United States Court of Appeals
 For the First Circuit
No. 96-1643
 SIDNEY ABBOTT, ET AL.,
 Plaintiffs, Appellees,
 v.
 RANDON BRAGDON, D.M.D.,
 Defendant, Appellant.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF MAINE
 [Hon. Morton A. Brody, U.S. District Judge]
 Before
 Selya, Circuit Judge,
 Aldrich, Senior Circuit Judge,
 and Stahl, Circuit Judge.
 John W. McCarthy, with whom Brent A. Singer and Rudman &
Winchell were on brief, for defendant.
 Peter M. Sfikas, Mark S. Rubin and Jill A. Wolowitz on brief
for American Dental Ass'n, amicus curiae.
 Bennett H. Klein and David G. Webbert, with whom Gay and
Lesbian Advocates and Johnson, Webbert & Laubenstein were on brief,
for plaintiff Sidney Abbott.
 John E. Carnes, Commission Counsel, on brief for intervenor-
plaintiff Maine Human Rights Commission.
 Samuel R. Bacenstos, Attorney, U.S. Dept. of Justice, with
whom Deval L. Patrick, Assistant Attorney General, and Jessica
Dunsay Silver, Attorney, were on brief, for intervenor-plaintiff
United States of America, amicus curiae.
 Robert Greenwald and AIDS Action Committee on brief for R.I.
Dept. of Pub. Health, Bureau of Health of the Me. Dept. of Human
Servs., American Pub. Health Ass'n, Ass'n of State and Territorial
Dental Dirs., and Ass'n of State and Territorial Health Officials,
amici curiae.
 Donna Levin on brief for Mass. Dept. of Pub. Health, amicus
curiae.
 March 5, 1997
01-05372 SELYA, Circuit Judge. In this case of first impression,

the district court granted summary judgment in favor of plaintiff-

appellee Sidney Abbott, an HIV-positive woman, on her claim that

defendant-appellant Randon Bragdon, a dentist, violated the

Americans with Disabilities Act (the ADA) by refusing to treat her

in his dental office.1 Dr. Bragdon appeals. Because we agree with

the district court that Ms. Abbott is disabled within the purview

of the ADA and that providing routine dental care to her (i.e.,

filling a cavity) would not have posed a direct threat to Dr.

Bragdon's health or safety, we affirm.

I. BACKGROUND

 The events giving rise to this litigation are

straightforward. On September 16, 1994, Ms. Abbott arrived at Dr.

Bragdon's office in Bangor, Maine for a scheduled appointment. On

her patient registration form, she indicated that she was infected

with the HIV virus. People may be HIV-positive for years without

manifesting the set of symptoms commonly known as AIDS, and Ms.

Abbott was asymptomatic at the time.

 Dr. Bragdon performed a dental examination and discovered

a cavity. He told Ms. Abbott that, pursuant to his infectious
_____________________
 1 Though we write for simplicity's sake as if Ms. Abbott were
the sole plaintiff, we note that the federal government and the
Maine Human Rights Commission intervened as plaintiffs below. We
note, too, that Ms. Abbott prevailed upon a parallel claim under
the Maine Human Rights Act (MHRA), 5 Me. Rev. Stat. Ann. tit. 5, 
4592 (West 1989). Interpretation of both the ADA and the MHRA has
"proceeded hand in hand," Soileau v. Guilford of Me., Inc.,
F.3d , (1st Cir. 1997) [No. 96-1796, slip op. at 6], and the
parties here do not suggest any distinction between the two
statutes that might affect this appeal. Consequently, we need not
discuss the MHRA further.
 2
01-05373
disease policy, he would not fill her cavity in his office, but

would only treat her in a hospital setting. Though he would charge

his regular fee, she would have to bear the additional cost of

whatever the hospital charged for the use of its facilities. Ms.

Abbott refused the offer and instead filed a complaint under the

ADA. See 42 U.S.C.  12182(a) (1994).

 After pretrial discovery concluded, the parties cross-

moved for summary judgment. The district court ruled that Ms.

Abbott was substantially limited in a major life activity

(reproduction) and thus was disabled for purposes of the ADA. See

Abbott v. Bragdon, 912 F. Supp. 580, 587 (D. Me. 1995). The court

then concluded that the relatively routine treatment needed by Ms.

Abbott could be delivered safely in Dr. Bragdon's office. See id.

at 591. Consequently, the court granted Ms. Abbott's motion for

summary judgment. See id. at 595-96. This appeal followed.

II. THE SUMMARY JUDGMENT STANDARD

 The Civil Rules authorize federal courts to grant summary

judgment only when "there is no genuine issue as to any material

fact and . . . the moving party is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(c). Confronted with a properly

documented motion for brevis disposition, the nonmovant must

establish the existence of a fact that is both genuine and material

in order to ward off the entry of an adverse judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Garside

v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). Appellate

review of the district court's award of summary judgment is

 3

01-05374

plenary, and, in keeping with this standard, we are not wedded to

the district court's rationale but may affirm on any alternative

ground made manifest by the record. See Hachikian v. FDIC, 96 F.3d

502, 504 (1st Cir. 1996).

 In assaying the record, we are guided by the same tenets

that guided the lower court. Thus, we are duty bound to indulge

all reasonable inferences in favor of the party opposing summary

judgment. See id. This generous outlook notwithstanding, we must

disregard improbable or overly attenuated inferences, unsupported

conclusions, and rank speculation. See Smith v. F.W. Morse & Co.,

76 F.3d 413, 428 (1st Cir. 1996); Medina-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

III. THE QUESTION OF DISABILITY

 The ADA sends a clear message to those who operate places

of public accommodation: you may not discriminate against

individuals in the full and equal enjoyment of services on the

basis of a disability. See 42 U.S.C. S 12182(a). Although a

dental office qualifies as a place of public accommodation, see id.

S 12181(7)(F); see also 28 C.F.R. S 36.104 (1996), the ADA protects

only disabled patients against discrimination, and any attempt to

invoke the ADA against a practicing dentist must start with an

investigation into the patient's status. We turn, then, to the

question of whether Ms. Abbott, who was infected with HIV but was

asymptomatic, had a disability cognizable under the ADA.

 This question is first and foremost a question of

statutory construction which we review de novo. See Strickland v.

 4

01-05375

Commissioner, Me. Dept. of Human Servs., 96 F.3d 542, 545 (1st Cir.

1996). In all such cases, we begin with the words of the statute,

and we approach them with an understanding that our role is not to

set public policy, but, rather, to discern the legislature's will.

See, e.g., United States v. Gibbens, 25 F.3d 28, 33 (1st Cir.

1994).

 A. The Plaintiff's Burden.

 Disability is not a unitary concept under the ADA.

Instead, the statute ILLEGIBLE three subsets of disability, any one of

which is sufficient to trigger the act's protections. In this

regard, the ADA states:

 The term "disability" means, with respect to
 an individual - (A) a physical or mental
 impairment that substantially limits one or
 more of the major life activities of such
 individual; (B) a record of such an
 impairment; or (C) being regarded as having
 such an impairment.

42 U.S.C.  12102(2). This case, as Ms. Abbott postures it,

implicates the first subset of the statutory definition.2 Thus,

she must prove three things: first, that she has a "physical or

mental impairment"; second, that this impairment adversely affects

"a major life activity"; and third, that it does so to a

significant extent (or, put more precisely, that the impairment
____________________

 2 The United States asserts that Ms. Abbott also is disabled
under the third subset because society commonly regards individuals
who are infected with HIV as having substantially limiting
impairments. See generally Cook v. State of R.I., Dep't of Mental
Health, Retard. & Hosps., 10 F.3d 17 (1st Cir. 1993) (discussing
application of the "regarded as" language). We need not reach this
contention.
 5
01-05376
"substantially limits" her ability to engage in the particular

major life activity).

 B. The Impairment.

 The plaintiff easily clears the first hurdle. We hold

unhesitatingly that HIV-positive status, simpliciter, whether

symptomatic or asymptomatic, comprises a physical impairment under

the ADA. Regulations issued by the Equal Employment Opportunity

Commission (the EEOC) implementing Title III of the ADA explicitly

support this conclusion, see 28 C.F.R.  36.104 (1996) (stating

that the phrase "physical impairment" includes HIV); judicial

authority buttresses this conclusion, see, e.g., Gates v. Rowland,

39 F.3d 1439, 1446 (9th Cir. 1994); Doe v. Garrett, 903 F.2d 1455,

1459 (11th Cir. 1990), cert. denied, 499 U.S. 904 (1991); and Dr.

Bragdon does not seriously advocate an antithetical view.

 C. The Major Life Activity.

 Moving to the second hurdle, Ms. Abbott cites

reproduction as her affected major life activity. The court below

accepted this asseveration. See Abbott, 912 F. Supp. at 587. Dr.

Bragdon's rebuttal is twofold. In the first place, he disputes

that reproduction properly can be characterized as a major life

activity. In the second place, he asserts that even if

reproduction so qualifies in general, there is nonetheless an

unresolved issue as to whether it qualifies in Ms. Abbott's

particular case. We address each of these assertions.

 1. Reproduction Writ Large. The question of whether

reproduction in large constitutes a major life activity under the

 6

01-05377

ADA is not free from doubt. The ADA itself does not define the

term "major life activities," and the few available judicial

precedents reveal divergent opinions. Compare Pacourek v. Inland

Steel Co., 916 F. Supp. 797, 804 (N.D. Ill. 1996) (finding that

reproduction is a major life activity) and Erickson v. Board of

Govs. of State Colleges, 911 F. Supp. 316, 323 (N.D. Ill. 1995)

(same) and Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990)

(same) with Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677

(8th Cir. 1996) (holding that reproduction is not a major life

activity) and Zatarain v. WDSU-TV, Inc., 881 F. Supp. 240, 243

(E.D. La. 1995) (same). Still, it is clear that Ms. Abbott's HIV-

positive status has a profound impact upon her ability to engage in

intimate sexual activity, gestation, giving birth, childrearing,

and nurturing familial relations. Our society has long recognized

the fundamental importance of each element of this cluster of

activities, and our jurisprudence reflects this bias. See, e.g.,

Stanley v. Illinois, 405 U.S. 645, 651 (1972) (terming the rights

to conceive and raise children "essential," "basic civil rights,"

and rights that are "far more precious . . . than property rights")

(citations and internal quotation marks omitted). Viewed against

this backdrop, we think it is highly likely that Congress accorded

comparable importance to these activities when it authored the ADA.

 The statute's text appears to bear out this intuition.

