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. )**

**)**

**UNITED STATES' MOTION AND MEMORANDUM**

**FOR SUMMARY JUDGMENT ON CONSTITUTIONAL ISSUES AND**

**MEMORANDUM IN SUPPORT**

**OF PLAINTIFF ON STATUTORY ISSUES**

**JAY McCLOSKEY DEVAL L. PATRICK**

**United States Attorney Assistant Attorney General**

**for the District Civil Rights Division**

**of Maine**

**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**

INTRODUCTION

Plaintiff Sidney Abbott alleges that Defendant Randon Bragdon, a
dentist, violated the Americans with Disabilities Act (\"ADA\" or \"the
Act\") when he refused to provide her with routine dental care in his
Bangor office because she is HIV-positive. In defending this suit,
Bragdon challenges the constitutionality of the ADA and its application
to him. The United States was granted leave to intervene to defend the
constitutionality of the statute and to participate as [amicus
curiae]{.underline} on issues of ADA statutory construction.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Intervenor
United States hereby moves this Court to grant summary judgment in its
favor on the constitutional defenses asserted by Bragdon and to issue an
Order holding that the ADA is constitutional as applied to Bragdon\'s
practice of dentistry. Such a ruling will significantly narrow the
issues before the Court in the event of trial. In addition, the United
States as [amicus curiae]{.underline} urges this Court to grant
Plaintiff Sidney Abbott\'s motion for summary judgment on liability.

# ARGUMENT

I. **THE AMERICANS WITH DISABILITIES ACT**

The Americans with Disabilities Act, 42 U.S.C. § 12101 [et]{.underline}
[seq.]{.underline}, is Congress\' most extensive piece of civil rights
legislation since the Civil Rights Act of 1964. Its purpose is to
provide \"a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.\" 42 U.S.C. §
12101(b)(1). The ADA\'s coverage is accordingly broad \-- prohibiting
discrimination on the basis of disability in employment, State and local
government programs and services, transportation systems,
telecommunications, commercial facilities, and the provision of goods
and services offered to the public by private businesses. This case
concerns title III of the ADA, 42 U.S.C. §§ 12181-9, which prohibits
discrimination by private businesses that operate places of public
accommodation if those operations \"affect commerce.\" 42 U.S.C. §
12181(7). The \"professional office of a health care provider\" is
specifically listed as a public accommodation in the Act and the title
III implementing regulation. 42 U.S.C. § 12181(7)(F); 28 C.F.R. §
36.104.

As discussed below, every federal and state court that has considered
the issue before this Court has concluded that the refusal to offer
routine dental care to persons with HIV violates the ADA or equivalent
state disability statutes. Moreover, every leading dental and scientific
association agrees that patients with HIV infection may be safely
treated in private dental offices where universal precautions are
utilized, and that the refusal to treat these patients is unethical. In
the past fourteen years since AIDS was first identified, with over one
billion dental procedures performed, there has not been a single
documented case of HIV transmission from patient to dental care worker
or other patient.

**II. TITLE III OF THE ADA IS CONSTITUTIONAL AS APPLIED TO
BRAGDON\'S** **PRACTICE**

Defendant challenges the constitutionality of title III of the ADA on
several grounds, none of which is meritorious. Specifically, Bragdon
asserts that: (1) Congress lacks authority under the Commerce Clause to
regulate his dental practice; (2) the remedial action requested of this
Court may cause him to lose patients and, therefore, violates the
Contracts Clause; and (3) the application of the ADA to his dental
practice denies him of his liberty of contract to operate his practice
\"without interference,\" and of his liberty to operate his office in a
\"safe and prudent manner.\"[^1]

A.  **Prohibiting Disability-Based Discrimination By Health Care
    Providers Like Bragdon is Within Congress\' Power to Regulate
    Commerce**

Defendant first challenges Congress\' authority under the Commerce
Clause to regulate his practice of dentistry. Article I, Section 8 of
the Constitution grants Congress the power to \"regulate Commerce . . .
among the several States\" and to enact all laws necessary and proper to
this end. U.S. CONST., art. I, § 8, cls. 3, 18. [Katzenbach v.
McClung]{.underline}, 379 U.S. 294, 301-02 (1964). This power is
plenary, and is construed broadly by the Court. [Hodel v. Virginia
Surface Mining & Reclamation Ass\'n Inc.]{.underline}, 452 U.S. 264, 276
(1981); [accord]{.underline} [United States v. Lopez]{.underline}, 115
S.Ct. 1624, 1626, 1634 (1995); [United States v. Darby]{.underline}, 312
U.S. 100, 114 (1941); [Gibbons v. Ogden]{.underline}, 22 U.S. (9 Wheat.)
1 (1824).[^2]

In determining whether a federal statute may be sustained as a proper
exercise of Congress\' power to regulate interstate commerce, a court
may consider only: (1) whether regulation of the activity at issue is
rationally related to a legitimate constitutional end, and (2)

whether the means chosen by the statute are reasonable to reach that
end. [Preseault v. Interstate Commerce Comm\'n]{.underline}, 494 U.S. 1,
17 (1990). [See]{.underline} [Lopez]{.underline}, 115 S.Ct. at 1629
(affirming the standard of rationality review); [Hodel]{.underline}, 452
U.S. at 276 (citing [Heart of Atlanta Motel, Inc. v. United
States]{.underline}, 379 U.S. 241, 262 (1964)).

**1. Redressing Discrimination in Commercial Activities is a Legitimate
Legislative Goal and Title III\'s Proscriptions are a Reasonable Means
of Achieving That Goal**

The ADA\'s legislative history specifically acknowledges Congress\'
\"broad authority to pass anti-discrimination laws under the commerce
clause,\" citing [Heart of Atlanta Motel]{.underline}, 379 U.S. 241;
[Katzenbach]{.underline}, 379 U.S. 294; [EEOC v. Wyoming]{.underline},
460 U.S. 226 (1983), and notes further that, \"the extensive hearings on
the ADA amply demonstrate how discrimination against people with
disabilities has made it difficult for them to participate in
[commercial life in this country]{.underline}.\" 136 Cong. Rec. E1913-01
(daily ed. May 22, 1990)(statement of Rep. Hoyer)(citations
omitted)(emphasis added). Thus, courts have sustained title III as a
valid exercise of Congress\' power under the Commerce Clause.
[See]{.underline}, [e.g.]{.underline}, [Pinnock v. International House
of Pancakes Franchisee]{.underline}, 844 F. Supp. 574, 579 (S.D.Cal.
1993)(upholding title III\'s application to a restaurant),
[cert]{.underline}. [denied]{.underline}, 114 S. Ct. 2726 (1994);
[United States v. Morvant]{.underline}, 1995 WL 131093, \*3 (E.D. La.
March 22, 1995) attached hereto as Exhibit A (upholding title III\'s
application to a dental office).

Moreover, Congress formally found that \"discrimination against
individuals with disabilities persists in such critical areas as . . .
health services.\" 42 U.S.C. § 12101(a)(3).[^3] Accordingly, as a
reasonable means to address such discrimination, the \"professional
office of a health care provider\" is specifically included in the
definition of public accommodations. 42 U.S.C. § 12181(7)(F).

Congress further found that discrimination against persons with HIV or
AIDS is widespread, and, as a reasonable means of curtailing such
discrimination, determined that the ADA\'s protections should extend to
those infected with the HIV virus. H.R. Rep. No. 485, 101st Cong. 2d
Sess., pt. 2, at 23, 58 (1990). Congress\' findings are well supported.
Studies demonstrate extensive discrimination by health care providers
against patients with HIV or AIDS.[^4] Of particular importance, \"the
number \[of dentists willing to treat people with HIV/AIDS\] remains
grossly inadequate and unacceptable. The difficulty, and in many cases
complete inability, of obtaining dental services is . . . an all too
common problem for people living with HIV infection and AIDS.\" National
Commission On AIDS, [Annual Report to the President and the
Congress]{.underline}, 163 (August 1990).

**2. Title III of the ADA Is Constitutionally Applied to the Operations
of Bragdon\'s Individual Dental Practice**

Bragdon contends that the ADA cannot constitutionally be applied to
[his]{.underline} dental practice, because it does not affect interstate
commerce and, in particular, because his so-called \"infectious disease
policy\" does not affect interstate commerce. Answer, First Defense;
Defendant\'s Pretrial Memorandum at ¶ 5. The first argument is refuted
by undisputed facts and the second is based on a premise long rejected
by the Supreme Court.

The Commerce Clause power extends not only to interstate activities, but
to intrastate activities that substantially affect interstate commerce.
[See,]{.underline} [e.g.]{.underline}, [Lopez]{.underline}, 115 S.Ct. at
1628-9; [McLain v. Real Estate Bd. of New Orleans, Inc.]{.underline},
444 U.S. 232, 241 (1980). [See]{.underline} [also]{.underline} [Perez v.
United States]{.underline}, 402 U.S. 146, 151 (1971) (citing [United
States v. Wrightwood Dairy Co.]{.underline}, 315 U.S. 110, 119 (1942));
[Wickard v. Filburn]{.underline}, 317 U.S. 111, 122-25 (1942);
[Darby]{.underline}, 312 U.S. at 118; [McCulloch v.
Maryland]{.underline}, 17 U.S. (4 Wheat.) 316, 421 (1819).

