United States Court of Appeals For the First Circuit No. 96-1643 SIDNEY ABBOTT, ET AL., Plaintiffs, Appellees, v. RANDON BRAGDON, D.M.D., Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Morton A. Brody, U.S. District Judge] Before Selya, Circuit Judge, Aldrich, Senior Circuit Judge, and Stahl, Circuit Judge. John W. McCarthy, with whom Brent A. Singer and Rudman & Winchell were on brief, for defendant. Peter M. Sfikas, Mark S. Rubin and Jill A. Wolowitz on brief for American Dental Ass'n, amicus curiae. Bennett H. Klein and David G. Webbert, with whom Gay and Lesbian Advocates and Johnson, Webbert & Laubenstein were on brief, for plaintiff Sidney Abbott. John E. Carnes, Commission Counsel, on brief for intervenor- plaintiff Maine Human Rights Commission. Samuel R. Bacenstos, Attorney, U.S. Dept. of Justice, with whom Deval L. Patrick, Assistant Attorney General, and Jessica Dunsay Silver, Attorney, were on brief, for intervenor-plaintiff United States of America, amicus curiae. Robert Greenwald and AIDS Action Committee on brief for R.I. Dept. of Pub. Health, Bureau of Health of the Me. Dept. of Human Servs., American Pub. Health Ass'n, Ass'n of State and Territorial Dental Dirs., and Ass'n of State and Territorial Health Officials, amici curiae. Donna Levin on brief for Mass. Dept. of Pub. Health, amicus curiae. March 5, 1997 01-05372 SELYA, Circuit Judge. In this case of first impression, the district court granted summary judgment in favor of plaintiff- appellee Sidney Abbott, an HIV-positive woman, on her claim that defendant-appellant Randon Bragdon, a dentist, violated the Americans with Disabilities Act (the ADA) by refusing to treat her in his dental office.1 Dr. Bragdon appeals. Because we agree with the district court that Ms. Abbott is disabled within the purview of the ADA and that providing routine dental care to her (i.e., filling a cavity) would not have posed a direct threat to Dr. Bragdon's health or safety, we affirm. I. BACKGROUND The events giving rise to this litigation are straightforward. On September 16, 1994, Ms. Abbott arrived at Dr. Bragdon's office in Bangor, Maine for a scheduled appointment. On her patient registration form, she indicated that she was infected with the HIV virus. People may be HIV-positive for years without manifesting the set of symptoms commonly known as AIDS, and Ms. Abbott was asymptomatic at the time. Dr. Bragdon performed a dental examination and discovered a cavity. He told Ms. Abbott that, pursuant to his infectious _____________________ 1 Though we write for simplicity's sake as if Ms. Abbott were the sole plaintiff, we note that the federal government and the Maine Human Rights Commission intervened as plaintiffs below. We note, too, that Ms. Abbott prevailed upon a parallel claim under the Maine Human Rights Act (MHRA), 5 Me. Rev. Stat. Ann. tit. 5,  4592 (West 1989). Interpretation of both the ADA and the MHRA has "proceeded hand in hand," Soileau v. Guilford of Me., Inc., F.3d , (1st Cir. 1997) [No. 96-1796, slip op. at 6], and the parties here do not suggest any distinction between the two statutes that might affect this appeal. Consequently, we need not discuss the MHRA further. 2 01-05373 disease policy, he would not fill her cavity in his office, but would only treat her in a hospital setting. Though he would charge his regular fee, she would have to bear the additional cost of whatever the hospital charged for the use of its facilities. Ms. Abbott refused the offer and instead filed a complaint under the ADA. See 42 U.S.C.  12182(a) (1994). After pretrial discovery concluded, the parties cross- moved for summary judgment. The district court ruled that Ms. Abbott was substantially limited in a major life activity (reproduction) and thus was disabled for purposes of the ADA. See Abbott v. Bragdon, 912 F. Supp. 580, 587 (D. Me. 1995). The court then concluded that the relatively routine treatment needed by Ms. Abbott could be delivered safely in Dr. Bragdon's office. See id. at 591. Consequently, the court granted Ms. Abbott's motion for summary judgment. See id. at 595-96. This appeal followed. II. THE SUMMARY JUDGMENT STANDARD The Civil Rules authorize federal courts to grant summary judgment only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Confronted with a properly documented motion for brevis disposition, the nonmovant must establish the existence of a fact that is both genuine and material in order to ward off the entry of an adverse judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). Appellate review of the district court's award of summary judgment is 3 01-05374 plenary, and, in keeping with this standard, we are not wedded to the district court's rationale but may affirm on any alternative ground made manifest by the record. See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996). In assaying the record, we are guided by the same tenets that guided the lower court. Thus, we are duty bound to indulge all reasonable inferences in favor of the party opposing summary judgment. See id. This generous outlook notwithstanding, we must disregard improbable or overly attenuated inferences, unsupported conclusions, and rank speculation. See Smith v. F.W. Morse & Co., 76 F.3d 413, 428 (1st Cir. 1996); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). III. THE QUESTION OF DISABILITY The ADA sends a clear message to those who operate places of public accommodation: you may not discriminate against individuals in the full and equal enjoyment of services on the basis of a disability. See 42 U.S.C. S 12182(a). Although a dental office qualifies as a place of public accommodation, see id. S 12181(7)(F); see also 28 C.F.R. S 36.104 (1996), the ADA protects only disabled patients against discrimination, and any attempt to invoke the ADA against a practicing dentist must start with an investigation into the patient's status. We turn, then, to the question of whether Ms. Abbott, who was infected with HIV but was asymptomatic, had a disability cognizable under the ADA. This question is first and foremost a question of statutory construction which we review de novo. See Strickland v. 4 01-05375 Commissioner, Me. Dept. of Human Servs., 96 F.3d 542, 545 (1st Cir. 1996). In all such cases, we begin with the words of the statute, and we approach them with an understanding that our role is not to set public policy, but, rather, to discern the legislature's will. See, e.g., United States v. Gibbens, 25 F.3d 28, 33 (1st Cir. 1994). A. The Plaintiff's Burden. Disability is not a unitary concept under the ADA. Instead, the statute ILLEGIBLE three subsets of disability, any one of which is sufficient to trigger the act's protections. In this regard, the ADA states: The term "disability" means, with respect to an individual - (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C.  12102(2). This case, as Ms. Abbott postures it, implicates the first subset of the statutory definition.2 Thus, she must prove three things: first, that she has a "physical or mental impairment"; second, that this impairment adversely affects "a major life activity"; and third, that it does so to a significant extent (or, put more precisely, that the impairment ____________________ 2 The United States asserts that Ms. Abbott also is disabled under the third subset because society commonly regards individuals who are infected with HIV as having substantially limiting impairments. See generally Cook v. State of R.I., Dep't of Mental Health, Retard. & Hosps., 10 F.3d 17 (1st Cir. 1993) (discussing application of the "regarded as" language). We need not reach this contention. 5 01-05376 "substantially limits" her ability to engage in the particular major life activity). B. The Impairment. The plaintiff easily clears the first hurdle. We hold unhesitatingly that HIV-positive status, simpliciter, whether symptomatic or asymptomatic, comprises a physical impairment under the ADA. Regulations issued by the Equal Employment Opportunity Commission (the EEOC) implementing Title III of the ADA explicitly support this conclusion, see 28 C.F.R.  36.104 (1996) (stating that the phrase "physical impairment" includes HIV); judicial authority buttresses this conclusion, see, e.g., Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994); Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir. 1990), cert. denied, 499 U.S. 904 (1991); and Dr. Bragdon does not seriously advocate an antithetical view. C. The Major Life Activity. Moving to the second hurdle, Ms. Abbott cites reproduction as her affected major life activity. The court below accepted this asseveration. See Abbott, 912 F. Supp. at 587. Dr. Bragdon's rebuttal is twofold. In the first place, he disputes that reproduction properly can be characterized as a major life activity. In the second place, he asserts that even if reproduction so qualifies in general, there is nonetheless an unresolved issue as to whether it qualifies in Ms. Abbott's particular case. We address each of these assertions. 1. Reproduction Writ Large. The question of whether reproduction in large constitutes a major life activity under the 6 01-05377 ADA is not free from doubt. The ADA itself does not define the term "major life activities," and the few available judicial precedents reveal divergent opinions. Compare Pacourek v. Inland Steel Co., 916 F. Supp. 797, 804 (N.D. Ill. 1996) (finding that reproduction is a major life activity) and Erickson v. Board of Govs. of State Colleges, 911 F. Supp. 316, 323 (N.D. Ill. 1995) (same) and Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990) (same) with Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996) (holding that reproduction is not a major life activity) and Zatarain v. WDSU-TV, Inc., 881 F. Supp. 240, 243 (E.D. La. 1995) (same). Still, it is clear that Ms. Abbott's HIV- positive status has a profound impact upon her ability to engage in intimate sexual activity, gestation, giving birth, childrearing, and nurturing familial relations. Our society has long recognized the fundamental importance of each element of this cluster of activities, and our jurisprudence reflects this bias. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972) (terming the rights to conceive and raise children "essential," "basic civil rights," and rights that are "far more precious . . . than property rights") (citations and internal quotation marks omitted). Viewed against this backdrop, we think it is highly likely that Congress accorded comparable importance to these activities when it authored the ADA. The statute's text appears to bear out this intuition. Because the term "major life activities" is not defined in the enactment, we are obliged to construe it in accordance with its natural (that is, ordinary) meaning. See Bailey v. United States, 7 01-05378 116 S. Ct. 501, 506 (1995); Smith v. United States, 508 U.S. 223, 228 (1993). The Court has looked to familiar dictionary definitions in similar situations. See, e.g., Bailey, 116 S. Ct. at 506; Smith, 508 U.S. at 229. Following that model here lends support to the classification of reproduction as a major life activity. The plain meaning of the word "major" denotes comparative importance. See, e.g., The American Heritage Dictionary of the English Language 1084 (3d ed. 1992) (listing "greater than others in importance or rank" as the initial definition of "major"); Webster's Ninth New Collegiate Dictionary 718 (1989) (defining "major" as "greater in dignity, rank, importance, or interest"). These definitions strongly suggest that the touchstone for determining an activity's inclusion under the statutory rubric is its significance - and reproduction, which is both the source of all life and one of life's most important activities, easily qualifies under that criterion. The origins of the ADA's language reinforce this conclusion. Congress lifted the term "major life activities" from the Rehabilitation Act of 1973, which used it in defining an "individual with handicaps." See 29 U.S.C.  706(8)(B) (1988). In that milieu, the term was accorded "a broad definition, one not limited to so-called 'traditional handicaps.'" School Bd. of Nassau County v. Arline, 480 U.S. 273, 280 n.5 (1987). In transplanting this combination of words from the soil of the Rehabilitation Act to that of the ADA, Congress specifically directed retention of the original meaning. See 42 U.S.C.  8 01-05379 12201(a) (1994). Had Congress sought to confine the definition of disability narrowly, it surely would have written new, more restrictive language instead of borrowing a descriptive phrase notable for its breadth. See Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1320 (E.D. Pa. 1994). It would be wholly inconsistent with this history to hold that Congress did not envision reproduction as a major life activity. In addition to the language of the ADA and the historical antecedents of that language, we are guided by the regulations, which define "major life activities" to "mean [ ] functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. S 36.104 (1996).3 As the regulation itself clearly indicates, this enumeration is not meant to be exclusive, and reproduction - one of the most natural of endeavors - fits comfortably within its sweep. Furthermore, the portion of the regulations which defines physical impairments to include physiological disorders affecting the reproductive system, 28 C.F.R.  36.104 (1996), militates in favor of the same outcome. From the scope of the latter regulation, we deduce that its drafters considered reproduction to be a major life activity - otherwise, including reproductive disorders among the _____________________ 3 This phraseology is copied verbatim from 45 C.F.R.  84.3 (j) (2) (ii) (1996), a regulation implementing the Rehabilitation Act of 1973. Because that regulation was drafted with congressional oversight and approval, see Arline, 480 U.S. at 279- 80, the definition merits particular deference. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984). 