Medicine, Health Care and Philosophy 1: 163169, 1998. 1998 Kluwer Academic Publishers. Printed in the Netherlands.

Practical viewpoint May a dentist refuse to treat an HIV-positive patient?

An ethical commentary to the 1998 decision of the United States Supreme Court in the matter of Bragdon vs. Abbott

Jos V.M. Welie

Creighton University, Center for Health Policy and Ethics, School of Medicine, Omaha, Nebraska 68178, U.S.A.

Introduction Last summer, the U.S. Supreme Court delivered two decisions of immediate and great signicance for bioethical debates. Physician assisted suicide, so the Court found in both decisions, is not a constitutionally protected right. This summer, the Supreme Court has once again impacted American bioethics: If there is no signicant risk to a dentists own health, the dentist and one may safely assume, any other health care provider may not refuse to treat an HIV-seropositive patient.1 Notwithstanding his own ofce policy against treating HIV-seropositive patients in his ofce, Dr. Bragdon could not have refused to ll Ms. Abbotts cavity in his ofce because she was HIV-positive, offering instead to treat her in a hospital facility.2 This years verdict is certainly less controversial than last years decisions. In fact, for most dentists it is hardly news. The Principles of Ethics and Code of Professional Conduct of the American Dental Association leaves little doubt that the dentist may not discriminate against HIV-seropositive patients solely on the basis of that patient being HIV-seropositive.3 The American Medical Association likewise has argued against such discrimination.4 But since these professional codes of ethics do not carry legal authority and can be used only by the professional organization itself to discipline its own members, the Supreme Court did not base its decision on these codes. Instead, the case was argued in reference to the Americans with Disabilities Act of 1990. The Act provides that no individual shall be discriminated against on the basis of disability in the full enjoyment of the goods, services, facilities, privileges, advantages of any person who . . . operates a place of public accommodation . . . [except] where such individual poses a direct threat to the health or safety of others.5 As in any legally argued case, the Court had to nd that the issue under consideration fullls every single

element of this article. Three elements need special consideration. Firstly, the question can arise whether the private ofce of a dentist qualies as a place of public accommodation. Secondly, whether lling the cavity would have posed a direct threat to Dr. Bragdons health. And thirdly and most importantly, whether Ms. Abbott qualies as disabled.

Place of public accommodation The Act itself addresses the rst of these elements. It deems the professional ofce of a health care provider a public accommodation.6 The Court, hence, does not dwell on this rst issue any further. But the question remains how the dentists private ofce can be public. Since this question will reappear below, we should consider it some more than the Court did. Most ethicists will answer that the dentist, unlike the carpenter, mechanic, or hair stylist, is a professional.7 The dentist does not relate to her clients as Dr. Smith, but as a dentist, as a representative of the profession of dentistry as a whole. Conversely, the patient does not trust the dentist and submit to her treatment because she is Dr. Smith (rather than Dr. Jones). She trusts Dr. Smith because Dr. Smith is a member of the profession of dentistry. Or to make the same point differently: The dental relationship is not a business contract between two private people, a dentist and a client; it is a duciary relationship, a covenant between a representative of the dental profession and a member of the public. In the course of history, an implicit social contract has developed between the dental profession and the public. In return for public trust and considerable freedom from public interference (and such goodies as status and income), the profession of dentistry guarantees that all dentists will practice according to certain scientic, technical and ethical standards. It is in this sense that the indi-

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vidual dentist is actually a public ofcer and his or her private ofce qualies as a public accommodation. As the Act correctly points out, the dentists ofce is rst and foremost a professional ofce and as such public.