Bragdon orders substantial supplies and equipment from out-of-state
vendors. In fact, from the period of 1990-94, approximately 58% of his
supplies and equipment came from out-of-state companies. U.S. Facts at
¶II.A. In addition, Bragdon\'s office is located 1.9 miles from
Interstate 95. [Id]{.underline}. In [Morvant]{.underline}, these two
factors alone were sufficient to sustain the constitutional application
of title III to a solo practitioner dentist who was found to have
discriminated against individuals with HIV/AIDS for failing to provide
them routine dental care in his office.[^5]

Furthermore, Bragdon\'s practice generates substantial income from
out-of-state insurers. Defendant accepts insurance from eight companies,
seven of which are out-of-state. U.S. Facts

at ¶II.A. [See]{.underline} [United States v. Dye Construction
Co.]{.underline}, 510 F.2d 78, 83 (10th Cir. 1975)(company holding
insurance policies produced by out-of-state sources affected
commerce).[^6] Bragdon also accepts payment by credit card from
out-of-state credit card companies. U.S. Facts at ¶II.A.

Moreover, Bragdon and at least one member of his staff participate in
continuing education classes conducted out of state. Bragdon regularly
attends out-of-state dental conferences and meetings, and Bragdon holds
memberships in and pays dues to eight professional dental associations,
six of which are headquartered out-of-state. U.S. Facts at ¶II.C. These
factors amply demonstrate as a matter of law that Bragdon\'s practice
substantially affects interstate commerce. In addition, Bragdon\'s
individual practice is also constitutionally regulated under the
Commerce Clause because it is part of the larger industry of dentistry
that affects interstate commerce.[^7]

Finally, contrary to Defendant\'s suggestion, to sustain the
constitutionality of the ADA as applied to his health care practice,
there is no need to inquire into the effect on commerce of his
discriminatory policy and practices. Such a requirement was specifically
rejected in the seminal [Katzenbach]{.underline} decision, 379 U.S. at
303 (no need for case-by-case determination that racial discrimination
in a particular restaurant affects commerce) (citing
[Darby]{.underline}, 312 U.S. at 120-21)). Rather, the only required
inquiry, which we have demonstrated is satisfied in this case, is
whether Defendant\'s business itself meets the jurisdictional requisite
of affecting commerce. [Id]{.underline}. at 304.[^8]

3.  **The Court\'s Decision in [Lopez]{.underline} Does Not Diminish
    Congress\' Commerce Clause Power**

The Supreme Court\'s recent decision in [United States v.
Lopez]{.underline}, 115 S.Ct. 1624 (1995), does not change this
analysis. At issue in [Lopez]{.underline} was the Gun-Free School Zones
Act, which forbade the possession of firearms in a school zone, and
which the Court ruled exceeded Congress\' commerce clause power. The
[Lopez]{.underline} decision, however, specifically reaffirmed the
validity of the Court\'s previous commerce clause decisions.
[Id]{.underline}. at 1634.[^9]

Of particular concern in [Lopez]{.underline} was the fact that the
School Zones Act was a criminal statute, typically a subject of state
and local, not federal legislation, [id]{.underline}. at 1631 n.3, 1632,
and

\"by its terms ha\[d\] nothing to do with \'commerce\' or any sort of
economic enterprise however broadly one might define those terms.\"
[Id]{.underline}. at 1630-31; [see also]{.underline} [id]{.underline}.
at 1640 (\"neither the actors nor their conduct have a commercial
character and neither the purpose nor the design of the statute have an
evident commercial nexus\") (Kennedy, J. and O\'Connor, J., concurring).

By contrast, title III of the ADA deals with commercial actors, private
businesses that offer goods and services to customers, patrons or
patients. At issue in this case is a patient seeking professional dental
services for a fee \-- a quintessential commercial transaction.
Moreover, \"the design of the statute ha\[s\] an evident commercial
nexus,\" [id]{.underline}.; it ensures access to commercial services,
and is designed to prevent the unavailability of those services to a
significant sector of the national economy. Thus, in contrast to
[Lopez]{.underline}, where neither the prohibited conduct (possession of
a gun near schools), nor its immediate effect (increase in violence in
schools) was commercial, the immediate effect of the prohibited conduct
here is a burden to commercial transactions. [See]{.underline}
Congress\' findings, [supra]{.underline}. Also unlike the statute at
issue in [Lopez]{.underline}, title III of the ADA contains a
jurisdictional element that facilitates a case-by-case analysis of
whether the particular entity at issue affects commerce: the definition
of a public accommodation, itself, reaches only those entities whose
operations \"affect commerce.\" 42 U.S.C. § 12181(7); [see]{.underline}
[Lopez]{.underline}, 115 S.Ct. at 1626.

**B. Bragdon has No Constitutional Right to Continue Discriminating on
the Basis of Disability**

Bragdon fears he will lose some of his other patients if this Court
orders him to cease discriminating against individuals with HIV or AIDS.
Even if this were to prove true, it is of no constitutional
significance.

**1. The Contracts Clause Does Not Apply to Title III of the ADA**

Defendant\'s attempt to rely on the Contracts Clause of the Constitution
is unavailing.[^10] Article I, Section X of the Constitution has no
application here because it circumscribes the powers of States, not the
federal government: \"No State shall . . . pass any . . . law impairing
the Obligation of Contracts.\" [Pension Benefit Guaranty Corp. v. R.A.
Gray & Co.]{.underline}, 467 U.S. 717, 732 & n.9 (1984); [Fulton v. New
England Teamsters and Trucking Industry Pension Fund]{.underline}, 762
F.2d 1124, 1128 (1st Cir. 1984).

The Supreme Court has recognized a similar doctrine arising from the Due
Process Clause of the Fifth Amendment for federal legislation, but only
in circumstances where the legislation is applied retroactively.
[Id]{.underline}.[^11] This due process right is not implicated here
because title III is not, in fact, retroactive, as it does not penalize
or otherwise attach liability for pre-Act conduct.
[Pinnock]{.underline}, 844 F. Supp. at 584 (title III is not
retroactive); [see]{.underline} [McAndrews v. Fleet Bank of
Massachusetts]{.underline}, 989 F.2d 13, 16 (1st Cir. 1993)
(articulating the standard for retroactivity).

**2. Imposing New Obligations on Existing Businesses Does Not Infringe
the Constitution**

Title III does not contravene the Due Process Clause simply because it
imposes new obligations on Bragdon\'s existing business, regardless of
any possible effects that the new obligations may have on his existing
clientele. Bragdon has no due process [right]{.underline} to continue to
do business unencumbered by new obligations that may be imposed by
Congress. To accept such a due process theory would absolutely paralyze
Congress in any effort to regulate in the commercial arena.
\"\[G\]overnment regulation - by definition - involves the adjustment of
rights for the public good.\" [Andrus v. Allard]{.underline}, 444 U.S.
51, 65 (1979). As the Court has stated:

> Federal regulation of future action based upon rights previously
> acquired by the person regulated is not prohibited by the
> Constitution. So long as the Constitution authorizes the subsequently
> enacted legislation, the fact that its provisions limit or interfere
> with previously acquired rights does not condemn it.

[Federal Housing Admin. v. Darlington, Inc.]{.underline}, 358 U.S. 84,
91 (1958)(quoting [Fleming v. Rhodes]{.underline}, 331 U.S. 100, 107
(1947).[^12]

To be sure, the enactment of a new civil rights law forbidding conduct
that previously had been permitted may signal significant changes in
social and economic relationships. It cannot be otherwise where Congress
explicitly found serious and widespread discrimination in commercial
entities, and passed the ADA precisely to alter this history of
discrimination. If Bragdon loses business because of the enforcement of
title III, however, such losses are based on discrimination that
Congress declared illegitimate.

Bragdon\'s argument that he has an entitlement to keep patients who
would remain with him only so long as he maintains a discriminatory
policy is essentially the same discredited argument made by the owners
of places of public accommodation who challenged the Civil Rights Act of
1964. Citing personal liberty interests, such owners maintained that
they had a right to refuse service to black clients in order to retain
their patrons. The Supreme Court unequivocally rejected this argument in
[Heart of Atlanta Motel]{.underline}:

> It is doubtful if in the long run appellant will suffer economic loss
> as a result of the \[Civil Rights\] Act \[of 1964\]. Experience is to
> the contrary where discrimination is completely obliterated as to all
> public accommodations. But whether this be true or not is of no
> consequence since this Court has specifically held that the fact that
> a \"member of the class which is regulated may suffer economic losses
> not shared by others . . . has never been a barrier\" to such
> legislation.

379 U.S. at 260, citing [Bowles v. Willingham]{.underline}, 321 U.S.
503, 518 (1944).[^13]

Indeed, Defendant\'s \"loss of patients\" argument is nothing more than
a \"customer preference\" defense. Customer preference defenses have
been rejected in other civil rights contexts,[^14] and, specifically, in
cases involving discrimination on the basis of HIV and AIDS in a dental
practice.[^15]

**C. Title III Does Not Abridge Bragdon\'s Liberty Rights as Protected
By the Due Process Clause of the Fifth Amendment**

Finally, Bragdon argues that the ADA infringes: (1) a fundamental
liberty of contract, or the freedom to conduct his business freely and
without interference; and (2) a fundamental right to operate his
practice in a prudent and safe manner and in a manner that insures his
personal safety. Answer, Seventh and Ninth Defenses; Defendant\'s
Pretrial Memorandum at ¶ 3. Neither challenge is meritorious. As
discussed below, there is no recognized fundamental liberty of contract.
Moreover, the statute itself specifically addresses the legitimate
safety concerns of health care providers like Defendant.

