7 In reviewing the judgments in this case, the Court need not ad-
dress the effects of HIV infection on other major life activities. We
note, however, that because HIV infection is an incurable and invaria-
bly fatal disease, it can be expected to substantially limit not only re-
production, but also many of the infected individual’s other major life
activities. HIV commences a process culminating in debilitating op-
portunistic infections and premature death. J. A. 55, 87. It limits all
major activities by materially restricting the “duration under which”
they can be performed. 28 C.F.R. Pt. 36 App. B, § 36.104, at 611. Even
17
activity if, “in comparison to most people,” she is
“restricted as to the conditions, manner, or duration under
which” she can perform it. 28 C.F.R. Pt. 36 App. B,
§ 36.104, at 610-611. HIV infection limits the activity of
reproduction because the HIV infection substantially lim-
its the physical process of producing a healthy baby, and
because it more generally limits a parent’s ability to care
for and raise the child by drastically limiting the length of
time during which she can do so.“
1. Initially, a fertile woman’s HIV infection limits her
ability to become pregnant. As is by now well known,
AIs jexual contact with exchange of body fluids constitutes
the major risk factor for transmitting or contracting HIV
infection.” J.A. 87. The risk of such exchange can be
greatly reduced by use of a condom.’ Because the condom
long before it results in death, it limits marital choices, career choices
(particularly those that require extensive training), and educa-
tional/learning options (by making long courses of study impractical).
See also State v. Clausen, 491 N.W.2d 662, 666 (Minn. Ct. App. 1992)
(difficulty of obtaining insurance); Anderson v. Gus Mayer Boston
Store, 924 F. Supp. 763, 777 n.37 (E.D. Tex. 1996) (noting difficulty of
travel because HIV-positive individuals “must be always mindful of
exposure to bacterial infection and fungi or even places requiring vac-
cinations”).
8 Petitioner argues (Br. 16-27) that HIV infection is not a “per se”
disability under the ADA. Compare Ennis v. National Ass'n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 60 (4th Cir. 1995) (ADA requires
individualized proof that HIV-positive status substantially limits a
major life activity). We agree that the statute requires the impairment
to substantially limit the particular plaintiff, as the record establishes
in this case. See Pet. App. 13a. At the same time, however, some im-
pairments substantially limit the major life activities of large classes
of persons—or even of all persons suffering from them. In our view,
HIV-positive status falls within that category.
See generally Myron S. Cohen, HIV and Sexually Transmitted
Diseases, 98 Post graduate Medicine 52, 63 & Table 2 (1995) (compiling
studies dating from 1987-1989 and concluding that “condoms appear to
be very effective in preventing the spread of HIV”).
18
can also be expected to prevent pregnancy, respondent
must take additional and special steps to become pregnant
—steps that most other individuals need not undertake.
Even more significantly, respondent’s HIV infection
substantially limits reproduction because it would pose a
substantial risk to the life of a child. Respondent “faces an
approximately 25% risk of transmitting the virus to her
child without AZT therapy and an 8% risk of viral trans-
mission with such therapy.” Pet. App. 14a.“ Individuals
without HIV infection do not face that risk. As the court
of appeals recognized, Injo reasonable juror could con-
clude that an 8% risk of passing an incurable, debilitating,
and inevitably fatal disease to one’s child is not a substan-
tial restriction on reproductive activity.” Ibid.
HIV also substantially limits reproduction because, as
the court of appeals noted (Pet. App. 15a), respondent
likely would not live long enough to complete the task of
0 In our view, although the result would be the same regardless of
which figure is used in the analysis, the 25% figure is the relevant one.
Under Department of Justice and EEOC regulations, the determination
of whether there is a substantial limitation of a major life activity
“should be assessed without regard to the availability of mitigating
measures, such as reasonable modifications or auxiliary aids and serv-
ices.” 28 C.F.R. Pt. 36 App. B,. § 36.104, at 611 (DOJ regulations); 29
C. F. R. Pt. 1630 App., § 1630.2(j), at 351 (EEOC regulations). Even
when an individual has been able to mitigate his or her disability by
such measures, that individual remains subject to “deprivations based
on prejudice, stereotypes, or unfounded fear.” School Bd. of Nassau
County v. Arline, 480 U.S. at 287. Because Congress intended to com-
bat the use of such “stereotypic assumptions not truly indicative of the
individual ability of [disabled] individuals to participate in, and
contribute to, society,” 42 U.S.C. 12101(a)(7), a narrow interpretation of
the ADA that would withdraw coverage from such individuals would
be inappropriate. The courts of appeals disagree regarding whether
mitigating measures should be taken into account in determining
whether an impairment amounts to a disability. See Sutton v. United
Air Lines, Inc., 130 F.3d 893, 901 & nn.7-8 (10th Cir. 1997) (citing cases).
