Number range CHAPTER**IN THE UNITED STATES DISTRICT COURT**

**FOR THE DISTRICT OF MAINE**

**)**

**SIDNEY ABBOTT, )**

**)**

**Plaintiff, )**

**)**

**v. ) Civil Action No. 94-0273-B**

**)**

**RANDON BRADGON, M.DM.D. )**

**)**

**Defendant. )**

**)**

**[                                                                                                                                                            ]{.underline}**

**UNITED STATES' OPPOSITION TO DEFENDANT'S**

**MOTION FOR SUMMARY JUDGMENT**

**[                                                                                                                                                            ]{.underline}**

**JAY McCLOSKEY DEVAL L. PATRICK**

**United States Attorney Assistant Attorney General**

**for the District Civil Rights Division**

**of Maine**

**JAMES M. MOORE, Bar #2041**

**Assistant United States JOHN L. WODATCH**

**Attorney for the JOAN A. MAGAGNA**

**District of Maine KATE M. NICHOLSON**

> **SHARON N.PERLEY**

**99 Franklin Street MARGARITA M. PRIETO**

**Second Floor Attorneys**

**Bangor, Maine 04401 Disability Rights Section**

**(207) 945-0373 Civil Rights Division**

**U.S. Department of Justice**

**P.O. Box 66738**

**Washington, D.C. 20035-6738**

**(202) 307-0663**

# INTRODUCTION

Plaintiff Sidney Abbott alleges that Defendant Randon Bragdon has
violated the Americans with Disabilities Act (\"ADA\") by refusing to
provide routine, in-office dental care to her because she is
HIV-positive. There is no dispute that the refusal occurred and both
Abbott and Bragdon have moved for summary judgment. Bragdon has also
moved for summary judgment on the grounds that Congress lacks the
authority to regulate the discriminatory conduct at issue. The United
States, as intervenor, has moved for summary judgment on the
constitutional defenses asserted by Bragdon, and as [amicus
curiae]{.underline}, has urged this Court to grant Plaintiff\'s motion
for summary judgment on liability.

This Court should conclude that Bragdon has violated the ADA if it finds
(1) that Abbott is an individual with a disability; (2) that Bragdon
refused to treat her on account of her disability; (3) that treating her
in his office would not constitute a \"direct threat\" to the health and
safety of others;[^1] and (4) that Congress has the constitutional power
to prohibit disability-based discrimination in the transaction at issue
here. The material facts necessary to make these determinations are not
in dispute. Defendant Bragdon readily concedes that he refused to
provide Abbott with routine dental care in his office, solely because
she acknowledged testing positive for HIV. Def.\'s Sum. Judg. Mem. at 3.
In fact, Bragdon admits that if Abbott had not disclosed her
HIV-positive status to him, he would have filled her cavity in his
office. Deposition of Randon Bragdon, June 13 & 14, 1995, at 27;
attached as U.S. Exhibit F. Bragdon also concedes that a) the risk of
transmission of HIV in the dental office is small (Def.\'s Sum. Judg.
Mem. at 19); b) there has never been a documented case of HIV
transmission from infected patient to dental health care worker or other
patient in the dental setting ([id]{.underline}. at 13); and c) many
persons who are infected with the AIDS virus are \"completely unaware\"
of their HIV-positive status ([id]{.underline}. at 4). Moreover, it is
not disputed that both the Centers for Disease Control and the American
Dental Association maintain that patients with HIV infection may and
should be safely treated in private dental offices where universal
precautions are utilized. U.S. Statement of Uncontested Facts in Support
of its Motion for Summary Judgment on Constitutional Issues (hereinafter
\"U.S. Facts\").

The only issues, therefore, are legal ones, properly resolved by summary
judgment.[^2] This Court must determine: (1) whether Sidney Abbott, as
an individual who is HIV-positive but not symptomatic for AIDS, is a
person with a disability within the meaning of the ADA, (2) whether
providing routine in-office dental treatment to patients like Abbott who
are HIV-positive constitutes a \"direct threat,\" and (3) whether
Congress has the constitutional authority to prohibit discrimination in
the transaction at issue here. As we discussed in our opening brief and
below, these issues should be resolved in favor of Plaintiff and the
United States.

**[ARGUMENT]{.underline}**

**I. SIDNEY ABBOTT IS A PERSON WITH A DISABILITY**

First, Sidney Abbott is a person with a disability within the meaning of
the ADA.[^3] It is undisputed that Ms. Abbott has a physical impairment
(infection with HIV, a virus that impairs the hemic and lymphatic
systems).[^4] Moreover, there is direct evidence that HIV disease
substantially limits Ms. Abbott in the major life activity of
reproduction; she has testified that she made the decision not to have
children because of her HIV infection. Deposition of Sidney Abbott, May
16, 1995 (hereinafter, \"Abbott Dep.\"), at 79, attached as U.S. Exhibit
A.[^5] Therefore, Sidney Abbott is entitled to protection by the
Act.[^6] Bragdon argues that the courts in [United States v.
Morvant]{.underline}, \_\_ F. Supp. \_\_, 1995 WL 131093 (E.D.La. 1995),
and [Howe v. Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994), erred
in concluding that asymptomatic HIV is a disability under the ADA. These
decisions do not stand in isolation, however. Many other federal courts
have concluded that HIV is a disability under the ADA and Section 504 of
the Rehabilitation Act of 1973.[^7] Moreover, the conclusion that
asymptomatic HIV is a disability is fully supported by the ADA\'s
legislative history,[^8] and by the position not only of the Department
of Justice but also of the Equal Employment Opportunity Commission.[^9]

In fact, several courts have concluded that asymptomatic HIV-positive
individuals are substantially limited in the major life activity of
reproduction and/or procreation. [See]{.underline} [Doe v. Kohn, Nast &
Graf]{.underline}, 862 F. Supp. at 1321; [Doe v. District of
Columbia]{.underline}, 796 F. Supp. at 568; [Thomas v. Atascadero
Unified School Dist.]{.underline}, 662 F. Supp. at 379 (dictum);
[cf.]{.underline} [Cain v. Hyatt]{.underline}, 734 F. Supp. 671, 679
(E.D.Pa. 1990)((dictum) coverage under state law); [Doe v. Dolton
Elementary Sch. Dist. No. 148]{.underline}, 694 F. Supp. 440, 444
(limitations in reproduction because of AIDS).[^10]

Bragdon nevertheless maintains that Abbott\'s limitation on her
reproductive capacity does not qualify her as a person with a
disability. Def. Sum. Judg. Mem. at 26. Remarkably, given his attempts
to inflate the potential risk of HIV transmission from patient to
dentist, Bragdon seeks to downplay the magnitude of the potential risk
of transmission from an HIV-positive mother to her unborn child. Whereas
the risk of HIV transmission to health care workers (including those
regularly in contact with substantial amounts of blood) is so small as
to be beyond quantification or measure,[^11] Bragdon argues that it is
\"[a fortiori]{.underline}\" not credible for this Court to consider a
25% or even an 8% risk that Abbott would infect her baby. Def.\'s Sum.
Judg. Mem. at 26. In any event, Ms. Abbott has testified that the risk
of infection to her child is only one of several HIV-related factors
influencing her decision not to procreate. Abbott Dep. at 79. She is
also concerned about the effect that carrying and bearing a child would
have on her own immune system;[^12] and she is concerned that she would
not be able to care for the child through the years because of her HIV
infection. Abbott Dep. at 79.[^13] Bragdon\'s challenge lacks merit, and
this Court should find that Sidney Abbott is protected by the ADA.

**II. THE UNDISPUTED FACTS DEMONSTRATE THAT TREATMENT OF HIV POSITIVE
DENTAL PATIENTS DOES NOT CONSTITUTE A \"DIRECT THREAT\"**

In his motion for summary judgment, Bragdon ignores the uniform line of
cases holding that the refusal to provide medical care \-- and in
particular, dental care \-- on the basis of a patient\'s HIV-positive
status constitutes unlawful discrimination. [See]{.underline} [D.B. v.
Bloom]{.underline}, \_\_ F. Supp. \_\_, 1995 WL 490481 (D.N.J. 1995);
[United States v. Morvant]{.underline}, 1995 WL 131093 (E.D.La. 1995);
[Howe v. Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994).[^14] Nor
does Bragdon acknowledge that these cases uniformly reject the direct
threat defense. Instead, Bragdon confuses the issues, relying first, on
unsupported conjecture and supposition that have no basis in science,
and second, on legal decisions involving HIV-infected health care
workers that do not apply to the facts before this Court.

**A. Defendant Relies on Conjecture, Hypotheticals, and Unsubstantiated
Assertions Rather than Facts to Make a Claim of \"Direct Threat\"**

Bragdon attempts, through his distortion of the factual record, to prey
upon the fears and misapprehensions surrounding HIV and AIDS. He
mischaracterizes the practice of general dentistry as a highly dangerous
one, describing the ordinary dental office more like a bloody emergency
room. As discussed below, his argument includes mischaracterizations of
much of the deposition testimony, statements of affiants who have no
personal knowledge of the \"facts\" they assert, assertions not based on
any facts in the record at all, and statements of opinion or speculation
presented as \"facts.\"[^15] The scientific evidence in the record shows
that the practice of dentistry (including the treatment of persons with
HIV/AIDS) is safe for both dental health care workers and patients.