**1. Title III\'s Proscriptions Are Neither Arbitrary Nor Irrational**

Since the demise of [Lochner v. New York]{.underline}, 198 U.S. 45
(1905), and its progeny, the Court has not recognized a fundamental
economic right to do business free from government regulation.
[See]{.underline} [Lincoln Fed. Labor Union v. Northwestern Iron and
Metal Co.]{.underline}, 335 U.S. 525, 535-36 (1949).[^16] The Court has
carved a strict divide between \"economic\" and \"personal\" liberties,
holding economic and social legislation to rationality review, and
deferring to legislative policy judgments. [United States v. Carolene
Prods. Co.]{.underline}, 304 U.S. 144, 147-48 (1938).

It is now well established that social or economic legislation adjusting
the benefits and burdens of economic life comes to the court with a
presumption of validity. [See]{.underline} [Ferguson v.
Skrupa]{.underline}, 372 U.S. 726, 730-31 (1963); [Williamson v. Lee
Optical of Okla.]{.underline}, 348 U.S. 483, 487-88 (1955);
[Fulton]{.underline}, 762 F.2d at 1129; [Washington Star Co. v.
Internat\'l Typographical Union Negotiated Pension Plan]{.underline},
729 F.2d 1502, 1509 (D.C. Cir. 1984). In challenging title III, Bragdon
must show that its application to his practice is arbitrary or
irrational. [Id]{.underline}.[^17] \"\[T\]he requisite arbitrariness . .
. must be [stunning]{.underline},\" [Amsden v. Moran]{.underline}, 904
F.2d 748, 754 n.5 (1st Cir. 1990), [cert.]{.underline}
[denied]{.underline}, 498 U.S. 1041 (1991) (emphasis added).

No such showing can be made here. Indeed, as demonstrated,
[supra]{.underline}, at 4-5, title III\'s proscriptions are based on
actual findings of widespread discrimination \-- specifically in the
relevant areas of health care and treatment of individuals with
HIV/AIDS. Those findings are supported by empirical studies poignantly
showing discriminatory treatment of individuals with

HIV or AIDS in the provision of dental care. [See]{.underline}
[supra]{.underline} at 5 & n.4. Accordingly, Congress\' coverage of
Bragdon\'s dentistry practice is a proper exercise of its obligation to
legislate for the common good. [See]{.underline} [West Coast Hotel
Co.]{.underline}, 300 U.S. at 392 (\"Liberty implies the absence of
arbitrary restraint, not immunity from reasonable regulations and
prohibitions imposed in the interests of the community.\") (citations
omitted).[^18]

> **2. Title III Does Not Require Bragdon to Treat Patients who Pose a
> Significant Risk to His Health or Safety**

Bragdon\'s assertion that the ADA infringes on his liberty interest in
personal and professional safety fares no better, because the statute is
structured so as to protect the legitimate safety concerns of health
care providers. Title III specifically provides that covered entities
are not required to serve individuals with disabilities who pose a
\"significant risk\" to the health or safety of others. 42 U.S.C. §
12182(b)(3) (\"direct threat\" defense). [See]{.underline} discussion
[infra]{.underline} at 24-27. This provision is a codification of the
standard first articulated by the Supreme Court in [School Board of
Nassau County, Fla. v. Arline]{.underline}, 480 U.S. 273 (1987), a case
decided under section 504 of the Rehabilitation Act of 1973, the
precursor to the ADA. Discussing the importance of balancing the needs
of the individual with a disability as compared with the safety concerns
of covered entities, the Court stated:

> Such an inquiry is essential if § 504 is to achieve its goal of
> protecting handicapped individuals from deprivations based on
> prejudice, stereotypes, or unfounded fear while giving appropriate
> weight to such legitimate concerns of grantees as avoiding exposing
> others to significant health and safety risks.

[Id]{.underline}. at 287.

Congress\' inclusion in the ADA of the direct threat defense reflects
its similarly thoughtful balancing of the real need to protect against
discrimination in health services (given its findings) and the
legitimate safety concerns of health care entities. Congress is presumed
to legislate in light of constitutional limitations and this Court
should defer to the careful legislative balancing evidenced here.
[Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Construction
Trades Council]{.underline}, 485 U.S. 568, 575 (1988); [see]{.underline}
[NLRB v. Catholic Bishop of Chicago]{.underline}, 440 U.S. 490 (1979);
[FTC v. American Tobacco Co.]{.underline}, 264 U.S. 298, 305-07 (1924).
Because Defendant\'s interest in personal safety is specifically
addressed in the statute, there is no constitutional infringement in its
application to his dental practice.[^19]

For the above reasons, this court should uphold the constitutionality of
title III as a matter of law.

**III. THIS COURT SHOULD GRANT PLAINTIFF\'S MOTION FOR SUMMARY JUDGMENT
ON LIABILITY**

The United States has significant responsibility for implementation and
enforcement of title III of the ADA. As part of this responsibility, the
Department of Justice has, pursuant to

statutory directive ([see]{.underline} 42 U.S.C. § 12186(b)),
promulgated the regulation implementing title III, found at 28 C.F.R.
pt. 36 (1994). Because the Department is the rule-making agency for
title III, both its regulation and its interpretation thereof are
entitled substantial deference.[^20]

The remainder of this memorandum examines the statutory issues raised by
this case and supports the plaintiff\'s motion for summary judgment on
liability. It is the position of the United States based on undisputed
facts that Bragdon has violated the ADA and that Abbott is entitled to
summary judgment as to liability as a matter of law.

**A. Bragdon Has Discriminated Against Sidney Abbott on the Basis of
Disability in Violation of the ADA**

To establish liability under title III, Abbott must show: (1) that she
is a person with a disability, (2) that Bragdon owns and operates a
place of public accommodation, and (3) that Bragdon discriminated
against Abbott on the basis of her disability. 42 U.S.C. § 12182(a). As
discussed below, each of these elements is established.

**1. Sidney Abbott is a Person With a Disability**

The ADA defines \"disability\" to include \"a physical or mental
impairment that substantially limits one or more of the major life
activities of \[an\] individual.\" 42 U.S.C.

§ 12102(2)(a). The title III regulation specifically lists HIV disease,
whether symptomatic or asymptomatic, as an example of a physical
impairment within the meaning of the statute. 28 C.F.R. §
36.104(1)(B)(ii). The courts concur in this interpretation.
[See]{.underline} [D.B. v. Bloom]{.underline}, 1995 WL 490481, \*3
(D.N.J. 1995), attached hereto as Exhibit D (\"\[plaintiff\] is, by
virtue of his HIV status, a person with a disability\");
[Morvant]{.underline}, 1995 WL 131093, \*3; [Howe v. Hull]{.underline},
873 F. Supp. 72, 78 (N.D. Ohio 1994); [T.E.P. v. Leavitt]{.underline},
840 F. Supp. 110, 111 (D. Utah 1993); [Doe v. Kohn Nast & Graf,
P.C.]{.underline}, 862 F. Supp. 1310, 1321 (E.D.Pa. 1994).[^21]

Bragdon asserts, however, that regulations and interpretations of the
ADA that \"define persons who test as HIV+/AIDS as having a \'physical
disability\' . . . exceed statutory authority and are void.\" Answer,
Second Defense.[^22] The inclusion of HIV disease within the ADA\'s
definition of disability is solidly supported by the legislative
history.[^23] In particular, committee reports reference a Department of
Justice interpretation that both symptomatic and asymptomatic HIV
disease are physical impairments that substantially limit one or more
major life activities within the meaning of section 504 of the
Rehabilitation Act of 1973.[^24] [See]{.underline} S. Rep. No. 116,
101st Cong., 1st Sess. 22 (\"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.\'\"); H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 at
52 (1990).

It is undisputed that Sidney Abbott has tested positive for HIV. U.S.
Facts at ¶III.A. It is similarly undisputed that her HIV status has
imposed major limitations on important activities and decisions in her
life, including her decision to have children. [Id]{.underline}.[^25]
Accordingly, Sidney Abbott is an individual with a disability within the
meaning of the ADA.

**2. Bragdon Owns and Operates a Place of Public Accommodation**

Title III of the ADA defines a place of public accommodation to include
\"the professional office of a health care provider,\" if the operations
of the office affect commerce. 42 U.S.C. § 12181(7)(F).
[See]{.underline}, [e.g.]{.underline}, [Bloom]{.underline}, 1995 WL
490481, \*3 (\"dental services provider is a place of public
accommodation by the terms of the ADA\"); [Morvant]{.underline}, 1995 WL
131093, \*3 (same); [Woolfolk v. Duncan]{.underline}, 872 F. Supp. 1381,
1391 (E.D. Pa. 1995)(physician\'s office is a place of public
accommodation); [Mayberry v. Von Valtier]{.underline}, 843 F. Supp.
1160, 1163 (E.D. Mich. 1994)(same).