19
raising a child if she chose to have one. Respondent was a
33-year-old woman at the time petitioner refused to pro-
vide her dental services. See Tr. 52 (deposition of respon-
dent, May 16, 1995). As respondent herself testified, “the
fact that [a] baby probably wouldn’t have a mother after a
while,” Pet. App. 13a, necessarily imposed a severely lim-
iting condition on her reproductive activity.
2. The ADA’s definition of disability“ —ineluding the
term “major life activities“ -was drawn virtually verba-
tim from the definition of the term “handicapped individ-
ual” in the Rehabilitation Act Amendments of 1974, Pub.
L. No. 93-516, § 111, 88 Stat. 1619, 29 U.S.C. 706. At the
time Congress enacted the ADA, the lower courts had uni-
formly construed the Rehabilitation Act to cover asymp-
tomatic HIV-positive individuals." A formal Department
of Justice legal opinion had concluded that the Rehabilita-
tion Act “protects symptomatic and asymptomatic HIV-
infected individuals against discrimination * * * on the
basis of any actual, past or perceived effect of HIV infec-
tion that substantially limits any major life activity.” See
Memorandum from Douglas W. Kmiec, Acting Assistant
Attorney General, Office of Legal Counsel, to Arthur B.
Culvahouse, Jr., Counsel to the President 1-2 (Sept. 27,
u See Doe v. Garrett, 903 F.2d 1455, 1457 (11th Cir. 1990), cert. de-
nied, 499 U.S. 904 (1991); Cain v. Hyatt, 734 F. Supp. 671, 677-678 (E.D.
Pa. 1990) (under P.H.R.A.); Baxter v. City of Belleville, 720 F. Supp.
720 (S.D. Ill. 1989); Thomas v. Atascadero Unified Sch. Dist., 662 F.
Supp. 376 (C.D. Cal. 1987); Ray v. School Dist. of Desoto County, 666 F.
Supp. 1524 (M.D. Fla. 1987). More recent cases under the Rehabilita-
tion Act have agreed. See, e.g., Gates v. Rowland, 39 F.3d 1439, 1446
(9th Cir. 1994); Doe v. District of Columbia, 796 F. Supp. 559, 568
(D. D.C. 1992); Glanz v. Vernick, 756 F. Supp. 632, 635 (D. Mass. .991);
ef. Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp. 1437, 1465
(E.D. Pa. 1995); Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 714
F. Supp. 1377, 1385-1386 n. 4 (E.D. La. 1989), aff'd, 909 F.2d 820 (5th
Cir. 1990).
20
1988) (Kmiec Memorandum) (footnote omitted; emphasis
added), reprinted in Americans with Disabilities Act of
1989: Hearings on S. 933 Before the Senate Comm. on La-
bor and Human Resources, 101st Cong., Ist Sess. 338-339
(1989). In reaching that conclusion, the opinion relied in
part on the fact that HIV substantially limits the major
life activity of reproduction (and of intimate sexual rela-
tionships). See Kmiec Memorandum 9-11.” When Con-
2 The Kmiec memorandum stated that “we believe it is likely that
the courts will conclude that asymptomatic HIV-infected individuals
have an impairment that substantially limits certain major life activi-
ties.” Kmiec Memorandum 10. Specifically, the memorandum stated
that “we believe that it is reasonable to conclude that the life activity
of procreation—the fulfillment of the desire to conceive and bear
healthy children—is substantially limited for an asymptomatic HIV-
infected individual.” Jbid. The memorandum also stated that “some
courts can be expected to find a limitation of a major life activity in the
fact that an asymptomatic HIV-infected individual’s intimate relations
are also likely to be affected by HIV infection.” Id. at 11. The memo-
randum noted that it may be argued that the HIV infection has not
affected major life activities of individuals who have not changed their
conduct as a result of the infection, but the memorandum reasoned that
“in any case where the evidence indicates that the plaintiff HIV-in-
fected individual has in fact changed his or her behavior—as, for exam-
ple, where the plaintiff represents that procreation has been foregone—
the court may well find a limitation of major life activity.” Ibid. Fi-
nally, the memorandum noted that “courts may choose to pass over
such factual questions since the Supreme Court has stated an alterna-
tive rationale for finding a life activity limitation based on the reaction
of others to the infection.” Jbid. With respect to that issue, the memo-
randum concluded that “the perceived impairment need not directly
result in a limitation of a major life activity, so long as it has the indi-
rect effect, due to the misperceptions of others, of limiting a life activ-
ity.” Id. at 12.