\"One of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses.\"
[Celotex Corp. v. Catrett]{.underline}, 477 U.S. 317, 323-24 (1986).
[See]{.underline} [August v. Offices Unlimited]{.underline}, 981 F.2d
576, 580 (1st Cir. 1992) (\"mere allegations, or conjecture unsupported
in the record, are insufficient to raise a genuine issue of material
fact\"); [Wynne v. Tufts Univ. School of Medicine]{.underline}, 976 F.2d
791, 794 (1st Cir. 1992), [cert]{.underline}. [denied]{.underline}, 113
S.Ct. 1845 (1993); [Mack v. Great Atl. & Pac. Tea Co.]{.underline}, 871
F.2d 179, 181 (1st Cir. 1989). [See]{.underline} [also]{.underline}
[E.P. Hinkel & Co., Inc. v. Manhattan Co.]{.underline}, 596 F.2d 201,
205 (D.C. Cir. 1974)(if a party has credible evidence for its position
at summary judgment, it must make the existence of such evidence known).
In support of his motion for summary judgment, Bragdon has failed to
provide any \"credible evidence\" to support his direct threat defense.
His unsupported claims and defenses should be rejected accordingly.

**1. Bragdon Mischaracterizes Testimony About the Risk of HIV
Transmission From Patient to Dentist**

The linchpin of Bragdon\'s argument is that the risk of transmission of
HIV from patient to dentist is greater than the risk of transmission of
HIV from dentist to patient. Def.\'s Sum. Judg. Mem. at 15. Bragdon
ignores the context for this assessment. [All]{.underline} of the
experts cited by Bragdon underscore that the relative risk assessment is
made within the context of an environment where [the overall risk is
\"very small]{.underline}.\" [See]{.underline} John A. Molinari, Ph.D.,
\"HIV, Health Care Workers and Patients: How to Ensure Safety in the
Dental Office,\" [Journal of the American Dental
Association]{.underline}, (Oct. 1993), at 51, attached to Def. Facts as
Defendant\'s Exhibit A, (hereinafter \"Molinari article\"); Deposition
of Donald W. Marianos, D.D.S., Aug. 10, 1995 (hereinafter \"Marianos
Dep.\"), at 56, attached as U.S. Exhibit B; Deposition of Deborah
Greenspan, BDS, DSc, ScD(hc), FDS RCSEd (Hon.), July 25, 1995, at 19,
attached as U.S. Exhibit C. Indeed, the conclusion of the Molinari paper
upon which Bragdon\'s risk statement relies is that dental health care
workers should adhere to universal precautions and not let their guard
down, as that they might be inclined to do, because the risk is [so
low]{.underline}:

> Our \[dental care providers\'\] routine aseptic, barrier, disinfection
> and sterilization infection control protocols have gone a long way in
> providing high standards of practice safety for both treatment
> providers and those receiving care. These standards should not be
> compromised just because [HIV does not seem to be a significant
> occupational pathogen]{.underline}.[^16]

The critical fact, which Bragdon also ignores, is that [all]{.underline}
of the individuals whom he cites believe that it is [safe to treat
HIV-positive patients]{.underline} in a private dental office.
[See]{.underline} Molinari article; Supplemental Declaration of Donald
W. Marianos (hereinafter \"Marianos Supp. Dec.\"), at ¶ 1, attached as
U.S. Exhibit D; Supplemental Declaration of Deborah Greenspan, BDS, DSc,
ScD(hc), FDS RCSEd(hon.) (hereinafter \"Greenspan Supp. Dec.\"), at ¶ 1,
attached as U.S. Exhibit E. This position is supported by the Centers
for Disease Control and Prevention (\"CDC\") and the American Dental
Association. [See]{.underline} U.S. Facts at ¶ G.

**2. Bragdon Mischaracterizes the Dental Practice and Injuries Occurring
There**

Bragdon argues that treating dental patients with HIV creates \"an
obvious risk\" of transmission from patient to dentist \-- either when a
\"dentist accidentally nicks or cuts himself with a sharp instrument or
needle,\" (generally referred to as a \"sharps\" or \"percutaneous\"
injury) or by blood-to-mucous membrane exposure. Def.\'s Sum. Judg. Mem.
at 12-13. The undisputed scientific evidence in the record does not
support this allegation.

Numerous studies have demonstrated that, on average, dentists incur only
3 to 4 sharps injuries per year. Greenspan Supp. Dec. at ¶ 8; Marianos
Dep. at 21, lines 23-25.[^17] The vast majority of these incidents will
involve patients who are not HIV-positive. Furthermore, in
[99.7%]{.underline} of the instances in which a health care worker
actually received a needlestick from a needle contaminated with
HIV-infected blood, the health care worker did not acquire HIV. Marianos
Supp. Dec. at ¶ 4; Greenspan Supp. Dec. at ¶ 8; Bragdon Dep. at 437. The
chance of acquiring HIV from any other type of sharps injury is
significantly smaller; solid instruments transfer even less blood than
the smallest needle and have never been shown to transmit a virus of
such low infectivity as HIV. Molinari Supp. Aff. at ¶ 11.

In describing the way he administers injections and the possible
accidents that may result, Bragdon suggests that it is \"inevitable\"
that he will suffer needlesticks during the course of his

practice. Def.\'s Sum. Judg. Mem. at 11. However, Bragdon can virtually
eliminate any such risk of injury by employing safer work practices,
such as retracting a patient\'s cheek with a dental instrument (rather
than his hand) when he administers an injection, or by using only one
hand to recap a needle. Marianos Supp. Dec. at ¶ 2; Greenspan Supp. Dec.
at ¶ 7; Molinari Supp. Aff. at ¶ 10. These safer work practices are
consistent with the recommendations of the CDC and OSHA. Marianos Supp.
Dec. at ¶ 2; Declaration of Donald W. Marianos, D.D.S., at ¶ 6
(hereinafter \"Marianos Dec.\"); attached to U.S. Facts; 29 C.F.R. Pt.
1910.1030(d)(2)(vii)(A).

Perhaps most importantly, research has shown that in the rare cases
where a health care worker has acquired HIV occupationally from a
percutaneous injury, the injury generally \"involved a fairly large
volume of blood or other body fluids containing HIV, with a fairly large
bore needle which would not only induce significant trauma, but expose
the person to much larger inoculum than you might see with a smaller
gauge needle.\"[^18] Deposition of John A. Molinari, Ph.D., Aug. 19,
1995 (hereinafter \"Molinari Dep.\") at 41, attached as U.S. Exhibit G.
These conditions are not present in general dentistry. [Id]{.underline}.
[See]{.underline} Marianos Dec. at ¶ 14.

Bragdon also argues that \"the risk of transmission from patient to
dentist\" includes: a) the risk posed by the \"aerosol mist\" generated
by the dental drill; b) \"the danger of blood-to-mucous membrane
transmission, as for example, when a drop of blood or bloody saliva
enters the dentist\'s nose or mouth or area around the eyes, directly,
or by passing through small defects in masks\"; and c) \"the danger
posed by a drop of blood or bloody saliva touching an ear with
dermatitis or a scratch or an abrasion somewhere on the dentist or his
assistant of which neither may be aware.\" Def.\'s Sum. Judg. Mem. at
12. None of these hypotheticals is supported by the record.

[There is no evidence]{.underline} that HIV can be transmitted by
aerosolization. Indeed, Bragdon\'s own expert, Dr. Kuvin, specifically
rejected this theory. Deposition of Sanford Kuvin, M.D., July 20, 1995,
attached as U.S. Exhibit H, at 55.[^19] [See]{.underline}
[also]{.underline} Marianos Supp. Dec. at ¶ 3; Greenspan Supp. Dec. at ¶
9.

Similarly, [there is no evidence]{.underline} that HIV can be
transmitted through the nose, or the mouth, or through defects in the
dental mask. Greenspan Supp. Dec. at ¶ 9. The only testimony upon which
Bragdon relies for this assertion that is even remotely supportive
states: \"\[i\]t has never been shown that a small volume of blood
containing HIV could transmit HIV. [Theoretically]{.underline}, it\'s
possible.\" Molinari Dep. at 40.[^20] However, even though \"many things
are theoretically [possible]{.underline},\" current scientific evidence
shows that barrier precautions (protective eyewear, dental masks and/or
face shields) work. Marianos Dep. at 155. There is no evidence that HIV
has [ever]{.underline} been transmitted by these hypothetical methods.
Greenspan Supp. Dec. at ¶ 9.

Finally, Bragdon\'s suggestion that the \"risk also includes a drop of
blood or bloody saliva touching an ear with dermatitis or a scratch or
an abrasion somewhere on the dentist or his assistant\" has no merit.
Universal precautions require that Bragdon and his staff wear protective
attire, including a gown, gloves, and protective face wear, and that
they cover any cuts or broken skin (such as that from dermatitis) before
treating a patient. Greenspan Supp. Dec. at ¶ 9. Universal precautions
also require that regardless of whether a dental health care worker\'s
gloves are visibly contaminated with blood, he or she must remove those
gloves before touching any part of his or her body. [Id]{.underline}.
Bragdon has testified that he utilizes universal precautions. U.S. Facts
at ¶ E.

Bragdon speculates about the risk of transmission through \"scratches or
abrasions\" about which the dental health care worker is unaware. Again,
he is conjuring up a theoretical risk with no basis in fact. As with
percutaneous injuries, for HIV transmission to occur through contact
between blood and non-intact skin, there needs to be a
[significant]{.underline} cut or scratch to enable a sufficient quantity
of infected blood to enter the bloodstream of the dental health care
worker. Greenspan Supp. Dec. at ¶ 9.; Molinari Dep. at 40. The
likelihood of such an abrasion a) not being covered by the requisite
protective gear, and b) being unknown or undetected by the dental health
care worker, is virtually non-existent.[^21]

As Defendant concedes, there has never been a documented case of HIV
transmission from patient to dental health care worker. Def.\'s Sum.
Judg. Mem. at 13. In the absence of credible evidence, Bragdon relies on
scientifically unsupportable hypotheticals.