Bragdon admits that \"he is a dentist who is licensed to practice in the
State of Maine and that he owns and operates the professional office of
a health care provider.\" Answer at ¶4. As discussed above, Bragdon\'s
argument that his practice does not \"affect commerce\" is without
merit.

**3. Bragdon Discriminated against Abbott on the Basis of her
Disability**

The ADA defines discrimination to include both the denial of the
opportunity to benefit from the services of a place of public
accommodation, 42 U.S.C. § 12182(b)(1)(A)(i), and the different
treatment of individuals with disabilities as compared to those without,
42 U.S.C. § 12182(b)(1)(A)(iii). Bragdon\'s treatment of Abbott violates
these provisions.

**a. Bragdon\'s Treatment of Abbott Constitutes an Outright Refusal of
Care**

In the case of medical or dental treatment, a patient with a disability
cannot be denied the opportunity to receive such care because of his or
her disability. [Morvant]{.underline}, 1995 WL 131093.[^26] While a
health care provider is not required to treat a person seeking treatment
or services outside of the provider\'s area of specialization, the
failure to treat must be based on the [treatment]{.underline} the
patient is seeking or requires ([e.g.]{.underline}, filling a cavity),
rather than the [disability]{.underline} ([e.g.]{.underline}, HIV/AIDS)
that he or she has. 28 C.F.R. § 36.302(b)(2); [Howe]{.underline}, 873 F.
Supp. at 78-79; [Morvant]{.underline}, 1995 WL 131093 at \*4; [Baby
K]{.underline}, 832 F. Supp. at 1029.

In this case, there is no dispute that: a) Bragdon refused to treat
Abbott in his office (U.S. Facts at IV.B); b) the treatment Abbott was
seeking \-- the filling of a small cavity \-- is treatment Bragdon
routinely provides in his office ([id]{.underline}. at I.A); and c)
Bragdon\'s refusal to treat Abbott in his office was based solely on
Abbott\'s HIV-positive status ([id]{.underline}. at IV.A). Thus,
Abbott\'s claim of discrimination is established.

While Bragdon maintains that he was willing to treat Abbott in a
hospital setting ([id]{.underline}. at ¶IV.B), the undisputed facts
demonstrate that this argument is pretextual. Bragdon has never had
privileges to practice dentistry in any hospital, at any time, since he
began practicing. [Id]{.underline}. at ¶V.A. And while Bragdon maintains
that his policy of treating patients with infectious diseases only in a
hospital setting has always been in effect, not one member of Bragdon\'s
staff had any knowledge of the hospital aspect of his policy until 1991,
when a complaint alleging discrimination on the basis of disability was
filed against Bragdon with the Maine Dental Association.
[Id]{.underline}. at ¶VI.A. Indeed, it was not until after this very
lawsuit had been filed that Bragdon first applied for hospital
privileges. [Id]{.underline}. at ¶V.A. Significantly, Bragdon applied
for privileges at Down East Community Hospital (\"Down East\"), a
facility that does not have any of the equipment that Bragdon claims is
necessary for treating patients with HIV. [Id]{.underline}. at ¶VI.E. To
date, Bragdon has not received admitting privileges at Down East, nor at
any other hospital in the state of Maine. [Id]{.underline}. at
¶V.A.[^27]

Bragdon\'s refusal to provide routine dental care to Abbott in his
office, therefore, is a clear and intentional refusal to provide
services on the basis of disability, which violates the ADA as a matter
of law. 42 U.S.C. § 12182(b)(1)(A)(i); [Bloom]{.underline}, 1995 WL
490481, \*3 (denial of dental services on the basis of HIV-positive
status violates the ADA as a matter of law); [Morvant]{.underline}, 1995
WL 131093 (same); [Howe]{.underline}, 873 F. Supp. at 72 (denial of
medical services on the basis of HIV-positive status violates the ADA as
a matter of law).[^28]

**b. Bragdon\'s Offer to Treat Abbott in a Hospital Also Violates the
ADA**

Even accepting Bragdon\'s offer to treat Abbott on its face, Bragdon\'s
conduct still violates the ADA. Unlike Bragdon\'s other patients, to
whom Bragdon routinely provides dental fillings in his office (U.S.
Facts at ¶I.A), Abbott would have had to travel over sixty miles to Down
East to receive such care ([id]{.underline}. at ¶V.B), and would have
had to pay substantially more than Bragdon\'s customary charges for use
of the hospital operatory ([id]{.underline}.).

The consensus of every leading dental, medical, and/or scientific
association is that there is no medical or scientific reason for
treating HIV-positive dental patients in a hospital setting.
[Id]{.underline}. at ¶VIII.K.[^29] Rather, these associations maintain
that when universal precautions are utilized, persons with HIV/AIDS can
and should be safely treated in private dental offices.
[Id]{.underline}. at ¶VIII.G. Where, as here, there is neither a
scientific nor medical basis for a health care provider\'s actions,
different treatment of persons with disabilities constitutes a violation
of the ADA. 42 U.S.C. § 12182(b)(1)(A)(iii). [See]{.underline},
[e.g.]{.underline}, [Bloom]{.underline}, 1995 WL 490481, at \*2-\*3
(referral of HIV-positive patient by dentist to another dental facility
violated the ADA because there was no dental or medical justification
for defendant\'s actions); [Morvant]{.underline}, 1995 WL 131093, at
\*5-\*7 (same).

**B. Bragdon Fails in His Attempt to Establish an Affirmative Defense to
Excuse His Discriminatory Conduct**

Bragdon alleges that he is not obligated to treat persons with HIV/AIDS,
because to do so would constitute a \"direct threat\" within the meaning
of the ADA. Answer, Tenth Defense. This argument has no merit.

Title III of the ADA provides that a public accommodation is not
required:

> to permit an individual to participate in or benefit from the goods,
> services, facilities, privileges, advantages and accommodations of
> such entity where such individual poses a direct threat to the health
> or safety of others.

42 U.S.C. § 12182(b)(3). The \"direct threat defense\" is a limited
exception to the ADA\'s mandate of equal treatment for persons with
disabilities, one that does not apply to the facts before this Court.

> The term \"direct threat\" means a [significant]{.underline} risk to
> the health or safety of others that cannot be eliminated by a
> modification of policies, practices, or procedures . . . .

[Id]{.underline}. (emphasis added).

In determining whether an individual poses a \"direct threat,\" a public
accommodation must make:

> an [individualized assessment]{.underline}, based on [reasonable
> judgment]{.underline} that relies on [current medical
> knowledge]{.underline} or on the best available objective evidence to
> ascertain: \[1\] the nature, duration, and severity of the risk; \[2\]
> the probability that the potential injury will actually occur; and
> \[3\] whether reasonable modifications of policies, practices, and
> procedures will mitigate the risk.

28 C.F.R. § 36.208(c)(emphasis added); [Anderson v. Little League
Baseball, Inc.]{.underline}, 794 F. Supp. 342, 345 (D.Ariz.
1993)(individualized assessment \"is essential if the law is to achieve
its goal of protecting disabled individuals from discrimination based on
prejudice, stereotypes, or unfounded fear\"); [Morvant]{.underline},
1995 WL 131093 at \*8-\*9.[^30]

In making the required individualized assessment, 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 p.600 (1994); [Arline]{.underline}, 480 U.S. at 288. This
Court cannot substitute its judgment for those entrusted to protect the
public health. [Id]{.underline}.; [see]{.underline} [American Dental
Ass\'n v. Martin]{.underline}, 984 F.2d 823, 828 (7th Cir. 1993)
(judgments of the CDC \"are entitled to respect by the nonspecialist,
biomedically unsophisticated Article III judiciary\"); [id]{.underline}.
at 832 (the CDC is \"a governmental agency medically and scientifically
qualified to determine and evaluate if there is in fact a significant
risk in the health care area\")(Coffey, J., concurring).

**1. The Provision of Routine Dental Care to Persons with HIV/AIDS in a
Private Dental Office Does Not Constitute a \"Direct Threat\"**

In the first case to consider whether the provision of dental treatment
to persons with HIV/AIDS constitutes a \"direct threat\" under the ADA,
the court held that it did not. [Morvant]{.underline}, 1995 WL 131093,
at \*8-\*9. Rather, the court found:

> \[T\]here is a plethora of expert testimony . . . that while HIV and
> AIDS present a severe risk of infection, the severity of which is
> unquestioned \-- death at this time \-- the universal precautions as
> prescribed by the CDC are universally accepted as \"reasonable
> modifications\" of practices that will significantly mitigate the
> risk. These \"reasonable accommodations\" were well known at the time
> Dr. Morvant refused to treat these patients and were substantially
> utilized by Morvant. . . Thus, the refusal to treat because of the
> danger was pretextual in nature.

1995 WL 131093, \*4. [Accord]{.underline} [Bloom]{.underline}, 1995 WL
490481 (default judgment). [Morvant]{.underline} relied on expert
testimony from the CDC and the American Dental Association, which, as
noted above, maintain that persons with HIV/AIDS may be safely treated
in private dental offices when universal precautions are used.

