I wonder if anyone in America has ever fought quite so hard for the pleasure of having her teeth drilled. On Monday, Sidney Abbott went all the way to the Supreme Court to get a cavity filled.
And from the sound of it, the justices are going to need all their wisdom teeth to arrive at a fair decision.The case of the molar and the dentist began in Bangor, Maine, when Abbott, who is HIV positive, went to see Dr. Randon Bragdon. The dentist said he wouldn't treat her in his office, only in the hospital. Abbott decided to sue him for discriminating on the grounds of her disability.
The first Supreme Court case of the 8-year-old Americans With Disabilities Act and the first involving an HIV person caused as much discomfort in the lower courts as a root canal. Bragdon vs. Abbott will test the very definition of "disabled." It will affect the rights of doctors and employers on the one hand, and people with such "nontraditional" disabilities like HIV, cancer or diabetes on the other hand.
The first question before the court is whether Abbott, who has HIV but is symptom-free, is even disabled. This makes the ADA different from any other civil rights legislation. No one, after all, has to prove he or she is black or female.
But the ADA was written in a way that is both sweeping and fuzzy. It bars discrimination against anyone with "a physical or a mental impairment that substantially limits one or more major life activities." It doesn't precisely spell out those activities. So over the past several years, people have had to prove they are disabled.
Abbott's lawyers claim that her life is "limited" in the "major life activity" called reproduction. HIV prevents her from having chil-dren because she might pass on the virus or not live long enough to see her children grow.
When most of us think of a disability, we think of wheelchairs, blindness, deafness. In writing anti-discrimination laws though, Congress deliberately expanded the definition to include nontraditional disabilities, including AIDS.
Reproducing is surely "a major life activity." But it's still a mental stretch to call, say, infertility or impotence a disability.
It's also a stretch to say that Abbott couldn't reproduce. In a flurry of exchanges in the courtroom, the justices wrestled with the difference between having a reproductive "disability" and making a "moral choice" not to have a baby. Today, with AZT, for example, women still have an 8 percent chance of passing the virus to a baby.
The ADA law banning discrimination also provided an exception for medical workers threatened by infectious diseases. In the second major issue before the court, neither the dental or medical associations - nor, it appeared, the justices - agreed with Brag-don that he had a legitimate reason to fear infection from filling a tooth. But it's not clear what rights medical people do have to make those decisions for themselves.
On the whole, I tend to side with Abbott, though not necessarily on the narrow grounds of reproduction. HIV limits life in many other ways.
In the case of Sidney Abbott, the court is just cutting its teeth on disability rights. Before this one is over, we'll all be hoping for a shot of Novocain.