**3. Bragdon\'s Suggestion that \"Many\" Dentists May Have Acquired HIV
Occupationally is Unsupportable**

Lastly, Bragdon attempts to shore up his theories by challenging the
CDC\'s epidemiology, alleging that the CDC data does not accurately
reflect the number of health care workers who have acquired HIV
occupationally. [Id]{.underline}. While Bragdon criticizes the CDC\'s
methodology, he does not point to [any]{.underline} credible evidence
suggesting that there are health care workers who acquired HIV
occupationally and who do not appear in the CDC data.

First, Bragdon challenges the criteria employed by the CDC to document a
case of occupationally acquired HIV.[^22] He then suggests that:

> \[T\] here can be [no]{.underline} \"documented\" case of HIV
> transmission from patient to dentist if the HIV is transmitted
> through, for example, a drop of blood going up the nose of a dentist,
> or a drop of blood landing on a cut or scratch of which he was
> unaware.

Def.\'s Sum. Judg. Mem. at 13-14. Indeed, Bragdon alleges that \"such
transmissions may be occurring with alarming frequency.\" Def.\'s Sum.
Judg. Mem. at 14. This wholly unsupported statement is another attempt
to conjure up misplaced fear and apprehension. As stated above, there is
[no evidence]{.underline} that HIV can be transmitted via
[any]{.underline} of these modes. Moreover, [if]{.underline} the health
care worker was exposed to enough blood for a transmission to actually
occur, then the health care worker would presumably report the incident
as an exposure, and, if HIV transmission actually occurred, it could be
documented.

To further \"support\" his speculations, Bragdon cites to the 42
documented cases of occupational transmission in the health care setting
generally.[^23] Bragdon then baldly asserts that \"\[a\]lthough no
dentist is yet among them, this will likely change.\" Def.\'s Sum. Judg.
Mem. at 14. Again, there is no scientific basis for this
conjecture.[^24]

Bragdon also notes that there are six cases where it is \"possible\"
that a dental health care worker acquired HIV occupationally. The CDC
identifies \"possible\" cases as those in which \"health care workers
have been investigated and are without identifiable behavioral or
transfusion risks; each \[health care worker\] reported percutaneous or
mucocutaneous occupational exposures to blood or body fluids . . . but
HIV seroconversion specifically resulting from an occupational exposure
was not documented.\" Marianos Supp. Dec. at ¶ 13. Thus, while

it is [possible]{.underline} that these dental health care workers
acquired the virus occupationally, it is just as [possible]{.underline}
that they did not.[^25] Inexplicably, Bragdon concludes that \"(l)ogic
dictates that these practitioners, and others, who may not even know
they have HIV, were probably infected in the office by blood-to-mucous
membrane transmissions, despite the use of barrier precautions.\"
Def.\'s Sum. Judg. Mem. at 15. There is [no]{.underline} support for the
contention that these practitioners acquired HIV via blood-to-mucous
membrane exposure, nor even any support that these practitioners were
using universal precautions.

Finally, Bragdon mischaracterizes the facts of the one case of
documented transmission of HIV in the dental care setting. He states
that \"the transmission of HIV from a Florida dentist to several of his
patients (occurred) despite the use of barrier precautions.\" Def.\'s
Sum. Judg. Mem. at 15, 16. The salient facts Bragdon ignores, but which
are clearly stated in the very authorities he cites, include the
following: 1) \"after he was diagnosed with AIDS, \[the dentist\]
frequently experienced fatigue, a factor which may have increased the
likelihood of injury;\" 2) there is evidence that the Florida dentist
did not always heat sterilize his instruments; 3) \"the investigation
\[of the dentist\'s practice\] determined that those attempts to follow
universal precautions were not uniformly adhered to;\" and 4) \"no
studies have determined if \[the transmissions that occurred\] were
accidental or intentional.\" Carol Cieleski, M.D., Donald Marianos,
D.D.S., M.P.H., et. al, \"Transmission of the Human Immunodeficiency
Virus in a Dental Practice,\" attached to Def.\'s Sum. Judg. Mem. as
Def. Exhibit B, at 803; Molinari Dep. at 31; Marianos Dep. at 54;
Marianos Dec. at ¶ 18, respectively.

In sum, Bragdon concedes the material facts at issue in this case: a)
the risk of transmission of HIV in the dental office is small, and b)
there has never been a documented case of HIV transmission from infected
patient to dental health care worker or other patient in the dental
setting. Def.\'s Sum. Judg. Mem. at 13, 19. His theories, suppositions,
and fears about HIV transmission are not [facts]{.underline} and cannot
be a basis for summary judgment.

> **B. Based on Undisputed Facts, This Court Should Conclude that
> Treating Sidney Abbott in Bragdon\'s Office Would Not Constitute a
> \"Direct Threat\"**

When all is said and done, Bragdon\'s twenty-five page argument can be
reduced to three simple sentences. 1) The risk of transmission of HIV
from infected patient to health care worker is \"greater than\" that
from infected health care worker to patient. 2) Some courts have
characterized the risk of HIV transmission from a health care worker to
his or her patients as \"significant.\" 3) Because the risk of
transmission from patient to provider is greater than that from provider
to patient, the risk associated with treating HIV-positive patients
\"must\" be \"significant,\" and Bragdon may legally deny these patients
dental care.

The logic of Bragdon\'s argument, albeit appealing in its simplicity,
is, ultimately, wrong. [If]{.underline} the only issue before this Court
were a comparison of two immeasurably small risks, then Bragdon\'s
argument might be more persuasive.[^26] But that is not the issue at
hand. Rather, this Court must determine, as others before it already
have, whether the minimal risk associated with providing dental care to
[patients]{.underline} with HIV is significant enough to justify the
denial of care to those in need.

In other words, before this Court can determine whether the provision of
dental care to persons with HIV/AIDS constitutes a \"direct threat,\" it
must conduct the [individualized]{.underline} assessment dictated by
[School Board of Nassau County, Fla. v. Arline]{.underline}, 480 U.S.
273, 288 (1987) and 28 C.F.R. § 36.208(c). It must determine \-- in
[this]{.underline} particular factual context \-- whether the \"nature,
severity, and duration\" of the risk of transmission outweighs the
extremely low \"probability\" that such transmission will actually
occur. In [this]{.underline} particular factual context, where we are
looking at HIV-infected [patients]{.underline} rather than
[providers]{.underline}, the balance tips in favor of the immeasurably
small risk of transmission, and the direct threat defense must fail.

First, in conducting the direct threat analysis, deference must be paid
to the reasonable medical judgments of public health officials,
specifically \"public health authorities such as the U.S. Public Health
Service \[and\] the Centers for Disease Control.\" 28 C.F.R. pt. 36,
App. B at 600 (1994); [Arline]{.underline}, 480 U.S. at 288. In the
context of infected [patients]{.underline}, the CDC
[unequivocally]{.underline} maintains that when universal precautions
are utilized, HIV-positive patients can and should be safely treated in
private dental offices. Marianos Supp. Dec., at ¶ 1.[^27]

In contrast, the CDC\'s position with respect to infected health care
providers leaves it up to individual medical institutions to determine,
on a case-by-case basis, whether infected providers should perform
procedures that the institutions identify as \"exposure prone.\" The
conclusion of the infected health care worker cases is consistent with
this position. [See]{.underline}, [e.g.]{.underline}, [Doe v. University
of Maryland]{.underline}, 50 F.3d 1261, 1226 (4th Cir. 1995)(finding
that defendant\'s

determination that plaintiff, a neurosurgical resident, should not
perform exposure-prone procedures was consistent with CDC
recommendations); [Doe v. Washington University]{.underline}. 780 F.
Supp. 628, 629 n.2 (E.D.Mo. 1991) (citing 1987 CDC recommendations).

Second, health care providers, including dentists, are ethically obliged
to treat those in need, including those with HIV/AIDS:

> A dentist has the general obligation to provide care to those in need.
> A decision not to provide treatment to an individual because the
> individual has AIDS or is seropositive, based solely on that fact, is
> unethical.

American Dental Association, [Principles of Ethics and Code of
Professional Conduct]{.underline}, Principle-Section 1, Advisory
Opinion, American Association of Dental Schools (Jan. 1993); [Revised
Policy Statement]{.underline}, III B 2 (March 1993)(\"No dental
personnel may ethically refuse to treat a patient solely because the
patient is at risk of contracting, or has, an infectious disease, such
as Human Immunodeficiency Virus, Acquired Immunodeficiency Syndrome or
hepatitis B infection. . . .\").[^28]

Health care providers, also have an ethical obligation to \"do no
harm.\" Thus, in the context of the infected health care provider, even
though the risk of transmission is minimal, the provider\'s ethical
obligation may require him not to treat. [See]{.underline},
[e.g.]{.underline}, [Estate of Behringer v. Medical Center]{.underline},
592 A.2d 1251, 1277-83 (N.J. Sup. Ct. 1991)(analyzing the ethical
obligations owed by providers to their patients and concluding that
\"even the presence of a low risk of transmission justifies the adoption
of a policy which precludes invasive procedures when there is \'any\'
risk\").[^29]

Third, the infinitesimally small risk of occupationally acquiring an
infectious disease during the practice of dentistry cannot be eliminated
by refusing to treat those who acknowledge their infectious status.[^30]
Many who are infectious with HIV and other bloodborne pathogens do not
know their status; many who do choose not to disclose it. By definition,
therefore, when one enters the health care profession, one accepts a
certain level of risk.[^31] In contrast, as the courts in the infected
health care provider cases noted, patients do not expect to be exposed
to any risks other than those directly related to their care.
[See]{.underline} [Mauro v. Borgess Medical Ctr.]{.underline}, 886 F.
Supp. 1349, 1353 (W.D.Mich. 1995) (patients should not be treated by
HIV-infected providers when \"(1) there is no patient care reason for
doing so, and (2) the risk can be eliminated\"); [Scoles v. Mercy Health
Corp. of Southeastern Pa.]{.underline}, 887 F. Supp. 765, 772 (E.D.Pa.
1994) (patient must be apprised of all attendant risks prior to surgery,
including surgeon\'s HIV-positive status); [Behringer]{.underline}, 592
A.2d at 1280-81 (same).

