Bragdon v. Abbott, 524 U.S. 624 (1998) (Rehnquist, J., dissenting)

The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA. In this opinion, Justice Rehnquist, with whom Justices Scalia and Thomas agreed, dissented, asserting that the ADA requires the disability determination to be individual, not general. Therefore, if HIV infection did not substantially limit Abbott’s decision about whether or not to bear children, then Abbott herself does not qualify as disabled under the ADA (even if another person in her position would). Abbott had, in fact, claimed that she had not planned to have children. Justice Rehnquist conceded that HIV infection is an impairment, but did not agree that reproduction is a major life activity, equal in import to walking, talking, breathing, and eating. The activity must be more than important, it must be “repetitively performed and essential in the day-to-day existence of a normally functioning individual.” Further, Justice Rehnquist asserted that even if reproduction is a major life activity, HIV infection does not substantially limit it because Abbott still has the ability to reproduce, even if she has good reasons not to. Justice Rehnquist further found that Bragdon had asserted enough evidence to avoid summary judgment on the question of whether Abbott posed a direct threat to the health and safety of others.