State courts and agencies have reached the same conclusion in dental
discrimination cases brought under human rights statutes that, like the
ADA, prohibit discrimination on the basis of disability.
[See]{.underline}, [e.g.]{.underline}, [Baksh]{.underline}, Charge No.
1987CP0113, slip op. at 62 (\"there \[is\] [no significant
risk]{.underline} of \[\] HIV infection being transmitted to others in a
dental office\")(emphasis added); [Clausen]{.underline}, 491 N.W.2d. at
667 (no \"reasonably probable risk of serious harm\" associated with
treating HIV-positive patients in the dental office);
[Lewis]{.underline}, Docket No. 92-154-PA(N), slip op. at 20 (staff and
patient fear of contracting AIDS in the dental office does not justify
discrimination because the overwhelming medical evidence demonstrates
that it is safe to treat persons with HIV/AIDS when universal
precautions are utilized); [Campanella]{.underline}, AIDS Litig. Rep.,
March 9, 1993 at 19, (universal precautions adequately protect dentists,
their patients and their staff from infection by blood borne pathogens
such as HIV); [Barton]{.underline}, 531 N.Y.S. 2d at 985 (unjustified
concerns about efficacy of universal precautions provide no basis for
discriminatory refusal to provide dental care to persons with HIV/AIDS).

Although Bragdon hypothesizes that there are means by which HIV
[might]{.underline} be transmitted from a patient to himself, his staff,
or his other patients, it is undisputed that such theoretically possible
transmissions have [never]{.underline} been documented. U.S. Facts at
¶VIII.H. Indeed, in the past fourteen years in which HIV has
scientifically been studied \-- with over one billion dental procedures
performed by over 250,000 dental health care professionals \-- [there
has never been a documented case of HIV transmission from infected
patient to dental health care worker, nor from infected patient to
non-infected patient]{.underline}. [Id]{.underline}.[^31] Moreover, to
the extent there is [any]{.underline} risk of HIV transmission in the
dental office, it is undisputed that the risk is even further reduced by
the use of universal precautions, precautions that Defendant has
testified he utilizes. [Id]{.underline}. at ¶VIII.E. [See]{.underline}
42 U.S.C. § 12182(b)(3) (direct threat must be one that cannot be
mitigated by the modification of policies, practices, or procedures);
[see]{.underline} [also]{.underline} [Morvant]{.underline}, 1995 WL
131093, \*9. Accordingly, the provision of routine dental treatment to
persons with HIV/AIDS does not constitute a significant risk, and the
direct threat defense must fail. [Cf]{.underline}. [American Dental
Ass\'n v. Martin]{.underline}, 984 F.2d at 835 (Coffey, J., concurring
in part, dissenting in part) (noting that one suspected case of
occupational transmission of HIV falls far short of establishing a
significant risk to the dental field of over 100,000 practicing
dentists).

**2. The Infected Health Care Worker Cases are Inapposite**

Finally, the cases holding that HIV-infected health workers pose a
direct threat under certain circumstances ([see]{.underline} [Doe v.
University of Maryland Medical System Corp.]{.underline}, 50 F.3d 1261
(4th Cir. 1995) (HIV-positive neurosurgical resident posed a significant
risk to the health and safety of his patients),[^32] do not apply here.
In conducting the direct threat analysis, those cases found that the
\"nature, duration, and severity of risk\" of HIV transmission
outweighed the exceedingly small \"probability\" that transmission would
occur. [Id]{.underline}.; [see]{.underline} 28 C.F.R. §
36.208(c)(listing the requisite factors); [Arline]{.underline}, 480 U.S.
at 288. In [every]{.underline} [other]{.underline} ADA or Rehabilitation
Act case involving HIV/AIDS, the courts have found the balance to tip in
the other direction, and have rejected the direct threat defense.[^33]
Most importantly, as discussed above, in [every]{.underline} case
involving dentists who refused to treat HIV-infected patients, the
courts have accorded greater weight to the extremely low probability of
transmission in the dental office and have found no \"direct
threat\".[^34]

In the infected health care worker cases, the following factors that do
not exist in this case led the courts to place extra emphasis on the
nature, duration, and severity of risk: (1) a different position taken
by the CDC; (2) the fiduciary and ethical obligations owed by health
care professionals to patients; and (3) the differing expectations of
health care providers as opposed to patients regarding risk exposure to
disease. These distinctions are dispositive and require this Court to
find that the ADA prohibits the discriminatory denial of dental care to
Sidney Abbott, an individual infected with HIV.

First, in determining whether or not the defendants had violated the ADA
and/or the Rehabilitation Act of 1973, the courts in the infected health
care worker cases relied on guidance from the CDC. [See]{.underline}
[Arline]{.underline}, 480 U.S. at 288 (courts should defer to the
judgments of public health officials); [see also]{.underline} 28 C.F.R.
§ 36.208(c). Thus, for example, in [University of Maryland]{.underline},
the court acknowledged its responsibility to defer to public health
officials, but noted that in this instance, the CDC had advised medical
institutions to make their own determinations concerning when
HIV-infected workers could safely perform certain risky procedures. 50
F.3d at 1263-64.[^35] The University exercised its judgment consistently
with CDC guidance, and the court deferred to the University\'s
judgment.[^36]

While the CDC suggests that it [might]{.underline} be reasonable to
preclude HIV-infected health care workers from practicing under
particular circumstances, however, it [unequivocally
maintains]{.underline} that it is [safe]{.underline} for dentists like
Bragdon to treat HIV-infected patients in a private dental office. U.S.
Facts at ¶VIII.G. Deference to the CDC in this case thus requires this
Court to find no \"significant risk.\"

Second, the courts in the infected health care worker cases factored the
defendants\' fiduciary and ethical obligations into their direct threat
analysis. [See]{.underline}, [e.g.]{.underline}, [Doe v. Washington
University]{.underline}, 780 F. Supp. at 633-34 (despite the fact that
the risk was \"low\" and \"not now capable of precise measure,\"
\"failure to scrupulously guard the safety of patients would appear to
be morally unacceptable and contrary to the fiduciary responsibilities
of the medical profession\"). In determining what constitutes a
\"significant risk\" in this context, therefore, the courts held that
\"any risk\" was too great.[^37]

The obligations underlying these decisions dictate the opposite
conclusion here. While ethical and fiduciary obligations might require
HIV-infected health care providers to refrain from performing certain
procedures, they also require providers like Bragdon to treat those in
need, including, particularly, those with HIV/AIDS.[^38]
[See]{.underline} American Dental Association, [Principles of Ethics and
Code of Professional Conduct]{.underline}, Principle 1, Advisory Opinion
(\"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.\").[^39]

Third, in the infected health care worker cases, the courts underscored
that patients have a legitimate expectation that they will not
unnecessarily be exposed to health risks when they seek out medical
care. [See]{.underline} [Behringer]{.underline}, 592 A.2d at 1278. In
contrast, health care providers have undertaken to work in a profession
that poses inherent risks. U.S. Facts at ¶VIII.L. Well before the advent
of HIV, health care providers and their staff were at risk of acquiring
occupationally a number of diseases, from the common cold to potentially
lethal Hepatitis B and TB. [Id]{.underline}. Some of these diseases are
more infectious than HIV; some pose a higher risk of death.
[Id]{.underline}. Moreover, patients do not always know they carry such
diseases nor, even if they do, will they always disclose this fact to
their health care providers. As noted in [Campanella]{.underline}:

> \[T\]he risk of HIV transmission is not avoided by discriminatory
> treatment of those who disclose their illness. Such policies are not
> only discriminatory, but also irrational because they do little to
> protect the dentist or other patients from infection. In fact, . . .
> refusing to treat those with AIDS is dangerous because it may create a
> false sense of security, \[causing dentists to not be as stringent in
> their use of universal precautions\].

AIDS Litig. Rep., March 9, 1993, at 19-20.[^40]

Because the unique circumstances at issue in the infected health care
worker cases do not exist here, this Court should apply the analysis
used by every other court \-- and importantly, every court considering
the facts presented in this case \-- to reject a direct threat defense
where the probable risk of HIV transmission is so low.

[CONCLUSION]{.underline}

This Court should grant summary judgment to the United States on the
constitutional defenses asserted by Bragdon and issue an Order holding
that the ADA is constitutional as applied to Bragdon\'s practice of
dentistry. In addition, this Court should grant Plaintiff Sidney
Abbott\'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

[^1]: ^?^ [See]{.underline} Answer, First, Third, Seventh and Ninth
    Defenses; Defendant\'s Pretrial Memorandum at ¶¶ 3, 5, 6.

[^2]: ^?^ In the purposes section of the ADA, Congress clearly stated
    its intention to exercise its commerce clause authority invoking
    \"the sweep of congressional authority, including the power . . . to
    regulate commerce.\" 42 U.S.C. § 12101(b)(4). Accordingly, title
    III\'s jurisdictional requirement uses the language of the Commerce
    Clause, defining \"commerce\" as travel, trade, traffic, commerce,
    transportation, or communication:

    > \(A\) among the several States;
    >
    > \(B\) between any foreign country or any territory or possession
    > and any State; or
    >
    > \(C\) between points in the same State but through another State
    > or foreign country.

    [Id]{.underline}. § 12181(1).