Because the term "major life activities" is not defined in the

enactment, we are obliged to construe it in accordance with its

natural (that is, ordinary) meaning. See Bailey v. United States,

 7

01-05378

116 S. Ct. 501, 506 (1995); Smith v. United States, 508 U.S. 223,

228 (1993). The Court has looked to familiar dictionary

definitions in similar situations. See, e.g., Bailey, 116 S. Ct.

at 506; Smith, 508 U.S. at 229. Following that model here lends

support to the classification of reproduction as a major life

activity. The plain meaning of the word "major" denotes

comparative importance. See, e.g., The American Heritage

Dictionary of the English Language 1084 (3d ed. 1992) (listing

"greater than others in importance or rank" as the initial

definition of "major"); Webster's Ninth New Collegiate Dictionary

718 (1989) (defining "major" as "greater in dignity, rank,

importance, or interest"). These definitions strongly suggest that

the touchstone for determining an activity's inclusion under the

statutory rubric is its significance - and reproduction, which is

both the source of all life and one of life's most important

activities, easily qualifies under that criterion.

 The origins of the ADA's language reinforce this

conclusion. Congress lifted the term "major life activities" from

the Rehabilitation Act of 1973, which used it in defining an

"individual with handicaps." See 29 U.S.C.  706(8)(B) (1988). In

that milieu, the term was accorded "a broad definition, one not

limited to so-called 'traditional handicaps.'" School Bd. of

Nassau County v. Arline, 480 U.S. 273, 280 n.5 (1987). In

transplanting this combination of words from the soil of the

Rehabilitation Act to that of the ADA, Congress specifically

directed retention of the original meaning. See 42 U.S.C. 

 8

01-05379

12201(a) (1994). Had Congress sought to confine the definition of

disability narrowly, it surely would have written new, more

restrictive language instead of borrowing a descriptive phrase

notable for its breadth. See Doe v. Kohn Nast & Graf, P.C., 862 F.

Supp. 1310, 1320 (E.D. Pa. 1994). It would be wholly inconsistent

with this history to hold that Congress did not envision

reproduction as a major life activity.

 In addition to the language of the ADA and the historical

antecedents of that language, we are guided by the regulations,

which define "major life activities" to "mean [ ] functions such as

caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working." 28 C.F.R. S

36.104 (1996).3 As the regulation itself clearly indicates, this

enumeration is not meant to be exclusive, and reproduction - one of

the most natural of endeavors - fits comfortably within its sweep.

Furthermore, the portion of the regulations which defines physical

impairments to include physiological disorders affecting the

reproductive system, 28 C.F.R.  36.104 (1996), militates in favor

of the same outcome. From the scope of the latter regulation, we

deduce that its drafters considered reproduction to be a major life

activity - otherwise, including reproductive disorders among the
_____________________
 3 This phraseology is copied verbatim from 45 C.F.R. 
84.3 (j) (2) (ii) (1996), a regulation implementing the Rehabilitation
Act of 1973. Because that regulation was drafted with
congressional oversight and approval, see Arline, 480 U.S. at 279-
80, the definition merits particular deference. See Consolidated
Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984).
 9
01-05380

regulation's roster of physical impairments would not have made

much sense. See Pacourek, 916 F. Supp. at 1404-05.
 The appellant resists this conclusion. The regulation

itself includes no general adage to aid courts in determining what

constitutes a major life activity, and he invites us to adopt a

limiting principle which will preclude a finding that reproduction

qualifies. In his view, major life activities do not embody

lifestyle choices, or, as he puts it, "activities that many people

decide never to do." This proposition has a modicum of decisional

support. See Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102,

106 n.1 (S.D. Iowa 1995) ("Some people choose not to have children,

but all people care for themselves, perform manual tasks, walk,

see, hear, speak, breathe, learn, and work, unless a handicap or

illness prevents them from doing so."), aff'd, 95 F.3d 674 (8th

Cir. 1996). In addition, courts have used other formulations en

route to concluding that reproduction is unlike the activities

listed in the regulation and, therefore, not a major life activity.

See, e.g., Krauel, 95 F.3d at 677 (emphasizing that the plaintiff

"has the ability to care for herself, perform manual tasks, walk,

see, hear, speak, breathe, learn, and work" and is therefore not

disabled); Zatarain, 881 F. Supp. at 243 (distinguishing

reproduction from major life activities based on frequency of

performance).

 We do not find any of these formulations persuasive. In

Krauel, the Eighth Circuit did not go beyond the activities

explicitly included in the regulation and thus effectively treated

 10

01-05381

the list as exclusive, not illustrative. Since the plain language

of the regulation counsels otherwise, we are disinclined to emulate

that example. The approaches taken by the Zatarain court and the

district court in Krauel are no more attractive; in

contradistinction to those courts, we see no reason why an activity

must be performed either frequently or universally before it can be

classified as a major life activity. There is no evidence that

Congress intended either frequency or universality to operate as a

restriction on the definition of "major life activities." Indeed,

the activities explicitly enumerated in the regulation are not

wholly characterized by frequency and universality; learning - even

in a broad sense - is for many adults not a part of daily life, and

work is certainly not universal (as the lives of some of the very

rich and some of the very poor demonstrate). The view from the

other end of the spectrum bolsters this conclusion; neither lack of

frequency nor lack of universality diminishes the fundamental

importance of conceiving, childbearing, and raising a family.

 This leaves us with the bare bones of Dr. Bragdon's

thesis: that reproduction cannot be considered a major life

activity because it is at bottom a lifestyle choice. That

emaciated argument lacks force. To treat reproduction as a

lifestyle choice, and no more, is merely an exercise in semantics.

Most acts that human beings perform - or refrain from performing -

have elements of volition. Speaking is undoubtedly a major life

activity, but there are those (say, monks who have taken vows of

silence) who choose to eschew it.

 11

01-05382

 Though the question is very close, we think it must be

resolved favorably to Ms. Abbott. Reproduction (and the bundle of

activities that it encompasses) constitutes a major life activity

because of its singular importance to those who engage in it, both

in terms of its significance in their lives and in terms of its

relation to their day-to-day existence. Mindful of this reality,

and honoring what we believe to be Congress' intent, we hold that

reproduction is a major life activity within the meaning of the

ADA.

 2. Reproduction Writ Small. Dr. Bragdon's fallback

position is that Ms. Abbott is not disabled within the purview of

the ADA unless reproduction is a major life activity for her. He

then endeavors to use this position to defeat summary judgment,

maintaining that a factfinder, drawing defendant-friendly

inferences from the summary judgment record, would confront a

genuine issue as to whether giving birth and raising a child is so

important to Ms. Abbott as to constitute one of her major life

activities.

 The premise on which Dr. Bragdon's argument depends is of

uncertain reliability. Though it is true that analysis under the

first subset of the ADA's definition of disability - "a physical or

mental impairment that substantially limits one or more of the

major life activities of the [the plaintiff]" - calls for an

individualized inquiry into whether the plaintiff is disabled, see

29 C.F.R. Pt. 1630, App.  1630.2(j) (1996) (noting in the context

of the ADA's employment discrimination regulations that "[s]ome

 12

01-05383

impairments may be disabling for particular individuals but not for

others"); Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996);

Ennis v. National Ass'n of Business & Educ. Radio, Inc., 53 F.3d

55, 59 (4th Cir. 1995), the need for this case-by-case analysis of

disability does not necessarily require a corresponding case-by-

case inquiry into the connection between the plaintiff and the

major life activity. By way of example, it might be enough for a

court to consider only whether a given impairment substantially

limits a particular plaintiff without considering whether the

activity is of particular import to her. Be that as it may, the

question is not dispositive here (nor will it be in many cases),

and the most efficient way to decide this appeal is simply to

postpone a definitive answer and assume, favorably to the

appellant, that a plaintiff claiming a disability under the ADA

must show a nexus between her impairment and the major life

activity that she asserts has been substantially limited.

 Even accepting arguendo that reproduction is not a major

life activity for one with no interest in bearing children, the

determination of whether reproduction is a major life activity in

a particular case does not automatically become a jury question.

Cf. Medina-Munoz, 896 F.2d at 8 (noting that even "elusive concepts

such as motive or intent" sometimes can be decided on summary

judgment). Here, drawing all reasonable inferences in the manner

most helpful to Dr. Bragdon, a fact finder could reach no conclusion

other than that reproduction, if a major life activity at all,

constitutes such for Ms. Abbott. We explain briefly.

 13
01-05384
 Ms. Abbott's testimony on this point is uncontradicted:
 I have made the decision after I tested
 positive [for HIV] not to have children
 because of the risk of infecting the child and
 the risk of impairing my own immune system,
 and also the fact that this baby probably
 wouldn't have a mother after a while.

Dr. Bragdon offers no substantial rebuttal to Ms. Abbott's

assertion that HIV ended her consideration of having a family, but

instead asks us to doubt her sincerity. In his most telling

sortie, he stresses the fact that, during her deposition, Ms.

Abbott replied "no" when asked, "Are you impaired in your ability

to carry out any of your life functions by the fact that you are

HIV positive?" We do not believe that a party's response to a

question about "life functions" - a phrase not used in ordinary

parlance to refer to reproduction - can fairly be read as a direct

contradiction of her unequivocal statements about her reasons for

not bearing children. Dr. Bragdon has offered no other evidence

suggesting that, short of her HIV infection, Ms. Abbott would have

elected to remain childless. In the absence of specific

discrediting evidence, a party cannot derail summary judgment by

the primitive expedient of insisting that his opponent's evidence

should be disbelieved. See Grubb v. KMS Patriots, L.P., 88 F.3d I,

4 (1st Cir. 1996).

 To say more at this point would be supererogatory.

Because uncontradicted evidence establishes that reproduction is a

major life activity for Ms. Abbott, the second element of her case

is firmly in place.

 D. The Limitation.

 14

01-05385

 We turn now to the final hurdle that blocks Ms. Abbott's

path. At this hurdle, the parties joust over whether Ms. Abbott's

HIV infection substantially limits her major life activity of

reproduction. Under the applicable regulation, a person's major

life activity is "substantially limited" if it is "restricted as to

the conditions, manner, or duration under which [it] can be

performed in comparison to most people." 28 C.F.R. Pt. 36, App. B

 36.104 (1996). Dr. Bragdon concedes that an HIV-positive

pregnant woman faces an approximately 25% risk of transmitting the

virus to her child without AZT therapy and an 8% risk of viral

transmission with such therapy. He strives to persuade us,

however, that there is an unresolved issue, sufficient to preclude

summary judgment, as to whether HIV substantially limits Ms.

