Transcript

IN THE SUPREME COURT OF THE UNITED STATES

RANDON BRAGDON, Petitioner v. SIDNEY ABBOTT, ET AL.

No. 97-156

March 30, 1998

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

APPEARANCES:

JOHN W. McCARTHY, ESQ., Bangor, Maine; on behalf of the Petitioner.

BENNETT H. KLEIN, ESQ., Boston, Massachusetts; on behalf of the Respondents.

LAWRENCE G. WALLACE, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Respondents.

PROCEEDINGS

10:03 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in Number 97-156, Randon Bragdon v. Sidney Abbott.

Mr. McCarthy.

ORAL ARGUMENT OF JOHN W. McCARTHY ON BEHALF OF THE PETITIONER

MR. McCARTHY: Mr. Chief Justice, and may it please the Court:

Some risks are acceptable. We know when we build a major bridge or a tunnel that there are risks of death during the course of construction, despite reasonable precautions, but these risks are acceptable because there are benefits to society and because the workers are not compelled to participate.

Ms. Abbott and her supporters believe the risk to the lives of dentists is outweighed by providing inoffice treatment to HIV-positive patients without additional precautions. Dr. Bragdon believes that when he provides service in the face of the risk of death, he should be allowed to take additional precautions.

This raises one of the fundamental questions in this case. What is the proper legal standard for determining when to impose liability on a dentist facing a claim of discrimination under the Americans With Disabilities Act when the direct threat provisions are implemented?

QUESTION: Mr. McCarthy, may I ask you to clarify at the outset whether you recognize that once the symptoms are visible, what is now described as AIDS, once a person has that disease, that that would constitute a disability?

MR. McCARTHY: I think that's very likely, Your Honor, but our position is that the definition applies for disability, and the definition is when there's a physical or mental impairment and here we're talking about HIV, that substantial limits a major life activity, if that comes into play, then the person's disabled, then it seems very likely it would come into play if a person had visible symptoms of HIV disease.

QUESTION: You concede there is a physical impairment, or don't you?

MR. McCARTHY: I don't--we don't concede that, although we see the force of the respondents' argument on that issue. We note that the Fourth Circuit in Runnebaum found that there was no physical impairment and we're unwilling to concede that issue when a circuit court of appeals has made that finding.

QUESTION: I thought it was curious that the American Medical Association took the position that it is a physical impairment under the act from the beginning, and the dental association, on the other hand, takes the opposite view.

MR. McCARTHY: Well, I'm not sure what position the dental association takes with regard to physical impairment. We don't think that it's really essential to the arguments that we are making in this matter. Our arguments are directed to disability and--rather than a physical impairment.

There was, it appears to us, a great deal of confusion about those terms in Congress, where Congressmen and women sometimes didn't seem to understand the difference between impairment and disability.

QUESTION: Well, the act seems to go further, and say if someone is regarded as having the impairment it's covered.

MR. McCARTHY: I think that the language of the act says, if someone is regarded as having such impairment, and when they say such impairment they're referring to an impairment that substantially limits a major life activity, so the regarded as only comes into play if you have an impairment that substantially limits a major life activity.

QUESTION: Was that issue argued in the First Circuit, the regarded as? Was that point argued in the First Circuit, or--

MR. McCARTHY: In our view it wasn't really argued aggressively, but the issue has appeared. The Solicitor General, or the Department of Justice raised it in the First Circuit.

QUESTION: Had it been raised in the district court?

MR. McCARTHY: I believe the respondent believes that it has, and the record is somewhat ambiguous on that.

QUESTION: Really a pretty skimpy record on that point.

MR. McCARTHY: There's a very skimpy record on that issue.

QUESTION: But you are contending that a rational Congress would draw the line and exclude from this protection a person whose symptoms are not yet visible, yet include someone who would pose perhaps at least equal danger whose symptoms are visible?

MR. McCARTHY: No. We do not think that Congress excluded individuals with HIV disease. We think that congress defined disability, and you have to meet it. Whether you are symptomatic or not symptomatic, you have to have a physical impairment that substantially limits a major life activity, and our argument goes directly to the statute, and there are certainly--although there may have been efforts to pass legislation that excluded contagious diseases, they were not successful, and we certainly don't take that position.

We take the position that you have to meet the definition, and the reason the issue is raised in a case like this is because this particular individual is a classic example of a person who had no symptoms, no difficulties whatsoever. The record is very clear on that, that she doesn't have any of the sorts of attributes that are attributed to some asymptomatic and certainly some symptomatic HIV individuals.

QUESTION: Well, do you say that we have to focus on daily public and economic life activities, as oppose to the more private activities that are the--really the basis for the respondent's contention?

MR. McCARTHY: We get to that language when we look at reproduction as a major life activity, and there are sort of two parts of that, and the first part is, well, this--how do you get away from the idea that it's so major--obviously reproduction is so major, it must be a major life activity.

And we escape from that argument, we believe successfully, by the fact that Congress already narrowed that definition to what's in the regulation, and I say Congress narrowed it to what's in the regulation because they adopted the language, major life activities, from the 1973 act, the Rehabilitation Act, and the 1988 Fair Housing Amendments Act, so it was already in place that major life activities is limited to functions such as living, breathing, working.

When we get to that, the question then becomes is reproduction on that list of major life activities, and the reason it isn't is precisely for the reason I think you made inquiry with respect to, Your Honor, and that is, you have to look at the context and purposes of the Americans With Disabilities Act in order to determine what goes on that list, and the context and purposes are, day-to-day independent living and economic self-sufficiency.

QUESTION: Are you relying on the regulations issued by the Department of Justice or those issued by EEOC earlier?

MR. McCARTHY: We're--I'm making reference to the Department of Justice title III regulations, but it's also important to make reference in the sense that I just described to the regulations that issued under the Rehabilitation Act and the Fair Housing Amendments Act.

QUESTION: Can I ask--and are they identical in that--

MR. McCARTHY: They are either identical or essentially identical in that regard.

QUESTION: What function does the Justice Department have under title III, other than issuing regulations?