Three years later, after enactment of the ADA, the Department of
Justice promulgated its regulations interpreting the ADA. The Pre-
amble to those regulations synthesizes the discussion in the Kmiec
Memorandum to conclude that “asymptomatic HIV disease is an im-
pairment that substantially limits a major life activity, either because
21
gress enacted the ADA two years later, the committee re-
ports expressly stated that “a person infected with the
Human Immunodeficiency Virus is covered under the first
prong of the definition of the term ‘disability’ because of a
substantial limitation to procreation and intimate sexual
relationships,” relying on the discussion in the Kmiec
Memorandum. H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt.
2, at 52 (1990) (citing Kmiec memorandum); accord H.R.
Rep. No. 485, supra, Pt. 3, at 28 n.18; S. Rep. No. 116, 101st
Cong., Ist Sess. 22 (1989).
When it adopted the coverage provision of the Rehabili-
tation Act for use in the ADA, Congress was thus fully
aware that individuals with asymptomatic HIV were cov-
ered individuals under the Rehabilitation Act. Moreover,
the legislative history of the statute expressly notes Con-
gress’s approval of the administrative construction to that
effect. This Court has recognized that “[wJhen a Con-
of its actual effect on the individual with HIV disease or because the
reactions of other people to individuals with HIV disease cause such
individuals to be treated as though they are disabled.” 28 C.F.R. Pt. 36
App. B, § 36.104, at 610. See App., infra, 6a. The Preamble goes on to
explain that, for that reason, the regulations include “HIV disease
(symptomatic or asymptomatic)” in the definition of “physical or
mental impairment.” See pp. 10-11, supra.
Congress had studied the problem of discrimination against
HIV-positive individuals in the process of drafting the ADA. The
House and Senate committee reports, discussing the need for the legis-
lation, noted that a Presidential Commission had “concluded that dis-
crimination against individuals with HIV infection is widespread and
has serious repercussions for both the individual who experiences it and
for this nation’s efforts to control the epidemic.” H.R. Rep. No. 485,
supra, Pt. 2, at 31; see also S. Rep. No. 116, supra, at 8. The reports
noted the public health consequences of a failure to protect against such
discrimination; individuals who fear discrimination “will be reluctant
to come forward for testing, counseling, and care” and that failure “will
undermine * * * efforts to contain the HIV epidemic.” H.R. Rep. No.
485, supra, Pt. 2, at 31; S. Rep. No. 116, supra, at 8.
22
gress that re-enacts a statute voices its approval of an ad-
ministrative or other interpretation thereof, Congress is
treated as having adopted that interpretation, and [the
courts are] bound thereby.” United States v. Board of
Comm 'rs, 435 U.S. 110, 134 (1978).“ Petitioner's argu-
ments that the terms of the ADñA should be construed to
leave such individuals outside the Act’s protections should
therefore be rejected.
3. Petitioner suggests (Br. 39-41) that HIV infection
does not substantially limit reproduction within the mean-
ing of the Act because it is the individual’s reaction to the
impairment, and not the impairment itself, that limits the
activity. That distinction is immaterial. Petitioner’s view
appears to be that an impairment may be said to
“substantially limit” a major life activity only if the im-
pairment entirely eliminates the ability to engage in that
activity, thus leaving no choice to the individual. There is
no basis in the text, legislative history, or regulatory in-
terpretation of the statute for that interpretation. In addi-
tion, as noted above, it is the physiology of the HIV vi-
rus—not any “choice” of respondent—that would threaten
the life of a man engaging in unprotected intimate sexual
activity with her, that would threaten the life of her child
if she should become pregnant, and that substantially
shortens her life expectancy. Regardless of whether re-
4 Consistent with Congress’s intent, most of the decisions address-
ing whether persons with asymptomatic HIV are protected by the
ADA have agreed with the court below that they are, although they
have relied on a variety of theories. See generally Hernandez v. Pru-
dential Ins. Co., 977 F. Supp. 1160, 1163-1165 (M.D. Fla. 1997)
(discussing cases); Hoepfl v. Barlow, 906 F. Supp. 317, 319 n.7 (E.D. Va.
1995). In one case holding that an HIV infected person was not dis-
abled under the employment provisions of the ADA, the court found
that the plaintiff failed to establish that he had experienced any limita-
tion as a result of the impairment. Cortes v. Me Donald's Corp.,, 955 F.