Abbott's reproductive activity. In other words, he claims that on

the record sub judice, a jury reasonably could find that the stated

degree of risk does not substantially limit this infected person's

ability to reproduce.

 We are unconvinced. No reasonable juror could conclude

that an 8% risk of passing an incurable, debilitating, and

inevitably fatal disease to one's child is not a substantial

restriction on reproductive activity. Cf., e.g., 29 C.F.R. Pt.

1630, App.  1630.2(j) (1996) (stating in the ADA's employment

discrimination regulations that "[o]ther impairments, however, such

as HIV infection, are inherently substantially limiting"). In

addition, Ms. Abbott faces the unfortunate reality that even if she

gives birth to a healthy child, she probably will not live long

 15

01-05386

enough to complete the task of raising the child to adulthood. We

thus hold that HIV-positive status is a physical impairment that

substantially limits a fecund woman's major life activity of

reproduction. Ms. Abbott therefore is disabled within the purview

of the ADA.

 We add an eschatocol. We emphasize that the ADA's "of

such individual" language necessitates a factual determination

based on the record; our discussion of this issue, therefore,

focuses on the case before us. Each case presents different

underpinnings, both factual and circumstantial. Presented with

other facts and circumstances in a future case, perhaps reflecting

dramatic improvements in medical science that substantially reduce

the likelihood of transmitting HIV through reproduction, we might

well reach a different conclusion than the one that we reach today.

Such an ebb and flow is to be expected, because this is the very

nature of the inquiry that the ADA mandates.

IV. THE DIRECT THREAT QUESTION

 Under the ADA, a place of public accommodation must

extend its services to all disabled persons without reference to

their disabilities, subject to certain carefully circumscribed

exceptions. See 42 U.S.C.  12182(a). By virtue of one such

exception, a covered service provider need not deal with an

individual who "poses a direct threat to the health or safety of

others." 42 U.S.C.  12182(b)(3). The term "direct threat" is

defined by the statute; in this context it contemplates the

existence of "a significant risk to the health or safety of others

 16

01-05387

that cannot be eliminated by a modification of policies, practices,

or procedures or by the provision of auxiliary aids or services."

Id.4

 Dr. Bragdon seeks safe harbor under this exception,

asserting that requiring him to treat Ms. Abbott would pose a

direct threat to his health. His argument envisions that to fill

Ms. Abbott's cavity, he would need to inject a local anesthetic

into her mouth and drill the decayed tooth. These procedures, he

says, create an undue risk of HIV transmission both through

needlestick and through the spattering of blood and bloody saliva.

 A court's goal in conducting a direct threat analysis

under the ADA is to achieve a responsible balance, protecting

service providers and other places of accommodation from enforced

exposure to unacceptable health and safety risks while at the same

time protecting disabled individuals from discrimination that is

rooted in prejudice or baseless fear. See Arline, 480 U.S. at 287.

EEOC regulations drawn from the Court's seminal opinion in Arline

guide this analysis:

 In determining whether an individual poses a
 direct threat to the health or safety of
 others, a public accommodation must make an
 individualized assessment, based on reasonable
 judgment that relies on current medical
 knowledge or on the best available objective
 evidence, to ascertain: the nature, duration,
 and severity of the risk; the probability that
______________________

 4 It is important to note that Dr. Bragdon does not argue that
his offer to treat Ms. Abbott in a hospital setting is a practice
modification that would eliminate the claimed threat to his health.
He argues instead that he had no duty to treat her in his office
and that his offer to treat her in the hospital was gratuitous
(and, therefore, legally irrelevant).

 17

01-05388

 the potential injury will actually occur; and
 whether reasonable modifications of policies,
 practices, or procedures will mitigate the
 risk.

28 C.F.R.  36.208(c) (1996); see also Arline, 480 U.S. at 287-88

(discussing essentially the same factors).

 Of course, any inquiry along these lines depends in one

sense on what information permissibly may be weighed in the balance

and in another sense on the extent to which particular kinds of

evidence should be assigned extra weight (or, perhaps, decretory

significance). Thus, before evaluating the medical evidence

proffered by the parties, we must determine (1) the relevancy, if

any, of subsequent medical knowledge (that is, medical evidence not

available in September 1994 when Dr. Bragdon refused to treat Ms.

Abbott), and (2) the degree of deference, if any, due the judgments

of public health officials.

 A. The Evidentiary Time Line.

 The first of these excursions need not detain us. The

applicable regulations instruct that a judgment on the presence or

absence of a direct threat must be predicated on "current medical

knowledge or on the best available objective evidence," 28 C.F.R.

 36.208(c) (1996) (emphasis supplied), and, hence, point

unwaveringly toward confining medical evidence to that available at

the time a dentist or other health-care professional refuses to

treat. This principle - that neither the service provider nor the

prospective recipient of the service may prove or disprove the

direct threat defense by relying on medical evidence not available

when treatment was refused - is sound policy. Under such a regime,

 18

01-05389

the service provider retains the opportunity to prove that he made

an appropriate determination of the existence of a direct threat

based on the evidence available when he made the decision to

withhold his services. This is sound policy because, while health-

care providers can be expected to maintain a working knowledge of

currently accepted thinking in their fields, they cannot be

expected to anticipate either future scientific advances or the

emerging wisdom of public health organizations. In short, by

holding covered service providers to an objective standard

featuring the best evidence available at the time they refuse to

render treatment to disabled persons, the ADA holds the delicate

balance between sometimes conflicting rights steady and true.

 This approach is also scrupulously fair. To punish

providers when they satisfy an objective standard based on the best

evidence available at the time of their decisions would be to

punish them for a lack of clairvoyance. By the same token, to hold

providers harmless after they have refused treatment based on

nothing more than unfounded trepidation would run at cross-purposes

with the central theme of the ADA. Fundamental fairness insists

that providers in such circumstances ought not to be entitled to

rely on subsequent understandings to shield them from the condign

consequences of discriminatory conduct.5 Cf. McKennon v. Nashville
_____________________

5 To be sure, under this approach a health-care professional
occasionally may lose on a claim of direct threat even when newly
emergent information shows an objective basis for what was in fact
a subjective decision to deny services. But a contrary rule would
encourage timorous service providers to discriminate and gamble
that by the time they were dragged into court, new medical evidence
would vindicate their position. In areas like these, where courts

 19

01-05390

Banner Pub. Co., 115 S.Ct. 879, 885 (1995) (holding that an

employer in an employment discrimination case may not justify its

conduct based on evidence that did not motivate it at the time of

the employment decision); North Shore Univ. Hosp. v. Rosa, 657

N.E.2d 483, 486 (N.Y. 1995) (evaluating conduct alleged to be

discriminatory under state law based on accepted medical practice

at the time of the alleged infraction).

 B. The Degree of Deference.

 The second threshold determination involves the degree of

deference due the medical judgments of public health authorities.

The government joins Ms. Abbott in arguing for a rule which, if

embraced, would cede great deference to those authorities. They

posit that, in the absence of dissent among public health

authorities, a service provider should be bound to accept the

expressed collective judgment of those authorities unless he can

demonstrate that this judgment is medically unreasonable. In

contrast, Dr. Bragdon asseverates that, at least in the case of a

service provider who is himself a skilled professional (such as a

doctor or dentist), a court should defer to the provider's

judgment, as long as it appears to have been reasonable in light of

then-current medical knowledge.

 The question of deference pivots on language in Arline,

where Justice O'Connor, writing for the Court, stated that in

making factual findings of the sort that are necessary to inform
_____________________

feel the push and pull of competing forces, there are no perfect
solutions.

 20

01-05391

the inquiry into the existence vel non of a direct threat, "courts

normally should defer to the reasonable medical judgments of public

health officials." 480 U.S. at 288. In crafting regulations

applicable to the ADA, the EEOC treated this passage from Arline as

gospel. See 28 C.F.R. Pt. 36, App. 3  36.208 (1996) (remarking

that the direct threat regulations "codif[y] the standard first

applied by the Supreme Court in [Arline]").

 We agree that the deference due public health officials

must flow from the quoted passage - but acknowledging the hegemony

of Arline does not signal automatic victory for Ms. Abbott and the

government. The "defer entirely" formulation that they urge upon

us is totally unprecedented; we have found no case in which the

views of public health authorities are treated with the solicitude

that Ms. Abbott and the government invite. If adopted, this

formulation would come close to making a consensus among public

health authorities unchallengeable by other medical evidence and,

consequently, unreviewable by the courts. Nothing in Arline

demands such obsequious obeisance to public health authorities or

indicates an intention on the Court's part to consign the medical

judgments of private physicians to some evidentiary Siberia.

Instead, the Court quite clearly left the details of deference for

another day. See, e.g., Arline, 480 U.S. at 288 n. 15 ("This case

does not present, and we do not address, the question whether

courts should also defer to the reasonable medical judgements of

private physicians . . . .").

 21

01-05392

 Because we are unprepared to say that medical wisdom

resides exclusively in public health authorities, we reject the

idea of a conclusive presumption. The applicable regulations state

that "[s]ources for medical knowledge include guidance from public

health authorities, such as the U.S. Public Health Service, the

Centers for Disease Control, and the National Institutes of

Health." 28 C.F.R. Pt. 36, App. B  36.208 (1996) (emphasis

supplied). This list is plainly illustrative, not exhaustive, and

the use of the verb "include" indicates to us that other sources of

medical knowledge are within the pale. The statute, the suggestion

implicit in the regulations, and the teachings of the Court are

best synthesized by fashioning a rule which gives prima facie force

to the views of public health authorities, but which permits a

service provider to challenge those views based on contrary,

properly supported opinions voiced by other recognized experts in

the field (e.g., research studies published in peer-reviewed

journals). Such a rule accords a meaningful degree of respect to

the views of public health authorities, particularly when those

views are unanimous. But the rule draws a distinction between

respect and absolute capitulation. Under it, the conclusions of

public health authorities may be rebutted by persuasive evidence

adduced from other recognized experts in a given field.6
_____________________

 6 In United States v. Jessup, 757 F.2d 378, 381-84 (1st Cir.
1985), then-Judge Breyer distinguished "bursting bubble"
presumptions (which vanish when contrary evidence is introduced)
from "intermediate" presumptions (which remain available for
consideration by the factfinder even after contrary evidence is
introduced). The presumption here is of the latter stripe.

