Amicus Curiae Brief — Bragdon v. Abbott

— — _—

Suoreme Court, U.S

EFIiLED

) FEB 6 1998

No. 97-156 ENS |

In The

Supreme Court of the United States

October Term, 1997

+

RANDON BRAGDON, D.M.D.,

Petitioner,

SIDNEY ABBOTT, ET AL.,

Respondents.

+

On Writ Of Certiorari To The United States

Court Of Appeals For The First Circuit

+

BRIEF OF THE CITY OF LOS ANGELES

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

S

James K. HAHN

City Attorney

City of Los Angeles

Counsel of Record

Timotuy B. McOsxer

Chief Deputy City Attorney

CHARLES I. GOLDENBERG

Senior Assistant City Attorney

Davio I. SCHULMAN

Deputy City Attorney

200 No. Main Street, Rm. 1800

Los Angeles, CA 90012

(213) 485-5408

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

otatement of Interest

Summary of Argument

Argument

Conclusion

Page

Y

ii

TABLE OF AUTHORITIES

CASES .

Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997)........ 1

Citizens for Uniform Laws v. County of Contra Costa,

233 Cal. App. 3d 1468, 285 Cal. Rptr. 456 (1991)..... 4

STATUTES

I GE CEE Fu nb dre crespeesvecstcdeesccess 1

GS WG, DOCS TENE OF ONG, oc ccccscnccccsccvccens 1

Los Angeles Municipal Code Sections 45.80 et seq...... 1

OrHerR AUTHORITIES

31 Morbidity and Mortality Weekly Report 577 (Nov.

i PL CULs cCCeDhons Ce ahekde ACh Ute 5¥a0 044sn000 4

31 Morbidity and Mortality Weekly Report 652 (Dec.

Se PEMA U eke tedaahe Veen hea Kobe beh bess r'ccncene 4

Albert Camus, The Plague (1972) (Stuart Gilbert

Sg NE TRUE GEs ne civccerecscccevscsece 6, 7

Robert Cover, “The Supreme Court 1982 Term:

Nomos and Narrative,” 97 Harvard Law Review 4

ER RR re Fe ee eT eee ee 6

Erving Goffman, Stigma: Notes on the Management

ey I ED ok dn, ns: ov Vebbe ONS ebseeces 6

William H. McNeil, Plagues and People (1976)......... 6

Robert Roden, “Educating Through the Law: The

Los Angeles AIDS Discrimination Ordinance,”

33 UCLA Law Review 1410 (1986) ............6.045. 4

ili

TABLE OF AUTHORITIES - Continued

Page

David |. Schulman, “AIDS Discrimination: Its

Nature, Meaning and Function,” 12 Nova Law

ND Wy GN 6:0 cb b.bcoes whale Shs Cobencsceces 3

David I. Schulman, “The Dentist, HIV and the

Law: Duty to Treat, Need to Understand,” CDA

[California Dental Association] Journal, Sept. 1993 ..... 8

David I. Schulman, Mitchell Karp, Norman

Nickens, “Municipal AIDS Discrimination Laws

as Public Health Education Tools for Preventing

HIV Transmission” (abstract, 3rd International

Conference on Acquired Immunodeficiency

CD EL, BOTT ccccevscancocectsscovcn: 4

STATEMENT OF INTEREST

Amicus curiae the City of Los Angeles submits this

brief pursuant to Rule 37.5.

This case concerns whether a dentist may discrimi-

nate against a person with asymptomatic HIV disease

despite the provisions of the Americans with Disabilities

Act, 42 U.S.C. Sections 12101 et seq.

We write to share our AIDS legal expertise in support

of the respondent as the jurisdiction which enacted the

nation’s first AIDS discrimination law, and which has

long advised staff who face risks like those faced by the

appellant dentist.

¢

SUMMARY OF ARGUMENT

To create a system that permits professionals to

refuse even remote risks when they serve the public is

deeply divisive to society.

.

ARGUMENT

We agree with the Court of Appeals for the First

Circuit that (1) respondent suffers a disability that

impairs a major life function within the meaning of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. Sec-

tions 12101 et seq. and that (2) appellant failed to raise an

adequate direct threat defense. Abbott v. Bragdon, 107 F.

3d 934 (ist Cir. 1997). The bases for this decision have

been well discussed and developed in other briefs. We

write to urge the Court to consider these arguments in

light of our experience as the jurisdiction which enacted

the nation’s first AIDS discrimination law, and which

employs many who face threats in the workplace like

those respondent presented appellant.

We advise staff who face such risk in far-less con-

trolled circumstances than appellant's dental office. Our

paramedics must pull bloody traffic accident victims out

of jagged metal sheets, our police confront bloody, hostile

knife-wielding suspects, and our firefighters rescue

bleeding persons from smoky buildings littered with bro-

ken glass. They render care to all residents, without

regard to HIV status, because they understand the funda-

mental shift in bloodborne infection control brought

about by hepatitis B and HIV -— that all blood, at all times,

from all sources, must be treated as if it is infectious.