Supp. 541, 546-547 (E. D. N. C. 1996).
23
spondent chooses to engage in reproduction under these
conditions, the “major life activity” of reproduction is for
her substantially limited “in comparison to most people.
28 C.F.R. Pt. 36 App. B, § 36.104, at 611; see Runnebaum,
123 F.3d at 184-185 (Michael, J., dissenting). ”
4 Petitioner states (Br. 41) that women in abject poverty or vio-
lent neighborhoods confront in their reproductive decision-making risks
just as significant that they and their babies will live short and miser-
able lives,” and suggests that respondent should be treated no differ-
ently from such women. The comparison is inapt. Unlike those situa-
tions, the limitations on respondent’s reproduction are the result of a
physical impairment. As the ADA’s definition of disability makes
clear, it is such limitations—and not those that result from poverty or
poor neighborhoods—that Congress sought to address in the ADA. See
28 C.F.R. Pt. 36 App. B, § 36.104, at 610 (“Physical or mental impair-
ment” does not include “environmental, cultural, economic, or other
disadvantages, such as having a prison record, or being poor.”).
Por the reasons given above, we believe that, pursuant to the
first prong of the ADA definition of disability, respondent was disabled
because her HIV infection substantially limited a major life activity.
If this Court were to disagree, however, the case should be remanded to
resolve whether respondent is disabled under the third prong of the
ADA definition of disability, which requires a showing that she was
“regarded as having such an impairment.” 42 U.S.C. 1210 % ). The
court of appeals did not reach that issue, but respondent has stated that
it was properly raised below. See Pet. App. 6a n.2; see also Br. in Opp.
4n.4. Irrational exclusion of persons such as respondent from activities
and services due to fear of contagiousness would establish that such
persons are “regarded as” disabled under 42 U.S.C. 12102(2VC). See
H.R. Rep. No. 485, supra, Pt. 2, at 31; S. Rep. No. 116, supra, at 8, 24;
Cain v. Hyatt, 734 F. Supp. 671, 678-680 (E.D. Pa. 1990).
24
II. AN ASYMPTOMATIC HIV-INFECTED PATIENT
DOES NOT POSE A “DIRECT THREAT” TO
DENTAL HEALTH CARE WORKERS
FOLLOWING UNIVERSAL PRECAUTIONS
WHEN PERFORMING ROUTINE DENTAL
CARE
1. The ADA does not require a public accommodation
to serve an individual who “poses a direct threat to the
health or safety of others.” 42 U.S.C. 12182(b)(3). In this
context, “direct threat” means “a significant risk to the
health or safety of others that cannot be eliminated by a
modification of policies, practices, or procedures.” bid.
As was true of a similar provision in the Rehabilitation
Act discussed by this Court in Arline, such an exception
serves the interest in “avoiding exposing others to sig-
nificant health and safety risks.” 480 U.S. at 287. At the
same time, however, any test for determining whether an
individual poses a “direct threat” must be carefully cir-
cumscribed “if [the Rehabilitation Act] is to achieve its
goal of protecting handicapped individuals from depriva-
tions based on prejudice, stereotypes, or unfounded fear”
(ibid. a goal shared by the ADA. See H.R. Rep. No. 485,
supra, Pt. 2, at 53; id., Pt. 3, at 30. To satisfy those con-
cerns, the Court in Arline adopted a test that relied
exclusively on objective factors regarding the risk and
normally required deference to the judgments of public
health officials. Arline, 480 U.S. at 288.
Congress included the “direct threat” exception in the
ADA, and incorporated “the same standard as articulated
by the Supreme Court in [Arline].” H.R. Rep. No. 485,
supra, Pt. 3, at 45; accord id., Pt. 2, at 76. The Department
of Justice Regulations implementing Title III of the ADA
similarly “codifly] the standard first applied by the Su-
preme Court in[Arline].” 28 C.F.R. Pt. 36 App. B, § 36.208,
at 626. In keeping with Arline, any determination that an
25
individual poses a “direct threat” must rely on “an
individualized assessment, based on reasonable judgment
that relies on current medical knowledge or on the best
available objective evidence.” 28 C.F.R. 36.208(c). See
App., infra, 4a-5a. That assessment must consider: “the
nature, duration, and severity of the risk; the probability
that the potential injury will actually occur; and whether
reasonable modifications of policies, practices, or
procedures will mitigate the risk.” Ibid. To protect
against the exclusion of individuals based on fear or
stereotype, the “direct threat” provision requires the
existence of a “significant” risk, “not a speculative or
remote risk.” H.R. Rep. No. 485, supra, Pt. 2, at 56. A
showing that a plaintiff does not pose a direct threat does
not require a showing that the plaintiff poses no risk, see
id., Pt. 3, at 46 (emphasis added) (citing Chalk v. United
States Dist. Court, 840 F.2d 701, 707-708 (9th Cir. 1988)),
for risks are inherent in daily life—particularly in a field
like dentistry, where [well before the advent of HIV,
dental health care workers] were at risk of acquiring
occupationally a number of diseases, from the common cold
to potentially lethal Hepatitis B and TB.” J.A. 107.