Threat to the care providers health The second element in the quoted fragment from the Americans with Disabilities Act concerns the care providers own health. Notice that the Act only mentions a direct threat, not a real threat or perceived threat. In other words, even if the care provider is sincerely convinced that treatment would pose a threat to his or her own health, the care provider would be liable if the threat could objectively be proven not to exist, her good faith notwithstanding. What, then, is a direct threat? This question is partially answered by the Act itself. A direct threat is dened as a signicant risk to the health or safety of others that cannot be eliminated by a modication of policies, practices, or procedures or by the provision of auxiliary aids or services.8 Interestingly, the Court rst points out that Dr. Bragdon failed to prove that treatment in a hospital would have reduced the perceived threat to his own health. It seems to make perfect sense that before one forces a patient to be treated in a hospital at additional expense and effort, the care provider must establish that such a referral has considerable added value. But it is unclear how and why this fact matters in the context of this case. Suppose that Dr. Bragdon would have been able to prove that by going to the hospital, the risk to his own health would have been reduced from a small risk to an even smaller risk, but a reduction nevertheless. That fact could not have impacted the Courts decision, since the Court needed to establish whether or not Dr. Bragdon was facing a direct threat by treating the patient in his own ofce. If he did, he could have refused to treat her without violating the Act. Conversely, if he did not, he could not treat her elsewhere without violating the Act, even if such hospital-based treatment would reduce his own risk even further. Interestingly, the Court next notes that the issue of direct threat is a purely statistical issue. Even if the profession of dentistry nds (as its policies indeed evidence) that dentists are obligated professionally to treat patients notwithstanding some personal risk, that may be commendable, but the question under the statute is one of statistical likelihood, not professional responsibility, thus the Court holds (p. 26). In other words, the professional status of the dentist is not relevant in this regard, but only the statistical risk

that the dentist (or for that matter, any other person) runs. It is remarkable that the Court considers the professionality of the dentist irrelevant in determining what risks a dentist must accept and which are too serious and, hence, constitute a direct threat. After all, the issue at hand is not and cannot merely be one of statistics. When practicing dentistry, medicine, or any other form of health care, there is always some risk to the practitioners own health and well-being. The germs of patients travel through the whole hospital, carried by vents, clothing, and ball-points. Sick patients cough and throw up; some jerk while being injected; others become aggressive. Blood gushes out of pulsating arteries; sharp lancets slip and cut gloves; accidents happen. The dentist, likewise, always runs some statistical risk. The crucial question is what risk the dentist must accept and that is not a statistical question. The Supreme Court concludes that previous Courts may have been mistaken in relying on scientically too weak grounds while denying the existence of a direct threat. Interestingly, however, the Supreme Court itself does not advance clear evidence either. Instead, the Court shifts the burden of proof to Dr. Bragdon and nds that his evidence for the existence of a direct threat is too weak scientically. Specically the Court concluded that the study quoted by Bragdon on airborne HIV transmission due to the use of highspeed drills is inconclusive, and so are the seven dental cases of possible occupational transmission of HIV identied by the Center for Disease Control as of September 1994.

Is an HIV-seropositive patient disabled? The third and most important element in the article of the Act concerns the condition of the patient, Ms. Abbott. Is Ms. Abbott disabled? As she had indicated herself on Dr. Bragdons health history, she was HIV-seropositive. She had no active symptoms at the time. The Court points out that even if a patient does not have any symptoms, there is no doubt that the patients hematologic and lymphatic system is pathologically affected. But does this change in Ms. Abbotts leucocytes cause her to be disabled? To address this question, the Court quotes the Americans with Disabilities Act. The Act provides three complementary denitions of a disability, the rst of which is relevant to the case: a physical or mental impairment that substantially limits one or more of the major life activities. . . . 9 This denition once again contains various elements that must be fullled. (a) The patient must suffer from an impair-

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ment that is (a.1) either physical or (a.2) mental. It must be a (b) limiting impairment. In fact, that limitation must be (c) substantial. The impaired person must be limited in (d) her activities (rather than, for example, her feelings or thoughts). Only (e) one activity needs to be limited. But that activity needs to be a (f) major life activity. In order to prove that HIV is an impairment, the Court quotes the older 1977 Rehabilitation Act, which denes an impairment as a disorder or condition that affects a major body system (listing specically the hemic and lymphatic systems) or any disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specic learning disabilities. The rst category of impairments are considered physiological, the second mental or psychological. The Court considers HIV a physiological impairment because it affects the hemic and lymphatic system. Although there is no doubt that HIV affects the physiology of the human body, it is interesting that the Court does not consider the second category of impairments. At one point the Court refers to learning disabilities in order to point out that the impairments need not have a public character. But otherwise, no mention of a mental or even psychological impairment is made. This is remarkable for as we will see later, the Courts principal argument actually hinges on mental/psychological considerations and only indirectly on the patho-physiological changes. So which of the patients activity or activities are limited by her being HIV-seropositive? The Court mentions that there really are many activities that are limited, as different Briefs addressed to the Court had pointed out correctly. But since Ms. Abbott had built her case on the argument that being HIV-seropositive impaired her ability to have children, the Court only considered this argument. Since having children is an activity, the Court was left with two issues to prove, namely that this activity is a major life activity and that being HIV-seropositive substantially limited this activity.10 By its own account, the Court had little difculty concluding that reproduction falls well within the phrase major life activity. After all, reproduction and the sexual dynamics surrounding it are central to the life process itself (p. 11). One cannot but grant the Court that life in the generic sense of that term hinges on reproduction. Without reproduction, there is no life. But that is not to say that reproduction is a major life function of an individual human being. There are many other processes central to life as such without being a major life function of the individual. Mutations, selective survival, and ecological stability are all central to life, but none of them is a major life function of the individual, human or otherwise.