Fourth, it is axiomatic that HIV-positive patients [require]{.underline}
routine medical care, including dental care. [See]{.underline}
Declaration of Deborah Greenspan, D.D.S., attached to U.S. Facts, at ¶ 3
(\"Persons with HIV and persons with AIDS have a continuing need for
routine dental services\").[^32] HIV-infected providers, however, do not
similarly [need]{.underline} to perform exposure-prone invasive
procedures. There are other opportunities in the health care profession
that they may pursue. Indeed, many health care professionals (e.g.,
internists, radiologists, opthamologists, pediatricians, psychiatrists,
etc.) do not perform [any]{.underline} invasive procedures at all.
[See]{.underline}, [e.g.]{.underline}, [Washington
University]{.underline}, 780 F. Supp. at 634 (commending defendants for
extending \"opportunities to the Plaintiff to further his medical career
by offering alternative programs not requiring invasive
techniques\").[^33]

This Court should therefore reject the analysis in the infected health
care worker cases and find that, in the context of HIV-infected
[patients]{.underline}, the immeasurably low risk of transmission
outweighs its severity, and the risk is not \"significant.\" Indeed,
[every]{.underline} court that has considered whether persons with
HIV/AIDS pose a direct threat, in [every]{.underline} context other than
the infected provider context, has reached this result.[^34] Moreover,
Congress envisioned this conclusion when it enacted the ADA:

> The public accommodations title of the ADA will also offer necessary
> protection for people with HIV disease. This title prohibits
> discrimination in such areas as [doctors\' offices, dentists\'
> offices]{.underline}, lawyers\' offices, and various other service
> providers. . . . \[A\] doctor or dentist could not require that a
> person demonstrate that he or she was not HIV-infected, for example,
> by requiring that the individual take an HIV test, unless meeting that
> criterion was necessary to provide services to that individual. [Under
> current medical and scientific judgments, including current CDC
> guidelines, there is no reason to require proof of HIV-negativity in
> any public accommodation setting]{.underline}. Thus, title III will
> finally offer needed protection to individuals with HIV disease.

136 Cong. Rec. S9697 (daily ed. July 13, 1990)(statement of Sen.
Kennedy)(emphasis added). [See]{.underline} [also]{.underline} 136 Cong.
Rec. H4625 (daily ed. July 12, 1990)(statement of Rep. Edwards).

Public policy concerns further support this argument. If this Court were
to conclude as a matter of law that the attendant risks of filling the
cavity of a person with HIV rises to the level of a direct threat, then
people with HIV/AIDS may readily be excluded from the other, more
invasive, critical care they require. Dentists and other health care
providers would have free license to discriminate \-- not only against
those who disclose their HIV status, but against those suspected of
being HIV-positive, be it because of their sexual orientation, their
ethnic background, or their physical appearance.[^35]

As a result, many persons would be denied access to necessary dental and
medical care, solely because they were, or were perceived to be,
infected with the AIDS virus. Others, fearing discrimination, would not
even attempt to seek such care. [See]{.underline} [Bloom]{.underline},
1995 WL 490481, at \*5 (\"defendants must recognize that such an
experience \[the discriminatory denial of dental care\] could inhibit
HIV-positive persons from seeking important medical services, thus
discouraging them from obtaining what they need even more than the
average person \-- regular, careful, health monitoring\"). Still others
would seek care when necessary, but would not disclose their
HIV-positive status, potentially putting themselves at risk.[^36]

In fact, if health care providers can lawfully refuse to care for
persons with HIV/AIDS, solely on that basis, many persons may refrain
from getting tested for HIV altogether. Such an outcome would have
adverse public health implications. As the Presidential Commission on
the Human Immunodeficiency Virus Epidemic noted:

> HIV-related discrimination is impairing this nation\'s ability to
> limit the spread of the epidemic. Crucial to this effort are
> epidemiological studies to track the epidemic as well as the
> education, testing, and counseling of those who have been exposed to
> the virus. Public health officials will not be able to gain the
> confidence and cooperation of infected individuals or those at high
> risk for infection if such individuals fear that they will be unable
> to retain their jobs and their housing, [and that they will be unable
> to obtain the medical and support services they need because of
> discrimination based on a positive HIV antibody test]{.underline}.
>
> As long as discrimination occurs, and no strong national policy with
> rapid and effective remedies against discrimination is established,
> individuals who are infected with HIV will be reluctant to come
> forward for testing, counseling, and care. This fear of potential
> discrimination will limit the public\'s willingness to comply with the
> collection of epidemiological data and other public health strategies,
> will undermine our efforts to contain the HIV epidemic, and will leave
> HIV-infected individuals isolated and alone.

[Report of the Presidential Commission on the Human Immunodeficiency
Virus Epidemic]{.underline}, 119 (June 24, 1988)(emphasis added).[^37]

As the Court noted in [Arline]{.underline}, 480 U.S. at 284 n.12, the
\"isolation\" of persons with contagious diseases \"appears across
cultures and centuries, as does the development of complex and often
pernicious mythologies about the nature, cause, and transmission of
illness.\" Bragdon\'s entire argument is based upon such pernicious
myths. For all the reasons listed above, this Court should find that the
dental treatment of persons with HIV/AIDS does not pose a direct threat.

**III. THE ADA IS CONSTITUTIONALLY APPLIED TO BRAGDON\'S PRACTICE OF
DENTISTRY**

Title III of the ADA is constitutional as applied to Bragdon\'s dental
practice. The prohibition of disability-based discrimination by health
care providers is within Congress\' power to regulate commerce.
Moreover, application of the ADA does not violate Bragdon\'s
constitutional right to be free from unjustified state intrusions on his
personal safety, nor his constitutional right of freedom of contract.

**A. The ADA is a Constitutional Exercise of Congress\' Commerce Clause
Authority as Applied to Bragdon**

The United States agrees that this case, like anti-discrimination cases
preceding it, should be analyzed under the substantial effects test.
[See]{.underline} Def.\'s Commerce Mem. at 1; [Katzenbach v.
McClung]{.underline}, 379 U.S. 294 (1964), [Heart of Atlanta Motel, Inc.
v. United States]{.underline}, 379 U.S. 241 (1964). Accordingly, our
summary judgment memorandum demonstrates that the operations of
Bragdon\'s dental practice substantially affect interstate commerce.
U.S. Sum. Judg. Mem. at 6-8. Bragdon argues, however, that the Supreme
Court in [United States v. Lopez]{.underline}, 115 S.Ct. 1624 (1995),
changed the analysis of as-applied commerce clause challenges to require
a showing of the effect on commerce of an entity\'s proscribed conduct,
rather than its operations. Def.\'s Commerce Mem. at 2. Nothing in
[Lopez]{.underline} supports such a departure. Instead, the opinion
corroborates the United States\' reading of the requirement:

> \[W\]e have upheld a wide variety of congressional Acts regulating
> intrastate economic activity where we have concluded that the activity
> substantially affected interstate commerce. Examples include . . .
> restaurants utilizing substantial interstate supplies, (citing
> [Katzenbach v. McClung]{.underline}, [supra]{.underline}); inns and
> hotels catering to interstate guests (citing [Heart of Atlanta
> Motel]{.underline}, [supra]{.underline}) . . . These examples are by
> no means exhaustive, but the pattern is clear. Where economic activity
> substantially affects interstate commerce, legislation regulating that
> activity will be sustained.

[Id]{.underline}. at 1630.[^38]

In the context of its prior anti-discrimination decisions, therefore,
the Court considered as dispositive not the effect on commerce of
discrimination in the particular hotel or restaurant, but the
utilization of substantial interstate supplies, and the service of
interstate guests. Far from being \"legally irrelevant,\" as Bragdon
suggests,[^39] the substantial effects on commerce of Dr. Bragdon\'s
dental practice are similarly dispositive. [See]{.underline} U.S. Sum.
Judg. Mem. at 6-7 n.5 (citing several opinions applying the same
analysis).[^40]

Thus the Court need not address Bragdon\'s additional challenge, that
the ADA overreaches Congress\' power because it is not designed to
regulate commerce, per se. Def.\'s Commerce Mem. at 2. In any event, the
challenge is without merit. To support his argument, Bragdon
mischaracterizes the prohibited conduct in this case, calling it in one
instance Congress\' regulation of the pricing of tooth fillings, which
he suggests Congress could regulate, and, in another instance,
Congress\' regulation of the practice of dentistry, which he implies is
analogous to the traditional state activity at issue in
[Lopez]{.underline}. [Id.]{.underline} at 2.[^41]

The ADA is an anti-discrimination statute; it prohibits the
discriminatory treatment of individuals with disabilities. Accordingly,
the regulated conduct in this case is Bragdon\'s discriminatory refusal
to serve Sidney Abbott on the basis of her HIV-positive status.
Congress\' power under the Commerce Clause to reach discrimination by
private entities is well established. [Katzenbach v.
McClung]{.underline}, 379 U.S. 294 (1964); [Heart of Atlanta Motel, Inc.
v. United States]{.underline}, 379 U.S. 241 (1964). While the ADA may
have an effect on select aspects of the practice of dentistry, it
proscribes a discrete range of activities and leaves the regulation of
dental practice and associated standards, in general, to the
states.[^42]

A showing of an effect on commerce caused by a [particular
entity\'s]{.underline} discrimination is, as we have established, not
required. But the Court and Congress have recognized that discrimination
can have an adverse effect on commerce, and Congress acts properly
within its commerce clause authority to address that discrimination:

> That Congress was legislating against moral wrongs . . . render\[s\]
> its enactments no less valid. In framing Title II \[prohibiting
> discrimination in public accommodations\] Congress was also dealing
> with what it considered a moral problem. But that fact does not
> detract from the overwhelming evidence of the disruptive effect that
> racial discrimination has had on commercial intercourse. It was this
> burden which empowered Congress to enact appropriate legislation, and,
> given this basis for the exercise of its power, Congress was not
> restricted by the fact that the particular obstruction to interstate
> commerce with which its was dealing was also deemed a moral and social
> wrong.