2. The Court in Arline stated that in making the nec-
essary findings, “courts normally should defer to the rea-
sonable medical judgments of public health officials.” 480
U.S. at 288; see 28 C.F.R. Pt. 36 App. B, § 36.208, at 626;
see also H.R. Rep. No. 485, supra, Pt. 3, at 45 (“Such risk
of transmitting the infection to others must be determined
based on objective and accepted public health guidelines.”).
The court of appeals interpreted that language (Pet. App.
21a) to mean that the views of public health officials are to
be given “prima facie force,” but that those views may be
rebutted “by persuasive evidence adduced from other
recognized experts in a given field.” We agree. Under
that rule, where, as here, the medical issue (i.e., risk of
contagion) is not within the expertise of the health care
provider (i.e., the dentist), but rather is within the
expertise of public health experts, there is no reason to
defer to the views of the particular health care provider.
Public health organizations and experts have the
resources and expertise to evaluate the risk of infection;
when they have examined the question and made the
reasonable judgment that a practice can be engaged in
safely, the courts should defer to that judgment—
particularly where, as here, it is substantially unrebutted.
Reliance on such a specialized, objective judgment pre-
vents decisions from turning on litigating adversaries’ e-
lective excerpts from medical materials, and therefore lim-
its the risk that unjustified fears or stereotypes will dis-
tort the decision making process. Moreover, deference to
the reasonable judgment of public health authorities is apy
propriate even if some uncertainties remain, for Illittle in
science can be proved with complete certainty.” Chalk,
840 F.2d at 707. “Confronted with some uncertainties
about scientific truth, judges, perhaps above all others,
should act on the basis of that which is known, or, where
this is not possible, on the basis of that which those best
qualified to speak say is known.” Id. at 712 (Sneed, J., con-
curring).
3. In this case, 9 to
“those best qualified to speak” on the su use
petitioner did not demonstrate that the CDC’s judgment
was medically unreasonable, the district court properly
granted summary judgment on the “direct threat” ques-
on.
K The Centers for Disease Control and Prevention (CDC)
has assessed the medical evidence concerning the risk
that dentists can contract HIV from their patients. The
CDC has adopted recommended infection-control prac-
tices—so-called “universal precautions”—for dentistry
under which all patients are to be treated as if they carry
an infectious or blood-borne disease such as HIV. Den-
27
tists cannot always know whether their patients carry
such diseases—indeed, not all patients who carry infec-
tious diseases know that they are infected. Refusing to
treat the patients who both know that they are infected
and inform the dentist of that fact is therefore not an ef-
fective way of reducing the risk. See J. A. 268, 274-275."
The CDC has found the risk of HIV transmission in the
dental context “so low as to be unquantifiable,” and the
universal precautions it recommends further reduce that
already low risk. J.A. 283 (Declaration of then-Director of
the Oral Health Program at the CDC); see also J.A. 268
(expert testimony that “the risk of infection to the health
care worker [from a patient] is infinitesimally small, less
than the risk of death involved in driving a car or being
struck by lightning”). Although there have been very rare
cases of transmission from patients to non-dental health
care workers,” the precautions available to such workers
n Indeed, one expert testified that adopting a policy of refusing to
treat patients who acknowledge their infectious status “may actually
be creating a more risky environment,” since a dentist who believles]
he has eliminated a risk [in that manner] * may become less
stringent in his practice of infection control.” J. A. 274-275.