Conversely, if particular individuals do not reproduce, they do not thereby undermine life.11 The question is, however, whether the Americans with Disabilities Act conceived of major life functions in such a biological sense of the word. It seems more likely that the Act refers to activities that are peculiarly human. They are activities that have an immediate bearing on the self-realization and, hence, happiness of human beings. Indeed, the Rehabilitation Act lists such activities as walking and seeing as well as learning and working. Now I would propose that sexuality and procreation are, indeed, major life activities in a more personalist sense of those words. But to prove this proposition would need considerably more philosophicalanthropological argument than can be advanced in this context. More importantly, even if we were to prove that sexual intercourse, conceiving of a child, bearing and delivering it into the world12 are major life activities in this personalist sense, it is not at all certain that this proof would also bring these activities under the Americans with Disabilities Act. As Chief Justice Renquist in his dissenting opinion points out, reproductive decisions are important in a persons life. But so are decisions as to whom to marry, where to live, and how to earn ones living. But these decisions are not the kind of activities that are repetitively performed and are essential in the day-to-day existence of a normally functioning individual.13 If we nevertheless grant the Court that reproduction is a major life function, we are left with the limitations caused by HIV on ones ability to reproduce. The Court proposed that Ms. Abbotts ability to have children was substantially limited in two ways. First, by having sexual intercourse, she would impose on her sexual partner a signicant risk (possibly 20%) of becoming HIV-infected. Secondly, an HIVseropositive woman risks infecting her child during gestation and childbirth (approx. 2530%). As was to be expected, both parties tried to inuence these statistics. It was pointed out to the Court that the risk to the newborn can be reduced to 8% with antiretroviral drugs. To counter this reduction, it was argued that mitigating factors (i.e., the use of drugs) should not be considered in determining what constitutes a substantial limitation. I would argue that the latter counter-argument is highly dubious. If sustained, it would mean that every person wearing glasses is suffering from an impairment of a major life function and, as such, disabled in the sense of the Americans with Disabilities Act. Surely, being blind or virtually unable to see would constitute a disability, but not (or no longer) when such an adequate and relatively simple remedy as glasses is easily available. The Court, however, did not address this counter-

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argument because it concluded that even an 8% risk to infect ones child represents a substantial limitation on reproduction. It is unfortunate that the Court did not address this issue. For as was to be expected, shortly after the Court had publicized its verdict, French reseachers showed that by combining retroviral drugs and ceasarian section, the risk of perinatal transmission of HIV sinks to less than 1%. As to the risk of partner infection, one could easily reduce that risk to zero by using articial insemination with semen from the partner. As is true of retroviral drugs, such a medical intervention involves additional expenses. But whether those additional expenses constitute a substantial limitation of a major life function is questionable. Interestingly, the Court never considered what seems to me to be the primary limitation on having children for any woman being HIV-seropositive, namely, to know that she is very likely to die before she has been able to raise the child to adulthood. In fact, the child would not only loose his or her mother at too young an age; the child would also experience the prolonged and dreadful demise and dying of its mother at a very impressible age. Of course, there are children all over the world who have to suffer such dreadful losses. But the almost certain knowledge that this will happen to ones own child would keep, I suspect, many an HIV-seropositive woman from conceiving.

The decision not to reproduce But the Court did not at all consider such a more psychological line of reasoning. Instead, its decision fully rests on (patho)physiological parameters. And this is also what makes this Supreme Court decision highly problematic. It is indeed the point at which Chief Justice Renquist dissents most adamantly. Firstly, as mentioned, the statistics are continuously changing, and if the numbers go further down and transmission of the virus can be prevented ever more adequately, the foundation of the Courts decision starts crumbling. Secondly, as already pointed out in reference to the issue of occupational risks, it really is not a matter of statistics anyhow. Whether the risk of occupational infection is 0.01% or 0.3% percent does not determine the ethical question whether such a risk is so signicant that the dentist may refuse to treat HIV-seropositive patients. At the heart of this question are moral considerations about obligations of human beings towards needy fellow human beings, and particularly about professional obligations of health care providers towards their sick and suffering patients. Likewise, the crucial question for HIV-seropositive persons is not how big of a chance there is that

