Limiting freedom

July 03, 1998

The Lima (Ohio) News said in an editorial Wednesday:

ASUPREME Court decision last week is being hailed as a victory for people who are infected by the HIV virus that causes AIDS. But the 5-4 decision, stating that HIV is a disability covered under the Americans with Disabilities Act, is another in an endless string of federal "civil rights" expansions that undermine our individual freedoms and personal choices.

When the ADA was being debated in Congress, supporters emphasized it was limited in scope, and was needed mainly to assure access to public facilities by handicapped people. As often happens with broad federal legislation, the bureaucrats and the courts expanded it incrementally to go far beyond what its authors may have intended.

Court decision

The court ruled that HIV is protected under the ADA, which defines a disability as something that "substantially limits . . . major life activities." The woman who brought suit under the act claimed that she has forgone child-bearing because of her disease, which the court agreed is a limitation on a major life activity.

The case arose in 1994 when a Maine dentist, Randon Bragdon, would not treat Sidney Abbott because of her infection. Ms. Abbott's suit eventually made it to the nation's high court, which ruled: "HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease."

Under this overly broad definition, virtually every affliction, disease or disorder could qualify for federal protection, from color blindness to obesity, from fear of heights to arthritis. The federal bureaucracy and courts will increasingly decide matters that should be left in the hands of free individuals.

In this case, a dentist decided he did not want to subject himself to the risk of infection by treating an HIV-positive patient. The majority agreed with the Centers for Disease Control and Prevention, which called such a risk "so low as to be unquantifiable." Yet, in his dissent, Justice William Rehnquist pointed to many documented cases of health care workers who had been infected. And there have been cases where the AIDS virus was transmitted through dental procedures.

The question boils down to this: Who should make the safety determination, the state or the individual who could possibly become infected?

In a free society, citizens should not be coerced by the government to put their lives at risk, even if their concerns are deemed by the authorities to be negligible.

The court also ruled it was up to the appeals court to examine the issue of risk. "The disability act provides an exception under which a person with an infectious condition need not be treated if the condition 'poses a direct threat to the health or safety of others,' defined as a 'significant risk' that cannot be eliminated by appropriate procedures," the New York Times reported.

In other words, another panel of federal judges will determine what risks individual Americans must assume in order to be in compliance with federal disabilities law.

We're not arguing that Mr. Bragdon was right in his refusal to serve Ms. Abbott. But it was his decision to make. As disabilities law expands further from its original intent, expect courts and administrative agencies to increasingly determine what actions business owners, health-care workers and all of us must take.

Pub Date: 7/03/98

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