MR. McCARTHY: I'm not sure exactly what you mean. They issued the regulations--

QUESTION: Do they do anything else under title III?

MR. McCARTHY: --under title III.

QUESTION: Do they administer title III in any sense?

MR. McCARTHY: I'm not aware of the Department of Justice--

QUESTION: Suppose you have a Congress that's been taken over by the Republicans after 40 years of Democratic control and Democratic judicial appointments and Congress, this Republican Congress does not like the kind of decisions that Democratic judges are going to be making, can Congress say that the interpretation of statutes shall be governed by regulations issued by the Department of Justice? I find that extraordinary.

MR. McCARTHY: It certainly was unusual, and we don't--and we don't really rely on it in that sense. Our reliance comes upon--comes out of the fact that the--that Congress knew when it accepted the term, major life activities, that major life activities was already under a term under the Rehabilitation Act that had already had an existing regulation, so it incorporated that, and there are two--I think you're making a distinction that's worth noting, if I understand it correctly.

There are two different ways they look at that, and one is simply knowing that that language already existed, and the other is attempting to say through the Senate and committee reports that they were adopting that language, and those are two different ways of looking at--

QUESTION: The whole Congress said that through the committee report.

MR. McCARTHY: They attempted to say it through the committee reports.

QUESTION: --on those reports.

MR. McCARTHY: Oh, no, certainly the whole Congress did not, but the committee reports made that argument.

We're not suggesting that those committee reports are significant. What I'm trying to get at is an answer to the question of what role does independent--day-to-day independent living and economic self-sufficiency play in defining what is and what is not a major life activity, and we think we've in a sense solved the riddle to how do you determine what goes on that list, and the riddle and answer is, you have this principle basis now for deciding what should be on the list, and that is these goals of the Americans With Disabilities Act.

Once you have those goals in mind and have this principal basis, you then say a major life activity is a activity which, if substantially limited by a physical or a mental impairment, interferes with the ability to achieve day-to-day independent living and economic self-sufficiency, and when you apply that test you'll find reproduction doesn't fit that list in whatever fashion we describe as reproduction, but learning, hearing, working, breathing do.

QUESTION: If you stipulate that 3 or 4 years hence it is highly likely that major life activities of the kind you've been discussing will be affected, is the person disabled, have disability within the meaning of the act in the first year, when we know that it's inevitable that there will be an effect 3 or 4 years down the line?

MR. McCARTHY: Well, of course, in a sense it--we think of it as inevitable, but recent--

QUESTION: Let's assume that it's--

MR. McCARTHY: But if we assume it's inevitable the definition of disability certainly does not seem to attempt to affect future disabilities, which is the question that that raises.

In fact, I believe the EEOC guidelines for title I specifically say they're not addressing--and now I can't remember the term--gene-based disabilities, or disabilities that are going to occur in the future in that sense, and the argument that because you know, almost know for sure you're going to have disabilities later on, you should be classified as disabilities now, I think simply goes beyond the statute.

The statute not only defines disabilities in a present sense, but if you open up the statute to future disabilities, then you start looking at hypertension, genetic problems, Huntington's chorea disease, whatever might exist in the future.

QUESTION: But it doesn't mean, does it, the major life activity, that the life activity has to be related to the performance of the job? I mean, a person could be blind. That doesn't mean the blind person would not be--would be not disabled simply because some jobs don't require seeing.

MR. McCARTHY: I think that's correct.

QUESTION: All right. If that's correct--

MR. McCARTHY: I'm having a little bit of difficulty adjusting to a--

QUESTION: If that's correct, then let's take a person who had some eating disorder, or couldn't--that's not on the list, I don't think, eating disorders, but people are terribly frightened of getting it, so he can't eat except in very, very unusual ways, a very serious problem. People are frightened to death of getting it. Does that fall within the act?

MR. McCARTHY: I think it's entirely possible that eating is a major life--

QUESTION: Well, I would think so.

(Laughter.)

QUESTION: And then if that's so, why isn't reproductive activity, which includes the person having a sex life, I take it--I mean, you'd think perhaps that that is at least regarded in this society as a major activity, portion of human life.

MR. McCARTHY: But that argument escapes from the idea that the term major life activities incorporates a definition that's already bounded by the regulation.

QUESTION: Well, the regulation didn't refer to eating. I didn't see eating on there.

MR. McCARTHY: No.

QUESTION: And what about a person who couldn't feel, some unusual disease where he can't feel at all. I mean, I take it you put that on there, even though it doesn't mention it.

MR. McCARTHY: The regulation says, such as, so it's not excluded.

QUESTION: Exactly.

MR. McCARTHY: But now--

QUESTION: So if that's so, my question is, if you're willing to put in things that relate to feeling, things that relate to eating, things that relate to those things which are part of our ordinary human life, and if you also say that sexual activity is an ordinary part of human life, and an important part, why isn't that on there, too?

MR. McCARTHY: Because the test is not important. The test is, is it--does it fit within the terms of this regulation, which is such as eating, breathing, learning, and--

QUESTION: May I ask about the regulation--I'm a little puzzled. You want us to ignore the regulations that are issued by the Department of Justice pursuant to this statute and look at some other regulations.

MR. McCARTHY: No. The regulation that I'm referring to that gives meaning to major life activities is part of this statute. I'm just pointing out that these same regulations--

QUESTION: Well, the regulations specifically list HIV as a physical or mental impairment.

MR. McCARTHY: And it almost certainly is a physical or mental impairment, but a physical or mental impairment is different than a disability, and we know that it's classified, probably classified as a physical impairment, certainly if you follow the regulations, but the question is, is it a disability, and we get to--in order for it to be a disability, it has to be a physical impairment that substantially limits a major life activity.

QUESTION: You're saying--you're--you're referring, when you keep referring to the examples in the regs, to the one set out on page--in the appendix to your brief, 36.104--

MR. McCARTHY: Yes, Your Honor.