they will infect either their partner or their child, but whether that chance must, may, ought, or should be taken, or not. Indeed, what limits the HIV-seropositive patient in her ability to have children is not a physiological factor. As a matter of fact, her physiological abilities to have children are not seriously affected by the HIV-virus, certainly not in this early stage of the disease. The HIV itself does not impact her reproduction, and in that sense, HIV differs essentially from glaucoma. Glaucoma itself causes blindness and, hence, substantially limits a major life function. But the HIV-seropositive patient is quite able to have children but decides not to have children because she doesnt think it is right to have children when doing so would lead either the child or its father to become HIV-seropositive as well. It is the ethical balancing act on the part of the woman that is the direct cause of her childlessness. The physiological fact of being HIV-seropositive is only indirectly a cause. So how does this conclusion bear on the disability question? Was Ms. Abbott disabled in the sense of the Americans with Disabilities Act because she feared transmitting the HIV-virus to her partner and future child? Because she feared leaving her child motherless at too early an age? I would argue that Ms. Abbott was indeed substantially limited in one of her major life functions. But as pointed out, this limitation was not directly caused by the condition itself. While this may seem like linguistic hair-splitting at rst, the consequences of the Courts approach are paramount. Suppose, for arguments sake, that Ms. Abbott had not been HIV-seropositive, but was a carrier of a gene that, if transmitted to child, would cause its death at an early age. Unfortunately, this scenario is all too realistic and many carrier-parents face the dilemma whether they will have children and often decide not to. Even though the parents themselves may never suffer from the gene they are carrying, they may well be as substantially limited in their procreative abilities as was Ms. Abbott. But were they disabled?14 Or take the 45-year premenopausal woman. She, too, has a statistically increased risk of bearing a severely handicapped child and may therefore decide not to have a child. But is she disabled? Take the patient who is suffering from metastatic cancer and is counting her months. Chances are that she will not want to conceive of a child given her own illness. Even if she will not pass the cancer onto her child, the risk of dying during pregnancy or in the rst year or so of her childs life may keep her from conceiving of a child. In sum, almost every major illness can be construed as a disability. Even more convincingly, every genetically determined predisposition (whether dominant or recessive) would represent a disability.

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And one could go even a step further. It seems fair to conclude that the Courts decision hinges on Ms. Abbott fear of passing on a dreadful condition to her child (and not on the fact that the HIV-virus causes leucocytes to dysfunction). So what about the woman who is very poor, maybe even homeless? She fears, and justiably so, that her child will be born in a very inhabitable, hostile, and life-threatening world. The chances of the child suffering from malnutrition, diseases, cold and even hunger unfortunately are quite signicant, even in the U.S. Arguably, she is as limited in her ability to have children as is Ms. Abbott. But is she disabled? It is not easy to dene a disability such that this concept retains a clear and useful difference from such concepts as disease or illness. Many keen philosophers have struggled with these denition quandaries, and continue to do so. But it shall be clear that the Supreme Courts rather loose interpretation of the 1990 Americans with Disabilities Act does not clarify these matters much. The Act specically denes a disability as an impairment that substantially limits one or more of a persons major life activities. Blindness is a disability because the glaucoma itself, not the patients assessment of it, causes her blindness. Aphasia is a disability because it itself frustrates a patients ability to speak, not the patients assessment of her condition and its consequences. The same is true for diabetes limiting a persons ability to join in conventional meals, Downs syndrome limiting a persons ability to mature mentally, or arthritis limiting ones manual dexterity or walking. But HIVseropositiveness does not itself impair reproduction. As Chief Justice Renquist argues against the Courts majority, while individuals infected with HIV may choose not to engage in these activities, there is no support in language, logic or our case law for the proposition that such voluntary choices constitute a limit on ones own life activities.15 With three other (partially) dissenting Justices, the Courts decision passed with the narrowest of margins. It shall now be clear why.