 22
01-05393

 Treating the presumption of correctness which attaches to

the collective judgment of public health authorities as rebuttable

will not, as the government intimates, sabotage the statutory

scheme. Because the test for the existence vel non of a direct

threat remains an objective one, a service provider cannot

successfully contradict an achieved consensus simply by proffering

an unsupported opinion. This ensures that, despite the rebuttable

nature of the presumption, the direct threat defense may not be

used to mask prejudice or unfounded fears. Rather, to frame a

genuine issue, an opposing view must be documented by competent

countervailing evidence that is directly relevant. Speculative

inferences, glancing statistics, unsupported conclusions, and

ruminative surmise will not serve.

 C. Applying the Standard.

 We turn next to a review of the medical evidence that was

available when Ms. Abbott visited Dr. Bragdon's office in September

1994. By then, both the United States Centers for Disease Control

and Prevention (CDC) and the American Dental Association (the

Association) had spoken to the issue of the health risk to dental

workers from patients infected with HIV. The Association's 1991

Policy on AIDS, HIV Infection and the Practice of Dentistry stated

that:

 Current scientific and epidemiologic evidence
 indicates that there is little risk of
 transmission of infectious diseases through
 dental treatment if recommended infection
 control procedures are routinely followed.
 Patients with HIV infection may be safely
 treated in private dental offices when

 23
01-05394

 appropriate infection control procedures are
 employed.

In 1993, the CDC updated its earlier guidelines and specified a

compendium of infection control procedures, known as the "universal

precautions," for use by dental workers treating HIV-positive

patients. See CDC, Recommended Infection-Control Practices for

Dentistry, 1993 (the Recommendations). The CDC took the position

that, when implemented, the prescribed precautions "should reduce

the risk of disease transmission in the dental environment." Id.

at 3. While the guidelines do not state explicitly that no further

risk-reduction measures are desirable or that routine dental care

for HIV-positive individuals is safe, those two conclusions seem to

be implicit in the guidelines' detailed delineation of procedures

for office treatment of HIV-positive patients. See United States

v. Morvant, 898 F. Supp. 1157, 1166 (E.D. La. 1995) (concluding

that "the universal precautions as prescribed by the CDC are

universally accepted as 'reasonable modifications' of practices

that will significantly mitigate the risk (of HIV transmission from

patient to dentist]").7 Tellingly, no public health authority has
______________________

 7 In support of her motion for brevis disposition, Ms. Abbott
also presented testimony from Dr. Donald Wayne Marianos, director
of the Division of Oral Health at the CDC. Dr. Marianos stated
categorically that "[n]o infection control procedures beyond the
use of universal precautions are necessary when providing routine
dental care to persons with HIV and AIDS. He also declared that
"[t]he CDC does not recommend the use of infection control
procedures beyond those cited in [the Recommendations] for the
provision of routine dental treatment to persons with HIV or AIDS"
and that "the risk of HIV transmission from patient to provider [in
such circumstances] is so low as to be unquantifiable." Dr.
Marianos' testimony is of limited value to us in assessing the
medical evidence available to Dr. Bragdon inasmuch as the record
contains no evidence that the CDC had publicly taken so explicit a

 24
01-05395

suggested that it is unsafe to provide routine dental care to HIV-

positive patients in a private office environment. We find,

therefore, that Ms. Abbott adduced competent evidence of reasonable

medical judgments by public health officials, not contradicted by

other public health authorities, to the effect that affording

routine dental care (such as filling cavities) to HIV-infected

patients in an office environment does not pose a direct threat to

the dentist's health.

 The next question is whether Dr. Bragdon has produced

sufficient countervailing evidence that filling Ms. Abbott's cavity

in an office setting would have constituted a direct threat to his

health. In an endeavor to create a genuine issue of material fact,

he cites eight sources of information which he argues show that

rendering the necessary treatment in his office would have

jeopardized his health.8 We examine these sources to determine if

any of them, individually or in the aggregate, justify denying

summary judgment to Ms. Abbott.

 1. Dr. Bragdon notes that the Food and Drug

Administration (the FDA) recommended in 1992 that persons who have

had contact with a patient's blood through needlestick, non-intact
________________________

position as of September 1994.

 8 Although Dr. Bragdon presented material from a retained
expert, Dr. Sanford Kuvin, he does not claim that Dr. Kuvin's
testimony was based on medical knowledge available to him on the
date he declined to treat Ms. Abbott, and his brief discusses Dr.
Kuvin's testimony in a separate section devoted to the possibility
that evidence available after September of 1994 might be relevant
to the issue. To clinch the point, Dr. Kuvin's testimony itself
relies on a number of sources not available until 1995 and beyond.

 25

01-05396
skin, or mucous membranes refrain from donating blood for a year.

This recommendation is clearly insufficient to demonstrate a direct

threat to Dr. Bragdon. To safeguard the integrity of the blood

supply, the FDA may seek to avoid minute risks and take unusual

precautions even in the absence of actual evidence of danger. It

is not surprising, therefore, that the FDA issued its

recommendation without making any finding that there was a

significant risk of contracting HIV from contact of the type and

kind described. In contrast, to determine whether there is a

direct threat within the purview of the ADA, an inquiring court

must gauge the nature, duration, and severity of the risk.9 The

FDA's recommendation does not advance this inquiry.

 2. Dr. Bragdon refers to a CDC report documenting forty-

two incidents of transmission of HIV to health-care workers and

seven possible transmissions to dental workers. We deem this data

insufficient to warrant depriving Ms. Abbott of summary judgment.

Evidence of HIV transmission to health-care workers outside the

dental field does not prove a direct threat to a practicing dentist

in the absence of any evidence showing that the magnitude of risk

to a dentist is comparable to the risk to other health-care workers

in other settings. Nor is such an equivalency obvious; health-care

workers in, say, emergency rooms may be exposed to much larger
_______________________

 9 Then, too, the stakes are different. The only foreseeable
loss from what may be an overabundance of caution on the FDA's part
is some small quantity of donated blood. Surrendering to
stereotypes and unfounded fears when dealing with disabled persons,
however, will subvert Congress' intent in enacting the ADA.

 26

01-05397

needles and more copious quantities of blood than are common in

routine dental practice.

 Generalities about health-care workers aside, Dr. Bragdon

does not cite a single confirmed instance of HIV transmission to a

dentist. He does, of course, point to seven instances of "possible

transmissions" of HIV to dental workers, but mere possibilities are

too speculative to satisfy a litigant's burden of production at the

summary judgment stage. See Smith, 76 F.3d at 428 (noting that

unsupported speculation must be disregarded at summary judgment);

Medina-Munoz, 896 F.2d at 8 (similar).

 3. Dr. Bragdon brandishes a CDC report telling of the

transmission of HIV from a Florida dentist to his patients. But

neither the CDC report nor any other proffered evidence establishes

transmission of HIV from a patient to a dental worker. The

difference is meaningful. Dentists have the advantage of equipping

and staffing their offices and dictating the precautionary

procedures that will be utilized during patient encounters. In

contrast, patients have no way of assuring that any particular

risk-reduction measures, much less the universal precautions

recommended by the CDC, are introduced. Given that dentists are in

a superior position to patients in terms of protecting against

infection, a single report of dentist-to-patient infection cannot

reasonably be taken to suggest a direct threat to dentists from

their patients' infections.

 4. The high-speed drills that dentists use when filling

cavities may also generate aerosol mists of water, blood, and

 27

01-05398

bloody saliva. Using this datum as a springboard, Dr. Bragdon

jumps to the conclusion that a study by researchers at the Stanford

Medical School, raising concerns about transmission of HIV when

dentists perform aerosol generating procedures, is sufficient to

defeat summary judgment. See Gregory K. Johnson and William S.

Robinson, Human Immunodeficiency Virus-1 (HIV-1) in the Vapors of

Surgical Power Instruments, 33 Journal of Medical Virology 47

(1991). By its own characterization, however, the Johnson-Robinson

paper is too conjectural to raise a genuine issue of material fact

as to whether filling Ms. Abbott's cavity would constitute a direct

threat to Dr. Bragdon's health. The paper notes that it "do[es]

not quantitate the risk of HIV transmission . . . by such

aerosols," and that "the large body of epidemiologic data on

prevalence of HIV infections . . . would suggest that transmission

by aerosols is not common." Id. at 49.

 5. Dr. Bragdon points out that the CDC did not state

that it was medically unwise to take additional precautions with

persons known to be HIV-positive. This observation, while true,

gains him little ground. Such silence on the part of the CDC is at

best equivocal; it does nothing to prove that there is any risk to

a dentist in treating HIV-positive patients. Because the inference

that Dr. Bragdon seeks to draw from the CDC's silence is wholly

 28

01-05399

inference that rendering routine care to a dental patient infected

with HIV constitutes a direct threat to the dentist's health.

 7. Dr. Bragdon states that although he did his best to

comply with the universal precautions, he still sustained sharp

injuries on a regular basis. We believe that this kind of

anecdotal evidence by a dentist who is not an expert on infectious

disease is inadequate to block summary judgment. See Medina-Munoz,

896 F.2d at 8 (noting that summary judgment may be granted when

opposing evidence is not significantly probative). Although courts

need not defer slavishly to the judgments of public health

officials, see supra Part IV(B), we believe it would be

inconsistent with Arline were courts to credit lay testimony on

matters of public health. See Arline, 480 U.S. at 287-88

(emphasizing the need to protect the handicapped from unfounded

fears).

 8. Dr. Bragdon cites a study reporting that compliance

with the universal precautions would reduce needlestick exposures

by only 62%. See Edward S. Wong et al., Are Universal Precautions

Effective in Reducing the Number of Occupational Exposures Among

Health Care Workers?, 265 Journal of the American Medical

Association 1123, 1126 (1991). This statistic says nothing about

the initial baseline degree of danger of treatment in the absence

of the universal precautions and thus is impuissant to prove that

a dentist using the CDC's precautions is directly threatened by

treating an HIV-positive patient.

 30

01-05400

conjectural, it cannot figure in the summary judgment calculus.10

See Smith, 76 F.3d at 428.

 6. Dr. Bragdon adverts to the Association's report that

the risk to health-care workers is greater than the risk to

patients. At the same time, he notes, federal courts have found a

significant risk of HIV transmission from health-care workers to

patients. See, e.g., Bradley v. University of Tex. M.D. Anderson

Cancer Ctr., 3 F.3d 922, 924 (5th Cir. 1993) (per curiam), cert.

denied, 510 U.S. 1119 (1994); Doe v. Washington Univ., 780 F. Supp.