As of December 31, 1994, the CDC was aware of 42 non-dental
health care workers “documented as having seroconverted to HIV fol-
lowing occupational exposures to HIV”; 36 of these cases involved
percutaneous exposures such as needlesticks. J. A. 106. Whether a
needlestick injury leads to infection depends significantly on the
amount of blood transmitted; the narrow-bore needles typically used in
routine dentistry make it less likely that an amount of blood sufficient
to cause infection will be transmitted in the dental context. J.A. 106-
107. As Dr. Donald Marianos, then-Director of the Division of Oral
Health at the CDC, explained, “{bjecause the size of anesthetic needles
used in dentistry is much smaller than that used in most medical set-
tings, the majority of needlesticks among dental workers will involve
smaller, rather than larger amounts of HIV infected blood. It is the
position of the CDC that the risk of acquiring HIV occupationally from
a needlestick in the dental setting is so low that it cannot be accurately
quantified.” J.A. 278-279. Moreover, the use of “instruments instead of
28
together with the nature of dental practice, explain why
there has never been a documented case of HIV transmis-
sion from infected patient to dental health care worker.”
Pet. App. 25a; see J.A. 56, 88, 106. The CDC thus has
taken the position that “it is safe to provide dental care to
patients with AIDS * * * in private dental offices when
universal precautions are utilized.” J. A. 284.
The CDC’s conclusion is in accord with the positions of
other professional and public health organizations, includ-
ing the American Dental Association. J.A. 225.” That po-
fingers to retract tissue or guide anesthetic needles during injections”
can reduce the risk of accidental dental needlestick incidents, and “self-
sheathing anesthetic syringes are now available to prevent needlestick
injuries during or after anesthetic injections.” J.A. 270.
9 We agree with the court of appeals that the medical evidence in
cases of this type should be “confinfed) * * * to that available at the
time a dentist or other health-care professional refuses to treat.” Pet.
App. 18a (citing 28 C.F.R. 36.208(c)). Nonetheless, we are informed by
the CDC that, as of the end of 1997, there remains no documented case
of transmission of the HIV virus from a patient to a dental health care
worker.
Although the American Dental Association has filed an amicus
brief in this Court in support of petitioner, it does not address the
“direct threat” issue. The brief (at 2) does make clear, however, that it
“does not in any way challenge or undermine longstanding Association
policy concerning the safety of the dental office and/or the treatment of
HIV-infected individuals.” The brief reaffirms, therefore, that in light
of the efficacy of universal precautions, Iplztients with HIV infection
may be safely treated in private dental offices when appropriate infec-
tion control procedures are employed,” J.A. 225, and that “a patient’s
HIV/AIDS status is not a justification for refusal of treatment.” Amer.
Dental Ass’n Amicus Br. 2-3 n.2; see J.A. 225-226. Indeed, the Associa-
tion’s Council on Ethies, Bylaws and Judicial Affairs has stated that it
is unethical to refuse treatment to those who are HIV infected. See
J. A. 228 (“A decision not to provide treatment to an individual because
the individual has AIDS or is HIV seropositive, based solely on that
fact, is unethical.”). Refusal to treat HIV-infected patients has simi-
larly been declared unethical by the American Association of Oral and
Maxillofacial Surgeons, J.A. 111, the Association of State and Territo-
sition certainly constitutes a “reasonable medical judg-
ment I].“ Arline, 480 U.S. at 288, and is therefore entitled
to deference from the courts. Jbid. See also American
Dental Ass'n v. Martin, 984 F.2d 823, 828 (7th Cir.)
(stating that the CDC’s judgments regarding precautions
to prevent the spread of bloodborne pathogens “are entitled
to respect by the nonspecialist, biomedically unso-
phisticated Article III judiciary”), cert. denied, 510 U.S.
859 (1993). Because the probability of transmission in the
course of routine dental care is so extraordinarily low (and
would not in any event be eliminated), even the severe con-
sequences of contracting HIV are not sufficient to estab-
lish the existence of a “significant risk to the health or
safety of others.” 42 U.S.C. 12182(b)(3).”
rial Health Officials and Association of State and Territorial Dental
Directors, J. A. 125-126, and the American Association of Dental
Schools, J. A. 134,
21 Key differences between HIV-infected doctors and HIV-infected
patients render the cases involving HIV-infected health-care workers
inapposite. See, e. g., Doe v. University of Maryland Med. Sys. Corp.,
50 F.3d 1261, 1265-1266 (4th Cir. 1995) (hospital did not violate ADA by
suspending HIV-positive neurosurgical resident and offering him
alternative residencies in nonsurgical fields); Bradley v. University of
Texas M.D. Anderson Cancer Ctr., 3 F.3d 922, 924-925 (5th Cir. 1993)
(hospital did not violate Rehabilitation Act by reassigning HIV-posi-
tive surgical assistant to procurement department), cert. denied, 510
U.S. 1119 (1994). See also J. A. 107 (discussing the single case of trans-
mission of HIV from dentist to six of his patients), C.A. App. 211-212
(same). The CDC has recommended that medical institutions make
their own case-by-case determinations regarding whether particular
HIV-infected health care workers can perform exposure-prone invasive
procedures, See University of Maryland, 50 F.3d at 1266; Bradley, 3
F.3d at 924; Leckelt v. Board of Comm'rs, 909 F.2d 820, 828, 830 (5th
Cir. 1990). Thus, although we take no position on the results reached on
the facts of each of the cited cases, they are fully consistent with giving
deference to the reasonable judgments of public health officials. In
30
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
LAWRENCE G. WALLACE
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
FEBRUARY 1998
addition, patients and doctors are not similarly situated. Since patients
cannot control whether infected health care providers scrupulously
employ universal precautions, patients bear all of the risk of transmis-
sion without having any ability to assure that the risk is minimized.