9 01-05380 regulation's roster of physical impairments would not have made much sense. See Pacourek, 916 F. Supp. at 1404-05. The appellant resists this conclusion. The regulation itself includes no general adage to aid courts in determining what constitutes a major life activity, and he invites us to adopt a limiting principle which will preclude a finding that reproduction qualifies. In his view, major life activities do not embody lifestyle choices, or, as he puts it, "activities that many people decide never to do." This proposition has a modicum of decisional support. See Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102, 106 n.1 (S.D. Iowa 1995) ("Some people choose not to have children, but all people care for themselves, perform manual tasks, walk, see, hear, speak, breathe, learn, and work, unless a handicap or illness prevents them from doing so."), aff'd, 95 F.3d 674 (8th Cir. 1996). In addition, courts have used other formulations en route to concluding that reproduction is unlike the activities listed in the regulation and, therefore, not a major life activity. See, e.g., Krauel, 95 F.3d at 677 (emphasizing that the plaintiff "has the ability to care for herself, perform manual tasks, walk, see, hear, speak, breathe, learn, and work" and is therefore not disabled); Zatarain, 881 F. Supp. at 243 (distinguishing reproduction from major life activities based on frequency of performance). We do not find any of these formulations persuasive. In Krauel, the Eighth Circuit did not go beyond the activities explicitly included in the regulation and thus effectively treated 10 01-05381 the list as exclusive, not illustrative. Since the plain language of the regulation counsels otherwise, we are disinclined to emulate that example. The approaches taken by the Zatarain court and the district court in Krauel are no more attractive; in contradistinction to those courts, we see no reason why an activity must be performed either frequently or universally before it can be classified as a major life activity. There is no evidence that Congress intended either frequency or universality to operate as a restriction on the definition of "major life activities." Indeed, the activities explicitly enumerated in the regulation are not wholly characterized by frequency and universality; learning - even in a broad sense - is for many adults not a part of daily life, and work is certainly not universal (as the lives of some of the very rich and some of the very poor demonstrate). The view from the other end of the spectrum bolsters this conclusion; neither lack of frequency nor lack of universality diminishes the fundamental importance of conceiving, childbearing, and raising a family. This leaves us with the bare bones of Dr. Bragdon's thesis: that reproduction cannot be considered a major life activity because it is at bottom a lifestyle choice. That emaciated argument lacks force. To treat reproduction as a lifestyle choice, and no more, is merely an exercise in semantics. Most acts that human beings perform - or refrain from performing - have elements of volition. Speaking is undoubtedly a major life activity, but there are those (say, monks who have taken vows of silence) who choose to eschew it. 11 01-05382 Though the question is very close, we think it must be resolved favorably to Ms. Abbott. Reproduction (and the bundle of activities that it encompasses) constitutes a major life activity because of its singular importance to those who engage in it, both in terms of its significance in their lives and in terms of its relation to their day-to-day existence. Mindful of this reality, and honoring what we believe to be Congress' intent, we hold that reproduction is a major life activity within the meaning of the ADA. 2. Reproduction Writ Small. Dr. Bragdon's fallback position is that Ms. Abbott is not disabled within the purview of the ADA unless reproduction is a major life activity for her. He then endeavors to use this position to defeat summary judgment, maintaining that a factfinder, drawing defendant-friendly inferences from the summary judgment record, would confront a genuine issue as to whether giving birth and raising a child is so important to Ms. Abbott as to constitute one of her major life activities. The premise on which Dr. Bragdon's argument depends is of uncertain reliability. Though it is true that analysis under the first subset of the ADA's definition of disability - "a physical or mental impairment that substantially limits one or more of the major life activities of the [the plaintiff]" - calls for an individualized inquiry into whether the plaintiff is disabled, see 29 C.F.R. Pt. 1630, App.  1630.2(j) (1996) (noting in the context of the ADA's employment discrimination regulations that "[s]ome 12 01-05383 impairments may be disabling for particular individuals but not for others"); Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996); Ennis v. National Ass'n of Business & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995), the need for this case-by-case analysis of disability does not necessarily require a corresponding case-by- case inquiry into the connection between the plaintiff and the major life activity. By way of example, it might be enough for a court to consider only whether a given impairment substantially limits a particular plaintiff without considering whether the activity is of particular import to her. Be that as it may, the question is not dispositive here (nor will it be in many cases), and the most efficient way to decide this appeal is simply to postpone a definitive answer and assume, favorably to the appellant, that a plaintiff claiming a disability under the ADA must show a nexus between her impairment and the major life activity that she asserts has been substantially limited. Even accepting arguendo that reproduction is not a major life activity for one with no interest in bearing children, the determination of whether reproduction is a major life activity in a particular case does not automatically become a jury question. Cf. Medina-Munoz, 896 F.2d at 8 (noting that even "elusive concepts such as motive or intent" sometimes can be decided on summary judgment). Here, drawing all reasonable inferences in the manner most helpful to Dr. Bragdon, a fact finder could reach no conclusion other than that reproduction, if a major life activity at all, constitutes such for Ms. Abbott. We explain briefly. 13 01-05384 Ms. Abbott's testimony on this point is uncontradicted: I have made the decision after I tested positive [for HIV] not to have children because of the risk of infecting the child and the risk of impairing my own immune system, and also the fact that this baby probably wouldn't have a mother after a while. Dr. Bragdon offers no substantial rebuttal to Ms. Abbott's assertion that HIV ended her consideration of having a family, but instead asks us to doubt her sincerity. In his most telling sortie, he stresses the fact that, during her deposition, Ms. Abbott replied "no" when asked, "Are you impaired in your ability to carry out any of your life functions by the fact that you are HIV positive?" We do not believe that a party's response to a question about "life functions" - a phrase not used in ordinary parlance to refer to reproduction - can fairly be read as a direct contradiction of her unequivocal statements about her reasons for not bearing children. Dr. Bragdon has offered no other evidence suggesting that, short of her HIV infection, Ms. Abbott would have elected to remain childless. In the absence of specific discrediting evidence, a party cannot derail summary judgment by the primitive expedient of insisting that his opponent's evidence should be disbelieved. See Grubb v. KMS Patriots, L.P., 88 F.3d I, 4 (1st Cir. 1996). To say more at this point would be supererogatory. Because uncontradicted evidence establishes that reproduction is a major life activity for Ms. Abbott, the second element of her case is firmly in place. D. The Limitation. 14 01-05385 We turn now to the final hurdle that blocks Ms. Abbott's path. At this hurdle, the parties joust over whether Ms. Abbott's HIV infection substantially limits her major life activity of reproduction. Under the applicable regulation, a person's major life activity is "substantially limited" if it is "restricted as to the conditions, manner, or duration under which [it] can be performed in comparison to most people." 28 C.F.R. Pt. 36, App. B  36.104 (1996). Dr. Bragdon concedes that an HIV-positive pregnant woman faces an approximately 25% risk of transmitting the virus to her child without AZT therapy and an 8% risk of viral transmission with such therapy. He strives to persuade us, however, that there is an unresolved issue, sufficient to preclude summary judgment, as to whether HIV substantially limits Ms. Abbott's reproductive activity. In other words, he claims that on the record sub judice, a jury reasonably could find that the stated degree of risk does not substantially limit this infected person's ability to reproduce. We are unconvinced. No reasonable juror could conclude that an 8% risk of passing an incurable, debilitating, and inevitably fatal disease to one's child is not a substantial restriction on reproductive activity. Cf., e.g., 29 C.F.R. Pt. 1630, App.  1630.2(j) (1996) (stating in the ADA's employment discrimination regulations that "[o]ther impairments, however, such as HIV infection, are inherently substantially limiting"). In addition, Ms. Abbott faces the unfortunate reality that even if she gives birth to a healthy child, she probably will not live long 15 01-05386 enough to complete the task of raising the child to adulthood. We thus hold that HIV-positive status is a physical impairment that substantially limits a fecund woman's major life activity of reproduction. Ms. Abbott therefore is disabled within the purview of the ADA. We add an eschatocol. We emphasize that the ADA's "of such individual" language necessitates a factual determination based on the record; our discussion of this issue, therefore, focuses on the case before us. Each case presents different underpinnings, both factual and circumstantial. Presented with other facts and circumstances in a future case, perhaps reflecting dramatic improvements in medical science that substantially reduce the likelihood of transmitting HIV through reproduction, we might well reach a different conclusion than the one that we reach today. Such an ebb and flow is to be expected, because this is the very nature of the inquiry that the ADA mandates. IV. THE DIRECT THREAT QUESTION Under the ADA, a place of public accommodation must extend its services to all disabled persons without reference to their disabilities, subject to certain carefully circumscribed exceptions. See 42 U.S.C.  12182(a). By virtue of one such exception, a covered service provider need not deal with an individual who "poses a direct threat to the health or safety of others." 42 U.S.C.  12182(b)(3). The term "direct threat" is defined by the statute; in this context it contemplates the existence of "a significant risk to the health or safety of others 16 01-05387 that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services." Id.4 Dr. Bragdon seeks safe harbor under this exception, asserting that requiring him to treat Ms. Abbott would pose a direct threat to his health. His argument envisions that to fill Ms. Abbott's cavity, he would need to inject a local anesthetic into her mouth and drill the decayed tooth. These procedures, he says, create an undue risk of HIV transmission both through needlestick and through the spattering of blood and bloody saliva. A court's goal in conducting a direct threat analysis under the ADA is to achieve a responsible balance, protecting service providers and other places of accommodation from enforced exposure to unacceptable health and safety risks while at the same time protecting disabled individuals from discrimination that is rooted in prejudice or baseless fear. See Arline, 480 U.S. at 287. EEOC regulations drawn from the Court's seminal opinion in Arline guide this analysis: In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that ______________________ 4 It is important to note that Dr. Bragdon does not argue that his offer to treat Ms. Abbott in a hospital setting is a practice modification that would eliminate the claimed threat to his health. He argues instead that he had no duty to treat her in his office and that his offer to treat her in the hospital was gratuitous (and, therefore, legally irrelevant). 17 01-05388 the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. 