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
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
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
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
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
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
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,
"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
"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