QUESTION: --which has the examples, and I take it your argument is that all of those examples go to the capacity of an individual in effect to survive personally. They are the things that one has to do to live, but they do not go beyond that.

MR. McCARTHY: That's right. They are--in other--

QUESTION: So that's why you would pick up eating, but you would draw the line--one does not have to reproduce in order to survive.

MR. McCARTHY: In a sense. They go to sustaining oneself, and reproduction is outside that--doesn't fit with the list. I mean the--sort of the game here are the--and of course that's a loose way of referring to it, but the whole idea here is, we're given this regulation that says what major life activities are, and it defines it in terms of examples, and one must understand why the examples are there to know what else goes on the list.

QUESTION: What about sustaining oneself, the words you just used, including access to ordinary health care like going to the dentist? This--a person who has the HIV virus, would you agree, needs to be checked more regularly than you or I, needs access to medical monitoring?

MR. McCARTHY: I think it's arguable that if a person has a serious disease and the present medical regimen would include more visits to the office than perhaps some--not I, but somebody else makes.

QUESTION: And that access is rendered more difficult, as this very case shows. That person needs the monitoring, and is impeded from getting it. Why doesn't that qualify?

MR. McCARTHY: Well, if that argument is, you're substantially limited in the ability to care for yourself--

QUESTION: Yes.

MR. McCARTHY: Because you have to go to the doctor, first of all--or a dentist, first of all she's not substantially limited. That part of the definition exists also.

Dr. Bragdon didn't prevent her from obtaining care. In fact, he offered her care, and there's lots of other care available, so we can't mix up the discrimination and the disability questions, and the disability question is, is this caring for oneself come under that--

QUESTION: Is there something in the record that indicates that someone in the position of Ms Abbott would have to go to the dentist more regularly than someone without that condition?

MR. McCARTHY: There's nothing in the record that I'm aware of that would suggest dental care would fit under that rubric.

QUESTION: But do I under--I may not understand you. Do I understand you correctly that in response, for example, to Justice Ginsburg's question, that your point is that under the reg the substantial limitation goes to what the individual can do by himself alone. It does not go to what others may do in relation--in other words, discrimination is not a--cannot amount itself to a disability?

MR. McCARTHY: I think that's correct, that the--you can't get at what is a disability by what is allegedly discrimination, but what I was trying to get at is, we're now talking about reproduction as a--we're now talking about caring for oneself as a major life activity, and we know it is a major life activity because it's on the list, and the AMA tries to put health care services under that, and our first argument is it really doesn't belong there. It's not caring for oneself, but we haven't even discussed that--

QUESTION: Is others caring for one?

MR. McCARTHY: But the part that I was getting--attempting to get at was there is--you're not substantially limited in it simply because a single dentist says to you, I believe we should take additional precautions to treat you.

The other part of the major life activity argument that I wanted to get at is the idea, this idea of the principal basis in day-to-day independent living and economic self-sufficiency being the guide. The reason reproduction doesn't fit within that group is, people who have limitations in fertility, or impotent, don't normally have difficulties with day-to-day independent living or economic self-sufficiency, and that's--

QUESTION: But even if you put--and I realize you're not doing it, but even if you put reproduction within the approved list of activities that the statute is getting at, I take it you make a distinction between, let's say, a person who is infertile and a person who simply has HIV.

MR. McCARTHY: Ultimately you do, yes.

QUESTION: Yes. And what is that distinction?

MR. McCARTHY: Well, if we're talking about HIV, the first question is, is it an impairment, and the regulation suggests that it is an impairment, and when we're talking about whether it substantially limits a major life activity, like being impotent or like being infertile, it has no relationship to this concept of day-to-day independent living.

QUESTION: Yes, but let's assume we get over that point and we classify this as one of the activities that does, in fact, belong within the series of examples.

MR. McCARTHY: Reproduction?

QUESTION: Yes. I understood you to make a distinction even at that point--you're sort of, not at the last ditch, but you're close to it. I understood you to be making a distinction at that point between the position of the individual with the HIV infection and the individual who is infertile or who is impotent or who is sterile, and you said yes, you did make such a distinction.

MR. McCARTHY: Right.

QUESTION: What is your distinction?

MR. McCARTHY: I'm afraid I've lost that distinction as we discussed now.

I do want to take a minute, while I still have the opportunity, to get that--

QUESTION: I don't understand your answer. You--is there a distinction or isn't there a distinction?

MR. McCARTHY: I lost--I'm not aware of the distinction as I stand here.

QUESTION: You would think that if HIV--if the inability to reproduce because of HIV qualifies under the statute, the inability to reproduce because of impotence or sterility would also--

MR. McCARTHY: That's correct, arguably.

QUESTION: But what about--

MR. McCARTHY: Those are being--

QUESTION: It's arguably, but do you take that position?

MR. McCARTHY: Those are the--those are the physical impairments that relate to the major life activity of reproduction.

QUESTION: No, but I thought your--the argument that was suggested you didn't--I don't think you went into it in great detail--was that the person with HIV can in fact perform the sexual function, can reproduce. The person who is sterile, or infertile, or impotent, cannot.

MR. McCARTHY: Right. Having HIV doesn't keep her from having a child or from reproducing. She's still able to reproduce, so in that sense HIV is different than being infertile or being impotent.

QUESTION: It's crucially different--

MR. McCARTHY: Yes.

QUESTION: --if you get to that point, isn't it?

MR. McCARTHY: That's correct.

QUESTION: Can I ask you a question about what you started with, which is what I think you wanted to get to, and that is, you were talking about was this dentist reasonable in his fear, and in respect to that you asked about the standard, and I gather that there are standards in the regs.

The direct threat must rely on an individualized assessment based on a reasonable judgment, relies on current medical knowledge, and in Arline this Court said courts should normally defer to the reasonable medical judgments of public health officials.

On those standards, assuming, as I think is correct, after 15 years and hundreds of thousands of people dead as a result of this disease, I gather after 15 years and hundreds of thousands of deaths, there isn't one case--maybe just one--in which a dentist, despite hundreds of thousands of dentists who do treat AIDS patients, there isn't one case in which one of those dentists documentedly caught AIDS from a patient.

