WHEN THE AMERICANS with Disabilities Act was passed in 1990, advocates for the law spoke of common-sense accommodations for the disabled, like wheelchair ramps and braille elevator buttons. Instead, the ADA has served a different social mission: highlighting the myriad of ways in which a litigious society can profitably eschew personal responsibility. Two decisions from the Supreme Court’s latest term promise to spawn a new batch of such cases — and, in the process, to increase the pressure on Congress to finally rein in the ADA.
As expected, the high court held last month that the disabilities act applies to prisoners. The court ruled unanimously in Pennsylvania Dept. of Corrections v. Yeskey that the act was written so broadly that even inmates fall within its scope. Justice Antonin Scalia, writing for the majority, observed that “the statute’s language unmistakably includes state prisons and prisoners within its coverage.” The expansive language of Title II of the ADA “covers state institutions without any exception that could cast the coverage of prisons into doubt.” Prisoners are notoriously litigious and have now been handed a powerful new tool with which to rattle their cages.
Ten days later, however, the court handed down an even more unsettling ruling in Bragdon v. Abbott. By a 5-4 majority, the court held that infection with the virus that can lead to AIDS qualifies as a disability. The court took up the claim of Sidney Abbott, an HIV-positive woman from Maine who was denied treatment by a dentist fearful of contracting the virus. The dentist, Randon Bragdon, offered to fill her cavity at a hospital, though the woman would have to pay for use of the hospital facilities. She declined and instead sued Bragdon for wrongful discrimination under the ADA.
Writing for the majority, Justice Anthony Kennedy held that HIV infection qualifies as a disability under the act. The statute defines “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” The court ruled that because her HIV infection places a substantial limit on Abbott’s ability to bear children, she is disabled.
In his dissent, Chief Justice William Rehnquist noted that there was no evidence that Abbott had ever even considered having children, or that she regarded reproduction as a “major life activity.” For that matter, he added, reproduction “is not an activity at all, but a process:” He explained: “One could be described as breathing, walking or performing manual tasks, but a human being (as opposed to a copier machine or a gremlin) would never be described as reproducing.”
Yet easily the most ominous aspect of Bragdon — and the one that demands immediate congressional attention — is the court’s willingness to interpret the disabilities act to mean that anyone in the workforce who declines to expose himself to potentially fatal, contagious disease such as HIV is guilty of illegal discrimination. The ADA does allow for the refusal to treat patients with a condition that “poses a direct threat to the health or safety of others.” But on this issue of “direct threat,” the First U.S. Circuit Court of Appeals stunningly granted summary judgment to Abbott. In practical terms, this meant that Bragdon faced no “significant risk” to his health or safety. Ordinarily, judges are extremely reluctant to grant summary judgment when there are any factual disputes that relate even remotely to the merits of the case.
And in Bragdon, there was certainly a material dispute over the “direct threat” of HIV. Mr. Bragdon had offered to the court a 1994 study by the federal government’s Centers for Disease Control and Prevention that identified seven instances of possible transmission of HIV from patients to dental workers. He also adduced evidence of 42 documented incidents of occupational transmission of HIV to healthcare workers other than dental professionals. Nonetheless, in an ideologically charged ruling, the First Circuit held that there was not enough evidence of a “direct threat” to Bragdon’s health for him to avoid summary judgment.
The Supreme Court did not go quite so far. It questioned some of the evidence the First Circuit had relied on in granting Abbott summary judgment, and told the appeals court to reconsider the evidence. But the high court offered Bragdon little hope of prevailing. Referring to the evidence cited by Bragdon, including the Centers for Disease Control study, the majority opined, “Standing alone, we doubt [this evidence] would meet the objective, scientific basis for finding a significant risk to the petitioner.”
In a dissent joined by Justices O’Connor, Scalia, and Thomas, Rehnquist took strong exception to the granting of summary judgment on the “direct threat” issue. “Given the ‘severity of the risk’ involved here, i.e. near certain death, and the fact that no public health authority had outlined a protocol for eliminating this risk in the context of routine dental treatment, it seems likely that petitioner can establish that it was objectively reasonable for him to conclude that treating respondent in his office posed a ‘direct threat’ to his safety.”
With its Bragdon ruling, the Supreme Court has signaled that it believes the ADA makes it a federal offense for health-care workers — and conceivably other classes of workers — to refuse to expose themselves to contagious, life-threatening diseases in the course of their employment. And while Bragdon is a product of judicial activism, the bulk of the blame for the ADA and its stream of follies lies with Congress. Since its passage in 1990, both the Bush and Clinton administrations have promulgated federal rules that extend the ADA to cover a vast array of behavior and disorders.
The Bragdon court in fact relied on some of these regulations in interpreting the disabilities act as applying to the HIV-positive. Congress, for its part, has amended the ADA only twice in the act’s eight-year life. Both times, the amendments expanded its coverage.
Unlike the Supreme Court’s interpretations of the Constitution, its interpretations of the ADA can be overturned with a simple majority vote by both houses of Congress. It thus becomes increasingly difficult for Republican congressional leaders to justify continued indifference to the ADA’s transmogrification. Curbing an act that has grown to serve the interests of trial lawyers, prisoners, and gay-rights activists rather than those of the average disabled citizen should not require exceptional amounts of political courage from a Republican Congress.
Andrew Peyton Thomas is an attorney living in Phoenix.