628, 633 (E.D. Mo. 1991). Dr. Bragdon seeks to lace these findings

together to support a conclusion that the risk to him from treating

Ms. Abbott is also significant. The tie does not bind; this

combination produces far too much of a generalization to have any

force in the much narrower contours of this case.

 Moreover, the federal cases involving transmission of HIV

from health-care workers to patients are inapposite not only

because of the asymmetry of control of risk-reduction measures

between health-care workers and patients, see supra, but also

because the cited cases spring from a context in which any risk at

all to patients is deemed unacceptable. See Washington Univ., 780

F. Supp. at 633 ("It is the stated goal of the medical profession

to heal, and its secondary axiom, if healing is not possible, is

not to harm.") Therefore, these cases do not support a reasoned
______________________

 10 In all events, it is implicit in the 1993 CDC guidelines that
no risk-reduction steps beyond the universal precautions are
necessary to ensure the safety of dentists providing routine dental
care to HIV-positive individuals. See supra p. 24.
 29

01-05401

inference that rendering routine care to a dental patient infected

with HIV constitutes a direct threat to the dentist's health.

 7. Dr. Bragdon states that although he did his best to

comply with the universal precautions, he still sustained sharp

injuries on a regular basis. We believe that this kind of

anecdotal evidence by a dentist who is not an expert on infectious

disease is inadequate to block summary judgment. See Medina-Munoz,

896 F.2d at 8 (noting that summary judgment may be granted when

opposing evidence is not significantly probative). Although courts

need not defer slavishly to the judgments of public health

officials, see supra Part IV(B), we believe it would be

inconsistent with Arline were courts to credit lay testimony on

matters of public health. See Arline, 480 U.S. at 287-88

(emphasizing the need to protect the handicapped from unfounded

fears).

 8. Dr. Bragdon cites a study reporting that compliance

with the universal precautions would reduce needlestick exposures

by only 62%. See Edward S. Wong et al., Are Universal Precautions

Effective in Reducing the Number of Occupational Exposures Among

Health Care Workers?, 265 Journal of the American Medical

Association 1123, 1126 (1991). This statistic says nothing about

the initial baseline degree of danger of treatment in the absence

of the universal precautions and thus is impuissant to prove that

a dentist using the CDC's precautions is directly threatened by

treating an HIV-positive patient.

 30

01-05402

 At this point, we have reviewed all the proof relevant to

direct threat that Dr. Bragdon claims was available to him in

September of 1994. Each piece of evidence is too speculative or

too tangential (or, in some instances, both) to create a genuine

issue of material fact. This ends our item-by-item explication of

the record.

 We next consider whether these eight proffers, in

cumulation, possess greater probative force. This can occur when

items of evidence, each insufficient in itself to prove a

particular point, complement each other, like interlocking pieces

of a jigsaw puzzle, in such a way that they together demonstrate

some material fact. Thus, had Dr. Bragdon cited separate sources

of evidence demonstrating (a) the likelihood of dental needlestick

and (b) the likelihood of a dentist contracting HIV from a

needlestick, these items together possibly would have been adequate

to defeat summary judgment on the direct threat defense. Or, had

he proffered several items of evidence that each showed a small

risk to the health or safety of others, the aggregate effect of

these items might have sufficed to prove a significant risk and

thus to thwart summary judgment.

 Despite the fact that Dr. Bragdon did not explicitly make

a "cumulative proof" argument, we have spontaneously reviewed the

record with this thought in mind. Having done so, we are satisfied

that the evidentiary proffers canvassed above, insufficient in

themselves, are likewise insufficient in combination to call into

legitimate question the lower court's entry of summary judgment.

 31

01-05403

In making this evaluation, we emphasize that, under the ADA, a

service provider like Dr. Bragdon is not entitled to demand

absolute safety; he can rely upon the direct threat defense only in

response to significant risks. Here, Dr. Bragdon has failed to

present meaningfully probative evidence that treating Ms. Abbott

would have posed a medically significant risk to his health or

safety.

V. CONCLUSION

 For the reasons indicated, we rule that Ms. Abbott's HIV-

positive status is a physical impairment which substantially

interferes with her major life activity of reproduction, and that

she is therefore disabled within the meaning of the ADA. Inasmuch

as Dr. Bragdon has failed to produce sufficient evidence to

establish a triable issue on his direct threat defense, the entry

of summary judgment in Ms. Abbott's favor must stand.

 Under ordinary circumstances, we would go no further.

Here, however, we believe that more should be said. It is

sometimes convenient to think of cases as involving conduct that

may be categorized in terms of polar extremes: reasonable or

unreasonable, praiseworthy or blameworthy, good or evil. But,

given the complexities of the society in which we live, many

decisions resist such facile classification into black-or-white

dichotomies. Such cases are better characterized in varying shades

of gray.

 This is such an instance. The litigants' positions are

understandable in human terms and impartial observers can empathize

 32

01-05404

with both parties. Still, on the facts of record, the defendant's

refusal to render routine dental care to an HIV-positive patient

offends a duly enacted federal statute and thus cannot be tolerated

by a court of law.

 Although we do what we must, we are not blind to the

difficulty of the choices that the ADA compels health-care

professionals such as Dr. Bragdon to make. We also recognize that

cases of this kind are necessarily fact-sensitive; had the patient

required more invasive treatment or had the dentist proffered

stronger evidence of a direct threat, the result may well have

differed. We therefore caution future courts not to read our words

more broadly than the context admits; our decision today eschews a

blanket rule and instead demands case-by-case inquiry into a

service provider's responsibilities to treat HIV-positive patients.

Affirmed.

 33

01-05405
 No. 96-1643
 IN THE UNITED STATES COURT OF APPEALS
 FOR THE FIRST CIRCUIT
 SYDNEY ABBOTT, et al.,
 Plaintiffs-Appellees,
 v.
 RANDON BRAGDON, DMD,
 Defendant-Appellant.
 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF MAINE
 BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
 DEVAL L. PATRICK
 Assistant Attorney General
 JESSICA DUNSAY SILVER
 SAMUEL R. BAGENSTOS
 Attorneys
 Department of Justice
 P.O. Box 66078
 Washington, D.C. 20035-6078
 (202) 514-2174
01-05406
 TABLE OF CONTENTS
 PAGE
INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

STATEMENT OF THE CASE . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . .12

ARGUMENT:

 I. BRAGDON'S CONDUCT WAS TANTAMOUNT TO A
 COMPLETE DENIAL OF TREATMENT . . . . . . . . . . . . . . . . . . . . . .16

 II. ABBOTT'S ASYMPTOMATIC HIV INFECTION IS A "DISABILITY"
 UNDER THE AMERICANS WITH DISABILITIES ACT . . . . . . . . . 18

 A. Asymptomatic HIV Infection Substantially
 Limits Major Life Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

 1. Abbott's HIV infection substantially
 limits a variety of her major life
 activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 2. HIV has substantially limited Abbott's
 ability to engage in the major life
 activity of reproduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

 B. Because Of Her HIV Infection, Abbott Was
 "Regarded As Having" A Disability . . . . . . . . . . . . . . . . . . . . . . . . .27

 III. THE DISTRICT COURT CORRECTLY REJECTED BRAGDON'S
 "DIRECT THREAT" DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

 A. The District Court Correctly Held That
 Treating Abbott In Bragdon's Office Would
 Not Pose A "Direct Threat" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

 B. The District Court Properly Accorded
 Deference To The CDC's Judgment That
 It Is Safe To Treat Persons With HIV
 In Private Dental Offices Where
 Universal Precautions Are Employed . . . . . . . . . . . . . . . . . . . . . . . .33
 C. Bragdon Has Not Shown That The CDC's
 Medical Judgment Is Unreasonable . . . . . . . . . . . . . . . . . . . . . . . . 39

 D. The District Court Properly Found
 Inapposite The Cases Involving HIV-
 Infected Health-Care Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
 - i -
01-05407
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

 TABLE OF AUTHORITIES

CASES: PAGE

Abbott v. Bragdon, 912 F. Supp. 580
 (D. Maine 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

American Dental Ass'n v. Martin, 984 F.2d 823 (7th Cir.),
 cert. denied, 510 U.S. 859 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 33, 44

Anderson v. Gus Mayer Boston Store, 924 F. Supp. 763
 (E.D. Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp.
 1437 (E.D. Pa. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Bradley v. University of Texas M.D. Anderson Cancer Ctr.,
 3 F.3d 922 (5th Cir. 1993), cert. denied, 510
 U.S. 1119 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

Cain v. Hyatt, 734 F. Supp. 671 (E.D. Pa. 1990) . . . . . . . . . . . . . . . . . . . . . . . . .21

Carparts Distribution Ctr., Inc. v.
 Automotive Wholesaler's Ass'n, 37 F.3d 12
 (1st Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Chalk v. United States District Court, 840 F.2d 701
 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 43, 44

Chevron U.S.A., Inc. v. Natural Resources
 Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . .37

D.B. v. Bloom, 896 F. Supp. 166 (D.N.J. 1995) . . . . . . . . . . . . . . . . . . . . . . 33, 39

Doe v. District of Columbia, 796 F. Supp. 559
 (D.D.C. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990),
 cert. denied, 499 U.S. 904 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310
 (E.D. Pa. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Doe v. University of Maryland Medical System Corp.,
 50 F.3d 1261 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . .44, 46, 47

Doe v. Washington Univ., 780 F. Supp. 628
 (E.D. Mo. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46, 47
 - ii -
01-05408

CASES: PAGE

Eisenstadt v. Baird, 405 U.S. 438 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Ennis v. National Ass'n of Business & Educ. Radio, Inc.,
 53 F.3d 55 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Erickson v. Board of Governors, 911 F. Supp. 316
(N.D. Ill. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . .19

Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 27

Industrial Union Dep't, AFL-CIO v. American Petroleum Inst.,
 448 U.S. 607 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) . . . . . . . . . . . . . . . . . . . . 28

Kohl v. Woodhaven Learning Ctr., 865 F.2d 930 (8th Cir.),
 cert. denied, 493 U.S. 892 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

Krauel v. Iowa Methodist Medical Ctr., 915 F. Supp.
 102 (S.D. Iowa 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24-25

Leckelt v. Board of Comm'rs, 909 F.2d 820
 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .45, 46

Massachusetts v. Blackstone Valley Elec. Co.,
 67 F.3d 981 (1st Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

Mauro v. Borgess Medical Ctr., 886 F. Supp. 1349
 (W.D. Mich. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Moreau v. Local Union No. 247, Int'l Bhd. of Firemen,
 851 F.2d 516 (1st Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .24

Planned Parenthood v. Casey, 505 U.S. 833
 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24, 25

