May/June, 1998

The Supremes get around to the ADA

Dentist Randon Bragdon refused to treat Sidney Abbott in his office in Bangor, Maine, because he believed she was infected with the HIV virus. He insisted she be treated at a hospital. Abbott sued.

When the Court heard oral arguments in the case in March, The New York Times' Linda Greenhouse reported that Bragdon had argued "both that the woman [Sidney Abbott] was not disabled within the meaning of the law, and that in any event, his refusal to treat her anywhere but in a hospital was justified by his reasonable fear of infection."

Two lower courts rejected Bragdon's arguments, ruling in Abbott's favor. Bragdon has doggedly appealed each time - just as the school district did in the case of Amy Rowley.

Trumpeted as "the first lawsuit over the Americans with Disabilities Act to reach the Supreme Court," reporter and pundits are having their say.

If someone discriminated against you because they regarded you as disabled, and that's why they treated you bad, then you were supposed to be covered under the ADA. This seemed simple when activists over a decade ago framed the bill that would become the ADA - it's the "regarded as having a disability" part of the law. But the point is entirely missing in public discussion of this case.

The "he-said-she-saids" as to whether Sidney Abbott can or cannot perform "one or more major life activities" get all the attention. In its eight short years, attorneys have so focused on the "what is a disability?" part of the ADA that they never seem to get around to the "discrimination" part.

The issue should not be about whether Abbot had a disability; the issue should be whether or not Bragdon regarded Abbott as disabled when he refused to treat her. Bragdon thought Abbott had AIDS and chose, on the basis of that belief, to refuse treatment - i.e., discriminate. That's the simple issue that this case ought to hinge on. Instead, attorneys argue about "which major life activity" Abbott can't perform in order to prove she's "disabled" enough to be able to use the ADA's protections. (As Abbott's attorneys see it, it's her inability to conceive a child that makes her "disabled" and therefore covered under the ADA.) .

Huh? What happened to the idea of "regarded as having a disability?" Where did they go, those disability activists who framed the ADA? Where is their thinking about all this? To read the news of the case, it would seem that the point to this definition had disappeared altogether.
Avoiding the law
Not us! Not us!

"The ADA doesn't cover us!" - the argument the PGA trotted out against Casey Martin is also the cry of the Pennsylvania Department of Corrections, one of whose officials has called the ADA "federal intrusion" into a "core function of state government." That case is also being heard by the Supreme Court this spring. The prison system is arguing it shouldn't be covered by the ADA.

Not waiting for the courts, the over-the-road bus industry is trying to get Congress (see D. R. Nation) to declare them exempt from the ADA.


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