[^3]: ^?^ Courts must defer to congressional findings that an activity
    affects commerce, if there is \"[any rational basis]{.underline}\"
    for such a finding, but formal congressional findings are not
    necessary. [Hodel]{.underline}, 452 U.S. at 276; [see]{.underline}
    [Lopez]{.underline}, 115 S.Ct. at 1631; [Katzenbach]{.underline},
    379 U.S. at 303-04; [Seniors Civil Liberties Ass\'n, Inc. v.
    Kemp]{.underline}, 965 F.2d 1030, 1034 (11th Cir. 1992) (citing
    [Preseault]{.underline}, 494 U.S. at 18).

[^4]: ^?^ [See]{.underline}, [e.g.]{.underline}, C. Lewis, M.D. & K.
    Montgomery, M.D., [Primary Care Physician\'s Refusal To Care For
    Patients Infected With the Human Immunodeficiency
    Virus]{.underline}, 156 Western Journal of Medicine 36 (1992); B.
    Gerbert, Ph.D. et al., [Primary Care Physicians and AIDS, Attitudes
    and Structural Barriers To Care]{.underline}, 266 Journal of the
    American Medical Association 2837 (Nov. 27, 1991); National
    Commission on AIDS, [Annual Report to the President and the
    Congress]{.underline}, 163-65 (August 1990); [Report of the
    Presidential Commission on the Human Immunodeficiency Virus
    Epidemic]{.underline}, 126 (June 24, 1988).

[^5]: ^?^ [Morvant]{.underline}, 1995 WL 131093, at \*10 (referencing
    Admission 17 (\"Dr. Morvant\'s office is within two miles of I-10\")
    and Admission 20 (\"Defendant purchased and used dental supplies
    manufactured and/or distributed by companies outside Louisiana\")).
    [See]{.underline} [Katzenbach]{.underline}, 379 U.S. at 296-7
    (restaurant on state highway, 11 blocks from interstate highway, and
    ordering 46% of food supplies from out of state, affected commerce);
    [Heart of Atlanta Motel]{.underline}, 379 U.S. at 243, 253-61 (motel
    2 blocks from downtown road and \"readily accessible\" to two
    intrastate and two interstate highways, affected commerce); [Daniel
    v. Paul]{.underline}, 395 U.S. 298, 305 (1969)(where ingredients of
    the food most often sold [probably]{.underline} originated out of
    state, entity affected commerce); [EEOC v. Ratliff]{.underline}, 906
    F.2d 1314, 1316 (9th Cir. 1990)(in civil rights context, if
    defendant uses items that have moved through interstate commerce at
    some point, \"affects commerce\" requirement is satisfied); [Miller
    v. Amusement Enters., Inc.]{.underline}, 394 F.2d 342, 345, 352-53
    (5th Cir. 1968) (amusement park 150 yards from intrastate highway,
    affected commerce); [Pinnock]{.underline}, 844 F. Supp. at 579
    (restaurant across the street from state highway and within two
    miles of interstate highways, affected commerce); [United States v.
    Vizena]{.underline}, 342 F. Supp. 553, 554-55 (W.D. La. 1972) (bar
    in which juke box, pool table, pool equipment, and records played on
    the juke box originated out of state, affected commerce).

[^6]: ^?^ [Cf.]{.underline} [Summit Health, Ltd. v. Pinhas]{.underline},
    500 U.S. 322, 327, 330 (1991) ((Sherman Act) factor in finding
    effect on commerce was hospital receipt of revenue from
    out-of-state, including from medicare); [Shahawy v.
    Harrison]{.underline}, 778 F.2d 636, 642 (11th Cir. 1986) ((Sherman
    Act) (factor in finding effect on commerce was receipt of revenues
    from out-of-state private and public insurance entities).

[^7]: ^?^ [See]{.underline} [Pinnock]{.underline}, 844 F. Supp at 579
    (restaurant subject to commerce clause as part of restaurant
    industry, regardless of its individual circumstances, and thus
    application of title III of the ADA was constitutional). The
    commerce power allows Congress to regulate any entity, regardless of
    its individual impact on interstate commerce, so long as the entity
    engages in a class of activities that affects interstate commerce.
    [Russell v. United States]{.underline}, 471 U.S. 858, 862 (1985);
    [Hodel]{.underline}, 452 U.S. at 277 (citing [Fry v. United
    States]{.underline}, 421 U.S. 542, 547 (1975)); [Perez]{.underline},
    402 U.S. at 151-54 (1971). As the Supreme Court stated in
    [Darby]{.underline}, Congress has \"recognized that in present day
    industry, competition by a small part may affect the whole and that
    the total effect of the competition of many small producers may be
    great.\" [Darby]{.underline}, 312 U.S. at 123;
    [Wickard]{.underline}, 317 U.S. at 128-29. [See]{.underline}
    [also]{.underline} [Ratliff]{.underline}, 906 F.2d at 1317-18
    (upholding plaintiff\'s claim that \"as a matter of law if a local
    business is within a class of activities which in the aggregate has
    an effect on commerce, there is no need for a particularized factual
    showing that the \[business\] meets the \'affecting-commerce\'
    test\").

[^8]: ^?^ Still, the Court has recognized the aggregate effects on
    commerce of discriminatory policies and practices, especially where
    the problem at issue is national in scope. [Katzenbach]{.underline},
    379 U.S. at 300-01 (nationwide scope of problem supported conclusion
    of substantial effects on interstate commerce where \"\[act of\]
    discrimination was but \'representative of many others throughout
    the country, the total incidence of which if left unchecked may well
    become far-reaching in its harm to commerce\'\") quoting from
    [Polish Nat\'l Alliance v. Labor Bd.]{.underline}, 322 U.S. 643, 648
    (1944); [Perez]{.underline}, 402 U.S. at 150. As argued
    [supra]{.underline}, Congress formally found that the discrimination
    against individuals with disabilities is national in scope, and
    heard testimony regarding the aggregate effect of discrimination in
    health care, and of discrimination against individuals with
    HIV/AIDS, specifically. [See]{.underline} discussion
    [supra]{.underline}, at 4-5.

[^9]: ^?^ [See]{.underline} [id.]{.underline} at 1637 (Kennedy, J. and
    O\'Connor, J., concurring)(affirming commerce clause precedent in
    the area of discrimination, and the principle that \"Congress can
    regulate in the commercial sphere on the assumption that we have a
    single market and a unified purpose to build a stable national
    economy\").

[^10]: ^?^ [See]{.underline} Answer, Third Defense; Defendant\'s
    Pretrial Memorandum at ¶ 6.

[^11]: ^?^ Retroactive federal legislation is not, however, subject to
    the exacting review triggered by the Contracts Clause, but must only
    be reasonably related to a legitimate government purpose.
    [See]{.underline} [United States v. Carlton]{.underline}, 114 S.Ct.
    2018, 2022 (1994); [Pension Benefit Guaranty Corp.]{.underline}, 467
    U.S. at 733 (1984); [Fulton]{.underline}, 762 F.2d at 1127-29.

[^12]: ^?^ [See also]{.underline} [United States v. Manufacturers Nat\'l
    Bank of Detroit]{.underline}, 363 U.S. 194, 200 (1960); [Cox v.
    Hart]{.underline}, 260 U.S. 427, 435 (1922).

[^13]: ^?^ Bragdon also argues in his Pre-Trial Memorandum that \"(t)he
    injunctive relief requested by Ms. Abbott is tantamount to a request
    that the court order involuntary servitude.\" Defendant\'s Pre-Trial
    Memorandum at ¶ A.8. This argument, too, was rejected by the Court
    in [Heart of Atlanta Motel]{.underline}, 379 U.S. at 261, where the
    Supreme Court found \"no merit\" in the suggestion that the 1964
    Civil Rights Act\'s prohibition of discrimination against a class of
    people who had traditionally been excluded from public
    accommodations resulted in involuntary servitude.

[^14]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Diaz v. Pan American
    World Airways, Inc.]{.underline}, 442 F.2d 385, 389 (5th Cir.),
    [cert. denied]{.underline}, 404 U.S. 950 (1971); [Gerdom v.
    Continental Airlines, Inc.]{.underline}, 692 F.2d 602 (9th Cir.
    1982).

[^15]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Barton v. New York
    City Comm\'n on Human Rights]{.underline}, 531 N.Y.S.2d 979, 985
    (N.Y. Sup. Ct. 1988), attached hereto as Exhibit B; [Lewis v.
    Runkle]{.underline}, Docket No. 92-154-PA(N), slip op. at 22
    (District of Columbia Commission on Human Rights July 1, 1993),
    attached hereto as Exhibit C (holding that neither the fear of other
    patients nor the \"stereotypes or preferences of workers\" can
    justify a decision to refuse to treat a person with HIV or AIDS).

[^16]: ^?^ [See]{.underline} [also]{.underline} [West Coast Hotel Co. v.
    Parrish]{.underline}, 300 U.S. 379, 391-94 (1937); [Nebbia v. New
    York]{.underline}, 291 U.S. 502, 523 (1934); [cf.]{.underline}
    [Tenoco Oil Co., v. Dept. of Consumer Affairs]{.underline}, 876 F.2d
    1013, 1020-24 (1st Cir. 1989) (discussing disfavored status of
    substantive due process claims).