School Bd. of Nassau County v. Arline,
 480 U.S. 273 (1987) . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . passim

Scoles v. Mercy Health Corp., 887 F. Supp. 765
 (E.D. Pa. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . .45

Skinner v. Oklahoma, 316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . .24, 25

Soar v. National Football League Players' Ass'n,
 550 F.2d 1287 (1st Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24

Stanley v. Illinois, 405 U.S. 645 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
 - iii -
01-05409

CASES: PAGE

State v. Clausen, 491 N.W.2d 662
 (Minn. Ct. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 39

Thomas Jefferson Univ. v. Shalala,
 114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 34

United States v. Board of Comm'rs, 435 U.S. 110 (1978) . . . . . . . . . . . . . . . 27

United States v. Morvant, 898 F. Supp. 1157
 (E.D. La. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 33

United States v. Rule Indus., Inc., 878 F.2d 535
 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240
 (E.D. La. 1995), aff'd 79 F.3d 1143 (5th Cir. 1996) . . . . . . . . . . . . . . . 25

STATUTES AND REGULATIONS:
 28 U.S.C. 2403(a) . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . 9

Rehabilitation Act of 1973, 29 U.S.C. 701 et seg. . . . . . . . . . . passim

Americans with Disabilities Act, 42 U.S.C. 12101
 et seg., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

 42 U.S.C. 12101(b)(1) . . . . . . . . . . . . . . . . . . . . . . .12
 42 U.S.C. 12102(2) . . . . . . . . . . . . . . . . . . . . . . . . .1
 42 U.S.C. 12102(2)(A) . . . . . . . . . . . . . . . . . . . . 10, 19
 42 U.S.C. 12102(2)(C) . . . . . . . . . . . . . . . . . . . . . . 27

Americans with Disabilities Act, 42 U.S.C. 12181 et seg.,
 Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

 42 U.S.C. 12181(7)(F) . . . . . . . . . . . . . . . . . . . . . . 16
 42 U.S.C. 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . 9
 42 U.S.C. 12182(a) . . . . . . . . . . . . . . . . . . . . . . . . 16
 42 U.S.C. 12182(b)(1)(A)(i) . . . . . . . . . . . . . . . . . . . .17
 42 U.S.C. 12182(b)(1)(A)(iii) . . . . . . . . . . . . . . . . . . .18
 42 U.S.C. 12182(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . 18
 42 U.S.C. 12182(b)(3) . . . . . . . . . . . . . . . . . 1, 10, 29, 33
 42 U.S.C. 12188(b) . . . . . . . . . . . . . . . . . . . . . . . . .1
 42 U.S.C. 12201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Maine Human Rights Act . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

 - iv -

01-05410

STATUTES AND REGULATIONS: PAGE

28 C.F.R. Part 36
  36.104 . . . . . . . . . . . . . . . . . . . . . . . 2, 20, 23, 27
  36.208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
  36.208(c) . . . . . . . . . . . . . . . . . . . . . . . . . 30, 38
 App. B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
 App. B, S 36.104 . . . . . . . . . . . . . . . . . . . . . 20, 21-22
 App. B, S 36.208 . . . . . . . . . . . . . . . . . . . . . . . passim

29 C.F.R. 1910.1030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

LEGISLATIVE HISTORY:

H.R. Rep. No. 485, Part 2, 101st Cong.,
 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . passim

H.R. Rep. No. 485, Part 3, 101st Cong.,
 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . passim

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . 14, 20, 26, 28

Americans with Disabilities Act of 1988: Joint Hearings
 Before the Subcomm. on the Handicappped of the Senate
 Comm. on Labor and Human Resources and the Subcomm.
 on Select Educ. of the House Comm. on Educ. and Labor,
 100th Cong., 2d Sess. (1988) . . . . . . . . . . . . . . . . . . . 13

Americans with Disabilities Act of 1989: Hearings Before
 the Subcomm. on Civil and Constitutional Rights and
 the House Comm. on the Judiciary, 101st Cong., 1st
 Sess. (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Americans with Disabilities Act of 1989: Hearings Before
 the Senate Comm. on Labor and Human Resources,
 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . . . 19, 26

Oversight Hearing on H.R. 4498, Americans with Disabilities
 Act of 1988: Hearing before the Subcomm. on Select
 Educ. of the House Comm. on Educ. and Labor, 100th
 Cong., 2d Sess. (1988) . . . . . . . . . . . . . . . . . . . . . . 13

136 Cong. Rec.:

 S9696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
 S9697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
 H4622-4627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

 v

01-05411

MISCELLANEOUS: PAGE

ADA Title III Technical Assistance Manual, 1994 Supp.,
  III-3.8000. . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Memorandum from Douglas W. Kmiec, Acting Assistant
 Attorney General, Office of Legal Counsel, to
 Arthur B. Culvahouse, Jr., Counsel to the
 President (Sept. 27, 1988) . . . . . . . . . . . . . . . . . . 19, 26

Robert A. Kushen, Note, Asymptomatic Infection With the
 AIDS Virus as a Handicap Under the Rehabilitation
 Act of 1973, 88 Colum. L. Rev. 563 (1988) . . . . . . . . . . . . .21

10A Charles A. Wright, et al., Federal Practice & Procedure
  2725 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
 vi
01-05412
 IN THE UNITED STATES COURT OF APPEALS

 FOR THE FIRST CIRCUIT

 No. 96-1643

 SYDNEY ABBOTT, et al.,

 Plaintiffs-Appellees,

 v.

 RANDON BRAGDON, DMD,

 Defendant-Appellant.

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF MAINE

 BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

 INTEREST OF THE UNITED STATES

 This case involves two important issues regarding the

construction of the Americans with Disabilities Act, 42 U.S.C.

12101 et seq. (ADA): (1) the definition of the term "disabili-

ty," 42 U.S.C. 12102(2), and specifically whether asymptomatic

infection with the Human Immunodeficiency Virus (HIV) constitutes

a disability; and (2) the application of the "direct threat"

defense, 42 U.S.C. 12182(b)(3), and specifically whether treat-

ment of an HIV-infected patient constitutes a direct threat to

the health and safety of dental health care providers when

universal precautions are employed. The Attorney General has

statutory authority to enforce the ADA's public accommodations

provisions. 42 U.S.C. 12188(b). The Department of Justice has

also issued extensive regulations and interpretive guidance

concerning the proper definition of "disability" and the proper

01-05413

 -2-

application of the "direct threat" defense under the ADA. See 28

C.F.R. 36.104, 36.208; 28 C.F.R. Part 36, App. B.

 The United States also has a significant interest in the

specific fact pattern addressed in this case. The United States

has brought two other cases dealing with the precise questions

presented here: one resulted in a consent decree (United States

v. Castle (N.D. Tex.)), and the other resulted in a summary

judgment decision in our favor (United States v. Morvant, 898 F.

Supp. 1157 (E.D. La. 1995)). And the "direct threat" section of

the Department's Americans with Disabilities Act Title III

Technical Assistance Manual states that (ADA Title III Technical

Assistance Manual, 1994 Supp.,  III-3.8000, Illus. 3, at 4):

 Refusal to provide dental services to an individual who
 is infected with HIV because of the patient's HIV-
 positive status would be a violation. Current medical
 evidence indicates that the risk of HIV transmission
 from a patient to other patients and/or the dental
 staff is infinitesimal, and can be even further reduced
 by the use of universal precautions (infection control
 procedures that prevent the transmission of all infec-
 tious diseases, including HIV).

In his brief on appeal, Bragdon relies on a parsing of the

Department of Justice's "direct threat" regulation that is

squarely contrary to our own interpretation of that provision.

Because the Department's interpretation is entitled to "substan-

tial deference," Thomas Jefferson Univ. v. Shalala, 114 S. Ct.

2381, 2386 (1994), the United States has a strong interest in

presenting that view to the Court.

 The United States also has broader interests in this case.

The Centers for Disease Control and Prevention (CDC) have issued

01-05414

 - 3 -

recommended infection control practices for dentistry, which have

been largely incorporated in an Occupational Safety and Health

Administration rule regarding exposure to bloodborne pathogens.

See generally American Dental Ass'n v. Martin, 984 F.2d 823 (7th

Cir.), cert. denied, 510 U.S. 859 (1993). These practices

incorporate the concept of "universal precautions" referred to in

the Department of Justice's technical assistance manual. In this

case, the Director of the CDC's Division on Oral Health testified

to the CDC's position that persons infected with HIV may be

safely treated in a private dental office where universal precau-

tions are employed. The medical judgments of public health

officials are entitled to considerable deference in the "direct

threat" inquiry. See School Bd. of Nassau County v. Arline, 480

U.S. 273, 288 (1987).

 For these reasons, the United States participated as amicus

in the district court to present our view of the merits of the

case. We also intervened for the limited purpose of defending

the constitutionality of the ADA, but Bragdon has not raised the

constitutional issue on appeal.

 STATEMENT OF THE ISSUES

 1. Whether an individual who is infected with the Human

Immunodeficiency Virus (HIV), but who is not symptomatic, is

"disabled" and therefore protected by the Americans with Disabil-

ities Act (ADA).

 2. Whether the ADA permits a dentist to refuse to provide

treatment solely because the patient is HIV-positive.

01-05415

 - 4 -

 STATEMENT OF THE CASE

 1. This case involves Dr. Randon Bragdon's refusal to

provide routine dental treatment to Sydney Abbott, solely because

Ms. Abbott is infected with the Human Immunodeficiency Virus

(HIV). HIV is the virus that causes Acquired Immune Deficiency

Syndrome (AIDS). Abbott v. Bragdon, 912 F. Supp. 580, 584 (D.

Maine 1995). "People exposed to HIV may contract the virus, and

if so, will develop HIV antibodies and become HIV positive."

Ibid. HIV disease progressively compromises the body's immune

system and normally leads to opportunistic infections, malignan-

cies, and ultimately death. But these symptoms do not appear all

at once. In fact, "[i]ndividuals may carry HIV for several years

without manifesting the collection of symptoms known as AIDS.

During that period, the HIV carrier remains asymptomatic, meaning

apparently healthy and generally able to participate in day to

day life." Ibid. Persons with asymptomatic HIV remain infec-

tious, however. And the HIV virus continues to multiply and

"create[] abnormalities in [their] blood and lymphatic systems."

