The impact of Bragdon v. Abbot on persons affected by infertility by Pamela J Walker

Americans with Disabilities Act

In order to have an understanding of the impact of Bragdon v. Abbott on persons affected with infertility, it is first necessary to give a brief overview of the Americans with Disabilities Act (ADA).

The ADA was enacted in 1991. Title I of the ADA protects all persons with disabilities and prohibits an employer from discriminating against them in any terms or conditions of employment. Fringe benefits or health insurance plans are a term or condition of employment. Title III of the ADA prohibits any place of public accommodation from discriminating based on disability in its goods, services, facilities, privileges, advantages or accommodations. An insurance carrier is a public accommodation.

Most persons with insurance coverage obtain their coverage through their employment. The employer either pays an insurance company the policy premium (premium-paid policy) or is self-funded and retains an insurance company to administer the plan (ERISA). ERISA is a federal law that regulates self-funded pension and insurance plans. An ERISA plan will pre-empt any state laws regulating insurance, but not federal laws. The ADA is a federal law. The type of insurance coverage you have is important to know so that you know who is violating the law. Under a premium-paid policy both your employer and the insurance company are violating the law. Title I prohibits your employer from contracting with any other person, company, etc. that discriminates. The insurance company would be violating Title III. If it is an ERISA plan, it is a little more difficult to claim a Title III violation against the insurance company because the employer generally sets up the terms of the plan (although it is the insurance company that advises them what to do). This information is provided so that if you should decide to bring a claim under the ADA, you understand that if you have an ERISA plan, you will have to sue your employer for a good chance of recovery. You may also sue the administrator of the plan, but the law is unsettled on this issue.

The ADA defines a disability as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." Thus, to be protected under the ADA, a person must establish he or she has (1) a physical or mental impairment that (2) affects a major life activity.

A physical or mental impairment has been defined in the Code of Federal Regulations to mean:

Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, muscoskelital, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genital-urinary, hemic and lymphatic, skin, and endocrine; or …
The Code of Federal Regulations also defines major life activities to include walking, seeing, breathing, caring for oneself, etc. Reproduction is not included in the list of major life activities in the Regulations. However, the Regulations do state the list is not exclusive but is given by way of example. Thus, there are major life activities that are not listed.

Since the enactment of the ADA there have been many cases where persons with infertility or HIV have sought protection under the ADA. The major issue in these cases was whether or not reproduction is a major life activity under the ADA. There was a split in the decisions. The majority of the Federal District Courts ruled that reproduction was a major life activity. Three of these rulings were appealed to the Federal Court of Appeals, Zatarain v. WDSU-Television (5th Circuit), Krauel v. Iowa Methodist Medical Center (8th Circuit) and Bragdon v. Abbott (1st Circuit). The Fifth and Eighth Circuits ruled reproduction was not a major life activity. The First Circuit ruled that it was. Obviously, the First Circuit ruling was further appealed to the United States Supreme Court.

Bragdon v. Abbott
Abbott was infected with the HIV virus. She did not have full blown AIDS. A person infected with HIV, who is asymptomatic, does not necessarily have any major life activities affected, other than reproduction. A person with HIV will forego intercourse and reproduction because he/she does not want to pass the virus to his/her spouse or child. Thus, the only "major life activity" affected is the ability to reproduce.

Abbott sought dental care from Bragdon. She informed him that she was infected with HIV. Bragdon refused to treat Abbott in his dental office, but stated he would perform the necessary procedures in a hospital setting, which would have been more costly. Abbott filed a Complaint under Title III of the ADA (public accommodations).

The major issue in the case was whether Abbott was disabled within the meaning of the ADA, i.e. is reproduction a major life activity under the ADA. The United States Supreme Court held that it was. Although Bragdon v. Abbott, was in the HIV context, the ruling also applies to persons with infertility. Thus, persons with infertility are protected under the ADA because they have a physical impairment of the reproductive system that affects their major life activity of reproduction.

Thus, under the ADA your employer, and, if relevant, insurance carrier, cannot discriminate against you based on your disability --- infertility. They must treat you the same as other persons. They cannot deny you leave to seek medical treatment if they provide leave for other persons. They cannot fire you for seeking medical treatment or because of your infertility if they would not do the same to others.

Safe Harbor
Of course, the big question is, how does this affect my health insurance that excludes or limits infertility treatments? Under the ADA there is an additional provision known as the "safe harbor" provision that affects insurance. Basically what this provision states is that the ADA is not intended to affect how insurance companies do business or how your employer sets up its health insurance coverage unless it is a "subterfuge" under the ADA.

The Courts are still not in agreement as to what this provision of the ADA means. The Eighth Circuit in Krauel, held that to be a "subterfuge" the employer must discriminate in a "non-fringe benefit" aspect of your employment. For example, you have infertility and you are going to cause our insurance costs to increase so we will not hire you or fire you.

The Equal Employment Opportunity Commission (the federal agency in charge of enforcing discrimination laws) and other courts have interpreted this language as meaning that the employer must establish that the exclusion or limitation is based on sound actuarial principles. This means they have to establish it is too costly, the premiums will be too high, it will bankrupt the Plan, etc. History has shown that providing coverage for infertility treatments is simply not expensive, i.e., $.34 to $2.00 per family plan per month.

Summary

In summary, persons with infertility are disabled within the meaning of the ADA. However, the courts are still in a state of flux as to whether or not an employer or insurance carrier may exclude or limit treatments for infertility. The only way of getting the answer is to pursue litigation and attempt to get a case before the United States Supreme Court.

Pamela J. Walker