We enacted our AIDS discrimination law, the nation’s

first, Los Angeles Municipal Code Sections 45.80 et seq., in

1985, shortly after movie star Rock Hudson’s disclosure

of his AIDS diagnosis created world-wide interest and

concern about the epidemic for the first time.' We did so

because it was unclear whether state or federal disability

rights laws would be held to protect persons with HIV

and AIDS, yet we had received persuasive testimony

from city residents about wide-ranging acts of discrimi-

nation against them.

Upon commencing enforcement of our new law, we

repeatedly found that AIDS discrimination was rooted in

! Shortly thereafter, the cities of West Hollywood, San

Francisco, Berkeley and Oakland enacted similar laws.

deep-seated fears of infectiousness.? For the public at

large, these fears were based on its ignorance about what

was meant by the statement that “HIV was ‘contagious’ ”.

We found that the public imported its own experiences

with such infectious illnesses as colds or the flu, and

society's past experience with such more-easily transmit-

ted epidemics as cholera or the plague and, quite natu-

rally, applied them to AIDS.

For our staff who encounter blood in the workplace,

their concerns involved their unfamiliarity with the degree

of risk posed by bloodborne disease. We found they

needed training and assistance to learn to separate their

irrational fears from professional assessment of the real,

but remote, risk in their workplace, a risk reduced far

further upon proper and consistent use of protective gear

and protocols.

For complex reasons including the reticence of the

media to be frank, the public did not understand at that

time, the mid-to-late 1980s, what public health officials by

then most clearly understood: that HIV’s vector of trans-

mission was fundamentally different.* To our surprise, we

2 For a general description of our enforcement experiences,

see David I. Schulman, “AIDS Discrimination: Its Nature,

Meaning and Function,” 12 Nova Law Review 1113 (1988), an

expanded version of our testimony to the Presidential

Commission on the Human Immunodeficiency Virus Epidemic

on March 16, 1988, during hearings held at Vanderbilt

University in Nashville, Tennessee.

3 In fact, the Centers for Disease Control (now the Centers

for Disease Control and Prevention) had speculated a mere

fifteen months after it published history’s first AIDS case reports

in June 1981 that AIDS might be transmitted by a bloodborne

found that we often resolved our investigations without

litigation because our inquiries required respondents to

learn how HIV actually was transmitted.‘

We believe the insight that flowed from our experi-

ences may be useful to the Court: that AIDS discrimina-

tion laws, whether specific to AIDS like our ordinance, or

which incorporate HIV into their definition of disability

like the Americans with Disabilities Act, are not just civil

rights laws. The only case to approach this understanding

is Citizens for Uniform Laws v. County of Contra Costa, 233

Cal. App. 3d 1468, 1475, 285 Cal. Rptr. 456 (1991), which

held that state civil rights law did not preempt the

county’s AIDS discrimination law because it promoted

the public health goal of combatting the AIDS epidemic

by promoting HIV testing through protection of the

rights of those who test positive. We are aware, and

agent, 31 Morbidity and Mortality Weekly Report (“MMWR”) 577

(Nov. 5, 1982). This speculation was strengthened considerably

just two months later when it reported an infant had developed

AIDS following a blood transfusion from a person later found to

have it. 31 MMWR 652 (Dec. 10, 1982).

* A result so remarkable it became the basis for a

presentation at the 3rd International Conference on AIDS, and

an early AIDS law review article. See David I. Schulman,

Mitchell Karp, and Norman Nickens, “Municipal AIDS

Discrimination Laws as Public Health Education Tools for

Preventing HIV Transmission” (abstract accepted for

presentation at the 3rd International Conference on Acquired

Immunodeficiency Syndrome, held June 1-5, 1987, in

Washington, D.C.). See also Robert Roden, “Educating Through

the Law: The Los Angeles AIDS Discrimination Ordinance,” 33

UCLA Law Review 1410 (1986).

support, briefs submitted to the Court that argue sim-

ilarly that AIDS discrimination laws perform public

health functions.

But we ‘vish to imply more. The encounter between

the AIDS epidemic and law has called a new understand-

ing into play, one we believe is important for the Court to

take into account in deciding this case, in understanding

that respondent's claim is not merely a disability rights

claim to dental care. It is suggested further by another

dimension to our enforcement experience.

We found that AIDS discrimination in some ways is

like other forms of discrimination, in that it is the unfair

treatment of individuals based upon irrational fears and

prejudices about certain groups. But it is different even

from that family of discrimination law - disability rights

law ~ into which federal and state law has placed it. AIDS

discrimination alone emanates out of an epidemic, and

we believe it is this that must centrally affect the Court's

deliberations in this case. Indeed, we believe it requires

an AIDS jurisprudence.