Now, if that's so, how could we say here that your client exercised reasonable medical judgment?

MR. McCARTHY: Well, there are two parts to that question, and first of all, we believe that assertion by the respondent is simply wrong. The--in June of 1994 the CDC reported that there are seven HIV-infected health care workers. Seven with known occupational injuries, seven with known HIV exposures, and no other identifiable source of HIV.

The respondent dismisses these seven as--

QUESTION: No, no, he said they weren't dentists. He said those were not dentists.

MR. McCARTHY: No, these are seven health care workers--I don't know if they're all dentists. Certainly at least some of them are dentists, and the point is that they are in the same position as dentists and that they suffer these--

QUESTION: Why do you say certainly at least some of them are dentists? Why is that?

MR. McCARTHY: Because they're all dental health care workers.

QUESTION: Oh, they're dental health care workers.

MR. McCARTHY: Yes.

QUESTION: Okay.

MR. McCARTHY: Yes, and--

QUESTION: That's rather an important qualifier, isn't it?

MR. McCARTHY: Yes. I'm sorry if I--

(Laughter.)

MR. McCARTHY: If I said health care workers, I misspoke. They're all dental health care workers, and the CDC labels these as possible because it uses the term possible to mean anything that's less than absolutely certain, but when you look at the way the CDC treats these, they're all apparent occupational transmissions that occurred in the dental care setting, and any logical analysis under our way of looking at things would--by ours, I mean the legal system's, would include these were more likely than not occurrences. And so--

QUESTION: And that's in the record? That study is in the record?

MR. McCARTHY: Yes. Yes, it is, and the point is that the term documented that's used by respondent and others here, because that's a CDC term that refers to having an HI--having all of the circumstances we just described, and then having an HIV test immediately after the percutaneous exposure to establish that you don't already have HIV, that's the only distinction.

And the studies go on to indicate more often, much more often than not there is no such HIV test, and this passive surveillance system that revealed this finding is by the CDC itself disclosed to be as much as 90 percent underreported. It's a totally passive system. There are--

QUESTION: And the relevant date, I take it, is 1994, when the discrimination took place?

MR. McCARTHY: Yes. September 16--

QUESTION: Or the alleged discrimination.

MR. McCARTHY: Yes. September 16, 1994.

I want to speak for just a minute, if I can, to the question of then-current medical knowledge. Assuming we get to the appropriate legal standard, which is good faith and reasonable judgment, relying on the objective standard of then-current medical knowledge, what is advanced here by respondents and even by the First Circuit to a certain extent is the CDC, as if it were a public health authority that made a pronouncement here, and this is truly an emperor with no clothes.

The CDC has issued reports. They are guidelines. It establishes standards, and no place in the CDC guidelines does it indicate that there's no significant risk. In fact, it specifically recognizes the unique nature of most dental procedures also may require specific surgery--strategies.

Universal precautions are minimum guidelines and there's no reason why additional precautions shouldn't be taken, and that's what the guidelines say, and if I can just say one more thing--

QUESTION: Well, let me ask you this. This case arose in '92, '93?

MR. McCARTHY: September 16, 1994.

QUESTION: '94. Have the--has our knowledge about the risks changed since that time?

MR. McCARTHY: I--

QUESTION: Do we look at it as of that date, and how has our information changed since then?

MR. McCARTHY: The standard is to look at thencurrent medical knowledge, and I think that's the only fair way to determine whether or not you're going to impose civil rights liability. That's what's suggested by the amicus brief of the AMA here and in Arline, where they cite similar cases under the Rehabilitation Act of 1973, and the point is that then-current medical knowledge is the only way to judge it.

I don't really think the information has changed, but there's one significant piece of evidence here, and the First Circuit pointed it out, and that's how this emperor ended up having no clothes, is they had the CDC at the district court level, through a witness who was testifying, a litigation witness in a litigation posture from the CDC, making four different declarations that ultimately say something like, the risk is safe to treat, the dentist care in the--in this setting, and the point is you don't have that any more. You just have the CDC guidelines by themselves, and that's why I ask you to look at the CDC guidelines, because they don't say there's no risk.

I'd like to reserve my time, except to say OSHA has very much similar supportive information that's--for our position that's noted in the record.

Thank you.

QUESTION: Thank you, Mr. McCarthy.

Mr. Klein, we'll hear from you.

ORAL ARGUMENT OF BENNETT H. KLEIN ON BEHALF OF RESPONDENTS

MR. KLEIN: Thank you, Mr. Chief Justice, and may it please the Court:

The problem of discrimination against individuals with HIV was squarely before Congress when it enacted the ADA. And the committee reports reflect a concern that unless there were clear protections against discrimination for all individuals with HIV, people with HIV would hide their condition.

As the First Circuit correctly found, Sidney Abbott, a woman infected with the virus that causes AIDS has a disability within the meaning of the ADA. And this Court can affirm the First Circuit's decision on three alternative grounds.

First of all, this Court can affirm the First Circuit if it finds that reproduction is a major life activity. In addition, the Court can affirm the First Circuit if it finds, as reflected in the committee reports and as the First Circuit also noted in its decision, that everybody with HIV, a fatal, contagious, incurable disease, is substantially limited in many different major life activities.

QUESTION: Well, Mr. Klein, you say as noted in the committee reports. That isn't the same as the statute, is it?

MR. KLEIN: It's not the same as the statute, and I think that what is noted in the committee reports, which is the people with HIV are limited in major life activities, is consistent with the plain meaning of the--the phrase that Congress did choose. Which was substantially limited in one or more major life activities. As an incurable, fatal and contagious disease, people with HIV cannot engage in procreation or intimate sexual relations.

QUESTION: Well, why can they not? The--the difficulty that I'm having with your argument is that you are--you are using the judgment that your client made, a--a very responsible moral judgment, as being equivalent to the limitation that the statute talks about and that the regs talk about. And without certainly any disrespect for the moral judgment that your client has made, I don't find it that easy to transfer from the moral limitation that she has placed upon herself to the limitation that the statute is speaking of.