28 C.F.R.  36.208(c) (1996); see also Arline, 480 U.S. at 287-88 (discussing essentially the same factors). Of course, any inquiry along these lines depends in one sense on what information permissibly may be weighed in the balance and in another sense on the extent to which particular kinds of evidence should be assigned extra weight (or, perhaps, decretory significance). Thus, before evaluating the medical evidence proffered by the parties, we must determine (1) the relevancy, if any, of subsequent medical knowledge (that is, medical evidence not available in September 1994 when Dr. Bragdon refused to treat Ms. Abbott), and (2) the degree of deference, if any, due the judgments of public health officials. A. The Evidentiary Time Line. The first of these excursions need not detain us. The applicable regulations instruct that a judgment on the presence or absence of a direct threat must be predicated on "current medical knowledge or on the best available objective evidence," 28 C.F.R.  36.208(c) (1996) (emphasis supplied), and, hence, point unwaveringly toward confining medical evidence to that available at the time a dentist or other health-care professional refuses to treat. This principle - that neither the service provider nor the prospective recipient of the service may prove or disprove the direct threat defense by relying on medical evidence not available when treatment was refused - is sound policy. Under such a regime, 18 01-05389 the service provider retains the opportunity to prove that he made an appropriate determination of the existence of a direct threat based on the evidence available when he made the decision to withhold his services. This is sound policy because, while health- care providers can be expected to maintain a working knowledge of currently accepted thinking in their fields, they cannot be expected to anticipate either future scientific advances or the emerging wisdom of public health organizations. In short, by holding covered service providers to an objective standard featuring the best evidence available at the time they refuse to render treatment to disabled persons, the ADA holds the delicate balance between sometimes conflicting rights steady and true. This approach is also scrupulously fair. To punish providers when they satisfy an objective standard based on the best evidence available at the time of their decisions would be to punish them for a lack of clairvoyance. By the same token, to hold providers harmless after they have refused treatment based on nothing more than unfounded trepidation would run at cross-purposes with the central theme of the ADA. Fundamental fairness insists that providers in such circumstances ought not to be entitled to rely on subsequent understandings to shield them from the condign consequences of discriminatory conduct.5 Cf. McKennon v. Nashville _____________________ 5 To be sure, under this approach a health-care professional occasionally may lose on a claim of direct threat even when newly emergent information shows an objective basis for what was in fact a subjective decision to deny services. But a contrary rule would encourage timorous service providers to discriminate and gamble that by the time they were dragged into court, new medical evidence would vindicate their position. In areas like these, where courts 19 01-05390 Banner Pub. Co., 115 S.Ct. 879, 885 (1995) (holding that an employer in an employment discrimination case may not justify its conduct based on evidence that did not motivate it at the time of the employment decision); North Shore Univ. Hosp. v. Rosa, 657 N.E.2d 483, 486 (N.Y. 1995) (evaluating conduct alleged to be discriminatory under state law based on accepted medical practice at the time of the alleged infraction). B. The Degree of Deference. The second threshold determination involves the degree of deference due the medical judgments of public health authorities. The government joins Ms. Abbott in arguing for a rule which, if embraced, would cede great deference to those authorities. They posit that, in the absence of dissent among public health authorities, a service provider should be bound to accept the expressed collective judgment of those authorities unless he can demonstrate that this judgment is medically unreasonable. In contrast, Dr. Bragdon asseverates that, at least in the case of a service provider who is himself a skilled professional (such as a doctor or dentist), a court should defer to the provider's judgment, as long as it appears to have been reasonable in light of then-current medical knowledge. The question of deference pivots on language in Arline, where Justice O'Connor, writing for the Court, stated that in making factual findings of the sort that are necessary to inform _____________________ feel the push and pull of competing forces, there are no perfect solutions. 20 01-05391 the inquiry into the existence vel non of a direct threat, "courts normally should defer to the reasonable medical judgments of public health officials." 480 U.S. at 288. In crafting regulations applicable to the ADA, the EEOC treated this passage from Arline as gospel. See 28 C.F.R. Pt. 36, App. 3  36.208 (1996) (remarking that the direct threat regulations "codif[y] the standard first applied by the Supreme Court in [Arline]"). We agree that the deference due public health officials must flow from the quoted passage - but acknowledging the hegemony of Arline does not signal automatic victory for Ms. Abbott and the government. The "defer entirely" formulation that they urge upon us is totally unprecedented; we have found no case in which the views of public health authorities are treated with the solicitude that Ms. Abbott and the government invite. If adopted, this formulation would come close to making a consensus among public health authorities unchallengeable by other medical evidence and, consequently, unreviewable by the courts. Nothing in Arline demands such obsequious obeisance to public health authorities or indicates an intention on the Court's part to consign the medical judgments of private physicians to some evidentiary Siberia. Instead, the Court quite clearly left the details of deference for another day. See, e.g., Arline, 480 U.S. at 288 n. 15 ("This case does not present, and we do not address, the question whether courts should also defer to the reasonable medical judgements of private physicians . . . ."). 21 01-05392 Because we are unprepared to say that medical wisdom resides exclusively in public health authorities, we reject the idea of a conclusive presumption. The applicable regulations state that "[s]ources for medical knowledge include guidance from public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health." 28 C.F.R. Pt. 36, App. B  36.208 (1996) (emphasis supplied). This list is plainly illustrative, not exhaustive, and the use of the verb "include" indicates to us that other sources of medical knowledge are within the pale. The statute, the suggestion implicit in the regulations, and the teachings of the Court are best synthesized by fashioning a rule which gives prima facie force to the views of public health authorities, but which permits a service provider to challenge those views based on contrary, properly supported opinions voiced by other recognized experts in the field (e.g., research studies published in peer-reviewed journals). Such a rule accords a meaningful degree of respect to the views of public health authorities, particularly when those views are unanimous. But the rule draws a distinction between respect and absolute capitulation. Under it, the conclusions of public health authorities may be rebutted by persuasive evidence adduced from other recognized experts in a given field.6 _____________________ 6 In United States v. Jessup, 757 F.2d 378, 381-84 (1st Cir. 1985), then-Judge Breyer distinguished "bursting bubble" presumptions (which vanish when contrary evidence is introduced) from "intermediate" presumptions (which remain available for consideration by the factfinder even after contrary evidence is introduced). The presumption here is of the latter stripe. 22 01-05393 Treating the presumption of correctness which attaches to the collective judgment of public health authorities as rebuttable will not, as the government intimates, sabotage the statutory scheme. Because the test for the existence vel non of a direct threat remains an objective one, a service provider cannot successfully contradict an achieved consensus simply by proffering an unsupported opinion. This ensures that, despite the rebuttable nature of the presumption, the direct threat defense may not be used to mask prejudice or unfounded fears. Rather, to frame a genuine issue, an opposing view must be documented by competent countervailing evidence that is directly relevant. Speculative inferences, glancing statistics, unsupported conclusions, and ruminative surmise will not serve. C. Applying the Standard. We turn next to a review of the medical evidence that was available when Ms. Abbott visited Dr. Bragdon's office in September 1994. By then, both the United States Centers for Disease Control and Prevention (CDC) and the American Dental Association (the Association) had spoken to the issue of the health risk to dental workers from patients infected with HIV. The Association's 1991 Policy on AIDS, HIV Infection and the Practice of Dentistry stated that: Current scientific and epidemiologic evidence indicates that there is little risk of transmission of infectious diseases through dental treatment if recommended infection control procedures are routinely followed. Patients with HIV infection may be safely treated in private dental offices when 23 01-05394 appropriate infection control procedures are employed. In 1993, the CDC updated its earlier guidelines and specified a compendium of infection control procedures, known as the "universal precautions," for use by dental workers treating HIV-positive patients. See CDC, Recommended Infection-Control Practices for Dentistry, 1993 (the Recommendations). The CDC took the position that, when implemented, the prescribed precautions "should reduce the risk of disease transmission in the dental environment." Id. at 3. While the guidelines do not state explicitly that no further risk-reduction measures are desirable or that routine dental care for HIV-positive individuals is safe, those two conclusions seem to be implicit in the guidelines' detailed delineation of procedures for office treatment of HIV-positive patients. See United States v. Morvant, 898 F. Supp. 1157, 1166 (E.D. La. 1995) (concluding that "the universal precautions as prescribed by the CDC are universally accepted as 'reasonable modifications' of practices that will significantly mitigate the risk (of HIV transmission from patient to dentist]").7 Tellingly, no public health authority has ______________________ 7 In support of her motion for brevis disposition, Ms. Abbott also presented testimony from Dr. Donald Wayne Marianos, director of the Division of Oral Health at the CDC. Dr. Marianos stated categorically that "[n]o infection control procedures beyond the use of universal precautions are necessary when providing routine dental care to persons with HIV and AIDS. He also declared that "[t]he CDC does not recommend the use of infection control procedures beyond those cited in [the Recommendations] for the provision of routine dental treatment to persons with HIV or AIDS" and that "the risk of HIV transmission from patient to provider [in such circumstances] is so low as to be unquantifiable." Dr. Marianos' testimony is of limited value to us in assessing the medical evidence available to Dr. Bragdon inasmuch as the record contains no evidence that the CDC had publicly taken so explicit a 24 01-05395 suggested that it is unsafe to provide routine dental care to HIV- positive patients in a private office environment. We find, therefore, that Ms. Abbott adduced competent evidence of reasonable medical judgments by public health officials, not contradicted by other public health authorities, to the effect that affording routine dental care (such as filling cavities) to HIV-infected patients in an office environment does not pose a direct threat to the dentist's health. The next question is whether Dr. Bragdon has produced sufficient countervailing evidence that filling Ms. Abbott's cavity in an office setting would have constituted a direct threat to his health. In an endeavor to create a genuine issue of material fact, he cites eight sources of information which he argues show that rendering the necessary treatment in his office would have jeopardized his health.8 We examine these sources to determine if any of them, individually or in the aggregate, justify denying summary judgment to Ms. Abbott. 1. Dr. Bragdon notes that the Food and Drug Administration (the FDA) recommended in 1992 that persons who have had contact with a patient's blood through needlestick, non-intact ________________________ position as of September 1994. 8 Although Dr. Bragdon presented material from a retained expert, Dr. Sanford Kuvin, he does not claim that Dr. Kuvin's testimony was based on medical knowledge available to him on the date he declined to treat Ms. Abbott, and his brief discusses Dr. Kuvin's testimony in a separate section devoted to the possibility that evidence available after September of 1994 might be relevant to the issue. To clinch the point, Dr. Kuvin's testimony itself relies on a number of sources not available until 1995 and beyond. 25 01-05396 skin, or mucous membranes refrain from donating blood for a year. This recommendation is clearly insufficient to demonstrate a direct threat to Dr. Bragdon. To safeguard the integrity of the blood supply, the FDA may seek to avoid minute risks and take unusual precautions even in the absence of actual evidence of danger. It is not surprising, therefore, that the FDA issued its recommendation without making any finding that there was a significant risk of contracting HIV from contact of the type and kind described. In contrast, to determine whether there is a direct threat within the purview of the ADA, an inquiring court must gauge the nature, duration, and severity of the risk.9 The FDA's recommendation does not advance this inquiry. 2. Dr. Bragdon refers to a CDC report documenting forty- two incidents of transmission of HIV to health-care workers and seven possible transmissions to dental workers. We deem this data insufficient to warrant depriving Ms. Abbott of summary judgment. Evidence of HIV transmission to health-care workers outside the dental field does not prove a direct threat to a practicing dentist in the absence of any evidence showing that the magnitude of risk to a dentist is comparable to the risk to other health-care workers in other settings. Nor is such an equivalency obvious; health-care workers in, say, emergency rooms may be exposed to much larger _______________________ 9 Then, too, the stakes are different. The only foreseeable loss from what may be an overabundance of caution on the FDA's part is some small quantity of donated blood. Surrendering to stereotypes and unfounded fears when dealing with disabled persons, however, will subvert Congress' intent in enacting the ADA. 26 01-05397 needles and more copious quantities of blood than are common in routine dental practice. Generalities about health-care workers aside, Dr. Bragdon does not cite a single confirmed instance of HIV transmission to a dentist. He does, of course, point to seven instances of "possible transmissions" of HIV to dental workers, but mere possibilities are too speculative to satisfy a litigant's burden of production at the summary judgment stage. See Smith, 76 F.3d at 428 (noting that unsupported speculation must be disregarded at summary judgment); Medina-Munoz, 896 F.2d at 8 (similar). 3. Dr. Bragdon brandishes a CDC report telling of the transmission of HIV from a Florida dentist to his patients. But neither the CDC report nor any other proffered evidence establishes transmission of HIV from a patient to a dental worker. The difference is meaningful. Dentists have the advantage of equipping and staffing their offices and dictating the precautionary procedures that will be utilized during patient encounters. In contrast, patients have no way of assuring that any particular risk-reduction measures, much less the universal precautions recommended by the CDC, are introduced. Given that dentists are in a superior position to patients in terms of protecting against infection, a single report of dentist-to-patient infection cannot reasonably be taken to suggest a direct threat to dentists from their patients' infections. 