[^17]: ^?^ [Cf]{.underline}. [Smithfield Concerned Citizens for Fair
    Zoning v. Town of Smithfield]{.underline}, 907 F.2d 239, 243 (1st
    Cir. 1990); [Tenoco Oil Company]{.underline}, 876 F.2d at 1021.

[^18]: ^?^ In his liberty of contract argument, Defendant makes some of
    the same claims about selecting his patients that we addressed
    [supra]{.underline}, at 11-13, when discussing Bragdon\'s contract
    clause argument. [See]{.underline} Defendant\'s Pre-Trial Memorandum
    at ¶3.

[^19]: ^?^ The cases in which the Court has recognized a significant
    liberty interest in bodily integrity or personal safety are
    inapposite, involving direct and substantial government incursions
    into the body, [see]{.underline} [Rochin v. California]{.underline},
    342 U.S. 165, 172 (1952)(\"the forcible extraction of
    \[petitioner\'s\] stomach\'s contents . . . is bound to offend even
    hardened sensibilities\"), or a coercive environment,
    [see]{.underline}, [e.g.]{.underline}, [Washington v.
    Harper]{.underline}, 494 U.S. 210 (1990)((prison) significant
    liberty interest in avoiding unwanted administration of
    anti-psychotic drugs); [Parham v. J.R.]{.underline}, 442 U.S. 584
    (1979) ((institutionalization) substantial liberty interest in
    avoiding unnecessary confinement for treatment). [Cf.]{.underline}
    [Youngberg v. Romeo]{.underline}, 457 U.S. 307, 322 (1982)
    ((institutionalization) liberty interest in reasonably safe
    conditions of confinement, freedom from unreasonable bodily
    restraint, and minimally adequate training, triggering review that
    is \"lower than \'compelling or substantial necessity test\'\").

[^20]: ^?^ [Thomas Jefferson Univ. v. Shalala]{.underline}, 114 S. Ct.
    2381, 2386 (1994); [Martin v. Occupational Safety & Health Review
    Comm\'n.]{.underline}, 499 U.S. 144, 150 (1991),
    [citing]{.underline} [Lyng v. Payne]{.underline}, 476 U.S. 926, 939
    (1986); [Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    Inc.]{.underline}, 467 U.S. 837, 844 (1984)(where Congress expressly
    delegates authority to an agency to issue legislative regulations,
    the regulations \"are given controlling weight unless they are
    arbitrary, capricious, or manifestly contrary to the statute\").
    Indeed, \"\[a\]s the author of the \[implementing regulation for
    title III of the ADA\], the Department of Justice is also the
    principal arbiter as to its meaning.\" [Fiedler v. American
    Multi-Cinema, Inc.]{.underline}, 871 F. Supp 35, 38 (D.D.C. 1994),
    [citing]{.underline} [Thomas Jefferson Univ.]{.underline}, 114 S.
    Ct. at 2386. [See]{.underline} [also]{.underline} [Kinney v.
    Yerusalim]{.underline}, 9 F.3d 1067 (3rd Cir. 1993)(relying
    extensively on Department of Justice implementing regulations and
    its interpretation thereof); [Concerned Parents to Save Dreher Park
    Ctr. v. City of West Palm Beach]{.underline}, 846 F. Supp. 986, 989
    n.9 (S.D. Fla. 1994); [Tugg v. Towey]{.underline}, 864 F. Supp.
    1201, 1205 n.6 (S.D. Fla. 1994); [Bechtel v. East Penn School Dist.
    of Lehigh County, PA]{.underline}, 1994 WL 3396, \*2-\*3 (E.D. Pa.
    1994); [Petersen v. University of Wis. Bd. of Regents]{.underline},
    818 F. Supp. 1276, 1279 (W.D. Wis. 1993); [Noland v.
    Wheatley]{.underline}, 835 F. Supp. 476, 483 (N.D.Ind. 1993).

[^21]: ^?^ [But]{.underline} [see]{.underline} [Ennis v. National Ass\'n
    of Business and Educational Radio, Inc.]{.underline}, 53 F.3d 55, 60
    (4th Cir. 1995)(suggesting, in dicta, that HIV-positive status alone
    may not constitute a per se disability).

[^22]: ^?^ To succeed on this argument, Bragdon must show that the
    regulatory interpretation is \"arbitrary, capricious, or manifestly
    contrary to the statute.\" [Chevron]{.underline}, 467 U.S. at 844;
    [see]{.underline} n.20, [supra]{.underline}. This he cannot do.

[^23]: ^?^ [See]{.underline}, [e.g.]{.underline}, comments of
    Representative Owens, 136 Cong. Rec. H4623 (daily ed. July 12,
    1990)(\"People with HIV disease are individuals who have any
    condition along the full spectrum of HIV infection \-- asymptomatic
    HIV infection, symptomatic HIV infection, or full blown AIDS. These
    individuals are covered under the first prong of the definition of
    disability in the ADA.\"); Senator Kennedy, 136 Cong. Rec. S9696
    (daily ed. July 13, 1990)(same); Representative Waxman, 136 Cong.
    Rec. H4626 (daily ed. July 12, 1990)(\"As medical knowledge has
    increased, specialists in the field increasingly recognize that
    there exists a continuum of disease among those who are HIV
    infected. All such individuals are covered under the first prong of
    the definition of disability in the ADA.\").

[^24]: ^?^ Memorandum from Douglas W. Kmiec, Acting Assistant Attorney
    General, Office of Legal Counsel, Department of Justice, to Arthur
    B. Culvahouse Jr., Counsel to the President (Sept. 27, 1988) at
    5-13, attached hereto as Exhibit E, referred to hereinafter as
    \"Kmiec Memorandum.\"

    The ADA uses the same definition of disability as that in section
    504. [See]{.underline} 29 U.S.C. § 706(7)(B).

[^25]: ^?^ Specifically, Abbott has 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.\" Abbott Dep. at 79.
    [See]{.underline} Kmiec Memorandum at 10 (\"the life activity of
    procreation \-- the fulfillment of the desire to conceive and bear
    healthy children \-- is substantially limited for an asymptomatic
    HIV-infected individual\").

[^26]: ^?^ [See]{.underline} [also]{.underline} [Bloom]{.underline},
    1995 WL 490481 (D.N.J. 1995); [Woolfolk]{.underline}, 872 F. Supp.
    1381; [Howe]{.underline}, 873 F. Supp. at 78;
    [Mayberry]{.underline}, 843 F. Supp. at 1166; [In re Baby
    K]{.underline}, 832 F. Supp. 1022, 1028-29 (E.D. Va. 1993),
    (\"denial of medical services\" would be \"discrimination against a
    vulnerable population \[and\] exactly what the ADA was enacted to
    prohibit\"), [aff\'d on other grounds]{.underline}, 16 F.3d 590 (4th
    Cir.), [cert.]{.underline} [denied]{.underline}, 115 S.Ct. 91
    (1994).

[^27]: ^?^ Bragdon\'s public statements and writings advocating against
    requiring dentists to treat HIV positive patients further support
    the conclusion that his offer to treat Abbott in a hospital was
    pretextual. [See]{.underline} U.S. Facts at ¶VII.

[^28]: ^?^ State cases have held similarly. [See]{.underline},
    [e.g.]{.underline}, [Minnesota v. Clausen]{.underline}, 491 N.W.2d
    662 (Minn.App. 1992), attached hereto as Exhibit F (denial of dental
    services to person with HIV violates Minnesota Human Rights Act);
    [G.S. v. Baksh]{.underline}, Charge No. 1987CPO113, slip op. at 59
    (Illinois Human Rights Commission, July 8, 1994), attached hereto as
    Exhibit G (denial of dental services to person with HIV violates
    Illinois Human Rights Act); [Lewis]{.underline}, Docket No.
    92-154-PA(N), slip op. at 31 (denial of dental services to person
    with HIV violates District of Columbia Human Rights Act); [Allen v.
    Brottman]{.underline}, AIDS Litig. Rep., March 9, 1993, p. 9657,
    attached hereto as Exhibit H (denial of dental services to person
    perceived to be HIV-positive violates New York Human Rights Law);
    [Campanella v. Hurwitz]{.underline}, AIDS Litig. Rep., August 23,
    1991, p. 6800, attached hereto as Exhibit I (denial of dental
    services to person with HIV violates New York Human Rights Law);
    [Barton]{.underline}, 531 N.Y.S.2d 979 (same).

[^29]: ^?^ While Bragdon argues that it is \"safer\" to treat dental
    patients with HIV in a hospital setting, he has introduced no
    evidence into the record supporting this position. To the extent
    that there have been cases of occupationally acquired HIV in the
    health care setting, the transmissions have resulted not from the
    failure of universal precautions, but rather, from accidental
    injuries ([e.g.]{.underline}, accidentally being stuck with a
    contaminated needle). There is no evidence that treating a dental
    patient with HIV in a hospital operatory in any way reduces the risk
    of accidental injuries. U.S. Facts at ¶VIII.J.

[^30]: ^?^ As noted [supra]{.underline}, the direct threat defense
    codifies the standard first articulated by the Supreme Court in
    [School Bd. of Nassau County, Fla. v. Arline]{.underline}, 480 U.S.
    273 (1987). In [Arline]{.underline}, the Court held that in
    determining whether an individual poses a direct threat, courts must
    consider:

    > \(a\) the nature of the risk (how the disease is transmitted), (b)
    > the duration of the risk (how long is the carrier infectious), (c)
    > the severity of the risk (what is the potential harm to third
    > parties) and (d) the probabilities the disease will be transmitted
    > and will cause varying degrees of harm.