The statute speaks in terms of--of there being a substantial limit upon an activity. And the regulation--I take it the regulation that's closest to it is the one set out on--on page 7a of the Government's brief. And let me just read the sentence that gives me the--the greatest difficulty in--in relation to your case.

I am reading from the middle of page 7a:

"A person is considered an individual with a disability for purposes of Test A, the first prong of the definition, when the individual's important life activities are restricted as to the condition, manner, or duration under which they can be performed in comparison to most people."

"Can be performed" sounds to me like a physical capacity to perform them. It doesn't sound like a responsibly, self-imposed limitation. Could you address the difficulty I'm having in getting from "can be" to moral limitation?

MR. KLEIN: Yes. Yes. And I'd like to address both under the--the meaning of the term "substantial limitation" and also the regulation that you quoted from. The--the term "substantial limitation," by its plain meaning, doesn't mean that somebody is precluded from engaging in the activity, or even chooses not to engage in the activity. "Substantially limited" cannot have that meaning. Indeed, somebody couldn't be--ever be substantially limited in the major life activity of breathing if one had to be precluded from engaging in that activity.

Now, the regulations, which you quoted, indicate that a person cannot engage in the activity or cannot perform the activity under the same conditions or manner or even duration as somebody who does not have that impairment, or the average member of the population. A person with HIV--

QUESTION: And the question is, why are those conditions moral conditions rather than physical conditions?

MR. KLEIN: Well, the--the limitation flows from the physical impairment of HIV.

QUESTION: No. But the--the--the physical impairment of HIV, certainly at the asymptomatic stage that we're talking about here, does not in any--as I understand it--does not in any way limit the physical capacity to engage in reproductive function, whether it be male or female.

MR. KLEIN: Well, I think that a person is limited--a person cannot perform an activity under the same conditions as somebody without the impairment if--if, for example, they can transmit a deadly disease to a sexual partner, if they can infect their child, and also because--

QUESTION: I mean, you can say that, but is it true?

QUESTION: Yes. I keep saying, why is the moral condition equal to the physical condition? Why is that so?

MR. KLEIN: Because it all flows from the inevitable fact of the contagiousness of H--not only the contagiousness of HIV, but the fatality of HIV. For example, reproduction is not simply the act of conception. It--procreation and reproduction also involve raising and nurturing a child. As a fatal disease--

QUESTION: Well, there again, that--that's--that's a fine statement. And--and people who reproduce ought to consider how they're going to nurture. But I'm not sure that that's what the statute is talking about. And I'm not sure that that is what the courts have meant thus far in talking about reproduction. I presume they have been talking about reproduction as in fact a physical, biological activity that results in the birth of a baby, in the normal course.

MR. KLEIN: Well, I think the plain meaning of the statute does not--does not preclude the re--does not require a preclusion of the activity. In other words, just the phrase "a physical or mental impairment that substantially limits a major life activity, but for that impairment"--but for the existence of HIV, reproduction and procreation and the choices and decisions that people have to make around it would be very different.

QUESTION: Well, do--do you concede that it's strictly a moral limitation or a moral mandate that you're client followed? I--I suppose a person with tuberculosis, which I assume can be very infectious and contagious, stays away from other people and we don't just call that a--a moral choice. It is an objective limitation on that person's ability to interact with other people in society.

MR. KLEIN: That's correct.

QUESTION: I don't see--I don't think--

QUESTION: Is that right? Are there laws against it? I mean--I mean, I can understand that if we quarantine everybody with tuberculosis. Then it's not a moral choice. And then you're compelled. But you think it's not a moral choice if someone--I mean, let's say I have a very contagious cold. And I decide, you know, not to--not to go on an airplane. Is--is that a moral choice?

MR. KLEIN: Well, I don't think that the key choice is a moral choice. I think the limitation flows from the physical impairment. And as the First Circuit noted--

QUESTION: No, but it flows through a choice about what I ought to do in relation to other people. I ought not to expose the airplane full of people to my cold. That's the way the limitation flows. And it seems to me that that moral choice is crucial to--to the--to the consequence that you draw from the physical act--the physical infection.

QUESTION: But--but are all good sens--I've been interrupted before you answered my question--are there--are all sensible safeguards for the public's safety moral choices?

MR. KLEIN: I don't believe--I'm not sure I under--

QUESTION: Under the regulation, what difference does it make whether it's moral or not? That's what I don't understand.

MR. KLEIN: The--I don't think the fact that there's a volitional aspect to a limitation precludes it from being a substantial limitation under the statute. Many--

QUESTION: Would it be a disability under the Act if--if I know that--that there is in my family a gene that causes manic depression, and--and I choose, therefore, not to have children?

MR. KLEIN: Well--

QUESTION: Is that a disability under the Act?

MR. KLEIN: I think that's a very separate and complex question that's not at issue in this case. Because the Court would have to reach the question there--

QUESTION: Oh, I thought it was an issue in this case. I'm sorry.

MR. KLEIN: The--well, I think--I think that is somewhat--somewhat distinct, Justice Scalia. Because the Court would have to reach the issue there of whether a genetic condition is an impairment. And that depends on a scientific understanding of--of the effects of that genetic disorder. In other words--

QUESTION: Is it different? I don't understand that. Are you disabled under the Act if you know if you get out of the house you'll give the whole city bubonic plague?

MR. KLEIN: I would certainly think so, yes.

QUESTION: Yes, I would think so, too.

(Laughter.)

QUESTION: And the--then, even though you haven't shown symptoms yet, you haven't shown symptoms, you're not--you're not--you're not that--I mean, that--that is not so obvious, but I--can I ask you another--a different a slightly different--

QUESTION: May I say that I don't think that's so obvious. I--I--

QUESTION: But I agreed with you, it isn't obvious. It is not obvious. But I think that--that that's the kind of issue we're talking about. If--if the--what I--what I'd like to--to know is just a quick factual question. I read the ABA brief. And it says none of the documented cases--the 42 they're talking about--involved a dental practitioner. You know, I don't read these briefs with a absolute dental practitioner--was it a dental--I assumed it didn't have somebody who was in the dentist's office.