[Heart of Atlanta Motel]{.underline}, 379 U.S. at 257-58. [^43]

Even if this Court were to consider the effect on commerce of Bragdon\'s
discriminatory policy, the ADA is constitutionally applied to his
practice. First, while in [Lopez]{.underline} the Court found no nexus
between the targeted conduct (carrying a gun near a school) and
commercial activity, here the targeted conduct is discrimination in what
is clearly a commercial transaction (provision of professional dental
services). [See]{.underline} U.S. Sum. Jug. Mem. at 9-10. Second, given
Congress\' findings of the nationwide scope of discrimination against
individuals with disabilities, this Court must examine Bragdon\'s policy
as one \"representative of many others throughout the country.\"
[See]{.underline} [Katzenbach]{.underline}, 379 U.S. at 300-01;
[see]{.underline} [also]{.underline} U.S. Sum. Judg. Mem. at 1, 4-5
(Congress\' findings that discrimination is a nationwide problem).
Certainly, discriminatory policies like Bragdon\'s burden the local
dental industry by decreasing the availability of health services to
individuals with HIV or AIDS. [Cf]{.underline}. [Summit Health, Ltd. v.
Pinhas]{.underline}, 500 U.S. 322, 331 (1991) ((Sherman Act) boycotting
a single opthamologist affects interstate commerce because \"\'as a
matter of practical economics\'\" there will be a reduction of
opthamological services in the Los Angeles market). Moreover, the
aggregation of discriminatory policies regarding the treatment of
individuals with HIV or AIDS results in an overall decline in dental and
health services nationally. [See]{.underline} [Katzenbach]{.underline},
379 U.S. at 300-01; [Wickard]{.underline} 317 U.S. at 127-28; U.S. Sum.
Jug. Mem. at 5 n.4 (studies showing effects of discrimination in
dentistry).

Lastly, Bragdon suggests that the ADA is not constitutionally applied to
his practice because it interferes with his professional judgment.
[See]{.underline} Def.\'s Commerce Mem. at 2. The ADA does not hamper
the legitimate exercise of professional medical judgments; it merely
prohibits the refusal to treat an individual with a disability on the
basis of disability.[^44] In this case, Bragdon refused to treat an
individual whom he had the professional skills to treat within the
normal course of his practice; Bragdon routinely performs tooth fillings
in his office for individuals without HIV.

Moreover, what Bragdon would name a \"reasonable medical judgment\" is
substantially out of sync with the opinions of the dominant medical
authorities in the field.[^45] Indeed, professional obligations and
norms require a dentist to treat HIV-infected individuals where, as
here, the dentist is capable of providing the treatment the patient
seeks.

**B. The ADA Does Not Infringe Bragdon\'s Due Process Liberty
Interests**

**1. Bragdon\'s Personal Safety is Adequately Addressed in the Act**

Bragdon\'s reliance on [Roe v. Wade]{.underline}, 410 U.S. 113 (1973),
and [Shapiro v. Thompson]{.underline}, 394 U.S. 618 (1969) \-- privacy
and right to travel cases dealing with clearly-established fundamental
rights \-- for the argument that this Court should apply strict scrutiny
to the ADA is misplaced. Def.\'s Sum. Judg. Mem. at 27. Even in contexts
where the Court has found a \"significant\" or \"substantial\" right to
personal safety, it has not applied strict scrutiny. [See]{.underline},
[e.g.]{.underline}, [Washington v. Harper]{.underline}, 494 U.S. 210,
223 (1990) (prison; rationality review); [Youngberg v.
Romeo]{.underline}, 457 U.S. 307, 322 (1982)(institutionalization;
review that is \"lower than \'compelling or substantial necessity
test\'\"). Therefore, any lesser personal safety interest asserted by
Bragdon is not subject to heightened scrutiny by this Court.
[See]{.underline} [Boyle v. Turnage]{.underline}, 798 F.2d 549, 552 (1st
Cir. 1986)(citing [Youngberg]{.underline} for general interest in
personal safety, and applying rationality review, to uphold a Veteran\'s
Administration requirement that agents must be subjected to a stream
burst of mace).

The ADA does not infringe Bragdon\'s liberty, however. The Act\'s
requirements are a far cry from the abuses of government power in the
case Bragdon cites and the cases discussed therein. Def.\'s Sum. Judg.
Mem. at 27; [see]{.underline} [Wood v. Ostrander]{.underline}, 879 F.2d
583 (9th Cir. 1989) (police arrested driver and abandoned passenger in
high crime area, resulting in passenger\'s rape); [Nishiyama v. Dickson
Co., Tenn.]{.underline}, 814 F.2d 277 (6th Cir. 1987) (en banc)
(permitting a convicted violent felon to drive himself unaccompanied
back to prison in a police car, resulting in him stopping a woman and
beating her to death); [Russell v. Steck]{.underline}, 851 F. Supp. 859
(N.D.Ohio 1994) (forcing an intoxicated man to drive, resulting in
subsequent convictions). [See]{.underline} [also]{.underline} [Collins
v. City of Harker Heights, Tx.]{.underline}, 503 U.S. 115, 127 n.10
(1992) (due process doctrine was \"\'intended to secure the individual
from the arbitrary exercise of the powers of government\'\" (citation
omitted)).[^46]

More to the point, the ADA [protects]{.underline} Bragdon\'s personal
safety by providing that health care workers do not have to serve
individuals with disabilities who present a significant risk to health
or safety. [See]{.underline} U.S. Sum. Judg. Mem. at 15-16 (discussion
of the rationality of Congress\' provisions). In addition, as explained
[supra]{.underline}, it is the collective opinion of public and private
health associations that universal precautions are the appropriate
response to any risk of exposure to HIV, and that if those precautions
are implemented, it is [safe]{.underline} to provide routine care to
such individuals in a dental office. [See]{.underline} U.S. Sum. Judg.
Mem. at 23.

**2. There is no Fundamental Liberty of Contract and Title III is Not
Arbitrary or Irrational**

Bragdon\'s citation of [Meyer v. State of Nebraska]{.underline}, 262
U.S. 390 (1923), for his assertion that the Court should apply strict
scrutiny to this case is misleading: the Court in [Meyer]{.underline}
specifically applied a rational relationship test to the criminalized
conduct at issue (teaching a foreign language in a school).
[Id.]{.underline} at 400. Def.\'s Sum. Judg. Mem. at 27.[^47] Indeed, in
few areas of Court\'s jurisprudence has the repudiation of a
once-recognized fundamental liberty been more explicit than in the
Court\'s post-[Lochner]{.underline} liberty of contract decisions.
[See]{.underline} U.S. Sum. Judg. Mem. at 14. Today, legislation that
allegedly implicates such economic rights is presumptively valid, and
may be overturned only if \"stunningly\" arbitrary or irrational.
[See]{.underline} [id.]{.underline} Given Congress\' findings about the
serious problem of discrimination against individuals with disabilities
in health care services, and of individuals with HIV and AIDS, its
requirement that health care providers cease discrimination is entirely
legitimate and rational.

Nevertheless, Bragdon cites state law cases from the 1950s and 1960s for
the general proposition that a hospital or a doctor may select its
patients. Def.\'s Sum. Judg. Mem. at 28. The ADA does not affect this
general prerogative: it narrowly proscribes the discriminatory exclusion
of a patient based on that patient\'s disability. This federal
prohibition of discrimination

supersedes the cases Bragdon cites. In fact, in [Agnew v.
Parks]{.underline}, 343 P.2d 118, 123 (1959), the court stated that at
that time there was \"no established public policy or legal
requirement\" that doctors treat certain patients, but here, there is an
established public policy plainly articulated in federal
legislation.[^48] Bragdon has no due process right to continue to
discriminate on the basis of disability, and the ADA is, therefore,
constitutionally applied to his practice.

**[CONCLUSION]{.underline}**

For the above reasons, the Court should deny Defendant\'s motions for
summary judgment and should, instead, grant summary judgment to the
United States on the constitutional defenses asserted. In addition, the
Court should grant Plaintiff\'s Motion for Summary Judgment on
Liability.