4. The high-speed drills that dentists use when filling cavities may also generate aerosol mists of water, blood, and 27 01-05398 bloody saliva. Using this datum as a springboard, Dr. Bragdon jumps to the conclusion that a study by researchers at the Stanford Medical School, raising concerns about transmission of HIV when dentists perform aerosol generating procedures, is sufficient to defeat summary judgment. See Gregory K. Johnson and William S. Robinson, Human Immunodeficiency Virus-1 (HIV-1) in the Vapors of Surgical Power Instruments, 33 Journal of Medical Virology 47 (1991). By its own characterization, however, the Johnson-Robinson paper is too conjectural to raise a genuine issue of material fact as to whether filling Ms. Abbott's cavity would constitute a direct threat to Dr. Bragdon's health. The paper notes that it "do[es] not quantitate the risk of HIV transmission . . . by such aerosols," and that "the large body of epidemiologic data on prevalence of HIV infections . . . would suggest that transmission by aerosols is not common." Id. at 49. 5. Dr. Bragdon points out that the CDC did not state that it was medically unwise to take additional precautions with persons known to be HIV-positive. This observation, while true, gains him little ground. Such silence on the part of the CDC is at best equivocal; it does nothing to prove that there is any risk to a dentist in treating HIV-positive patients. Because the inference that Dr. Bragdon seeks to draw from the CDC's silence is wholly 28 01-05399 inference that rendering routine care to a dental patient infected with HIV constitutes a direct threat to the dentist's health. 7. Dr. Bragdon states that although he did his best to comply with the universal precautions, he still sustained sharp injuries on a regular basis. We believe that this kind of anecdotal evidence by a dentist who is not an expert on infectious disease is inadequate to block summary judgment. See Medina-Munoz, 896 F.2d at 8 (noting that summary judgment may be granted when opposing evidence is not significantly probative). Although courts need not defer slavishly to the judgments of public health officials, see supra Part IV(B), we believe it would be inconsistent with Arline were courts to credit lay testimony on matters of public health. See Arline, 480 U.S. at 287-88 (emphasizing the need to protect the handicapped from unfounded fears). 8. Dr. Bragdon cites a study reporting that compliance with the universal precautions would reduce needlestick exposures by only 62%. See Edward S. Wong et al., Are Universal Precautions Effective in Reducing the Number of Occupational Exposures Among Health Care Workers?, 265 Journal of the American Medical Association 1123, 1126 (1991). This statistic says nothing about the initial baseline degree of danger of treatment in the absence of the universal precautions and thus is impuissant to prove that a dentist using the CDC's precautions is directly threatened by treating an HIV-positive patient. 30 01-05400 conjectural, it cannot figure in the summary judgment calculus.10 See Smith, 76 F.3d at 428. 6. Dr. Bragdon adverts to the Association's report that the risk to health-care workers is greater than the risk to patients. At the same time, he notes, federal courts have found a significant risk of HIV transmission from health-care workers to patients. See, e.g., Bradley v. University of Tex. M.D. Anderson Cancer Ctr., 3 F.3d 922, 924 (5th Cir. 1993) (per curiam), cert. denied, 510 U.S. 1119 (1994); Doe v. Washington Univ., 780 F. Supp. 628, 633 (E.D. Mo. 1991). Dr. Bragdon seeks to lace these findings together to support a conclusion that the risk to him from treating Ms. Abbott is also significant. The tie does not bind; this combination produces far too much of a generalization to have any force in the much narrower contours of this case. Moreover, the federal cases involving transmission of HIV from health-care workers to patients are inapposite not only because of the asymmetry of control of risk-reduction measures between health-care workers and patients, see supra, but also because the cited cases spring from a context in which any risk at all to patients is deemed unacceptable. See Washington Univ., 780 F. Supp. at 633 ("It is the stated goal of the medical profession to heal, and its secondary axiom, if healing is not possible, is not to harm.") Therefore, these cases do not support a reasoned ______________________ 10 In all events, it is implicit in the 1993 CDC guidelines that no risk-reduction steps beyond the universal precautions are necessary to ensure the safety of dentists providing routine dental care to HIV-positive individuals. See supra p. 24. 29 01-05401 inference that rendering routine care to a dental patient infected with HIV constitutes a direct threat to the dentist's health. 7. Dr. Bragdon states that although he did his best to comply with the universal precautions, he still sustained sharp injuries on a regular basis. We believe that this kind of anecdotal evidence by a dentist who is not an expert on infectious disease is inadequate to block summary judgment. See Medina-Munoz, 896 F.2d at 8 (noting that summary judgment may be granted when opposing evidence is not significantly probative). Although courts need not defer slavishly to the judgments of public health officials, see supra Part IV(B), we believe it would be inconsistent with Arline were courts to credit lay testimony on matters of public health. See Arline, 480 U.S. at 287-88 (emphasizing the need to protect the handicapped from unfounded fears). 8. Dr. Bragdon cites a study reporting that compliance with the universal precautions would reduce needlestick exposures by only 62%. See Edward S. Wong et al., Are Universal Precautions Effective in Reducing the Number of Occupational Exposures Among Health Care Workers?, 265 Journal of the American Medical Association 1123, 1126 (1991). This statistic says nothing about the initial baseline degree of danger of treatment in the absence of the universal precautions and thus is impuissant to prove that a dentist using the CDC's precautions is directly threatened by treating an HIV-positive patient. 30 01-05402 At this point, we have reviewed all the proof relevant to direct threat that Dr. Bragdon claims was available to him in September of 1994. Each piece of evidence is too speculative or too tangential (or, in some instances, both) to create a genuine issue of material fact. This ends our item-by-item explication of the record. We next consider whether these eight proffers, in cumulation, possess greater probative force. This can occur when items of evidence, each insufficient in itself to prove a particular point, complement each other, like interlocking pieces of a jigsaw puzzle, in such a way that they together demonstrate some material fact. Thus, had Dr. Bragdon cited separate sources of evidence demonstrating (a) the likelihood of dental needlestick and (b) the likelihood of a dentist contracting HIV from a needlestick, these items together possibly would have been adequate to defeat summary judgment on the direct threat defense. Or, had he proffered several items of evidence that each showed a small risk to the health or safety of others, the aggregate effect of these items might have sufficed to prove a significant risk and thus to thwart summary judgment. Despite the fact that Dr. Bragdon did not explicitly make a "cumulative proof" argument, we have spontaneously reviewed the record with this thought in mind. Having done so, we are satisfied that the evidentiary proffers canvassed above, insufficient in themselves, are likewise insufficient in combination to call into legitimate question the lower court's entry of summary judgment. 31 01-05403 In making this evaluation, we emphasize that, under the ADA, a service provider like Dr. Bragdon is not entitled to demand absolute safety; he can rely upon the direct threat defense only in response to significant risks. Here, Dr. Bragdon has failed to present meaningfully probative evidence that treating Ms. Abbott would have posed a medically significant risk to his health or safety. V. CONCLUSION For the reasons indicated, we rule that Ms. Abbott's HIV- positive status is a physical impairment which substantially interferes with her major life activity of reproduction, and that she is therefore disabled within the meaning of the ADA. Inasmuch as Dr. Bragdon has failed to produce sufficient evidence to establish a triable issue on his direct threat defense, the entry of summary judgment in Ms. Abbott's favor must stand. Under ordinary circumstances, we would go no further. Here, however, we believe that more should be said. It is sometimes convenient to think of cases as involving conduct that may be categorized in terms of polar extremes: reasonable or unreasonable, praiseworthy or blameworthy, good or evil. But, given the complexities of the society in which we live, many decisions resist such facile classification into black-or-white dichotomies. Such cases are better characterized in varying shades of gray. This is such an instance. The litigants' positions are understandable in human terms and impartial observers can empathize 32 01-05404 with both parties. Still, on the facts of record, the defendant's refusal to render routine dental care to an HIV-positive patient offends a duly enacted federal statute and thus cannot be tolerated by a court of law. Although we do what we must, we are not blind to the difficulty of the choices that the ADA compels health-care professionals such as Dr. Bragdon to make. We also recognize that cases of this kind are necessarily fact-sensitive; had the patient required more invasive treatment or had the dentist proffered stronger evidence of a direct threat, the result may well have differed. We therefore caution future courts not to read our words more broadly than the context admits; our decision today eschews a blanket rule and instead demands case-by-case inquiry into a service provider's responsibilities to treat HIV-positive patients. Affirmed. 33 01-05405 No. 96-1643 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT SYDNEY ABBOTT, et al., Plaintiffs-Appellees, v. RANDON BRAGDON, DMD, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DEVAL L. PATRICK Assistant Attorney General JESSICA DUNSAY SILVER SAMUEL R. BAGENSTOS Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174 01-05406 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 STATEMENT OF THE CASE . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . .12 ARGUMENT: I. BRAGDON'S CONDUCT WAS TANTAMOUNT TO A COMPLETE DENIAL OF TREATMENT . . . . . . . . . . . . . . . . . . . . . .16 II. ABBOTT'S ASYMPTOMATIC HIV INFECTION IS A "DISABILITY" UNDER THE AMERICANS WITH DISABILITIES ACT . . . . . . . . . 18 A. Asymptomatic HIV Infection Substantially Limits Major Life Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 1. Abbott's HIV infection substantially limits a variety of her major life activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 2. HIV has substantially limited Abbott's ability to engage in the major life activity of reproduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. Because Of Her HIV Infection, Abbott Was "Regarded As Having" A Disability . . . . . . . . . . . . . . . . . . . . . . . . .27 III. THE DISTRICT COURT CORRECTLY REJECTED BRAGDON'S "DIRECT THREAT" DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 A. The District Court Correctly Held That Treating Abbott In Bragdon's Office Would Not Pose A "Direct Threat" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 B. The District Court Properly Accorded Deference To The CDC's Judgment That It Is Safe To Treat Persons With HIV In Private Dental Offices Where Universal Precautions Are Employed . . . . . . . . . . . . . . . . . . . . . . . .33 C. Bragdon Has Not Shown That The CDC's Medical Judgment Is Unreasonable . . . . . . . . . . . . . . . . . . . . . . . . 39 D. The District Court Properly Found Inapposite The Cases Involving HIV- Infected Health-Care Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 - i - 01-05407 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 TABLE OF AUTHORITIES CASES: PAGE Abbott v. Bragdon, 912 F. Supp. 580 (D. Maine 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim American Dental Ass'n v. Martin, 984 F.2d 823 (7th Cir.), cert. denied, 510 U.S. 859 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 33, 44 Anderson v. Gus Mayer Boston Store, 924 F. Supp. 763 (E.D. Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp. 1437 (E.D. Pa. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Bradley v. University of Texas M.D. Anderson Cancer Ctr., 3 F.3d 922 (5th Cir. 1993), cert. denied, 510 U.S. 1119 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Cain v. Hyatt, 734 F. Supp. 671 (E.D. Pa. 1990) . . . . . . . . . . . . . . . . . . . . . . . . .21 Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12 (1st Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Chalk v. United States District Court, 840 F.2d 701 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 43, 44 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . .37 D.B. v. Bloom, 896 F. Supp. 166 (D.N.J. 1995) . . . . . . . . . . . . . . . . . . . . . . 33, 39 Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990), cert. denied, 499 U.S. 904 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310 (E.D. Pa. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . .44, 46, 47 Doe v. Washington Univ., 780 F. Supp. 628 (E.D. Mo. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46, 47 - ii - 01-05408 CASES: PAGE Eisenstadt v. Baird, 405 U.S. 438 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Ennis v. National Ass'n of Business & Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Erickson v. Board of Governors, 911 F. Supp. 316 (N.D. Ill. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . .19 Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 27 Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) . . . . . . . . . . . . . . . . . . . . 