APPENDIX
STATUTORY AND REGULATORY PROVISIONS
1. 42 U.S.C. 12192 provides in pertinent part:
Definitions
(2) Disability
The term “disability” means, with respect to an
individual—
(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.
* * * * *
2. 42 U.S.C. 12186 provides in pertinent part:
Regulations
* * * * *
(b) Other provisions
Not later than 1 year after July 26, 1990, the
Attorney General shall issue regulations in an accessible
format to carry out the provisions of this subchapter not
referred to in subsection (a) of this section that include
standards applicable to facilities and vehicles covered
under section 12182 of this title.
3. 28 C.F.R. 36.104 provides:
For purposes of this part, the term—
(la)
2a
Disability means, with respect to an individual, a
physical or mental impairment that substantially limits
one or more of the major life activities of such individual; a
record of such an impairment; or being regarded as having
such an impairment.
(1) The phrase physical or mental impairment
means—
(i) Any physiological disorder or condition, cos-
metic disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological; mus-
culoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine;
(ii) Any mental or psychological disorder such as
mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities;
(iii) The phrase physical or mental im-pairment
includes, but is not limited to, such contagious and noncon-
tagious diseases and conditions as orthopedic, visual,
speech, and hearing impairments, cerebral palsy, epilepsy,
muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness,
specific learning disabilities, HIV disease (whether symp-
tomatic or asymptomatic), tuberculosis, drug addiction,
and alcoholism;
(iv) The phrase physical or mental impairment
does not include homosexuality or bi-sexuality.
(2) The phrase major life activities means func-
tions such as caring for one’s self, performing manual
3a
tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
(3) The phrase has a record of such an impair-
ment means has a history of, or has been misclassified as
having, a mental or physical impairment that substantially
limits one or more major life activities.
(4) The phrase is regarded as having an impair-
ment means—
(i) Has a physical or mental impairment that does
not substantially limit major life activities but that is
treated by a private entity as constituting such a limita-
tion;
(ii) Has a physical or mental impairment that sub-
stantially limits major life activities only as a result of the
attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in para-
graph (1) of this definition but is treated by a private
entity as having such an impairment.
4. 28 C. F. R. 36.208 provides:
(a) This part does not require a public accom-
modation to permit an individual to participate in or
benefit from the goods, services, facilities, privileges, ad-
vantages and accommodations of that public accommoda-
tion when that individual poses a direct threat to the
health or safety of others.
(ob) Direct threat means a significant risk to the
health or safety of others that cannot be eliminated by a
4a
modification of policies, practices, or procedures, or by the
provision of auxiliary aids or services.
(c) In determining whether an individual poses a
direct threat to the health or safety of others, a public
accommodation must make an individualized assessment,
based on reasonable judgment that relies on current
medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and severity of
the risk; the probability that the potential injury will
actually occur; and whether reasonable modifications of
policies, practices, or procedures will mitigate the risk.
5. 28 C. F. R. Pt. 36, App. B, provides in pertinent part:
Test A—A Physical or Mental Impairment That
Substantially Limits One or More of the Major Life
Activities of Such Individual
Physical or mental impairment. Under the first test,
an individual must have a physical or mental impairment.
As explained in paragraph (1) (i) of the definition, “impair-
ment” means any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one
or more of the following body systems: Neurological;
musculoskeletal; special sense organs (including speech
organs that are not respiratory, such as vocal cords, soft
palate, and tongue); respiratory, including speech organs;
cardiovascular; reproductive; digestive; genito-urinary;
hemic and lymphatic; skin; and endocrine. It also means
any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities. This list closely
tracks the one used in the regulations for section 504 of
the Kehabilitation Act of 1973 (see, eg., 45 CFR
84.3(j)(2)(i)).