Respectfully submitted,

JAY McCLOSKEY DEVAL L. PATRICK

United States Attorney Assistant Attorney General

for the District Civil Rights Division

of Maine

By:

JAMES M. MOORE, Bar #2041 JOHN L. WODATCH

Assistant United States JOAN A. MAGAGNA

Attorney for the KATE M. NICHOLSON

District of Maine SHARON N. PERLEY

99 Franklin Street MARGARITA M. PRIETO

Second Floor Attorneys

Bangor, Maine 04401 Disability Rights Section

\(207\) 945-0373 Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

[CERTIFICATE OF SERVICE]{.underline}

I, the undersigned, attorney for the United States of America, do hereby
certify that I will serve upon all counsel in this matter, by first
class mail postage prepaid true and correct copies of the foregoing
United States\' Motion and Memorandum for Summary Judgment on
Constitutional Issues and Memorandum in Support of Plaintiff on
Statutory Issues. Exhibits A through H will be served by the Disability
Rights Section of the Civil Rights Division, U.S. Department of Justice

SO CERTIFIED this day of , 1995.

JAMES M. MOORE

Assistant U.S. Attorney

Bar No. 2041

P.O. Box 2460

Bangor, Maine 04402-2460

[^1]: ^?^ Because the direct threat provision is an exception to the
    general nondiscrimination rule in title III, it is an affirmative
    defense. Contrary to Bragdon\'s position, he, not Plaintiff, bears
    the burden of proof on this issue. [See]{.underline} [United States
    v. Morvant]{.underline}, \_\_ F. Supp. \_\_, 1995 WL 131093, \*4
    (E.D. La. March 22, 1995); [Cf.]{.underline} F.2d , [D.B. v.
    Bloom]{.underline}, 1995 WL 490481, \*3 (D.N.J. 1995)(ruling in
    favor of plaintiff where plaintiff only proved that he was an
    individual with a disability, that defendant was a place of public
    accommodation, and that plaintiff was denied services); [Howe v.
    Hull]{.underline}, 873 F. Supp. 72 (N.D. Ohio 1994)(same).

[^2]: ^?^ [See]{.underline} [Little v. Norris]{.underline}, 787 F.2d
    1241, 1243 (8th Cir. 1986)(where defendants admit a policy and the
    only issue is whether it violates Federal law, summary judgment is
    appropriate).

[^3]: ^?^ [See]{.underline} 42 U.S.C. § 12102(2)(a) (1994) (definition
    of \"disability\" includes \"a physical or mental impairment that
    substantially limits one or more of the major life activities of
    \[an\] individual\").

[^4]: ^?^ The ADA regulation defines \"impairment\" as including HIV,
    whether symptomatic or asymptomatic. 28 C.F.R. § 36.104 (1994).
    [See]{.underline} [infra]{.underline} n.9 and 28 C.F.R., pt. 36,
    App. B. at 584 (\"asymptomatic HIV disease is an impairment that
    substantially limits a major life activity\").

[^5]: ^?^ A substantial limitation is one that restricts the conditions,
    manner, or duration under which a major life activity can be
    performed as compared with most people. 28 C.F.R., pt. 36, App. B at
    584-85.

[^6]: ^?^ The fact that Ms. Abbott is otherwise in good health and able
    to carry out other major life activities, [see]{.underline} Def.
    Sum. Jug. Mem. at 25, does not remove her from the Act\'s
    protections. An individual with a disability need only be limited in
    one major life activity for coverage. 42 U.S.C. § 12102(2)(a). Many
    individuals with disabilities \-- individuals who are blind or deaf
    or missing a limb, even those with degenerative impairments \-- are
    in good general health in respects other than their substantially
    limiting condition.

[^7]: ^?^ [See]{.underline}, [e.g.]{.underline}, [D.B. v.
    Bloom]{.underline}, \_\_ F. Supp. \_\_, 1995 WL 490481, \*3 & n.4
    (D.N.J. 1995); [Austin v. Pennsylvania Dept. of
    Corrections]{.underline}, 876 F. Supp. 1437, 1465 (E.D.Pa. 1995);
    [Doe v. Kohn Nast & Graf]{.underline}, 862 F. Supp. 1310, 1321
    (E.D.Pa. 1994); [Doe v. District of Columbia]{.underline}, 796 F.
    Supp. 559, 568 (D.D.C. 1992); [Thomas v. Atascadero Unified School
    Dist.]{.underline}, 662 F. Supp. 376, 379 (N.D.Ca. 1987) (dictum);
    [cf.]{.underline} [Harris v. Thigpen]{.underline}, 941 F.2d 1495,
    1524 n.46 (11th Cir. 1991) (noting emerging consensus finding
    asymptomatic HIV coverage under 504); [Glanz v.
    Vernick]{.underline}, 756 F. Supp. 632, 635 (D.Mass. 1991) (coverage
    not contested, but noting courts have found HIV qualifies as a
    disability); [Ray v. School Dist. of DeSoto County]{.underline}, 666
    F. Supp. 1524 (M.D.Fla. 1987) (granting preliminary injunction to
    HIV-infected students without specifically addressing coverage). The
    ADA and Section 504 contain the same definition of disability, but
    504 uses the word \"handicap,\" rather than disability.
    [See]{.underline} 29 U.S.C. § 706(7)(B).

[^8]: ^?^ [See]{.underline} U.S. Sum. Jug. Mem. at 19 & n.23;
    [see]{.underline} [also]{.underline} 136 Cong. Rec. S9696 (daily ed.
    July 13, 1990) (statement of Senator Kennedy) \"\[T\]here is a
    substantial limitation of some major life activity from the onset of
    HIV infection\").

[^9]: ^?^ [See]{.underline} [supra]{.underline} n.4; EEOC, [Technical
    Assistance Manual on The Employment Provisions (Title I) of the
    Americans with Disabilities Act]{.underline}, at T-II (January
    1992)(\"Some impairments, such as blindness, deafness, HIV infection
    or AIDS, are by their nature substantially limiting.\") Reasoning
    that HIV substantially limits the major life activity of
    reproduction, the Department of Health and Human Services has taken
    the position that HIV is a disability under 504. [See]{.underline}
    [In Re Westchester County Medical Ctr.]{.underline}, H.H.S. Civ.
    Rts. Reviewing Authority, Decision No. 1357, at 10-12 (Sept. 25,
    1992).

[^10]: ^?^ Contrary to Bragdon\'s claim, the Kmiec Memorandum\'s
    position that asymptomatic HIV is a disability \-- a position based
    largely on the limitation of the major life activity of procreation
    \-- was not a mere DOJ staffer opinion, but an official
    interpretation of the Attorney General. [See]{.underline} Def.\'s
    Sum. Judg. Mem. at 7 n.5. Kmiec was the Acting Assistant Attorney
    General in charge of the Office of Legal Counsel, which sets policy
    for the Department. The Memorandum has been treated as an official
    DOJ interpretation by Congress, [see]{.underline} U.S. Sum. Jug.
    Mem. at 19, and by courts, [see]{.underline}, [e.g.]{.underline},
    [Doe v. Kohn Nast & Graf]{.underline}, 862 F. Supp. at 1321; [Doe v.
    District of Columbia]{.underline}, 795 F. Supp. at 567 n.10; [Harris
    v. Thigpen]{.underline}, 941 F.2d at 1524.

[^11]: ^?^ Supplemental Affidavit of John A. Molinari, Ph.D.
    (hereinafter \"Molinari Supp. Aff.\"), at ¶¶ 3, 6, attached to
    Plaintiff\'s Opposition to Defendant\'s Motion for Summary Judgment.

[^12]: ^?^ [See]{.underline} [Thomas v. Atascadero Unified School
    Dist.]{.underline}, 662 F. Supp. at 379 (noting that for
    asymptomatic individuals, procreation and childbirth is dangerous to
    themselves and others).

[^13]: ^?^ Bragdon\'s reference to Dr. Craven\'s deposition testimony
    regarding the limitations on his asymptomatic patients\' life
    activities is unavailing. [See]{.underline} Def.\'s Sum. Judg. Mem.
    at 25. Dr. Craven believes that \"HIV positivity substantially
    affects and limits an HIV-positive woman\'s decision and ability to
    procreate safely.\" [See]{.underline} Supplemental Affidavit of
    Donald E. Craven, M.D. at ¶¶ 4, 5, attached to Plaintiff\'s
    Opposition to Defendant\'s Motion for Summary Judgment. In his
    deposition, Dr. Craven was not testifying as to a legal term of art,
    nor is he qualified to draw legal conclusions.

[^14]: ^?^ [See]{.underline} [also]{.underline} [Minnesota v.
    Clausen]{.underline}, 491 N.W.2d 662 (Minn. App. 1992); [Barton v.
    New York City Comm\'n on Human Rights]{.underline}, 531 N.Y.S.2d 979
    (N.Y. Sup. Ct. 1988); [G.S. v. Baksh]{.underline}, Charge No.
    1987CPO113, slip op. (Illinois Human Rights Commission July 8,
    1994); [Lewis v. Runkle]{.underline}, Docket No. 92-154-PA(N), slip
    op. (District of Columbia Commission on Human Rights July 1, 1993);
    [Allen v. Brottman]{.underline}, AIDS Litig. Rep., March 9, 1993, at
    9657 (New York Commission on Human Rights Jan. 26, 1993); [Estate of
    Campanella v. Hurwitz]{.underline}, AIDS Litig. Rep., August 23,
    1991, at 6800 (New York Commission on Human Rights July 31, 1991).
    Other courts, while not reaching the merits, have observed that the
    denial of medical care solely on the basis of a person\'s
    HIV-positive status constitutes discrimination under section 504 of
    the 1973 Rehabilitation Act. [See]{.underline} [Woolfolk v.
    Duncan]{.underline}, 872 F. Supp. 1381 (E.D. Pa. 1995); [Miller v.
    Spicer]{.underline}, 822 F. Supp. 158 (D. De. 1993); [Glanz v.
    Vernick]{.underline}, 756 F. Supp. 632 (D. Mass. 1991).