The duty to treat revisited The question that the U.S. Supreme Court addressed in this years bioethical case is not a simple question, but it is straightforward: Is a dentist (or any other health care provider) required to begin and/or continue treatment of a patient who poses a medical danger to the care provider, specically of acquiring HIV? The bioethical literature is replete with discussions of this question and many professional codes of ethics explicitly address it. Nevertheless, the U.S. Supreme

Court went on a lengthy argumentative detour that involved such remote issues as disability, sexual partners, perinatal HIV infection risks and the reduction thereof. Granted, the Court had little choice but to take this detour because it was the only legally correct route it could have taken. The law U.S. law simply offers no other way to address this issue. But by not addressing the issue directly, many more politically motivated groups became increasingly worried that the Court may end up sending the wrong message, that is, discrimination of HIV positive patients is allowed. Both the White House and the American Medical Association (AMA) supported the Courts majority position. Notably the AMA must have been acutely aware of the dubious stretching of the notion of disability such a position entailed. At a time when the whole health care world is struggling to shift paradigms from a narrow focus on acute care to a better understanding and appreciation of chronic conditions and disorders, this is a high price to pay. Remarkably, the American Dental Association (ADA) did not choose a political route (or at least not overtly so), and supported the Courts minority position in its Amicus Brief, even though the ADA, like the AMA, rejects discrimination of HIV-seropositive patients.16 Of course, the newspapers only reported that the ADA was siding with the dentist in the case. This case is but one more example that bioethical dilemmas are best kept out of the courts. I have little doubt that Chief Justice Renquist and the other dissenting justices were not favoring discrimination of HIV-seropositive patients, and neither was the ADA. But the arguments advanced by the parties on the patients side simply were neither to the point nor adequate to show that HIV-positive patients may not be discriminated against. To argue against such discrimination, one could travel three routes. First, it could be pointed out that from an ethical point of view, every human being has a basic obligation to assist other fellow human beings who are in clear need of such help. A toothache is a clear example of such a need. Hence, those who are able to offer effective help are obligated to offer such help. Of course, this obligation is not absolute and unlimited. But the initial position is one of obligation and any obligation entails certain undesirable burdens on the part of the obliged (or there would be no point in calling it an obligation). The second argumentative route expands on this prima facie deontological position. Dentists not only are able to relieve a toothache; they have formally and publicly professed their willingness to do so. The social organization of dentistry as a profession is aimed at and instills trust among its lay clientele.

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J OS V.M. W ELIE 1998. The complete text of the decision, including links to the Americans with Disabilities Act, can be found on the following internet location: http://supct.law.cornell.edu/ supct/html/97-156.ZO.ht ml 2. Interestingly, the case was more or less provoked by the patient. She knew that the dentist, Dr. Bragdon, was generally unwilling to treat HIV-seropositive patients in his own ofce, favoring instead the development of special regional clinics for the treatment of these patients. She visited Dr. Bragdon knowing that he might refuse to treat him and planning to le a lawsuit against him if so he would. She was aware that the Maine Human Rights Commission had already led a suit against Bragdon on behalf of a John Doe with AIDS. 3. Actually, the Code itself does not address discrimination of HIV-seropositive patients. But the Advisory Opinion to the article on discrimination reads as follows: Art. 4.A.1: HIV Positive Patients. A dentist has the general obligation to provide care to those in need. A decision not to provide treatment to an individual because the individual has AIDS or is HIV seropositive, based solely on that fact, is unethical. Decisions with regard to the type of dental treatment provided or referrals made or suggested, in such instances should be made on the same basis as they are made with other patients, that is, whether the individual dentist believes he or she has need of anothers skills, knowledge, equipment or experience and whether the dentist believes, after consultation with the patients physician if appropriate, the patients health status would be signicantly compromised by the provision of dental treatment. 4. American Medical Association Code of Medical Ethics: Art. 2.23: It is unethical to deny treatment to HIV-infected individuals because they are HIV-seropositive. Art. 9.131: A physician may not ethically refuse to treat a patient whose condition is within the physicians current realm of competence solely because the patient is seropositive for HIV. 5. Americans with Disabilities Act, 12182(a) and 12182(b)(3). 6. Ibidem, 12181(7)(F) 7. Note that the Act itself not only considers the professional ofce of a health care professional a public accommodation, but a whole host of other locations. This suggests that the qualier professional has little or no meaning in the context of the Act. That conclusion is further supported by the fact that the ofces of lawyers, traditionally considered professionals as well, are not qualied as professional ofces. Conversely, the ofces of those involved in ministry, the third oldest profession, are not even mentioned. As the introductory sentence to this section of the Act makes clear, the determining factor is not public trust, but commerce. 2181 (7): The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce: A) an inn, hotel, motel, or other place of lodging, except