Now, were these cases dental practitioners or were they not?

MR. KLEIN: There is no documented case of a dental practitioner who has been infected with HIV.

QUESTION: And by that, you're not using some technical loaded thing. You mean--

MR. KLEIN: No. There is no dental health care worker.

QUESTION: I mean, somebody like a person who's in the dentist's office and who is working, I would call a dental practitioner.

MR. KLEIN: That's right. Right. To make it crystal clear, there has never been a case of occupational transmission of HIV from a patient to a dentist.

QUESTION: But what about the seven cases that the other side has mentioned, of dental health care workers?

MR. KLEIN: Those are cases that the CDC has investigated and concluded that there's not sufficient evidence to determine occupational transmission.

QUESTION: As of 1994?

MR. KLEIN: As of 1994 and as of today.

QUESTION: Well, that would not enable you to say there has never been a case. You--you say there has not been a documented case. What does documentation require?

MR. KLEIN: Well, documentation requires--

QUESTION: According to CDC, requires what?

MR. KLEIN: Requires that there be an initial injury and that the person then have a baseline HIV test so we know--

QUESTION: Immediately afterwards, right?

MR. KLEIN: That's correct.

QUESTION: Okay.

MR. KLEIN: Okay.

QUESTION: So there are a lot of conditions that--that--that may not have been followed in the vast majority of cases?

MR. KLEIN: Well, we--we don't--all we know is what--what current medical knowledge can tell us. The regulation requires that we--we base direct threat on a determination of current medical knowledge.

QUESTION: It can't tell us that there's never been a case--which is what you said--they can't tell us that?

MR. KLEIN: It--it can't tell us that.

QUESTION: Okay.

MR. KLEIN: But we--what we know is that we have no known case. And, you know, there's been over a billion dental procedures.

QUESTION: Would you tell me again why it is that we should not give any weight to these seven cases? What--would you say that--

MR. KLEIN: I'm sorry?

QUESTION: Why--why are the seven cases that he relies on not relevant?

MR. KLEIN: Because there's no--no documentation of HIV status arising from the occupational injury. And as--as there is testimony--

QUESTION: I mean, is it a question of causation that wasn't proved or that the--there was in fact no--no disease to the dental worker? I still am not quite clear why they're totally irrelevant. What was not documented?

MR. KLEIN: What was not documented was that the causation of--of HIV transmission was through an occupational means. The CDC determined that there is not valid scientific evidence to know that--that HIV transmission occurred through the dentist's occupational duties. There are many other modes of HIV transmission.

QUESTION: Well, the question is whether or not it was reasonable for the dentist, in 1994, to assume that there was a significant risk. I'm not sure that he is--is bound by exactly what the CDC determines, especially at some later date.

MR. KLEIN: Well, the--the regulation requires that the determination be consistent with current medical knowledge. And certainly there is no known case of this happening. The CDC's position is that--is that they have instructed dentists how to perform procedures safely.

QUESTION: Well, the statute doesn't say anything about the CDC. He can--he can put in his own expert witnesses on this, just as on any issue, I suppose.

MR. KLEIN: Yes, he--

QUESTION: And the CDC--I mean, that's very nice, but--

QUESTION: Why should--why should--why do we defer to the CDC?

MR. KLEIN: Well, for two reasons. First of all, this Court, in Arline, indicated that when we're trying to determine whether--whether the risk of transmission of a contagious disease can be the basis for its prevention--

QUESTION: That was pretty much dicta in Arline, was it not?

MR. KLEIN: No, I don't believe it was dicta. But right after--right after Arline was decided, the Congress, a few years later, passed the ADA, adopting the same kind of direct threat test. And in Section 12201, referred back to--to standards under the Rehabilitation Act, which was Arline. And deference to the health care provider is inconsistent with the statute. Because the statute covers health care providers as places of public accommodation. And--and Congress found, in 12101, that there was discrimination on the basis of disability in health services--

QUESTION: Mr. Klein, may I ask you whether the plaintiff below relied on any impairment of a major life activity other than reproduction?

MR. KLEIN: We argued in the District Court that HIV is a disability, and specifically that Sidney Abbott was an example of that, through the limitation on her--

QUESTION: Could you answer the question that I asked, which was whether the plaintiff relied on any other activity other than reproduction?

MR. KLEIN: The plaintiff did not present specific testimony and did not rely for her individualized planning of disability on any activity other than reproduction. But we certainly argued in the District Court that HIV is always a disability.

QUESTION: What--what is the best authority in the record or in the brief to sustain that position, that it's a disability on a major--or it impairs a major life function, other than reproduction? Where would I look if I wanted to find that?

MR. KLEIN: Well, I think in the section of our brief talking about the plain meaning of the terms "substantial limitation of a major life activity," and in the legislation history, which indicates that the committees considered that HIV was always a disability, not only because it harmed--discrimination harmed individuals, but because there was a grave concern about the public health consequences, that if people could not be assured of nondiscrimination--and we had to rely on somebody's intentions about reproduction or sexual activity today, tomorrow or yesterday, that--

QUESTION: Thank you, Mr. Klein.

MR. KLEIN: Thank you, Mr. Chief Justice.

QUESTION: Mr. Wallace, we'll hear from you.

ORAL ARGUMENT OF LAWRENCE G. WALLACE FOR UNITED STATES, AS AMICUS CURIAE SUPPORTING RESPONDENTS

QUESTION: Mr. Wallace, while you're coming up, will you tell me why the Justice Department regulations make any difference? I mean, I used to be in the Justice Department and I used to write opinions on behalf of the Attorney General. And it would have been very nice if the Congress had said, you know, whatever Scalia says the statute means, it means.

(Laughter.)

QUESTION: I--I didn't think they could do that. And--and this statute is--it--am I correct? It gives no responsibilities to the Justice Department except to issue interpretive regulations.