    Defendant argues that it is generally inappropriate for parties to
    cite unpublished opinions from other circuits in unrelated cases. We
    urge the Court to consider the analysis presented in these cases,
    however, because, while they are not binding precedent for this
    Court, they are directly on point, they provide a full rationale for
    their conclusions, and there are no cases to the contrary. Moreover,
    the Court and Bragdon have been provided with complete copies, and
    thus Bragdon is not unfairly prejudiced by their use.

[^15]: ^?^ Finally, Bragdon offers as \"fact\" statements which are
    actually improper or unsupported legal conclusions.
    [See]{.underline}, [e.g.]{.underline}, Defendant\'s Rule 19
    Statement of Undisputed Material Facts (hereinafter \"Def. Facts\")
    at ¶¶ 4, 21.

[^16]: ^?^ Molinari article at 51, 52 (emphasis added).

[^17]: ^?^ Bragdon asserts, however, with no citation to credible
    authority that \"other types of sharps injuries
    \[[i.e.]{.underline}, other than those that occur when he is
    administering a local anesthetic\] occur routinely, often several
    times a week.\" Def. Facts at ¶ 9. This figure is not supported by
    anything in the record except Bragdon\'s own self-serving
    statements.

[^18]: ^?^ In the past 14 years, there are only 36 cases of health care
    workers (including physicians, nurses, hospital housekeeping staff,
    morticians, and emergency personnel, among others) who have been
    documented as having acquired HIV occupationally by a percutaneous
    injury.

[^19]: ^?^ Similarly, Bragdon asserts that he requires a respirator for
    safe treatment of HIV-positive patients. Def.\'s Sum. Judg. Mem. at
    23. Respirators, however, are only necessary to protect against
    air-borne pathogens, which HIV is not. Greenspan Supp. Dec. at ¶ 10;
    Marianos, Supp. Dec. at ¶ 3.

[^20]: ^?^ [See]{.underline} [also]{.underline} Molinari Dep. at 111
    (emphasis added):

    Q: So [it\'s possible]{.underline}, when there are defects in the
    masks just like when there are defects in the gloves, for HIV to
    pass through the mask?

    A: Yes. But [that\'s not the way this virus has been
    transmitted]{.underline}.

    Neither of the two pages that Bragdon cites from Dr. Marianos\'
    deposition support Bragdon\'s contention.

[^21]: ^?^ The testimony that Bragdon cites in support of this last
    assertion is tangentially relevant at best. Dr. Marianos testified
    that he \"remember\[ed\] some discussions of the
    [possible]{.underline} transmission at one point in time involving a
    health worker from dermatitis on the ear.\" When asked if such a
    transmission was [theoretically possible]{.underline}, Marianos
    answered \"I see no reason why it wouldn\'t be
    [theoretically]{.underline} possible.\" Marianos Dep. at 147-48
    (emphasis added). Similarly, Dr. Craven\'s entire testimony was that
    \"[theoretically, it\'s possible]{.underline}\" that HIV can be
    transmitted if a drop of blood lands on an [exposed]{.underline}
    abrasion. Craven Dep. at 117. Dr. Molinari testified about a health
    care worker who may have acquired HIV from a blood-to-mucous
    membrane exposure, but the exposure occurred when blood
    [showered]{.underline} the face and eyes of a phlebotomist, who was
    drawing blood from an infected patient, and the rubber stopper of
    the tube blew off. Molinari Dep. at 40.

[^22]: ^?^ For a case to be documented by the CDC as an occupational
    transmission of HIV in the health care setting, there must be: a
    known incident in which the health care worker was exposed to blood
    or body fluids, a negative baseline test at the time of the incident
    ([i.e.]{.underline}, the health care worker tested HIV-negative);
    and an HIV-positive test within six months of the incident. Marianos
    Dep. at 27-28.

[^23]: ^?^ This extremely low number applies to [all]{.underline} health
    care workers, nationwide. It includes [every]{.underline} medical
    procedure that has ever been performed in the past 14 years, as well
    as a number of procedures only tangentially related to the practice
    of medicine ([e.g.]{.underline}, embalming a corpse). As noted
    above, these accidental transmissions involved a fairly large volume
    of blood or other body fluids containing HIV, under conditions not
    generally present in dentistry.

[^24]: ^?^ Instead, Bragdon points to the fact that among health care
    workers with HIV, approximately six to eight percent of the cases
    have no known risk factors identified. Def.\'s Sum. Judg. Mem. at
    14. \"No risk reported or identified\" cases involve persons with no
    reported history of exposure through any of the routes listed in the
    hierarchy of exposure categories. Marianos Supp. Dec. at ¶ 9. \"Risk
    not identified\" cases include persons who are currently under
    investigation by local health department officials; persons whose
    exposure history is incomplete because they died, declined to be
    interviewed, or were lost to follow-up; and persons who were
    interviewed or for whom other follow-up information was available
    and no exposure mode was identified. Persons who have an exposure
    mode identified at the time of follow-up are reclassified into the
    appropriate exposure category. [Id]{.underline}. At any given time,
    there will be a number of cases with no identified risk. Among
    those, the majority will fall into the category described above as
    \"currently under investigation.\" The follow-up investigation for a
    majority of these cases eventually will reveal an identified risk
    factor ([e.g.]{.underline}, it will be determined that the infected
    individual will have engaged in male to male sex, heterosexual sex
    with an infected individual, intravenous drug use, or other
    relatively higher-risk activity), and the case will be appropriately
    reclassified. [Id]{.underline}. at ¶ 10. Most important, [it is
    likely that a number of health care workers listed as \"no
    identified risk\" actually had nonoccupational risk factors that
    they did not report or recognize.]{.underline} [Id]{.underline}. at
    ¶ 11.

[^25]: ^?^ [See]{.underline} n.24 [supra]{.underline}.

[^26]: ^?^ [See]{.underline} Molinari Supp. Aff., at ¶ 3, attached to
    Plaintiff Sidney Abbott\'s Opposition to Defendant\'s Motion for
    Summary Judgment (noting that while the relative or comparative risk
    of transmission from patient to dental health care worker is greater
    than from dental health care worker to patient, the two risks are so
    infinitesimally small as to be immeasurable). When the incidence of
    opportunity for exposure is factored in, the
    [cumulative]{.underline} risk from infected provider to patient
    might, in fact, be greater than that from patient to provider.
    While, on average, an HIV-infected patient will only visit the
    dentist two to three times per year, the infected dental health care
    worker will, over the course of his or her lifetime, perform
    numerous invasive dental procedures.

[^27]: ^?^ [See]{.underline} [also]{.underline} [Morvant]{.underline},
    1995 WL 131093 at \*9 (relying on guidance from the CDC and finding
    no direct threat in the dental treatment of persons with HIV/AIDS).
    [Cf]{.underline}. American Dental Association, 132nd Annual Session
    of the ADA, [Annual Session Report]{.underline}, (Oct.
    1991)(\"Patients with HIV infection may be safely treated in private
    dental offices when appropriate infection control procedures are
    employed. Such infection control procedures provide protection for
    patients and dental personnel.\").

[^28]: ^?^ [See]{.underline} [also]{.underline} American Medical
    Association, [Code of Medical Ethics]{.underline} 55 (1994 ed.)(\"It
    is unethical to deny treatment to HIV-infected individuals because
    they are HIV seropositive or because they are unwilling to undergo
    HIV testing . . . \"); American Association of Oral and
    Maxillofacial Surgeons, [Position Paper on Acquired Immune
    Deficiency Syndrome (AIDS)]{.underline}, 2 (Sept. 1991)
    (\"\...refusal to treat a patient because that patient has or may
    have an infectious disease such as AIDS is unethical\"); Association
    of State and Territorial Health Officials and the Association of
    State and Territorial Dental Directors, [Guide to Public Health
    Practice: HIV and the Dental Community]{.underline}, 7 (Oct.
    1991)(\"\[Dental Health Care Workers\] have an ethical obligation to
    provide dental care to HIV-infected individuals, or those perceived
    to be at risk of HIV-infection, in the same manner as they would to
    other patients.\").

[^29]: ^?^ [See]{.underline} [also]{.underline} [id]{.underline}. at
    1282 (emphasis added) (quoting Keyes, \"Health Care Professionals
    with AIDS: The Risk of Transmission Balanced Against the Interests
    of Professionals and Institutions\" 16 J. of Coll. and Univ. Law
    589, 605 (1990)):

    > [Health-care providers and institutions should consider ethical
    > aspects of the doctor-patient relationship in examining the
    > risk]{.underline} posed by health-care providers infected with
    > HIV. The patient and doctor occupy unequal positions in the
    > relationship. The doctor is trained to recognize, diagnose, and
    > avoid contracting the patient\'s disease. The doctor stands in a
    > position of trust \-- a fiduciary position \-- in relation to the
    > patient. A small but palpable risk of transmitting a lethal
    > disease to the patient gives the doctor an ethical responsibility
    > to perform only procedures that pose no risk of transmission. The
    > patient, on the other hand, has no corresponding ethical duty to
    > the doctor. The patient is neither trained nor expected to
    > ascertain the provider\'s health status. While secretive patients
    > may transmit their diseases to unwary doctors, doctors are
    > responsible for both their own health and the health of their
    > patients.

[^30]: ^?^ Nor is it reduced by treating HIV-positive dental patients in
    a hospital setting. [See]{.underline} U.S. Sum. J. Mem. at 23.

[^31]: ^?^ [See]{.underline} Greenspan Supp. Dec. at ¶ 5 (noting, for
    example, that when Bragdon graduated from dental school, dentists
    knew that they were at risk of occupationally acquiring Hepatitis B,
    a disease that is much more infectious than HIV and that kills
    approximately 200 health care workers per year).