28 Kohl v. Woodhaven Learning Ctr., 865 F.2d 930 (8th Cir.), cert. denied, 493 U.S. 892 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 Krauel v. Iowa Methodist Medical Ctr., 915 F. Supp. 102 (S.D. Iowa 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24-25 Leckelt v. Board of Comm'rs, 909 F.2d 820 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .45, 46 Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981 (1st Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 Mauro v. Borgess Medical Ctr., 886 F. Supp. 1349 (W.D. Mich. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Moreau v. Local Union No. 247, Int'l Bhd. of Firemen, 851 F.2d 516 (1st Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .24 Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24, 25 School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . passim Scoles v. Mercy Health Corp., 887 F. Supp. 765 (E.D. Pa. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . .45 Skinner v. Oklahoma, 316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . .24, 25 Soar v. National Football League Players' Ass'n, 550 F.2d 1287 (1st Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24 Stanley v. Illinois, 405 U.S. 645 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 - iii - 01-05409 CASES: PAGE State v. Clausen, 491 N.W.2d 662 (Minn. Ct. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 39 Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 34 United States v. Board of Comm'rs, 435 U.S. 110 (1978) . . . . . . . . . . . . . . . 27 United States v. Morvant, 898 F. Supp. 1157 (E.D. La. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 33 United States v. Rule Indus., Inc., 878 F.2d 535 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240 (E.D. La. 1995), aff'd 79 F.3d 1143 (5th Cir. 1996) . . . . . . . . . . . . . . . 25 STATUTES AND REGULATIONS: 28 U.S.C. 2403(a) . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . 9 Rehabilitation Act of 1973, 29 U.S.C. 701 et seg. . . . . . . . . . . passim Americans with Disabilities Act, 42 U.S.C. 12101 et seg., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12101(b)(1) . . . . . . . . . . . . . . . . . . . . . . .12 42 U.S.C. 12102(2) . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. 12102(2)(A) . . . . . . . . . . . . . . . . . . . . 10, 19 42 U.S.C. 12102(2)(C) . . . . . . . . . . . . . . . . . . . . . . 27 Americans with Disabilities Act, 42 U.S.C. 12181 et seg., Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12181(7)(F) . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. 12182(a) . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. 12182(b)(1)(A)(i) . . . . . . . . . . . . . . . . . . . .17 42 U.S.C. 12182(b)(1)(A)(iii) . . . . . . . . . . . . . . . . . . .18 42 U.S.C. 12182(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. 12182(b)(3) . . . . . . . . . . . . . . . . . 1, 10, 29, 33 42 U.S.C. 12188(b) . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. 12201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Maine Human Rights Act . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 - iv - 01-05410 STATUTES AND REGULATIONS: PAGE 28 C.F.R. Part 36  36.104 . . . . . . . . . . . . . . . . . . . . . . . 2, 20, 23, 27  36.208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2  36.208(c) . . . . . . . . . . . . . . . . . . . . . . . . . 30, 38 App. B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 App. B, S 36.104 . . . . . . . . . . . . . . . . . . . . . 20, 21-22 App. B, S 36.208 . . . . . . . . . . . . . . . . . . . . . . . passim 29 C.F.R. 1910.1030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 LEGISLATIVE HISTORY: H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . passim H.R. Rep. No. 485, Part 3, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . passim S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . 14, 20, 26, 28 Americans with Disabilities Act of 1988: Joint Hearings Before the Subcomm. on the Handicappped of the Senate Comm. on Labor and Human Resources and the Subcomm. on Select Educ. of the House Comm. on Educ. and Labor, 100th Cong., 2d Sess. (1988) . . . . . . . . . . . . . . . . . . . 13 Americans with Disabilities Act of 1989: Hearings Before the Subcomm. on Civil and Constitutional Rights and the House Comm. on the Judiciary, 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Americans with Disabilities Act of 1989: Hearings Before the Senate Comm. on Labor and Human Resources, 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . . . 19, 26 Oversight Hearing on H.R. 4498, Americans with Disabilities Act of 1988: Hearing before the Subcomm. on Select Educ. of the House Comm. on Educ. and Labor, 100th Cong., 2d Sess. (1988) . . . . . . . . . . . . . . . . . . . . . . 13 136 Cong. Rec.: S9696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 S9697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 H4622-4627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 v 01-05411 MISCELLANEOUS: PAGE ADA Title III Technical Assistance Manual, 1994 Supp.,  III-3.8000. . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 Memorandum from Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, to Arthur B. Culvahouse, Jr., Counsel to the President (Sept. 27, 1988) . . . . . . . . . . . . . . . . . . 19, 26 Robert A. Kushen, Note, Asymptomatic Infection With the AIDS Virus as a Handicap Under the Rehabilitation Act of 1973, 88 Colum. L. Rev. 563 (1988) . . . . . . . . . . . . .21 10A Charles A. Wright, et al., Federal Practice & Procedure  2725 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 22 vi 01-05412 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 96-1643 SYDNEY ABBOTT, et al., Plaintiffs-Appellees, v. RANDON BRAGDON, DMD, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES This case involves two important issues regarding the construction of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (ADA): (1) the definition of the term "disabili- ty," 42 U.S.C. 12102(2), and specifically whether asymptomatic infection with the Human Immunodeficiency Virus (HIV) constitutes a disability; and (2) the application of the "direct threat" defense, 42 U.S.C. 12182(b)(3), and specifically whether treat- ment of an HIV-infected patient constitutes a direct threat to the health and safety of dental health care providers when universal precautions are employed. The Attorney General has statutory authority to enforce the ADA's public accommodations provisions. 42 U.S.C. 12188(b). The Department of Justice has also issued extensive regulations and interpretive guidance concerning the proper definition of "disability" and the proper 01-05413 -2- application of the "direct threat" defense under the ADA. See 28 C.F.R. 36.104, 36.208; 28 C.F.R. Part 36, App. B. The United States also has a significant interest in the specific fact pattern addressed in this case. The United States has brought two other cases dealing with the precise questions presented here: one resulted in a consent decree (United States v. Castle (N.D. Tex.)), and the other resulted in a summary judgment decision in our favor (United States v. Morvant, 898 F. Supp. 1157 (E.D. La. 1995)). And the "direct threat" section of the Department's Americans with Disabilities Act Title III Technical Assistance Manual states that (ADA Title III Technical Assistance Manual, 1994 Supp.,  III-3.8000, Illus. 3, at 4): Refusal to provide dental services to an individual who is infected with HIV because of the patient's HIV- positive status would be a violation. Current medical evidence indicates that the risk of HIV transmission from a patient to other patients and/or the dental staff is infinitesimal, and can be even further reduced by the use of universal precautions (infection control procedures that prevent the transmission of all infec- tious diseases, including HIV). In his brief on appeal, Bragdon relies on a parsing of the Department of Justice's "direct threat" regulation that is squarely contrary to our own interpretation of that provision. Because the Department's interpretation is entitled to "substan- tial deference," Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994), the United States has a strong interest in presenting that view to the Court. The United States also has broader interests in this case. The Centers for Disease Control and Prevention (CDC) have issued 01-05414 - 3 - recommended infection control practices for dentistry, which have been largely incorporated in an Occupational Safety and Health Administration rule regarding exposure to bloodborne pathogens. See generally American Dental Ass'n v. Martin, 984 F.2d 823 (7th Cir.), cert. denied, 510 U.S. 859 (1993). These practices incorporate the concept of "universal precautions" referred to in the Department of Justice's technical assistance manual. In this case, the Director of the CDC's Division on Oral Health testified to the CDC's position that persons infected with HIV may be safely treated in a private dental office where universal precau- tions are employed. The medical judgments of public health officials are entitled to considerable deference in the "direct threat" inquiry. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 (1987). For these reasons, the United States participated as amicus in the district court to present our view of the merits of the case. We also intervened for the limited purpose of defending the constitutionality of the ADA, but Bragdon has not raised the constitutional issue on appeal. STATEMENT OF THE ISSUES 1. Whether an individual who is infected with the Human Immunodeficiency Virus (HIV), but who is not symptomatic, is "disabled" and therefore protected by the Americans with Disabil- ities Act (ADA). 2. Whether the ADA permits a dentist to refuse to provide treatment solely because the patient is HIV-positive. 01-05415 - 4 - STATEMENT OF THE CASE 1. This case involves Dr. Randon Bragdon's refusal to provide routine dental treatment to Sydney Abbott, solely because Ms. Abbott is infected with the Human Immunodeficiency Virus (HIV). HIV is the virus that causes Acquired Immune Deficiency Syndrome (AIDS). Abbott v. Bragdon, 912 F. Supp. 580, 584 (D. Maine 1995). "People exposed to HIV may contract the virus, and if so, will develop HIV antibodies and become HIV positive." Ibid. HIV disease progressively compromises the body's immune system and normally leads to opportunistic infections, malignan- cies, and ultimately death. But these symptoms do not appear all at once. In fact, "[i]ndividuals may carry HIV for several years without manifesting the collection of symptoms known as AIDS. During that period, the HIV carrier remains asymptomatic, meaning apparently healthy and generally able to participate in day to day life." Ibid. Persons with asymptomatic HIV remain infec- tious, however. And the HIV virus continues to multiply and "create[] abnormalities in [their] blood and lymphatic systems." Ibid. There are three means by which HIV is transmitted: (1) intimate sexual contact with an infected person; (2) invasive exposure to infected blood; or (3) from mother to child during pregnancy, birth, or breast feeding. J.A. 51, 107.1/ Persons cannot contract HIV through casual contact with an infected ________________________ 1/"R. " refers to entries on the district court's docket sheet. "J.A. " refers to page numbers in the joint appendix. "Bragdon Br. " and "Ass'n Br. " refer to page numbers in, respective- ly, Bragdon's opening brief and the American Dental Association's amicus brief. 01-05416 - 5 - individual. Ibid. Both the Centers for Disease Control and Prevention (CDC) and the Occupational Health and Safety Administration (OSHA) have addressed the question of how HIV-infected patients may be safely treated in dental offices. The CDC issued Recommended Infection- Control Practices for Dentistry in 1986, and revised recommenda- tions in 1993. R. 53, Exh. 16; J.A. 120-132. It also issued Recommendations for the Prevention of HIV Transmission in Health Care Settings, including dentistry, in 1987. R. 53, Exh. 17. And OSHA issued a final rule on Occupational Exposure to Blood- borne Pathogens in 1991. 29 C.F.R. 1910.1030. Because health care workers cannot know with certainty whether they are treating an infectious patient, those guidelines dictate the use of "universal precautions" -- infection control procedures under which every patient is treated as if he or she carries an infec- tious bloodborne pathogen (such as HIV or Hepatitis B). J.A. 51- 52, 107-108. These procedures include protective attire and barrier techniques such as gloves, gowns, protective eyewear, surgical masks and/or face shields; proper sterilization of all dental instruments, including heat sterilization of dental handpieces after each use; and proper disinfection of the dental unit and operatory surfaces. J.A. 52, 107-109. As the Director of the CDC's Division on Oral Health, Dr. Donald Marianos, explained, the CDC has determined that "[n]o infection control procedures beyond the use of universal precau- tions are necessary when providing routine dental care to persons 01-05417 -6- with HIV and AIDS." J.A. 109; accord J.A. 434. Thus, "persons with HIV or AIDS or other blood-borne pathogens can be safely treated in private dental offices" where dentists employ univer- sal precautions. J.A. 111; accord J.A. 434 ("It remains the view of the CDC that it is safe to provide routine dental care to patients with HIV and AIDS in private dental offices when univer- sal precautions are utilized."). Although there remains a theoretical risk that dentists can contract the virus from their patients -- primarily through accidental needlestick injuries -- that risk is "so low as to be unquantifiable." J.A. 434. And "when implemented, the CDC recommendations reduce the already low risk of disease transmission in the dental environment." Ibid. 2/ Those conclusions are based on sound epidemiological evi- dence. "Despite the fact that probably over one billion dental procedures have been performed by over 250,000 dental health care professionals in the past fourteen years, and despite the fact that approximately 1,000,000 individuals in the United States are estimated to be infected with HIV, there has never been a docu- mented case of HIV transmission from infected patient to dental health care worker, nor from infected patient to non-infected _______________________ 2/ Moreover, the use of "instruments instead of fingers to retract tissue or guide anesthetic needles during injections" can reduce the risk of accidental needlestick incidents, and "self-sheathing anesthetic syringes are now available to prevent needlestick injuries during or after anesthetic injections." J.A. 383-384. 