    480 U.S. at 288 (quoting Brief for the American Medical Association
    as [Amicus Curiae]{.underline}).

[^31]: ^?^ There is a single documented case of HIV transmission from
    dentist to patient. It is the only documented instance world-wide,
    and the mode of transmission has never been identified. No studies
    have ever been able to determine whether these transmissions were
    accidental or intentional. [See]{.underline} Marianos Declaration,
    Exhibit 15 to U.S. Facts, at ¶ 18.

[^32]: ^?^ [See]{.underline} [also]{.underline} [Bradley v. University
    of Texas M.D. Anderson Cancer Ctr.]{.underline}, 3 F.3d 922, 924
    (5th Cir. 1993)(risk of permanent duration with lethal consequences
    made HIV-positive surgical technician not otherwise qualified for
    his position); [Mauro v. Borgess Medical Ctr.]{.underline}, 886 F.
    Supp. 1349, 1354 (W.D. Mich. 1995) (HIV-positive surgical technician
    posed direct threat to others that could not be eliminated by
    reasonable accommodations); [Scoles v. Mercy Health
    Corp.]{.underline}, 887 F. Supp. 765, 772 (E.D.Pa.
    1995)(hospital-employer justified in alerting orthopedic surgeon\'s
    patients of surgeon\'s HIV-positive status because surgeon posed a
    direct threat to the health and safety of his patients); [Doe v.
    Washington University]{.underline}, 780 F. Supp. 628, 634-35 (E.D.
    Mo. 1991)(HIV-infected dental student not otherwise qualified for
    dental program because of the potential risk of transmission to his
    patients); [Estate of Behringer v. Medical Center]{.underline}, 592
    A.2d 1251 (N.J.Super. Ct. 1991)(surgeon\'s HIV-positive status
    presented a \"materially enhanced risk of substantial harm in the
    workplace\").

[^33]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Chalk v. U.S. Dist.
    Court Cent. Dist. of California]{.underline}, 840 F.2d 701, 706-09
    (9th Cir. 1988)(\"theoretical risk\" of transmission no basis for
    barring HIV-infected schoolteacher from classroom); [Martinez v.
    School Bd. of Hillsborough County, Fla.]{.underline}, 711 F. Supp.
    1066, 1072 (M.D. Fla. 1989)(\"remote theoretical possibility\" of
    transmission via tears, saliva and urine does not rise to the level
    of \"significant\" risk required to bar child with AIDS from
    school), on remand from 861 F.2d 1502 (11th Cir. 1988); [Austin v.
    Pennsylvania Dep\'t of Corrections]{.underline}, 876 F. Supp. 1437,
    1464 (E.D. Pa. 1995)(HIV-infected prisoners may serve in food
    service and personal service positions because the \"extremely low
    risk\" of transmission in those contexts does not rise to the level
    of direct threat); [Doe v. District of Columbia]{.underline}, 796 F.
    Supp. 559, 568-69 (D.D.C. 1992)(small risk of transmission from
    HIV-infected firefighter who performs mouth-to-mouth resuscitation
    does not pose direct threat to other firefighters or members of the
    public); [Doe v. Dolton Elementary Sch. Dist. No. 148]{.underline},
    694 F. Supp. 440, 445 (N.D. Ill. 1988) (no significant risk of
    student with AIDS transmitting the disease in classroom setting);
    [Ray v. School Dist. of DeSoto County]{.underline}, 666 F. Supp.
    1524, 1535 (M.D. Fla. 1987)(theoretical risk of transmission no
    basis for excluding HIV-positive grade school students despite
    incidents of bleeding); [Thomas v. Atascadero Unified Sch.
    Dist]{.underline}., 662 F. Supp. 76, 380 (C.D. Cal. 1987)(remote
    risk of AIDS transmission cannot be the basis for excluding child
    from classroom even after child had been involved in biting
    incident); [In re Westchester County Medical Center]{.underline}, 2
    Emp. Prac. Guide (CCH) 5340 at 6999-318 (Apr. 20, 1992) (remote risk
    of HIV transmission no basis for terminating HIV-infected pharmacist
    despite the fact that pharmacists occasionally suffer needlesticks);
    [District 27 Community Sch. Bd. v. Board. of Educ.]{.underline}, 502
    N.Y.S.2d 325 (N.Y. Sup. Ct. 1986) (\"minimal theoretical risk\" of
    transmission by fighting or biting is no basis for segregating young
    students).

[^34]: ^?^ While both [Arline]{.underline}, 480 U.S. at 288, and the
    Department\'s regulation set forth the factors to consider when
    determining whether a risk is \"significant\" enough to rise to the
    level of a direct threat, neither provides any guidance for how
    these factors are to be weighed. The Department\'s Technical
    Assistance Manual, however, specifically addresses the application
    of the direct threat defense to the dental context:

    **III-3.8000 Direct threat.**

    > ILLUSTRATION 3: 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 \[of Title III of the
    > ADA\]. 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 infectious diseases, including
    > HIV.)

    ADA Title III Technical Assistance Manual, 1994 Supplement, at 4.

    As noted in [Fiedler]{.underline}, 871 F. Supp. at 37 n.4, the
    Department of Justice Technical Assistance manuals are
    \"interpretations of regulations,\" and are \"to be given
    controlling weight\" as to the meaning of the regulations.
    [Id]{.underline}., [citing]{.underline} [Thomas Jefferson
    Univ.]{.underline}, 114 S. Ct. at 2386. [See]{.underline}
    [also]{.underline} [Bechtel]{.underline}, 1994 WL 3396, \*2-\*3
    (deferring to Department\'s regulation and Technical Assistance
    Manual); n.20, [supra]{.underline}.

[^35]: ^?^ [See]{.underline} CDC, [Recommendations for Preventing
    Transmission of Human Immunodeficiency Virus and Hepatitis B Virus
    to Patients During Exposure-Prone Invasive Procedures]{.underline},
    40 MMWR 1, 3-4 (July 12, 1991)(medical institutions should determine
    on a case-by-case basis whether HIV-positive health care providers
    should perform procedures that the institutions identify as
    \'exposure prone\'). [Cf]{.underline}. American Hospital
    Association, [Recommendations for Health Care Practices and Public
    Policy]{.underline}, 1992 at 14 (\"Determinations of fitness for
    duty are appropriately made on a case-by-case basis. Hospitals
    should establish mechanisms within their existing worker impairment
    programs to determine whether a health care worker known to be
    infected with HIV . . . can adequately and safely perform patient
    care duties.\").

[^36]: ^?^ [See]{.underline} [also]{.underline} [Bradley]{.underline}, 3
    F.3d at 924; [Doe v. Washington University]{.underline}, 780 F.
    Supp. at 629 n.2 (citing 1987 CDC recommendations).

[^37]: ^?^ [See]{.underline} [also]{.underline} [Univ. of
    Maryland]{.underline}, 50 F.3d at 1266 (deferring to UMMSC\'s
    \"considered decision to err on the side of caution in protecting
    its patients\" in spite of the low risk of transmission);
    [Scoles]{.underline}, 887 F. Supp. at 772 (finding that patient\'s
    have a \"right to know\" of surgeon\'s HIV status before undergoing
    invasive procedure); [Mauro]{.underline}, 886 F. Supp. at 1353
    (noting that \"however small\" the risk of transmission may be, it
    is \"fundamentally inconsistent\" with a hospital\'s mission of
    patient care to expose a patient to a risk of acquiring a fatal
    disease when there is \"no patient care reason\" for doing so);
    [Behringer]{.underline}, 592 A.2d at 1282 (noting that \"the ethical
    relationship of doctor to patient\" requires a restriction on
    invasive procedures).

[^38]: ^?^ If Bragdon were to treat patients with HIV, he would not
    violate the ethical and fiduciary duties owed his other patients.
    The use of universal precautions \-- including, specifically, the
    heat sterilization of dental instruments and handpieces \--
    effectively eliminates any risk of patient-to-patient HIV
    transmission. U.S. Facts at ¶VIII.F. Bragdon heat sterilizes his
    dental instruments and handpieces. [Id]{.underline}. at ¶VIII.E.

[^39]: ^?^ Bragdon\'s own expert concurs. [See]{.underline} Kuvin Dep.
    at 99, 188 (stating that he believes \"unequivocally\" that
    HIV-positive patients are entitled to the receipt of routine dental
    care and that all dentists have \"an obligation\" to provide such
    care). [See]{.underline} [also]{.underline} U.S. Facts at ¶VIII.Q
    (detailing dental ethical policy statements).

[^40]: ^?^ [Cf]{.underline}. [Bloom]{.underline}, 1995 WL 490481, \*5
    (\"The court finds defendants\' actions to be particularly offensive
    in light of their status as licensed health care providers who ought
    to be aware of and practice universal precautions.\");
    [Lewis]{.underline}, Docket No. 92-154-PA(N), slip op. at 20-21
    (\"What is \[\] shocking is that the decision not to treat a
    HIV-infected individual came from a member of the medical profession
    who is deemed to know better about the transmission of AIDS.\").