The public has been led to believe that dentists will care for them when they are in serious need, i.e., to treat them. Lest they betray those entrusted to them, dentists are obligated to treat those in need. That is in essence what it means to be a professional. Again, this is not an absolute and unlimited obligation, but a prima facie obligation. But an obligation it is and one that is considerably stronger than the generic human obligation mentioned before. That obligation, thirdly, is even stronger once a care provider has assumed the treatment of a particular patient, that is, once the dentist has accepted the patient into her practice as her own patient. Such an act conrms the professional commitment and reinforces the patients trust that he has a place to go when in need of dental care. Dismissal of a patient once accepted into ones practice constitutes the most serious example of patient abandonment. Fullment of obligation involved burdens. By treating a patient in need, a dentist may lose time and, if not reimbursed by the patient afterwards, income. Patients may be rude, uncooperative, even aggressive, causing annoyance, anxiety, and possibly physical harm to the dental team. And patients always entail certain medical risks to the care providers as well. Germs travel freely. Patients cough and sneeze; teeth polishing results in a cloud of germ laden drops; drill bits slip and needles prick through gloves. Dentists, as all other health care providers, are always at a greater risk of acquiring infections (notably the less common and more aggressive diseases) by their occupational environment and trade, than the general public. Naturally, such burdens and risks should be minimized as much as possible. Patients will have to put up with dentists wearing gloves, masks and other protective gear. A highly infectious patient may have to accept a greater degree of caution, which may imply more time in the dental chair or even treatment in a better equipped clinic or by a more able specialist. However, the case at hand did not call for any such exceptional protections. The intervention required (a lling) was not in any sense unusually difcult. There is no evidence that the treatment of Ms. Abbot would have subjected Dr. Bragdon to an unusual burden or risk, greater than, say, the risk involved in treating hepatitis patients. In sum, Dr. Bragdon should have treated her in his ofce not because she was disabled, but simply because she was his patient and in need of dental care.

Notes
1. Supreme Court of the United States: Randon Bragdon, Petitioner v. Sidney Abbott et Al. No. 97156, June 25,

R EFUSAL TO TREAT HIV PATIENT for an establishment located within a building that contains not more than ve rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, ofce of an accountant or lawyer, pharmacy, insurance ofce, professional ofce of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specied public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. 8. Americans with Disabilities Act 1212182(b)(3). 9. 12102(2). The Act also considers disabled individuals who have a record of such an impairment or are being regarded as having such impairment. 10. In his concurring opinion, Justice Ginsburg did not rely on the specic function of reproduction, but more broadly on the fact that being HIV-seropositive affects the aficted individuals family relations, employment potential, and ability to care for herself (p. 1). 11. In his partially concurring, partially dissenting opinion, Chief Justice Renquist points out that the Americans with Disabilities Act actually demands a very individualized approach. It is not sufcient that HIV limits a particular life function in general. Ms. Abbott herself must be

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12.

13.

14.

15. 16.

limited in this activity. Yet there is no shred of record evidence indicating that, prior to becoming infected with HIV, respondents major life activities included reproduction. . . . At most, the record indicated that after learning of her HIV status, respondent, whatever her previous inclination, conclusively decided that she would not have children (p. 3). In his partially concurring, partially dissenting opinion, Chief Justice Renquist that a human being, as opposed to a copier machine or a gremlin, is never plainly reproducing. The human being can be walking, breathing or writing, but not reproducing. Reproduction is a multi-faceted event, encompassing many different human activities (as well as different biological processes). Opinion of Justice Renquist, p. 4. In its Amicus Brief to the Court, the American Dental Association had already argued along exactly the same lines as does Chief Justice Renquist in his dissenting opinion. Once again, this argumentum ad absurdum is also used by Chief Justice Renquist to back his dissensus from the Court (see p. 6 of his opinion). Opinion of Justice Renquist, p. 5. Note that the American Dental Association in its brief does not support Dr. Bragdons refusal of treatment. The Association merely rejects the legal argument that Ms. Abbott was disabled in the sense of the Americans with Disabilities Act.

References
American Dental Association: 1998, Principles of Ethics and Code of Professional Conduct. Chicago: American Dental Association. American Medical Association: 1996, Code of Medical Ethics & Current Opinions of the Council on Ethical and Judicial Affairs. Chicago: American Medical Association. Address for correspondence: Center for Health Policy and Ethics, 2500 California Plaza, Creighton University, Omaha, NE 68178 Phone: (402) 280-2034/2017; Fax: (402) 280-5735; Email: jwelie@creighton.edu