Ibid. There are three means by which HIV is transmitted: (1)

intimate sexual contact with an infected person; (2) invasive

exposure to infected blood; or (3) from mother to child during

pregnancy, birth, or breast feeding. J.A. 51, 107.1/ Persons

cannot contract HIV through casual contact with an infected
________________________

1/"R. " refers to entries on the district court's docket sheet.
"J.A. " refers to page numbers in the joint appendix. "Bragdon
Br. " and "Ass'n Br. " refer to page numbers in, respective-
ly, Bragdon's opening brief and the American Dental Association's
amicus brief.
01-05416
 - 5 -
individual. Ibid.

 Both the Centers for Disease Control and Prevention (CDC)

and the Occupational Health and Safety Administration (OSHA) have

addressed the question of how HIV-infected patients may be safely

treated in dental offices. The CDC issued Recommended Infection-

Control Practices for Dentistry in 1986, and revised recommenda-

tions in 1993. R. 53, Exh. 16; J.A. 120-132. It also issued

Recommendations for the Prevention of HIV Transmission in Health

Care Settings, including dentistry, in 1987. R. 53, Exh. 17.

And OSHA issued a final rule on Occupational Exposure to Blood-

borne Pathogens in 1991. 29 C.F.R. 1910.1030. Because health

care workers cannot know with certainty whether they are treating

an infectious patient, those guidelines dictate the use of

"universal precautions" -- infection control procedures under

which every patient is treated as if he or she carries an infec-

tious bloodborne pathogen (such as HIV or Hepatitis B). J.A. 51-

52, 107-108. These procedures include protective attire and

barrier techniques such as gloves, gowns, protective eyewear,

surgical masks and/or face shields; proper sterilization of all

dental instruments, including heat sterilization of dental

handpieces after each use; and proper disinfection of the dental

unit and operatory surfaces. J.A. 52, 107-109.

 As the Director of the CDC's Division on Oral Health, Dr.

Donald Marianos, explained, the CDC has determined that "[n]o

infection control procedures beyond the use of universal precau-

tions are necessary when providing routine dental care to persons

01-05417

 -6-

with HIV and AIDS." J.A. 109; accord J.A. 434. Thus, "persons

with HIV or AIDS or other blood-borne pathogens can be safely

treated in private dental offices" where dentists employ univer-

sal precautions. J.A. 111; accord J.A. 434 ("It remains the view

of the CDC that it is safe to provide routine dental care to

patients with HIV and AIDS in private dental offices when univer-

sal precautions are utilized."). Although there remains a

theoretical risk that dentists can contract the virus from their

patients -- primarily through accidental needlestick injuries --

that risk is "so low as to be unquantifiable." J.A. 434. And

"when implemented, the CDC recommendations reduce the already low

risk of disease transmission in the dental environment."

Ibid. 2/

 Those conclusions are based on sound epidemiological evi-

dence. "Despite the fact that probably over one billion dental

procedures have been performed by over 250,000 dental health care

professionals in the past fourteen years, and despite the fact

that approximately 1,000,000 individuals in the United States are

estimated to be infected with HIV, there has never been a docu-

mented case of HIV transmission from infected patient to dental

health care worker, nor from infected patient to non-infected

_______________________
2/ Moreover, the use of "instruments instead of fingers to retract
tissue or guide anesthetic needles during injections" can reduce
the risk of accidental needlestick incidents, and "self-sheathing
anesthetic syringes are now available to prevent needlestick
injuries during or after anesthetic injections." J.A. 383-384.

01-05418
 -7-
patient." J.A. 112 (emphasis in original); accord J.A. 435. 3/

In the most recent statistics available to the CDC at the time of

summary judgment, a total of 42 non-dental health care workers

had been "documented as having seroconverted to HIV following

occupational exposures to HIV"; 36 of these cases involved

percutaneous exposures such as needlesticks. J.A. 111. Whether

a needlestick injury leads to infection, however, depends signif-

icantly on the amount of blood transmitted; the narrow-bore

needles typically used in routine dentistry make it less likely

that an amount of blood sufficient to cause infection will be

transmitted in the dental context. J.A. 111-112. As Dr. Mari-

anos explained, "[b]ecause the size of anesthetic needles used in

dentistry is much smaller than that used in most medical set-

tings, the majority of needlesticks among dental workers will

involve smaller, rather than larger amounts of HIV infected

blood. It is the position of the CDC that the risk of acquiring

HIV occupationally from a needlestick in the dental setting is so

low that it cannot be accurately quantified." J.A. 394.

 In light of these facts, the American Dental Association has
_____________________

3/ The CDC has reported only one case involving transmission in
the opposite direction -- from a health care worker (of any kind)
to a patient. That case involved a Florida dentist, who trans-
mitted HIV to six of his patients. Dr. Marianos testified that
"[t]he specific mechanism of transmission has not been identified
and it [is] unlikely to be identified in the future." J.A. 113.
An article co-authored by Dr. Marianos found that "after he was
diagnosed with AIDS, [the Florida dentist] frequently experienced
fatigue, a factor which may have increased the opportunity for
injury." R. 57, Exh. B at 803. And Dr. Marianos also testified,
based on his investigation of the incident, that the dentist's
"attempts to follow universal precautions were not uniformly
adhered to." J.A. 212.

01-05419

 -8-

adopted a policy regarding the treatment of persons with HIV and

AIDS. That policy states (J.A. 273):

 Current scientific and epidemiologic evidence indicates
 that there is little risk of transmission of infectious
 diseases through dental treatment if recommended infec-
 tion control procedures are routinely followed. Pa-
 tients with HIV infection may be safely treated in
 private dental offices when appropriate infection
 control procedures are employed. Such infection con-
 trol procedures provide protection both for patients
 and dental personnel. * * *. A dentist should not
 refuse to treat a patient whose condition is within the
 dentist's current realm of competence solely because
 the patient is HIV infected.

The American Dental Association has reaffirmed this policy in its

amicus brief in this case. See Ass'n Br. 2 n.1. Indeed, the

Association's Council on Ethics, Bylaws and Judicial Affairs has

stated that it is unethical to refuse treatment to those who are

HIV infected. See J.A. 276 ("A dentist has the general obliga-

tion to provide care to those in need. A decision not to provide

treatment to an individual because the individual has AIDS or is

HIV seropositive, based solely on that fact, is unethical.").

Refusal to treat HIV-infected patients has similarly been de-

clared unethical by the American Association of Oral and Maxillo-

facial Surgeons (J.A. 134), the Association of State and Territo-

rial Health Officials and Association of State and Territorial

Dental Directors (J.A. 147), and the American Association of

Dental Schools (J.A. 155).

 2. Sydney Abbott tested positive for HIV antibodies in

1986; she is currently asymptomatic. Abbott, 912 F. Supp. at

584. In September of 1994, she made an appointment at Randon

Bragdon's dental office to have a cavity examined. R. 53, Exh. 6

01-05420

 -9-

at 34-35. At the office, Abbott was asked to fill out a medical

questionnaire. She disclosed on that form that she had tested

positive for HIV. Abbott, 912 F. Supp. at 584. After Bragdon

examined Abbott and concluded that she did, in fact, have a

cavity, he informed her that "pursuant to his infectious disease

policy, he would not fill her cavity in his office." Ibid. He

stated that his policy was to treat people with infectious

diseases in a hospital setting. Bragdon offered to treat Abbott

in the hospital and to "charge her the standard fee for filling a

cavity as well as what the hospital charged for use of its

facilities." Ibid. Bragdon's written "Infectious Disease

Policy," however, makes no mention of his willingness to treat

persons with infectious diseases in a hospital setting. See J.A.

272. And Bragdon has never had patient admitting privileges at

any hospital. J.A. 229; R. 53, Exh. 1 at 288, 300. Abbott left

without accepting or rejecting Bragdon's offer. J.A. 172.

 3. On December 1, 1994, Abbott filed this action (R. 1).

Her complaint alleged that Bragdon had violated Title III of the

Americans with Disabilities Act, 42 U.S.C. 12181 et seq. (ADA),

which prohibits public accommodations from discriminating on the

basis of disability. See 42 U.S.C. 12182. Because Bragdon's

answer called into question the constitutionality of the ADA (R.

4), the district court on February 28, 1995, invited the United

States to intervene. R. 5; see 28 U.S.C. 2403(a). In response,

the United States moved to intervene as of right for the limited

purpose of defending the statute's constitutionality; the United

01-05421

 -10-

States also moved for leave to participate as amicus curiae

regarding the other issues in the case. R. 10; see also R. 18.

The court granted that motion on April 21, 1995. R. 22. (In the

meantime, Abbott had amended her complaint to include a claim

under the Maine Human Rights Act, and the Maine Human Rights

Commission had intervened as a plaintiff. R. 14, 23.)

 The parties filed cross-motions for summary judgment on the

issues of liability and the ADA's constitutionality. The dis-

trict court issued an opinion on December 22, 1995. Abbott,

supra. In that opinion, the court granted plaintiffs' motions

for summary judgment and denied Bragdon's motion for summary

judgment. Abbott, 912 F. Supp. at 504. The district court first

concluded that Abbott's asymptomatic HIV infection "substantially

limits" a "major life activit[y]" and therefore constitutes a

"disability." 42 U.S.C. 12102(2)(A); Abbott, 912 F. Supp. at

585-587. The court held that reproduction is a "major life

activity" under the Act. 912 F. Supp. at 586. Because "the risk

of transmitting HIV to a potential child, as well as possible

harm to her own immune system, has deterred her from having

children," the district court found that Abbott was substantially

limited in the activity of reproduction. Id. at 586-587.

 The court then rejected Bragdon's defense that he was

entitled to refuse treatment to Abbott in his office because

doing so would pose a "direct threat to the health or safety of

others." 42 U.S.C. 12182(b)(3). The district court noted that

"courts engaging in such an analysis 'normally should defer to

01-05422

 -11-

the reasonable medical judgments of public health officials.'"

Abbott, 912 F. Supp. at 588 (quoting School Bd. of Nassau County

v. Arline, 480 U.S. 273, 288 (1987)). The court noted the

testimony of the CDC's Director of Oral Health, as well as the

American Dental Association's own opinion on the issue. It found

that plaintiffs had "provided evidence, of Summary Judgment

quality, of a reasonable medical judgment of a public health

official, based on current medical knowledge, that treating HIV

positive patients such as Plaintiff in a dental office does not

pose a direct threat to the health and safety of others." Id. at

589. In contrast, the court found that Bragdon's argument relied

on mere "assertion[s]" and "tangential statistics" that were not

supported by "Summary Judgment quality evidence." Id. at 588.