01-05418 -7- patient." J.A. 112 (emphasis in original); accord J.A. 435. 3/ In the most recent statistics available to the CDC at the time of summary judgment, a total of 42 non-dental health care workers had been "documented as having seroconverted to HIV following occupational exposures to HIV"; 36 of these cases involved percutaneous exposures such as needlesticks. J.A. 111. Whether a needlestick injury leads to infection, however, depends signif- icantly on the amount of blood transmitted; the narrow-bore needles typically used in routine dentistry make it less likely that an amount of blood sufficient to cause infection will be transmitted in the dental context. J.A. 111-112. As Dr. Mari- anos explained, "[b]ecause the size of anesthetic needles used in dentistry is much smaller than that used in most medical set- tings, the majority of needlesticks among dental workers will involve smaller, rather than larger amounts of HIV infected blood. It is the position of the CDC that the risk of acquiring HIV occupationally from a needlestick in the dental setting is so low that it cannot be accurately quantified." J.A. 394. In light of these facts, the American Dental Association has _____________________ 3/ The CDC has reported only one case involving transmission in the opposite direction -- from a health care worker (of any kind) to a patient. That case involved a Florida dentist, who trans- mitted HIV to six of his patients. Dr. Marianos testified that "[t]he specific mechanism of transmission has not been identified and it [is] unlikely to be identified in the future." J.A. 113. An article co-authored by Dr. Marianos found that "after he was diagnosed with AIDS, [the Florida dentist] frequently experienced fatigue, a factor which may have increased the opportunity for injury." R. 57, Exh. B at 803. And Dr. Marianos also testified, based on his investigation of the incident, that the dentist's "attempts to follow universal precautions were not uniformly adhered to." J.A. 212. 01-05419 -8- adopted a policy regarding the treatment of persons with HIV and AIDS. That policy states (J.A. 273): Current scientific and epidemiologic evidence indicates that there is little risk of transmission of infectious diseases through dental treatment if recommended infec- tion control procedures are routinely followed. Pa- tients with HIV infection may be safely treated in private dental offices when appropriate infection control procedures are employed. Such infection con- trol procedures provide protection both for patients and dental personnel. * * *. A dentist should not refuse to treat a patient whose condition is within the dentist's current realm of competence solely because the patient is HIV infected. The American Dental Association has reaffirmed this policy in its amicus brief in this case. See Ass'n Br. 2 n.1. Indeed, the Association's Council on Ethics, Bylaws and Judicial Affairs has stated that it is unethical to refuse treatment to those who are HIV infected. See J.A. 276 ("A dentist has the general obliga- tion 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."). Refusal to treat HIV-infected patients has similarly been de- clared unethical by the American Association of Oral and Maxillo- facial Surgeons (J.A. 134), the Association of State and Territo- rial Health Officials and Association of State and Territorial Dental Directors (J.A. 147), and the American Association of Dental Schools (J.A. 155). 2. Sydney Abbott tested positive for HIV antibodies in 1986; she is currently asymptomatic. Abbott, 912 F. Supp. at 584. In September of 1994, she made an appointment at Randon Bragdon's dental office to have a cavity examined. R. 53, Exh. 6 01-05420 -9- at 34-35. At the office, Abbott was asked to fill out a medical questionnaire. She disclosed on that form that she had tested positive for HIV. Abbott, 912 F. Supp. at 584. After Bragdon examined Abbott and concluded that she did, in fact, have a cavity, he informed her that "pursuant to his infectious disease policy, he would not fill her cavity in his office." Ibid. He stated that his policy was to treat people with infectious diseases in a hospital setting. Bragdon offered to treat Abbott in the hospital and to "charge her the standard fee for filling a cavity as well as what the hospital charged for use of its facilities." Ibid. Bragdon's written "Infectious Disease Policy," however, makes no mention of his willingness to treat persons with infectious diseases in a hospital setting. See J.A. 272. And Bragdon has never had patient admitting privileges at any hospital. J.A. 229; R. 53, Exh. 1 at 288, 300. Abbott left without accepting or rejecting Bragdon's offer. J.A. 172. 3. On December 1, 1994, Abbott filed this action (R. 1). Her complaint alleged that Bragdon had violated Title III of the Americans with Disabilities Act, 42 U.S.C. 12181 et seq. (ADA), which prohibits public accommodations from discriminating on the basis of disability. See 42 U.S.C. 12182. Because Bragdon's answer called into question the constitutionality of the ADA (R. 4), the district court on February 28, 1995, invited the United States to intervene. R. 5; see 28 U.S.C. 2403(a). In response, the United States moved to intervene as of right for the limited purpose of defending the statute's constitutionality; the United 01-05421 -10- States also moved for leave to participate as amicus curiae regarding the other issues in the case. R. 10; see also R. 18. The court granted that motion on April 21, 1995. R. 22. (In the meantime, Abbott had amended her complaint to include a claim under the Maine Human Rights Act, and the Maine Human Rights Commission had intervened as a plaintiff. R. 14, 23.) The parties filed cross-motions for summary judgment on the issues of liability and the ADA's constitutionality. The dis- trict court issued an opinion on December 22, 1995. Abbott, supra. In that opinion, the court granted plaintiffs' motions for summary judgment and denied Bragdon's motion for summary judgment. Abbott, 912 F. Supp. at 504. The district court first concluded that Abbott's asymptomatic HIV infection "substantially limits" a "major life activit[y]" and therefore constitutes a "disability." 42 U.S.C. 12102(2)(A); Abbott, 912 F. Supp. at 585-587. The court held that reproduction is a "major life activity" under the Act. 912 F. Supp. at 586. Because "the risk of transmitting HIV to a potential child, as well as possible harm to her own immune system, has deterred her from having children," the district court found that Abbott was substantially limited in the activity of reproduction. Id. at 586-587. The court then rejected Bragdon's defense that he was entitled to refuse treatment to Abbott in his office because doing so would pose a "direct threat to the health or safety of others." 42 U.S.C. 12182(b)(3). The district court noted that "courts engaging in such an analysis 'normally should defer to 01-05422 -11- the reasonable medical judgments of public health officials.'" Abbott, 912 F. Supp. at 588 (quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 (1987)). The court noted the testimony of the CDC's Director of Oral Health, as well as the American Dental Association's own opinion on the issue. It found that plaintiffs had "provided evidence, of Summary Judgment quality, of a reasonable medical judgment of a public health official, based on current medical knowledge, that treating HIV positive patients such as Plaintiff in a dental office does not pose a direct threat to the health and safety of others." Id. at 589. In contrast, the court found that Bragdon's argument relied on mere "assertion[s]" and "tangential statistics" that were not supported by "Summary Judgment quality evidence." Id. at 588. The court also rejected Bragdon's three constitutional challenges to the application of the ADA. Id. at 592-595. 4/ The district court enjoined Bragdon from "refusing to provide treatment in his office to individuals infected with HIV solely on the basis of their HIV positive status, without making an individualized assessment, based on current medical knowledge and the reasonable medical judgment of public health officials, that in-office treatment of any such individual poses a direct threat to the health and safety of others." Id. at 596. After denying Bragdon's motion for relief from that order, as well as plaintiffs' motions for further injunctive relief (R. 108), the _____________________ 4/ For the same reasons that it violated the ADA, the court found that Bragdon's conduct violated the Maine Human Rights Act as well. Id. at 591-592. 01-05423 -12- district court entered a final judgment on April 22, 1996. R. 109. Bragdon filed a notice of appeal on May 10, 1996. R. 111. INTRODUCTION AND SUMMARY OF ARGUMENT This case presents the question whether a dentist violated the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (ADA), when he refused to treat a patient solely because of her HIV-positive status. When it passed the ADA in 1990, Congress sought to expand on the more limited protections against disabil- ity-based discrimination incorporated in the Rehabilitation Act of 1973, 29 U.S.C. 701 et. seq. (Rehabilitation Act), and "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b)(1). In drafting Title III of the ADA, which prohibits disability-based discrimination by places of public accommoda- tion, "Congress intended that people with disabilities have equal access to the array of goods and services offered by private establishments and made available to those who do not have disabilities." Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 19 (1st Cir. 1994). The problem of discrimination against persons with HIV was a particular focus of the ADA's drafters. During its extensive deliberations on the ADA, Congress heard testimony that "[p]eople with AIDS have faced horrific incidences of discrimination. People have been run out of their homes, jobs, schools, and communities because of fear and misunderstanding. And, in many cases, people have been ridiculed and denied services from the 01-05424 -13- medical profession." Oversight Hearing on H.R. 4498, Americans with Disabilities Act of 1988: Hearing before the Subcomm. on Select Educ. of the House Comm. on Educ. and Labor, 100th Cong., 2d Sess. 76-77 (1988) (statement of Nancy Durkin); accord id. at 206 (statement of Stephen Cohen), 217 (statement of Jerry John- son). Congress also considered a report by the President's Commission on the HIV Epidemic, which found that "complaints of HIV-related discrimination persist and their number is increas- ing." Americans with Disabilities Act of 1988: Joint Hearings Before the Subcomm. on the Handicapped of the Senate Comm. on Labor and Human Resources and the Subcomm. on Select Educ. of the House Comm. on Educ. and Labor, 100th Cong., 2d Sess. 52 (1988). The Commission's report also described the persistence of dis- crimination in health care settings: "The Commission has heard testimony that some hospitals and some health care workers in hospitals have been unwilling to care for HIV-infected persons or have provided inappropriate care because of fear." Id. at 56. Reverend Scott Allen, a commissioner of the congressionally- established National Commission on AIDS, echoed these findings and concluded that following a diagnosis of HIV infection, "[t]he subsequent act of irrational discrimination that occurs has been one of the unfortunate landmarks of our Nation's response to the HIV epidemic." Americans with Disabilities Act of 1989: Hear- ings Before the Subcomm. on Civil and Constitutional Rights and the House Comm. on the Judiciary, 101st Cong., 1st Sess. 171 (1989). 01-05425 -14- Reviewing this and other evidence, Congress endorsed the presidential commission's conclusions that "discrimination against individuals with HIV infection is widespread and has serious repercussions for both the individual who experiences it and for this nation's efforts to control the epidemic." H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. 31 (1990); S. Rep. No. 116, 101st Cong., 1st Sess. 8 (1989); see also H.R. Rep. No. 485, Part 2, supra, at 48 ("The need for omnibus civil rights legislation was also one of the major recommendations of the Presidential Commission on the HIV Epidemic."). Thus, in deter- mining who would be covered as an "individual with a disability" under the ADA, Congress endorsed the Department of Justice's prior construction of the Rehabilitation Act to include persons with HIV (symptomatic or asymptomatic) within the protected class. See H.R. Rep. No. 485, Part 2, supra, at 52; H.R. Rep. No. 485, Part 3, 101st Cong., 2d Sess. 28 n.18 (1990); S. Rep. No. 116, supra, at 22; see also 136 Cong. Rec. S9696-S9697 (daily ed. July 13, 1990) (statement of Sen. Kennedy); 136 Cong. Rec. H4622-H4623 (daily ed. July 12, 1990) (statement of Rep. Owens); id. at H4624-H4625 (statement of Rep. Edwards); id. at H4626- H4627 (statement of Rep. Waxman). This case presents precisely the type of discrimination Congress had in mind when it passed the ADA. Randon Bragdon refused to provide Sydney Abbott with routine dental treatment in his office, and he did so solely because Abbott is HIV-positive. Indeed, Bragdon's conduct was tantamount to a complete refusal to 01-05426 -15- treat. See id. at S9697 (statement of Sen. Kennedy) (stating that, under the ADA, "a doctor or dentist could not require that a person demonstrate that he or she was not HIV-infected" and that current CDC guidelines afford "no reason to require proof of HIV-negativity in any public accommodation setting"). The district court thus properly granted summary judgment in Abbott's favor. As the legislative background to the ADA makes clear, Abbott is an "individual with a disability" protected by the statute. HIV imposes significant limitations on a variety of activities. Of particular importance here, Abbott testified that after she tested positive for HIV, she decided not to have children because of the risks that pregnancy and childbirth would pose to herself and her child and because her child would likely lose its mother. Abbott's HIV infection thus has substantially limited her ability to engage in the major life activity of reproduction. Moreover, her condition provokes a fear of contagion in others that limits her life activities. Bragdon's conduct demonstrates this point clearly: Bragdon refused to provide Abbott a needed medical service because of his fears. Moreover, Bragdon was not entitled to refuse to treat Abbott on the ground that her condition posed a "direct threat." The district court properly deferred to the CDC's position that it is safe to treat HIV-infected patients in private dental offices that employ universal precautions -- infection control procedures that assume that all patients may carry an infectious disease 01-05427 -16- such as HIV. The CDC has determined that the risk of transmis- sion of HIV in the dental setting is so low as to be unquantifia- ble, and that universal precautions further reduce that risk. The CDC's position is consistent with that of other public health authorities and of the American Dental Association. The ADA requires courts to defer to the reasonable medical judgments of public health officials in the "direct threat" inquiry. ARGUMENT I BRAGDON'S CONDUCT WAS TANTAMOUNT TO A COMPLETE DENIAL OF TREATMENT Title III of the ADA prohibits places of public accommoda- tion from discriminating on the basis of disability "in the full and equal enjoyment of [their] goods, services, facilities, privileges, advantages, or accommodations." 