This jurisprudence would recognize that epidemics

threaten the ties that bind communities together. Some

are driven to victimize others in order to bind the rest

back together. AIDS discrimination laws combat this by

establishing standards of reasonable behavior for mem-

bers of a community, even when they are frightened,

indeed, especially when they are frightened.

An AIDS jurisprudence would recognize that AIDS

discrimination laws educate the public about the essential

fact about HIV — how it is transmitted - and that educa-

tion saves lives. But it would also recognize that AIDS

discrimination laws, by establishing fair standards of

behavior, combat the ancient impulse to fracture during

epidemics, and thereby maintains the health of the body

politic.

From the beginning, we found that AIDS discrimina-

tion laws resist the fracture and blame so endemic to

epidemics. They do so by establishing standards that

express a practical, able-to-be-lived vision of how to

behave when we are frightened. Our research suggests

this is an unprecedented role for law.5 Law charac-

teristically reinforced societies’ impulse to scapegoat, to

blame.® And characteristically as well, they blamed peo-

ple with already “spoiled identities” .’

An eruption of a new jurisprudence, a new legal

frame, though rare, is a traditional part of the legal pro-

cess.8 AIDS discrimination laws’ way of establishing an

ethical standard of behavior for frightened people would

seem to be such an event. It recalls the exchange between

the plague doctor Rieux and the journalist Rambert in

Camus’s The Plague.

Rieux disputes the journalist’s contention that his

dedication and effort were heroic:

5 See, for example, William H. McNeil, Plagues and People

(1976).

6 Ibid.

7 See Erving Goffman, Stigma: Notes on the Management of

Spoiled Identity (1963), for comment about why those singled out

are invariably those already possessed of “spoiled identities”.

8 See Robert Cover, “The Supreme Court 1982 Term: Nomos

and Narrative,” 97 Harvard Law Review 4 (1983).

However, there’s one thing I must tell you:

there’s no question of heroism in all this. It’s a

matter of common decency. That’s an idea which

may make some people smile, but the only

means of fighting a plague is - common

decency.?

Another character, Tarrou, explains this eruption of

awareness further.

All I maintain is that on this earth there are

pestilences and there are victims, and it’s up to

us, so far as possible, not to join forces with the

pestilences. That may sound simple to the point

of childishness; I can’t judge if it’s simple, but I

know it’s true. You see, I’d heard such quantities

of arguments, which very nearly turned my

head, and turned other people’s heads enough

to make them approve of murder; and I'd come

to realize that all our troubles spring from our

failure to use plain, clean-cut language. So I

resolved always to speak - and to act — quite

clearly, as this was the only way of setting

myself on the right track.!°

It is this understanding that would be overlooked

should the Court reject respondent's claim for dental care

as a disqualified ADA claim. It arises amidst an epidemic,

one that has provoked the best and worst in people, as

Camus advised. We will not parse the line of cases that

has denied ADA-based AIDS discrimination claims,

despite the statute’s and legislative history’s “plain,

clean-cut language”, for that will be done in other briefs.

% Albert Camus, The Plague (1972) (Stuart Gilbert trans.,

Vintage Books ed.) at 154.

10 Id. at 236.

We argue, instead, that appellant’s claim that he may

refuse to care for the respondent despite overwhelming

public health standards to the contrary, emotionally com-

pelling as his claim is for himself and his loved ones, is

no way to fight an epidemic. And though the authors of

this brief themselves do not face the remote risk that

would be faced by appellant, we are responsible for the

safety of staff who do.

We understand how disturbing this prospect is for

judges and others who think about the risk faced by

loved ones who may be police, firefighters - or dentists.

But we have learned through our work with staff, our

regular lectures to trainees and to medical and dental

students, and our work with the dental profession itself,!!

that adjustment to the remote but real risk of HIV in the

workplace is just that, an adjustment. It is no excuse to

victimize, to scapegoat . . . or to refuse care.

°

11 See David I. Schulman, “The Dentist, HIV and the Law:

Duty to Treat, Need to Understand,” CDA [California Dental

Association] Journal, Sept. 1993, at 45.

CONCLUSION

For all the reasons set forth above, the judgment of

the Court of Appeals for the First Circuit should be

affirmed.

Dated: February 5, 1998

Respectfully submitted,

James K. HAHN

City Attorney

City of Los Angeles

TimotHy B. McOsker

Chief Deputy City Attorney

Cuar.es I. GOLDENBERG

Senior Assistant City Attorney

Davip I. SCHULMAN

Deputy City Attorney

By James K. HAHN

Counsel of Record

Attorneys for Amicus Curiae