[^32]: ^?^ [Cf.]{.underline} Kuvin Dep. at 99, 188.

[^33]: ^?^ [Cf]{.underline}. [Behringer]{.underline}, 592 A.2d at 1282
    (quoting Keyes, \"Health Care Professionals with AIDS: The Risk of
    Transmission Balanced Against the Interests of Professionals and
    Institutions,\" 16 J. of Coll. and Univ. Law at 603-04, n.114):

    > Society and the law have a significant interest in promoting
    > access to medical care. . . . While society must protect the
    > availability of vital services, there is no need to protect the
    > services of any one provider. Generally, there will be many
    > noninfected providers to replace those who have been restricted
    > from performing invasive procedures. . . .
    >
    > . . . the restrictions on HIV-positive physicians from providing
    > services, where there is a chance of transmittal from injury and
    > transfer of blood spillage into a surgical site, would have a
    > limited effect on practitioners; the HIV-positive physicians could
    > still practice medicine although precluded from performing
    > invasive procedures.

[^34]: ^?^ [See]{.underline} note 14, [supra]{.underline}, and
    accompanying text (discussing the unbroken line of authority holding
    that dental patients with HIV/AIDS do not pose a direct threat);
    U.S. Sum. Judg. Mem. at 28-29 n.33 (discussing cases under the ADA
    and section 504 of the 1973 Rehabilitation Act that held that
    HIV-infected prisoners, schoolchildren, schoolteachers,
    firefighters, and pharmacists, among others, do not pose a direct
    threat, despite the potential risk of transmission via blood and/or
    saliva).

[^35]: ^?^ [See]{.underline} Carol Kunzel and Donald Sadowky, [Assessing
    HIV-Related Attitudes and Orientations of Male and Female General
    Dentists]{.underline}, 126 JADA 862 (July 1995)(attached to Def.
    Sum. J. Mem. as Exhibit 4)(discussing dentists\' reluctance to treat
    patients with HIV/AIDS); U.S. Sum. J. Mem. at 5 (discussing the
    reluctance of health care providers generally to treat patients with
    HIV/AIDS).

[^36]: ^?^ Physicians might misdiagnose the presenting conditions of
    such patients and/or might prescribe medications contraindicated by
    other medications the patients are already taking.

[^37]: ^?^ During the ADA floor debates, Congress repeatedly cited the
    findings of the Presidential Commission as one of the bases for
    establishing protections against discrimination for persons with
    HIV/AIDS. [See]{.underline}, [e.g.]{.underline}, 135 Cong. Rec.
    S10718 (daily ed. Sept. 7, 1989)(statement of Sen. Kennedy)(\"This
    bill implements the key recommendation of the Presidential Report on
    the HIV Epidemic. In his report, Adm. James Watkins referred to
    anitdiscrimination protections for people with AIDS and HIV as the
    linch-pin of our ability to control the spread of this virus.\");
    135 Cong. Rec. S10794 (daily ed. Sept. 7, 1989)(statement of Sen.
    Moynihan) (\"Without the protections this legislation provides our
    successful efforts to control and bring to an end this epidemic will
    be seriously hampered.\"); 135 Cong. Rec. S10722 (daily ed. Sept. 7,
    1989)(statement of Sen. Cranston)(\"the Presidential Commission on
    the HIV Epidemic, as well as numerous public health officials,
    concluded that Federal protection from discrimination is essential
    to furthering public health efforts to stop the spread of AIDS\");
    135 Cong. Rec. S10800 (daily ed. Sept. 7, 1989)(statement of Sen.
    Simon)(\"Actions with regard to people with AIDS and HIV infection
    will no longer be allowed to be governed by myths, stereotypes, and
    misperceptions, but rather will be governed by objective medical
    evidence and facts. This is one of the best steps forward that we
    can take to fight the AIDS epidemic.\").

[^38]: ^?^ Recently, a federal court of appeals upheld, as a legitimate
    exercise of Congress\' commerce clause authority, a criminal statute
    similar to that in [Lopez]{.underline}, where the statute had a
    \"jurisdictional element\" that ensured a case-by-case nexus to
    interstate commerce. [U.S. v. Bishop]{.underline}, 64 U.S.L.W. 2168
    (3rd Cir. 1995) (upholding the Federal Carjacking Statute, 18 U.S.C.
    § 2119). The ADA has such a jurisdictional element. 42 U.S.C. §
    12181(7); [See]{.underline} U.S. Sum. Judg. Mem. at 10.

[^39]: ^?^ [See]{.underline} Def.\'s Commerce Mem. at 2. Bragdon also
    argued that the Court in [Lopez]{.underline} did not discuss
    respondent\'s out-of-state connections such as \"just \[flying\] in
    from out-of-state,\" [id.]{.underline} at 2, but the Court
    specifically noted that, \"\[r\]espondent was a local student at a
    local school; there is no indication that he had recently moved in
    interstate commerce.\" [Lopez]{.underline}, 115 S.Ct. at 1634;
    [see]{.underline} [id]{.underline}.

[^40]: ^?^ In [Lopez]{.underline}, the Court considered the general
    nexus of the proscribed conduct to interstate commerce \-- in order
    to determine whether Congress had the authority to enact the law in
    the first place. [Id.]{.underline} at 1631-34. [See]{.underline}
    [Katzenbach]{.underline}, [infra]{.underline}, 32-33;
    [see]{.underline} [also]{.underline} U.S. Sum. Judg. Mem. at 3-5
    (for discussion of Congress\' authority to enact title III).

[^41]: ^?^ In [Lopez]{.underline}, the Court was especially concerned
    with the fact that the federal enactment of a criminal statute
    created a general federal police power, thereby usurping the most
    basic authority reserved by the states. [See]{.underline}
    [id.]{.underline} at 1631 n.3, 1634. By contrast, a nationwide civil
    rights act is a quintessential area of federal concern.

[^42]: ^?^ Defendant quotes from [Lopez]{.underline} for the proposition
    that Congress may not regulate the state activity of education, and,
    by implication, may not also regulate the practice of dentistry,
    [see]{.underline} Def.\'s Commerce Mem. at 2, but Defendant attaches
    his own conclusion to the Court\'s language. The Court concludes
    that the commerce clause authority, \"though broad, does not include
    the authority to regulate [each and every aspect of]{.underline}
    local schools.\" [Lopez]{.underline}, 115 S.Ct. at 1633 (emphasis
    added). Similarly, here, Congress is regulating discrimination by
    public accommodations, including dental offices, but it is not
    regulating each and every aspect of the practice of dentistry.

[^43]: ^?^ [Accord]{.underline} [Hodel v. Virginia Surface Mining &
    Reclamation Assn.]{.underline}, 452 U.S. 264, 281-2 (1981);
    [Preseault v. Interstate Commerce Comm\'n]{.underline}, 494 U.S. 1,
    17-19 (1990); [United States v. Darby]{.underline}, 312 U.S. 100,
    114 (1941). [See]{.underline} [Lopez]{.underline} 115 S.Ct. at 1628
    (quoting from [Wickard v. Filburn]{.underline}, 317 U.S, 111, 125
    (1942), for the proposition that the prohibited activity need not be
    \"commercial:\" \"\[E\]ven if appellee\'s activity be local and
    though it may not be regarded as commerce, it may still, whatever
    its nature, be reached by Congress\").

[^44]: ^?^ Thus, health care providers may refer to a different
    physician, or as here, treatment setting, if the provider would make
    a similar referral for an individual without the disability.
    [See]{.underline} 28 C.F.R. § 36.302(b)(2). [See]{.underline} U.S.
    Sum. Jug. Mem. at 21.

[^45]: ^?^ [See]{.underline} discussion [supra]{.underline}, (the CDC
    and the American Dental Association maintain that it is safe to
    treat HIV-infected patients in the private dental office).

[^46]: ^?^ Courts extend protection of personal safety as a liberty
    interest where the government affirmatively restrains an individual
    \"through incarceration, institutionalization, or other
    [similar]{.underline} restraint of personal liberty.\" [Deshaney v.
    Winnebago County Social Servs. Dept.]{.underline}, 489 U.S. 189, 200
    (1989) (emphasis added).

[^47]: ^?^ [Meyer]{.underline} is often cited in a long line of privacy
    cases for the protection of freedom of choice in the areas of
    procreation, marriage, and family life, but not for the proposition
    of liberty to contract. [See]{.underline} [Harrah Independent Sch.
    Dist. v. Martin]{.underline}, 440 U.S. 194, 198 (1979).

[^48]: ^?^ Defendant cites [Montero v. Meyer]{.underline}, 790 F. Supp.
    1531 (D.Colo. 1992), for the proposition that the state cases create
    a liberty interest under the Federal Constitution, but
    [Montero]{.underline} deals with procedural, not substantive, due
    process liberties, [id]{.underline}. at 1537, and with a statutory
    requirement of notice related to a proposed constitutional
    amendment, [id.]{.underline} at 1536. Here, Bragdon asserts a
    substantive due process right. The Supreme Court has been reluctant
    to expand substantive due process and examines each asserted
    interest to determine if it merits such protection.
    [See]{.underline} [Regents of the University of Michigan v.
    Ewing]{.underline}, 474 U.S. 214, 229 (1985) (Powell, J.,
    concurring). Even assuming that Bragdon asserts a cognizable liberty
    claim based on state law, he still bears the burden of showing that
    the ADA is an arbitrary or irrational use of government power,
    which, as we have demonstrated, he can not do. [See]{.underline}
    [Collins v. City of Harker Heights, Texas]{.underline}, 503 U.S.
    115, 128 (1992); [Harrah Independent Sch. Dist.]{.underline}, 440
    U.S. at 198.