42 U.S.C. 12182(a). It is undisputed that Bragdon's office constitutes a "place of public accommodation" under the Act. See 42 U.S.C. 12181(7)(F) ("professional office of a health care provider" is a place of public accommodation). It is also clear that, if Abbott has a "disability" within the meaning of the ADA, Bragdon's actions constituted discrimination on the basis of disability. Those actions denied her the full and equal enjoyment of Bragdon's services. Indeed, Bragdon's actions were tantamount to a total denial of treatment. While Bragdon stated that he was willing to treat Abbott in a hospital setting, he has never had admitting privi- leges at any hospital. J.A. 229; R. 53, Exh. 1 at 288, 300. He 01-05428 -17- did not apply for privileges from any hospital until November of 1994 -- approximately two months after Abbott visited his office, and after she filed a complaint against him with the Maine Human Rights Commission. R. 53, Exh. 1 at 288; see R. 54, Exh. 1. At that time, he applied only at one hospital -- Down East Community Hospital in Machias, 60 miles away. J.A. 229; R. 53, Exh. 1 at 288. 5/ But Down East's head of infection control was unaware of any operating rooms in the hospital equipped with a dental chair or dental delivery unit. J.A. 303. Bragdon's refusal to treat Abbott in his office thus effectively denied her any opportunity to benefit from his services simply because of her HIV infection. That conduct clearly constitutes discrimination under the ADA. See 42 U.S.C. 12182(b)(1)(A)(i). Even if Bragdon did have hospital privileges, his conduct would still have constituted discrimination. Bragdon's policy would have required Abbott to accept treatment in a separate setting 60 miles away and to bear the additional costs of using that setting. There would, moreover, be no medical justification for either the separate treatment setting or the additional burdens. Bragdon suggested that a hospital operatory would provide greater air filtration, negative air pressure, and ultraviolet light to kill airborne pathogens. R. 53, Exh. 1 at 347-350. But the operating rooms at Down East hospital did not contain facilities for negative air pressure or ultraviolet _____________________ 5/ The hospital had not yet acted on Bragdon's application by the time of summary judgment. R. 53, Exh. 1 at 300. 01-05429 - 18 - light, and Bragdon did not know whether its air filtration system was sufficient. Ibid.; J.A. 302-303. Bragdon suggests that the hospital setting was necessary to allow the use of a particulate respirator to prevent HIV transmission by way of aerosol mist. Bragdon Br. 15-16. As we explain below, however, the CDC has found the risk of aerosol mist transmission to be wholly specula- tive and theoretical. See pp. 41-42, infra. "Thus, use of a particulate respirator is completely unjustifiable to prevent transmission of HIV in any health-care setting, including dental settings." J.A. 384. Providing a benefit in a separate setting without any justification for the separation amounts to discrimi- nation under the ADA. See 42 U.S.C. 12182 (b) (1) (A) (iii); 42 U.S.C. 12182 (b) (1) (B). In these circumstances, the "issue" is not, as Bragdon puts it, whether "it is illegal for dentists to take additional precautions" when treating HIV-infected patients. Bragdon Br. 23; see also id. at 34, 42-43. Rather, the issue is whether Bragdon may refuse entirely to fill the cavities of HIV-infected patients. As we demonstrate below, the ADA prohibits Bragdon's blanket exclusion. II ABBOTT'S ASYMPTOMATIC HIV INFECTION IS A "DISABILITY" UNDER THE AMERICANS WITH DISABILITIES ACT A. Asyptomatic HIV Infection Substantially Limits Major Life Activities 1. Abbott's HIV infection substantially limits a variety of her major life activities. The district court correctly conclud- 01-05430 - 19 - ed that Abbott's asymptomatic HIV infection constitutes a "dis- ability." Even under the Rehabilitation Act, the predecessor to the ADA, court decisions and administrative construction have made clear that persons infected with HIV are protected by the statute.6/ The ADA's protections are at least as broad as those the Rehabilitation Act affords to persons with disabilities. 42 U.S.C. 12201 (a). Indeed, as we have noted, protecting persons with HIV and AIDS was a principal concern of the drafters of the ADA; when it passed the ADA, Congress specifically endorsed the prior administrative construction of the Rehabilitation Act to cover HIV infection. See pp. 12-14, supra. HIV infection fits comfortably within the ADA's definition of disability. An individual has a "disability" for purposes of the statute if she has "a physical or mental impairment that substantially limits one or more of [her] major life activities." 42 U.S.C. 12102 (2) (A). HIV infection clearly constitutes a physical "impairment," for it is a "physiological disorder or condition" that affects, among others, the hemic and lymphatic _______________________ 6/ See, e.g., Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994) ("[W]e hold that a person infected with the HIV virus is an individual with a disability within the meaning of the [Rehabili- tation] Act."); Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir. 1990) ("[I]t is well established that infection with AIDS consti- tutes a handicap for purposes of the [Rehabilitation] Act.") (plaintiff had asymptomatic HIV), cert. denied, 499 U.S. 904 (1991); Memorandum from Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, to Arthur B. Culva- house, Jr., Counsel to the President (Sept. 27, 1988) (concluding that HIV infection -- symptomatic or asymptomatic -- is a "handi- cap"), reprinted in Americans with Disabilities Act of 1989: Hearings Before the Senate Comm. on Labor and Human Resources, 101st Cong., 1st Sess. 338-368 (1989). 01-05431 - 20 - system. 28 C.F.R. 36.104 (definition of "disability," subpart (1) (i)). Indeed, Department of Justice regulations implementing Title III of the ADA specifically list "HIV disease (whether symptomatic or asymptomatic)" as an example of an "impairment." Ibid. (definition of "disability," subpart (1) (iii)). The district court correctly concluded, moreover, that HIV "substantially limits" a "major life activit[y]." A person is "substantially limit[ed]" in an activity if, "in comparison to most people," she is "restricted as to the conditions, manner, or duration under which" she can perform it. 28 C.F.R. Part 36, App. B.  36.104; accord H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. 52 (1990); S. Rep. No. 116, 101st Cong., 1st Sess. 23 (1989). HIV infection commences a process culminating in debili- tating opportunistic infections and premature death. J.A. 51, 306. It thus substantially limits all major life activities, for it materially restricts the "duration under which" they can be performed. Even during the period before it results in death, HIV infection substantially limits a variety of major life activities. For example, people with HIV "are recommended not to have unprotected inserted sexual intercourse and are recommended not to have children." State v. Clausen, 491 N.W.2d 662, 666 (Minn. Ct. App. 1992). They also "become poor candidates" for insurance, and their shortened life span limits career choices that require extensive training. Ibid. And "HIV infected persons who are on medication require visits to the clinic which takes time away from work." Ibid. Asymptomatic persons with HIV 01-05432 - 21 - are also limited in their ability to travel, for they "must be always mindful of exposure to bacterial infection and fungi or even places requiring vaccinations." Anderson v. Gus Mayer Boston Store, 924 F. Supp. 763, 777 n.37 (E.D. Tex. 1996).7/ 2. HIV has substantially limited Abbott's ability to engage in the major life activity of reproduction. Of particular note here, as the district court concluded, Abbott's own testimony demonstrates that her HIV infection substantially limited her ability to engage in the major life activity of reproduction and childrearing. Abbott, 912 F. Supp. at 587; see, e.g., Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1320-1322 (E.D. Pa. 1994) (HIV substantially limits major life activity of reproduc- tion); Doe v. District of Columbia, 796 F. Supp. 559, 568 (D.D.C. 1992) (same); Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990) (same).8/ While HIV does not completely prevent an indi- vidual from reproducing, it significantly restricts the "condi- tions * * * under which" she can do so. 28 C.F.R. Part 36, App. ______________________ 7/ See also Austin v. Pennsylvania Dep't of Correction, 876 F. Supp. 1437, 1465 (E.D. Pa. 1995) ("Several courts have also held that HIV-infected individuals qualify as 'handicapped indivi- duals' under the Rehabilitation Act even though they display no outward manifestations of disease because the HIV virus impairs multiple body systems, including the hemic, lymphatic and repro- ductive systems, and by its biological effects and the fear it inspires in others, clearly limits those infected in major life activities."). 8/ See also Robert A. Kushen, Note, Asymptomatic Infection With the AIDS Virus as a Handicap Under the Rehabilitation Act of 1973, 88 Colum. L. Rev. 563, 574 (1988); cf. Ennis v. National Ass'n of Business & Educ. Radio, 53 F.3d 55, 60 (4th Cir. 1995) (stating in dicta that asyptomatic HIV is not a "disability" absent evidence that it substantially limited the particular plaintiff in the ability to perform a major life activity). 01-05433 - 22 - B.  36.104. As the district court noted, a woman with HIV faces increased risks to her own health if she undergoes childbirth. Abbott, 912 F. Supp. at 587. She also "runs the risk of infect- ing her child, during pregnancy, through child birth or, if she chooses to do so, through breast feeding." Ibid. 9/ And HIV limits a parent's ability to care for and raise her child, because it limits the length of time during which she can do so. Ibid. These risks deterred Abbott from having children. She testified that she "made the decision after [she] tested positive not to have children because of the risk of infecting the child and the risk of impairing [her] own immune system, and also the fact that this baby probably wouldn't have a mother after a while." J.A. 173. Bragdon and his amicus argue, however, that reproduction is not a "major life activity" for purposes of the ADA. As we have noted, reproduction is far from the only activity that HIV ______________________ 9/ Bragdon and his amicus contend that a factual question exists regarding whether the risk of passing HIV along to a child presents a substantial limitation to reproduction. Bragdon Br. 29; Ass'n Br. 11-13. But there is no dispute as to the facts: a pregnant woman faces at least an 8%-25% risk of transmitting HIV to her child. See Bragdon Br. 29. "[W]hen the only question is what legal conclusions are to be drawn from an established set of facts, the entry of a summary judgment usually should be direct- ed." 10A Charles A. Wright, et al., Federal Practice & Procedure  2725 at 85 (1983). This is not the sort of "rare case" (United States v. Rule Indus., Inc., 878 F.2d 535, 542 (1st Cir. 1989)) that warrants an exception to that principle. Most people do not face an 8%-25% risk of passing a progressive, debilitating, and fatal disease to their offspring. A woman who cannot have a child without confronting such a risk is, without question, significantly "restricted as to the conditions" under which she can reproduce "in comparison to most people." See 28 C.F.R. Part 36, App. B  36.104. 01-05434 - 23 - limits. Even asymptomatic HIV infection places significant limitations on the ability to perform a variety of life func- tions. See pp. 20-21, supra. In any event, Bragdon and his amicus are incorrect. Both the ADA's text and its legislative history make clear that reproduction is a major life activity. The ADA does not specifically define the term "major life activities." Department of Justice regulations provide some guidance by stating that the term refers to "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. 36.104 (definition of "disability," subpart (2)). Although reproduction does not appear on that list, it is a "major life activity" in any meaningful sense. In many respects, it is difficult to conceive of a life activity that is more "major" than that of reproduction. As the district court recognized (Abbott, 912 F. Supp. at 586), reproduction involves a great deal more than the mere act of conception. It also involves the physical processes facilitating conception, the ability to engage in sexual activity leading to conception without endangering oneself or one's partner, and the childrearing and nurturing relationship following conception. Our society has deemed all of these activities fundamental. The "decision whether to bear or beget a child," Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), involves "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." Planned Parenthood v. Casey, 01-05435 -24- 505 U.S. 833, 851 (1992). Indeed, reproduction is essential to the very propagation of the species, and it has been recognized as "one of the basic civil rights of man." Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). The interests in raising one's chil- dren are similarly deep-rooted. See Stanley v. Illinois, 405 U.S. 645, 651 (1972). For these reasons, decisions relating to procreation, reproduction, and childrearing are constitutionally protected. Planned Parenthood, 505 U.S. at 851. Society's -- and the Constitution's -- recognition of the fundamental nature of reproduction demonstrates that it is a "major" life activi- ty.10 Bragdon and his amicus contend that reproduction is a mere "lifestyle choice," not an activity that "everyone does." Bragdon Br. 26-27; accord Ass'n Br. 14-15; see Krauel v. Iowa _____________________ 10 Bragdon and his amicus also contend that even if HIV in general limits the major life activity of reproduction, it did not do so for Abbott. They rely on the fact that Abbott answered "No" to the following question at her deposition: "Are you impaired in your ability to carry out any of your life functions by the fact that you are HIV positive?" J.A. 166. (Abbott also answered "No" to defense counsel's statement that "I'm trying to find out if there's any physical functions that you're prevented from carrying out." J.A. 167.) The fact that Abbott did not mention the specific issue of reproduction in response to the general question regarding her "life functions" hardly indicates that she considered the inability to have a child to be an insignificant burden, especially in light of her specific testimony that her HIV-positive diagnosis was the reason she decided not to have children. "A court is not obliged to deny an otherwise persua- sive motion for summary judgment on the basis of a vague supposi- tion that something might turn up at the trial," Soar v. National Football League Players' Ass'n, 550 F.2d 1287, 1289 n.4 (1st Cir. 1977) (internal quotation marks omitted), for "a mere challenge to the credibility of a movant's witnesses without any supporting evidence does not create a genuine issue of material fact." Moreau v. Local Union No. 247, Int'l Bhd. of Firemen, 851 F.2d 516, 519 (1st Cir. 1988). 01-05436 -25- Methodist Medical Ctr., 915 F. Supp. 102, 106 (S.D. Iowa 1995). The statute, however, refers to "major" life activities, not "unchosen" or "universal" life activities.11 Bragdon argues that "[i]f major life activities include lifestyle choices, then major life activities must, in principle, include any chosen life activity that is extremely important to an individual: Training for the decathlon, being a foster parent, climbing Mt. Everest, doing needlepoint, singing opera, eating rich foods, and so on." Bragdon Br. 26. But reproduction is not just any "lifestyle choice." Reproduction, unlike doing needlepoint, involves a choice central to personal dignity and autonomy, essential to the survival of the human race, and protected by the Constitution. See Planned Parenthood, 505 U.S. at 851; Skinner, 316 U.S. at 541. The fact that many people exercise their constitutionally protected choice to forego reproduction does not make the activi- ty any less "major." To the contrary, the constitutional protec- tion accorded to the choice underscores the very importance our society places on the activity of reproduction. This construction accords with Congress's clear intent. In ______________________ 11 Bragdon's amicus also relies on Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240, 243 (E.D. La. 1995), aff'd, 79 F.3d 1143 (5th Cir. 1996) (table), a non-HIV case that held that reproduc- tion is not a "major life activity" because it "is not an activi- ty engaged in with the same degree of frequency as" the activi- ties in the regulatory list. But the frequency with which an activity is performed is hardly the only way in which it can become "major." Reproduction is "major" because society, the courts, and the Constitution accept it as one of the most funda- mental activities in human life. Moreover, the Zatarain analysis inappropriately reduces the activity of reproduction to the discrete act of conception. See Erickson v. Board of Governors, 911 F. Supp. 316, 322 (N.D. Ill. 1995). 01-05437 -26- enacting the ADA, Congress plainly contemplated that the term "major life activities" would encompass reproduction, and it intended that HIV infection be covered by the Act as an impair- ment that substantially limits that activity. In 1988, the Department of Justice authoritatively construed the definition of "handicap" in the Rehabilitation Act, which was substantively identical to the ADA's definition of "disability," to encompass asymptomatic HIV infection. See Memorandum from Douglas W. Kmiec, Acting Assistant Attorney General, Office of Legal Coun- sel, to Arthur B. Culvahouse, Jr., Counsel to the President 9-11 (Sept. 27, 1988), reprinted in Americans with Disabilities Act of 1989: Hearings Before the Senate Comm. on Labor and Human Resources, 101st Cong., 1st Sess. 346-348 (1989). In reaching that conclusion, the Department relied on the fact that HIV substantially limits the major life activity of reproduction. See ibid. When it enacted the ADA two years later, Congress explicitly endorsed the Department's construction: "As noted by the U.S. Department of Justice, * * *, a person infected with the Human Immunodeficiency Virus is covered under the first prong of the definition of the term 'disability' because of a substantial limitation to procreation and intimate sexual relationships." H.R. Rep. No. 485, Part 2, supra, at 52 (citing Kmiec memoran- dum); accord H.R. Rep. No. 485, Part 3, supra, at 28 n.18; S. Rep. No. 116, supra, at 22. "When a Congress that re-enacts a statute voices its approval of an administrative or other inter- pretation thereof, Congress is treated as having adopted that 01-05438 -27- interpretation, and [the courts are] bound thereby." United States v. Board of Comm'rs, 435 U.S. 110, 134 (1978). B. Because Of Her HIV Infection, Abbott Was "Regarded As Having" A Disability Moreover, although the district court did not reach the question, Bragdon's treatment of Abbott demonstrates that he perceived her as having a disability. An individual has a "disability," and is therefore protected by the ADA, if she is "regarded as having" a substantially limiting impairment. 42 U.S.C. 12102(2)(C). This definition is satisfied where, as here, an individual has an impairment that substantially limits major life activities "as a result of the attitudes of others toward such impairment." 28 C.F.R. 36.104 (definition of "disability," subpart (4)(ii)). The attitudes of others toward her impairment have imposed significant limitations on Abbott in at least two respects. First, Bragdon's own attitudes have prevented her from obtaining a needed medical procedure. Bragdon excluded her from that service simply because of his unfounded perception regarding the contagious effect of her HIV infection. That conduct establishes that Bragdon "regarded" Abbott as having a "disability." See Harris v. Thigpen, 941 F.2d 1495, 1523-1524 (11th Cir. 1991) (prison system's exclusion of HIV-positive prisoners from pro- grams due to fear of contagiousness establishes that prisoners were "regarded as" disabled and thus protected by the Rehabilita- tion Act). Congress afforded protection to those who are "re- garded as having" a disability precisely to cover cases such as 01-05439 -28- the present one, where a covered entity "exaggerates [the] significance" of an admitted long-term impairment. Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996). As the Supreme Court has explained, "[a]llowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of [the Rehabilitation Act], which is to ensure that handicapped individuals are not denied jobs or other bene- fits because of the prejudiced attitudes or the ignorance of oth- ers." School Bd. of Nassau County v. Arline, 480 U.S. 273, 284 (1987). Second, Bragdon's decision to exclude Abbott from his own services is merely an example of the significant limitation that discrimination places on the ability of people with HIV to engage in any number of activities. As we have noted, when Congress passed the ADA it considered an extensive record of discrimi- nation against people with HIV, including in the health care field. See pp. 12-14, supra. Congress found that "discrimina- tion against individuals with HIV infection is widespread and has serious repercussions for both the individual who experiences it and for this nation's efforts to control the epidemic." H.R. Rep. No. 485, Part 2, supra, at 31; S. Rep. No. 116, supra, at 8. The "regarded as" doctrine recognizes that where individuals with a particular condition face such persistent discrimination and exclusion, that fact itself warrants legal protection: "By amending the definition of 'handicapped individual' to include not only those who are actually physically impaired, but also 01-05440 -29- those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowl- edged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment." Arline, 480 U.S. at 284. That rationale applies quite directly to Abbott's HIV infection. As Congress found when it enacted the ADA three years after Arline, there are many people like Dr. Bragdon who view all people with HIV as having a disability. Accordingly, the dis- trict court's judgment may be upheld on the ground that Abbott is an individual "regarded as having" a disability. III THE DISTRICT COURT CORRECTLY REJECTED BRAGDON'S "DIRECT THREAT" DEFENSE A. The District Court Correctly Held That Treating Abbott In Bragdon's Office Would Not Pose A "Direct Threat" The ADA does not require a public accommodation to serve an individual who "poses a direct threat to the health or safety of others." 42 U.S.C. 12182(b)(3). In this context, "direct threat" means "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures." Ibid. The Supreme Court originally established the "direct threat" defense under the Rehabilitation Act in Arline, 480 U.S. at 286-288. The Arline Court believed that such a defense was necessary to serve the interest in "avoiding exposing others to significant health and safety risks." Id. at 287. At the same time, however, any test for 01-05441 -30- determining whether an individual posed a "direct threat" must be very carefully circumscribed "if [the Rehabilitation Act] is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear" (ibid.) -- a goal shared by the ADA. See H.R. Rep. No. 485, Part 2, supra, at 53; H.R. Rep. No. 485, Part 3, supra, at 30. To satisfy these concerns, the Court adopted a test that relied exclusively on objective factors regarding the risk and normally required deference to the judgments of public health officials. Arline, 480 U.S. at 288. In continuing the "direct threat" defense under the ADA, Congress incorporated "the same standard as articulated by the Supreme Court in [Arline]." H.R. Rep. No. 485, Part 3, supra, at 45; accord H.R. Rep. No. 485, Part 2, supra, at 76. The Depart- ment of Justice Regulations implementing Title III of the ADA similarly "codif[y] the standard first applied by the Supreme Court in [Arline]." 28 C.F.R. Part 36, App. B  36.208. In keeping with Arline, any determination that an individual poses a "direct threat" must rely on "an individualized assessment, based on reasonable medical judgment that relies on current medical knowledge or on the best available objective evidence." 28 C.F.R. 36.208(c). That assessment must consider: "the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk." Ibid. To protect against the exclusion of individu- 01-05442 -31- als based on fear or stereotype, the "direct threat" provision requires the existence of a "significant" risk, "not a specula- tive or remote risk." H.R. Rep. No. 485, Part 2, supra, at 56. And "[t]he plaintiff is not required to prove that he or she poses no risk," H.R. Rep. No. 485, Part 3, supra, at 46 (emphasis added) (citing Chalk v. United States District Court, 840 F.2d 701, 707-708 (9th Cir. 1988)), for risks are inherent in daily life -- particularly in a field like dentistry, where "[w]ell before the advent of HIV, [dental health care workers] were at risk of acquiring occupationally a number of diseases, from the common cold to potentially lethal Hepatitis B and TB." J.A. 113. In making the necessary findings under the "direct threat" test, "courts normally should defer to the reasonable medical judgments of public health officials." Arline, 480 U.S. at 288; see 28 C.F.R. Part 36, App. B  36.208; see also H.R. Rep. No. 485, Part 3, supra, at 45 ("Such risk of transmitting the infection to others must be determined based on objective and accepted public health guidelines."). Applying these standards, the district court properly concluded that the treatment of an HIV-infected individual in a private dental office does not constitute a "direct threat." The Centers for Disease Control and Prevention (CDC) have assessed the medical evidence concerning the risk that dentists can contract HIV from their patients. The CDC has adopted recommend- ed infection-control practices for dentistry under which all patients are to be treated as if they carry an infectious disease 01-05443 -32- such as HIV. It has done so for the simple reason that dentists cannot always know whether their patients carry such diseases -- indeed, not all patients who carry infectious diseases know that they are infected. Refusing to treat the patients who both know that they are infected and inform the dentist of that fact is therefore not an effective way of reducing the risk. See J.A. 349. The CDC has found the risk of HIV transmission in the dental context "so low as to be unquantifiable," and the univer- sal precautions it recommends further reduce that already low risk. J.A. 434.12 The CDC thus has taken the position that "it is safe to provide routine dental care to patients with HIV and AIDS in private dental offices when universal precautions are utilized." J.A. 434. The CDC's conclusion is in accord with the positions of other professional and public health organizations (including the American Dental Association). J.A. 112; see pp. 7-8, supra. Indeed, it is notable that, while the American Dental Association supports Bragdon's appeal, i