MR. WALLACE: That is not correct, Justice Scalia.

QUESTION: What else--what else does the Justice Department do?

MR. WALLACE: There is, in 42 U.S.C., Section 12188, a provision entitled "Enforcement." And Subsection B of that Section 12188 is entitled "Enforcement by Attorney General." And it gives in its subparts a duty to investigate possible violations of the public accommodations provision and authority to bring lawsuits. And, indeed, this is very important authority, because only the Attorney General can bring a suit for compensatory damages.

QUESTION: Well, that's just like the criminal law.

QUESTION: Yes.

QUESTION: Can we tell the Attorney General to interpret the criminal statutes, issue regulations as to what the criminal statutes mean? I have not thought that that's the kind of administration of the law that we talk about when we accord chevron deference to agencies.

MR. WALLACE: And then--and then, Section 12186 of Title 42 explicitly imposes a duty on the Attorney General to adopt regulations to implement Title III.

QUESTION: Well, Mr. Wallace, supposing we have a standard criminal law statute, like carrying a gun in connection with a drug felony. And Congress, as a part of that statute, says: And the Attorney General shall issue regulations telling what these section--sections mean. Now, do you think we would give deference to those regulations?

MR. WALLACE: Well, I should think so. Yes. And there is a further--and there is a further provision here that is of--of direct relevance. And that is Section 12201, Subsection A of Title 42, which says "Except as otherwise provided in this Chapter, nothing in this Chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 or the regulations issued by Federal agencies pursuant to such Title."

QUESTION: Mr. Wallace--

MR. WALLACE: And--and many of the regulations were carried forward verbatim from the HHS regulations that Congress was referring to in this provision. And--

QUESTION: I have no trouble with that.

MR. WALLACE: And--

QUESTION: Mr. Wallace, may I ask--the--the provision directing the Attorney General to--to promulgate regulations says that they shall include standards applicable to facilities and vehicles covered under Section 12182 of this Title. What is that Section, 12182? What are the--the facilities and vehicles?

MR. WALLACE: Well, let me look and see.

QUESTION: I know it, but I'm not going to tell you.

(Laughter.)

MR. WALLACE: That--that is a--it's entitled "Prohibition of discrimination by public accommodations." And it's--it's in the--it's in the--

QUESTION: Why don't you follow it with the Clerk later?

MR. WALLACE: All right. Well, I'm sorry. I would have to--but--but that--that is the general prohibition of discrimination in the furnishing of public accommodations. And public accommodations or elsewhere defined to include these health facilities.

Now, one of the regulations that has been carried over verbatim, as we were talking about, from the previous regulations, and one that was very much before Congress because it was quoted, set out in this Court's opinion in the Arline case, is the definition of physical impairment, to include any physiological disorder or condition affecting the hemic or lymphatic systems. And that of course includes HIV infection, as the current regulations specifically state it does.

QUESTION: Mr. Wallace--

QUESTION: It includes a mental impairment, too, doesn't it, the Act?

MR. WALLACE: That is correct.

QUESTION: Would--would you--would you regard a firm homosexual sexual orientation as being a disability under the Act?

MR. WALLACE: Well, that is specifically excluded in another provision. And that is pointed out in an amicus brief filed by Senators Harkin, et al., who were sponsors and floor managers of the legislation.

QUESTION: That's excluded where? Do you know the provision? I mean, in--in--in the regulations or in the statute?

MR. WALLACE: In--in the statute itself. And there is the point made that--in--it's Section 12211, I am told--

QUESTION: Mr. Wallace, while that is on the burner, may I ask--as I understand it, there's no dispute here that HIV is a physical impairment.

MR. WALLACE: Yes, that is correct.

QUESTION: And so the only question is whether it's a disability. And those two questions shouldn't be confused. So we're talking about is it a disability, given that it is a physical impairment? And there are some physical impairments that are not disabilities.

MR. WALLACE: In--in order to be a disability, it must substantially limit a major life activity. So there are two further questions once it--it is determined that it is a physical impairment. One is whether it affects a major life activity and whether--and the second is whether it substantially limits that major life activity.

The major life activity which was the focus of this case and on which both courts below relied was reproduction and impairment to the reproductive capacity. That, in the very same regulation that I quoted, is really implicit in that regulation. Since impairment is defined as a disorder or condition that, among other things, affects the reproductive system, it is hard to see how that would have any relevance unless reproduction were a major life activity, a substantial limitation of which could be a disability under the Act. Because it's hard to see how impairment of the reproductive system would relate to any other major life activity.

QUESTION: Well, you can have cancer. You--you could have ovarian cancer. That would be an impairment of the--of the reproductive system, which could cause a disability.

MR. WALLACE: It--it--it's--

QUESTION: And not necessarily a disability associated just with reproduction. I--I understood the regulations went through all the major physical functions of the body, or physical whatever doctors call them, including the reproductive system, the breathing system and so forth. Isn't that right?

MR. WALLACE: And the--and I might add that the current regulations also refer to HIV disease specifically as an impairment. And the--the list--

QUESTION: We don't have a problem with whether it's an impairment. We have--I have a problem with your saying: Since reproductive disease is an impairment, the--affecting the ability to reproduce is a disability, in that automatically the ability to reproduce is a major life activity. I don't understand that leap. Just because they mention the reproductive system along with all the other organs of the body.

MR. WALLACE: All right. All right. Well, that is just one indication, perhaps not a conclusive indication, but it certainly looks in the direction of concern about impairment to the reproductive system.

Now, the Court of Appeals approached this question in what we believe was an exemplary fashion. The Act does not itself define what is a major life activity. And so the Court of Appeals said: We'll think of the ordinary meaning of "major," which is significant in comparison with other activities.

QUESTION: Mr. Wallace, if we don't accept your view that reproduction is this major life activity, if we don't accept that, do--do you lose?

MR. WALLACE: No. Although a remand might be in order.

What--there is protection, as Justice O'Connor pointed out and as the Court relied on quite strongly in the Arline case, for individuals who are regarded as having an impairment that affects a major life activity.

