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High court will rule whether HIV is a disability; Maine case




 

Infection with the AIDS virus is no longer a death sentence. But is it a disability?

That's the question facing the Supreme Court on Monday, when it hears oral arguments in a landmark case that asks justices, for the first time, to define the boundaries of the Americans With Disabilities Act. See: Abbott v. Bragdon

The outcome of the case, brought by a healthy HIV-infected Maine woman, could have huge impact for thousands of infected but symptom-free San Franciscans who are active in work, school and sports - and who also desire protection from discrimination under the Americans With Disabilities Act, or ADA.

The case also has major implications for people with other diseases that, like HIV, may be invisible, intermittent or treatable. Advances in medicine have transformed a variety of once-dangerous diseases - from diabetes to epilepsy - into manageable conditions.

The case, Bragdon vs. Abbott, represents the high court's first look at the Americans with Disabilities Act, which requires employers to make reasonable accommodations, such as flexible scheduling, for disabled workers. It also represents the justices' first foray into HIV law.

The sweeping 1990 act failed to specify the diseases or conditions it covers; rather, it states that it protects people with "a physical or mental impairment that substantially limits major life activities."

An opinion, which attorneys in the case expect by the end of June, could define whether the protection applies to troubling but manageable conditions like HIV infection. Revolutionary HIV treatment regimens, although demanding, are helping patients fend off AIDS.

"I don't know what I would do without (ADA protection), although my boss is very supportive," said John Sellwood of San Francisco, who is 36 and has been HIV-infected for more than a decade. He has no symptoms of disease; thanks to aggressive treatment, his viral levels are undetectable.

"I need time off for doctor's appointments, or a "mental health' day, or to run out and get medicines," he said. "It takes the stress out of returning to work.

"My health is great. . . . But there have to be accommodations, or it would be a nightmare," said Sellwood. "HIV is a chronic thing that I've got to manage every single day."

Hospital care for cavity?

The case facing the Supreme Court was brought by an HIV-infected but healthy Maine woman whose dentist wanted to send her to a hospital to have a cavity filled at an extra cost of $150. He said he was using sound medical judgment in deciding that someone with an infectious disease would best be treated in a hospital.

The woman, 37-year-old Sidney Abbott of Bangor, Maine, says she was discriminated against because she is disabled by HIV infection. Last year, the U.S. 1st Circuit Court of Appeals agreed, ruling that HIV is a disability under the law because it limits the major life activity of having a baby.

Her suit is supported by more than 50 major medical, gay and disability rights groups, as well as the Clinton administration and the American Medical Association. They argue that a ruling against her could be used to discriminate against people with other illnesses - including cancer, diabetes and epilepsy - with no obvious symptoms.

The dentist's side

The dentist, Dr. Randon Bragdon, responds that Abbott showed no signs of disability when she appeared in his office. He says he wasn't refusing to treat her, but merely wanted to treat her at a hospital instead of his office. Her decision not to bear children is hardly a disability, he asserted. His suit is supported by the Equal Employment Advisory Council, a business group.

A narrow ruling for Abbott could mean that protection is extended only to people who fit her atypical definition of disabled: HIV-infected women of child-bearing age. This would leave HIV-infected children and men vulnerable to discrimination.

A broad ruling would protect those whose illnesses may not be apparent, but are real nonetheless.

Federal courts have been confused about how to apply the ADA to people whose disabilities do not have apparent symptoms.

The ADA, passed in 1992, opened the doors to employment of an estimated 40 million Americans who can't walk, see or hear or who suffer other major impediments.

In the act, the term "disability" was sweeping and ill-defined, and has been interpreted differently among lower courts. The language of the law excluded only a handful of conditions, like compulsive gambling, kleptomania, pyromania, or transsexuality, as well as minor impairments such as simple injuries.

It didn't address diseases that are transient, like mental illness, nor conditions that are controlled with medication, like diabetes. Although full-blown AIDS is disabling, people with HIV can live 10 to 12 years free of illness. A few "long-term survivors" are in good health 20 years after infection.

Breakthroughs in anti-viral medicines have transformed HIV disease, causing death and disease rates to plummet 70 percent in a year.

HIV infection is no longer necessarily a disease of wheelchairs, diarrhea, and hollow cheeks. People with HIV have completed triathlons, raced sailboats, and hiked cross-country. Basketball champion Magic Johnson has HIV; so does Olympic diver Greg Louganis and White House Interior Department liaison Bob Hattoy.

HIV-infected people are returning to the 9-to-5 world. San Francisco's job assistance program, Positive Action, placed 482 people in jobs in the past year, up 65 percent from the year before.

Attorneys for the Equal Employment Advisory Council fear that broad protections for diseases like HIV will create hardship for employers. The legislative history of the ADA is ambiguous, they say.

"Because the case has the potential to enlarge the scope of the protected class, it is of enormous concern to employers," said Ann Elizabeth Reesman, a Washington lawyer who wrote a friend-of-the-court brief for the council. But HIV advocates say that even healthy HIV patients face a daily round of pills, test tubes, and lab results. The medicines can cause nausea, a dry mouth, hives and dizziness.

Moreover, the virus never disappears from the body. Even when it cannot be detected by tests, the virus continues to lurk in the cells of the central nervous system, out of reach of current medicines.

"We tend to think of disease as a static condition. That is the furthest thing from the truth," said Claudia Center, an attorney with the Employment Law Center.

"Almost every disease is, to some degree, cyclical or episodic," she said.

"A whole range of conditions - mental health problems, cancer, diabetes - can flare up so that someone needs accommodation at one point, but not at another."

If people aren't protected until symptoms appear, they might be forced to choose between being tested and the potential loss of housing, employment, day care, schooling, medical care and other necessary services, said Janis Spire, executive director of the Elizabeth Glaser Pediatric AIDS Foundation.

"The ADA is what makes it possible for folks with HIV to go back to work - so they can take their pills, eat or take a nap at certain times," said Irwin Keller, director of the AIDS Legal Referral Panel, which provides low-cost legal aid to Bay Area HIV and AIDS patients. "It makes it possible to work and still remain healthy.

"We will see a lot more issues arising as people with HIV disability feel better and return to the workplace," he predicted.



 


Copyright © 1998 -The Bangkok Pos, Publisher. All rights reserved to San Francisco Examiner. All rights reserved. Reproduced with permission. Reproduction of this article (other than one copy for personal reference) must be cleared through the San Francisco Examiner, Permissions Desk, 110 Fifth Street, P.O. Box 7260, San Franciso, CA 94120.San Francisco Examiner

Information in this article was accurate in March 29, 1998. The state of the art may have changed since the publication date. This material is designed to support, not replace, the relationship that exists between you and your doctor. Always discuss treatment options with a doctor who specializes in treating HIV.