It is not possible to include a list of all the specific
conditions, contagious and noncontagious diseases, or
infections that would constitute physical or mental
impairments because of the difficulty of ensuring the
comprehensiveness of such a list, particularly in light of
the fact that other conditions or disorders may be
identified in the future. However, the list of examples in
paragraph (I) (iii) of the definition includes: Orthopedic,
visual, speech and hearing impairments; cerebral palsy;
epilepsy, muscular dystrophy, multiple sclerosis, cancer,
heart disease, diabetes, mental retardation, emotional
illness, specific learning disabilities, HIV disease (symp-
tomatic or asymptomatic), tuberculosis, drug addiction,
and alcoholism.
The examples of “physical or mental impairments” in
paragraph (1)(iii) are the same as those contained in many
section 504 regulations, except for the addition of the
phrase “contagious and noncontagious” to describe the
types of diseases and conditions included, and the addition
of “HIV disease (symptomatic or asymptomatic)” and
“tuberculosis” to the list of examples. These additions are
based on the ADA committee reports, caselaw, and official
legal opinions interpreting section 504. In School Board of
Nassau County v. Arline, 480 U.S. 273 (1987), a case
involving an individual with tuberculosis, the Supreme
Court held that people with contagious diseases are
entitled to the protections afforded by section 504.
Following the Arline decision, this Department’s Office of
Legal Counsel issued a legal opinion that concluded that
symptomatic HIV disease is an impairment that
substantially limits a major life activity; therefore it has
been included in the definition of disability under this part.
6a
The opinion also concluded that asymptomatic HIV
disease is an impairment that substantially limits a major
life activity, either because of its actual effect on the
individual with HIV disease or because the reactions of
other people to individuals with HIV disease cause such
individuals to be treated as though they are disabled. See
Memorandum from Douglas W. Kmiec, Acting Assistant
Attorney General, Office of Legal Counsel, Department of
Justice, to Arthur B. Culvahouse, Jr., Counsel to the
President (Sept. 27, 1988), reprinted in Hearings on S.
933, the Americans with Disabilities Act, Before the
Subcomm. on the Handicapped of the Senate Comm. on
Labor and Human Resources, 101st Cong., Ist Sess. 346
(1989). The phrase “symptomatic or asymptomatic” was
inserted in the final rule after “HIV disease” in response
to commenters who suggested that the clarification was
necessary to give full meaning to the Department's
opinion.
* * * * *
Physical or mental impairment does not inelude simple
physical characteristics, such as blue eyes or black hair.
Nor does it include environmental, cultural, economic, or
other disadvantages, such as having a prison record, or
being poor. Nor is age a disability. Similarly, the defini-
tion does not include common personality traits such as
poor judgment or a quick temper where these are not
symptoms of a mental or psychological disorder. However,
a person who has these characteristics and also has a
physical or mental impairment may be considered as
having a disability for purposes of the Americans with
Disabilities Act based on the impairment.
Substantial limitation of a major life activity.
Under Test A, the impairment must be one that “sub-
7a
stantially limits a major life activity.“ Major life activi-
ties include such things as caring for one’s self, perform-
ing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. For example, a person
who is paraplegic is substantially limited in the major life
activity of walking, a person who is blind is substantially
limited in the major life activity of seeing, and a person
who is mentally retarded is substantially limited in the
major life activity of learning. A person with traumatic
brain injury is substantially limited in the major life
activities of caring for one’s self, learning, and working
because of memory deficit, confusion, contextual difficul-
ties, and inability to reason appropriately.
A person is considered an individual with a disability for
purposes of Test A, the first prong of the definition, when
the individual’s important life activities are restricted as
to the conditions, manner, or duration under which they
can be performed in comparison to most people. A person
with a minor, trivial impairment, such as a simple infected
finger, is not impaired in a major life activity. A person
who can walk for 10 miles continuously is not sub-
stantially limited in walking merely because, on the
eleventh mile, he or she begins to experience pain, because
most people would not be able to walk eleven miles without
experiencing some discomfort.
The question of whether a person has a disability should
be assessed without regard to the availability of mitigat-
ing measures, such as reasonable modifications or auxil-
iary aids and services. For example, a person with hearing
loss is substantially limited in the major life activity of
hearing, even though the loss may be improved through
the use of a hearing aid. Likewise, persons with impair-
8a
ments, such as epilepsy or diabetes, that substantially
limit a major life activity, are covered under the first
prong of the definition of disability, even if the effects of
the impairment are controlled by medication.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.