QUESTION: Is that the only basis? Can't we find from the briefs that there are other impacts on major life activities, other than reproduction?

MR. WALLACE: I would say that is best documented in two of the amicus briefs, the one filed by the American Medical Association, which spends quite a few pages describing HIV--

QUESTION: But amicus briefs can't raise issues that are not raised by the parties, Mr. Wallace.

MR. WALLACE: That is correct. As well as the brief of Senator Harkin, et al. But--

QUESTION: Let me ask--let me ask one other question. Suppose the dentist has AIDS, not the patient. Would it be discriminatory for an HMO with more than 15 people to refuse to hire the dentist or, alternatively, to require that the dentist disclose this to the patients?

MR. WALLACE: Well, the last footnote in our brief points out that the--the question of HIV infection in health care workers and whether they are otherwise qualified really raises different issues.

QUESTION: Why does it raise different issues if the--if the chance is infection because of the close proximity between the dentist and the patient?

MR. WALLACE: Because it's the health care worker that's in charge and control of whether the precautions are taken or not, the patient will be subjected to risks over which the patient has no control. But if the health care worker follows the universal procedures that have been recommended by the Centers for Disease Control and the Dental Association and the Medical Association and other professional groups, the health care worker can limit any possible risk--

QUESTION: So then it would seem to me the answer to the question is that this doesn't have to be disclosed and the--and the dentist has to be hired.

MR. WALLACE: Well, the--the question of disclosure really is not addressed by this Act.

QUESTION: Well, suppose there were a policy by the HMO that the--the person has to disclose to the patient so the patient has a choice.

MR. WALLACE: There's--there's nothing in the Act that I'm aware of that addresses that question.

QUESTION: Well, let's assume that that would be a discrimination under the Act.

MR. WALLACE: Well, it's very close to the question that the Court had in Arline, in which you tried to specify some standards to be used to be sure that there was meaningful protection afforded to what were handicapped individuals within the meaning of the Act, and that only real, rather than conjectural, risks of the kind found here by the Court of Appeals, after a very careful review of the evidence, would be used to hold the person unqualified for protection, because the Act is an anti-discrimination act, which could be undermined if each person can choose for himself whether to discriminate.

Now, I do say--want to say that implicit in the findings is that--

QUESTION: What--what findings?

MR. WALLACE: In--in--in the findings of why it was that--

QUESTION: But who made the finding?

MR. WALLACE: Both the District Court and the Court or appeals. That the reason--and--and this is Petitioner's own contention--the reason that Dr. Bragdon refused ordinary dental treatment to the Respondent here was because of his fear of possible contagion from the--

QUESTION: This case wasn't tried to a jury in the District Court, it was tried in the Court of--

MR. WALLACE: It was--summary judgment was granted.

QUESTION: Summary judgment for whom?

MR. WALLACE: For the Respondent. And that was upheld by the Court of Appeals.

QUESTION: So if there's any factual dispute, that's wrong?

MR. WALLACE: If it's a factual dispute that can survive summary judgment.

QUESTION: Thank you, Mr. Wallace.

Mr. McCarthy, you have 3 minutes left.

REBUTTAL ARGUMENT OF JOHN W. MCCARTHY ON BEHALF OF PETITIONER

MR. MCCARTHY: Thank you, Your Honor.

I would just like to address a couple of issues.

One, on the question of deferral, in this case, there isn't anything to defer to for the reasons we disclosed before. And even the Department of Justice, in its interpretive guidelines, indicates that when you're looking to public authorities, they are sources of information that include. There's no suggestion that the public health authorities have any particular power here.

Now, there very well--may very well be a different situation, where the public health authorities have addressed an issue directly and the courts would have reason to defer to them. But there isn't in this situation, because there aren't any public authorities that have spoken to the issue. That includes the American Dental Association, which isn't a public health authority, but gets cited as if it's one.

It's a--it's a 501(c) (6) business league, and it made a policy statement--and it made a political decision about what it recommends. And it shouldn't be determinative of whether or not an individual member is guilty of a civil rights violation, as opposed to following their policy.

QUESTION: Did you introduce expert testimony at the trial?

MR. MCCARTHY: Yes, we did.

QUESTION: Of your own?

MR. MCCARTHY: Right.

It wasn't at trial, but introduced it in response to the motion for summary judgment.

With respect to the--I call them the reverse cases, where health care providers have brought these claims of violation of the Americans with Disabilities Act, and have lost every time. It's important to note, I believe, that it's conceded in this case that it's easier to transmit HIV from a patient to a doctor than it is from a doctor to a patient.

And there are--all the experts on both sides conceded this. Dr. Molinari, the plaintiff's expert, wrote an article on it. It's at Fed. App. 137a, and in his deposition at 139a. And Dr. Marianos, the CDC expert, made the same concession that there is not any argument about that particular question.

The plain--the Respondents have raised very many policy issues in this matter. And some of them are certainly worthy of serious consideration. But those issues belong for consideration with Congress and not with the Court. We rely on the statute. We believe, if the statute is relied upon, the conclusions we've advanced will be--

QUESTION: How many cases of AIDS had there been approximately as of 1994?

MR. MCCARTHY: I--I don't know that figure. I recall hearing the term "million," but I would be guessing wildly to say it. I do know that there are hundreds of thousands of cases of HIV, where it's not known how the transmission occurred. And that, we think, it important when you're looking at this question of under-reporting.

QUESTION: All right. Suppose the worst that could have happened is that he though there was a risk of 7--if he'd looked into it, 7 cases in a million. That's about 1 in 120,000. That's certainly not lightning. What are we supposed to do?

MR. MCCARTHY: Well, the question is, does he--what's the then-current medical knowledge? He has all of this information before him, including OSHA, these seven cases, what's occurred in other cases. We certainly believe there's good reason for him to believe and take the position that there could be risk. And it was a reasonable judgment for him to make.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. McCarthy. The case is submitted.

(Whereupon, at 11:00 a.m., the case in the above-entitled matter was submitted.)