The court also rejected Bragdon's three constitutional challenges

to the application of the ADA. Id. at 592-595. 4/

 The district court enjoined Bragdon from "refusing to

provide treatment in his office to individuals infected with HIV

solely on the basis of their HIV positive status, without making

an individualized assessment, based on current medical knowledge

and the reasonable medical judgment of public health officials,

that in-office treatment of any such individual poses a direct

threat to the health and safety of others." Id. at 596. After

denying Bragdon's motion for relief from that order, as well as

plaintiffs' motions for further injunctive relief (R. 108), the
_____________________
4/ For the same reasons that it violated the ADA, the court found
that Bragdon's conduct violated the Maine Human Rights Act as
well. Id. at 591-592.
01-05423

 -12-

district court entered a final judgment on April 22, 1996. R.

109. Bragdon filed a notice of appeal on May 10, 1996. R. 111.

 INTRODUCTION AND SUMMARY OF ARGUMENT

 This case presents the question whether a dentist violated

the Americans with Disabilities Act, 42 U.S.C. 12101 et seq.

(ADA), when he refused to treat a patient solely because of her

HIV-positive status. When it passed the ADA in 1990, Congress

sought to expand on the more limited protections against disabil-

ity-based discrimination incorporated in the Rehabilitation Act

of 1973, 29 U.S.C. 701 et. seq. (Rehabilitation Act), and "provide

a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities." 42 U.S.C.

12101(b)(1). In drafting Title III of the ADA, which prohibits

disability-based discrimination by places of public accommoda-

tion, "Congress intended that people with disabilities have equal

access to the array of goods and services offered by private

establishments and made available to those who do not have

disabilities." Carparts Distribution Ctr., Inc. v. Automotive

Wholesaler's Ass'n, 37 F.3d 12, 19 (1st Cir. 1994).

 The problem of discrimination against persons with HIV was a

particular focus of the ADA's drafters. During its extensive

deliberations on the ADA, Congress heard testimony that "[p]eople

with AIDS have faced horrific incidences of discrimination.

People have been run out of their homes, jobs, schools, and

communities because of fear and misunderstanding. And, in many

cases, people have been ridiculed and denied services from the

01-05424

 -13-

medical profession." Oversight Hearing on H.R. 4498, Americans

with Disabilities Act of 1988: Hearing before the Subcomm. on

Select Educ. of the House Comm. on Educ. and Labor, 100th Cong.,

2d Sess. 76-77 (1988) (statement of Nancy Durkin); accord id. at

206 (statement of Stephen Cohen), 217 (statement of Jerry John-

son). Congress also considered a report by the President's

Commission on the HIV Epidemic, which found that "complaints of

HIV-related discrimination persist and their number is increas-

ing." Americans with Disabilities Act of 1988: Joint Hearings

Before the Subcomm. on the Handicapped of the Senate Comm. on

Labor and Human Resources and the Subcomm. on Select Educ. of the

House Comm. on Educ. and Labor, 100th Cong., 2d Sess. 52 (1988).

The Commission's report also described the persistence of dis-

crimination in health care settings: "The Commission has heard

testimony that some hospitals and some health care workers in

hospitals have been unwilling to care for HIV-infected persons or

have provided inappropriate care because of fear." Id. at 56.

Reverend Scott Allen, a commissioner of the congressionally-

established National Commission on AIDS, echoed these findings

and concluded that following a diagnosis of HIV infection, "[t]he

subsequent act of irrational discrimination that occurs has been

one of the unfortunate landmarks of our Nation's response to the

HIV epidemic." Americans with Disabilities Act of 1989: Hear-

ings Before the Subcomm. on Civil and Constitutional Rights and

the House Comm. on the Judiciary, 101st Cong., 1st Sess. 171

(1989).

01-05425

 -14-

 Reviewing this and other evidence, Congress endorsed the

presidential commission's conclusions that "discrimination

against individuals with HIV infection is widespread and has

serious repercussions for both the individual who experiences it

and for this nation's efforts to control the epidemic." H.R.

Rep. No. 485, Part 2, 101st Cong., 2d Sess. 31 (1990); S. Rep.

No. 116, 101st Cong., 1st Sess. 8 (1989); see also H.R. Rep. No.

485, Part 2, supra, at 48 ("The need for omnibus civil rights

legislation was also one of the major recommendations of the

Presidential Commission on the HIV Epidemic."). Thus, in deter-

mining who would be covered as an "individual with a disability"

under the ADA, Congress endorsed the Department of Justice's

prior construction of the Rehabilitation Act to include persons

with HIV (symptomatic or asymptomatic) within the protected

class. See H.R. Rep. No. 485, Part 2, supra, at 52; H.R. Rep.

No. 485, Part 3, 101st Cong., 2d Sess. 28 n.18 (1990); S. Rep.

No. 116, supra, at 22; see also 136 Cong. Rec. S9696-S9697 (daily

ed. July 13, 1990) (statement of Sen. Kennedy); 136 Cong. Rec.

H4622-H4623 (daily ed. July 12, 1990) (statement of Rep. Owens);

id. at H4624-H4625 (statement of Rep. Edwards); id. at H4626-

H4627 (statement of Rep. Waxman).

 This case presents precisely the type of discrimination

Congress had in mind when it passed the ADA. Randon Bragdon

refused to provide Sydney Abbott with routine dental treatment in

his office, and he did so solely because Abbott is HIV-positive.

Indeed, Bragdon's conduct was tantamount to a complete refusal to

01-05426

 -15-

treat. See id. at S9697 (statement of Sen. Kennedy) (stating

that, under the ADA, "a doctor or dentist could not require that

a person demonstrate that he or she was not HIV-infected" and

that current CDC guidelines afford "no reason to require proof of

HIV-negativity in any public accommodation setting"). The

district court thus properly granted summary judgment in Abbott's

favor.

 As the legislative background to the ADA makes clear, Abbott

is an "individual with a disability" protected by the statute.

HIV imposes significant limitations on a variety of activities.

Of particular importance here, Abbott testified that after she

tested positive for HIV, she decided not to have children because

of the risks that pregnancy and childbirth would pose to herself

and her child and because her child would likely lose its mother.

Abbott's HIV infection thus has substantially limited her ability

to engage in the major life activity of reproduction. Moreover,

her condition provokes a fear of contagion in others that limits

her life activities. Bragdon's conduct demonstrates this point

clearly: Bragdon refused to provide Abbott a needed medical

service because of his fears.

 Moreover, Bragdon was not entitled to refuse to treat Abbott

on the ground that her condition posed a "direct threat." The

district court properly deferred to the CDC's position that it is

safe to treat HIV-infected patients in private dental offices

that employ universal precautions -- infection control procedures

that assume that all patients may carry an infectious disease

01-05427

 -16-

such as HIV. The CDC has determined that the risk of transmis-

sion of HIV in the dental setting is so low as to be unquantifia-

ble, and that universal precautions further reduce that risk.

The CDC's position is consistent with that of other public health

authorities and of the American Dental Association. The ADA

requires courts to defer to the reasonable medical judgments of

public health officials in the "direct threat" inquiry.

 ARGUMENT

 I

 BRAGDON'S CONDUCT WAS TANTAMOUNT TO A
 COMPLETE DENIAL OF TREATMENT

 Title III of the ADA prohibits places of public accommoda-

tion from discriminating on the basis of disability "in the full

and equal enjoyment of [their] goods, services, facilities,

privileges, advantages, or accommodations." 42 U.S.C. 12182(a).

It is undisputed that Bragdon's office constitutes a "place of

public accommodation" under the Act. See 42 U.S.C. 12181(7)(F)

("professional office of a health care provider" is a place of

public accommodation). It is also clear that, if Abbott has a

"disability" within the meaning of the ADA, Bragdon's actions

constituted discrimination on the basis of disability. Those

actions denied her the full and equal enjoyment of Bragdon's

services.

 Indeed, Bragdon's actions were tantamount to a total denial

of treatment. While Bragdon stated that he was willing to treat

Abbott in a hospital setting, he has never had admitting privi-

leges at any hospital. J.A. 229; R. 53, Exh. 1 at 288, 300. He

01-05428

 -17-

did not apply for privileges from any hospital until November of

1994 -- approximately two months after Abbott visited his office,

and after she filed a complaint against him with the Maine Human

Rights Commission. R. 53, Exh. 1 at 288; see R. 54, Exh. 1. At

that time, he applied only at one hospital -- Down East Community

Hospital in Machias, 60 miles away. J.A. 229; R. 53, Exh. 1 at

288. 5/ But Down East's head of infection control was unaware of

any operating rooms in the hospital equipped with a dental chair

or dental delivery unit. J.A. 303. Bragdon's refusal to treat

Abbott in his office thus effectively denied her any opportunity

to benefit from his services simply because of her HIV infection.

That conduct clearly constitutes discrimination under the ADA.

See 42 U.S.C. 12182(b)(1)(A)(i).

 Even if Bragdon did have hospital privileges, his conduct

would still have constituted discrimination. Bragdon's policy

would have required Abbott to accept treatment in a separate

setting 60 miles away and to bear the additional costs of using

that setting. There would, moreover, be no medical justification

for either the separate treatment setting or the additional

burdens. Bragdon suggested that a hospital operatory would

provide greater air filtration, negative air pressure, and

ultraviolet light to kill airborne pathogens. R. 53, Exh. 1 at

347-350. But the operating rooms at Down East hospital did not

contain facilities for negative air pressure or ultraviolet
_____________________

5/ The hospital had not yet acted on Bragdon's application by the
time of summary judgment. R. 53, Exh. 1 at 300.
01-05429
 - 18 -
light, and Bragdon did not know whether its air filtration system

was sufficient. Ibid.; J.A. 302-303. Bragdon suggests that the

hospital setting was necessary to allow the use of a particulate

respirator to prevent HIV transmission by way of aerosol mist.

Bragdon Br. 15-16. As we explain below, however, the CDC has

found the risk of aerosol mist transmission to be wholly specula-

tive and theoretical. See pp. 41-42, infra. "Thus, use of a

particulate respirator is completely unjustifiable to prevent

transmission of HIV in any health-care setting, including dental

settings." J.A. 384. Providing a benefit in a separate setting

without any justification for the separation amounts to discrimi-

nation under the ADA. See 42 U.S.C. 12182 (b) (1) (A) (iii); 42

U.S.C. 12182 (b) (1) (B).

 In these circumstances, the "issue" is not, as Bragdon puts

it, whether "it is illegal for dentists to take additional

precautions" when treating HIV-infected patients. Bragdon Br.

23; see also id. at 34, 42-43. Rather, the issue is whether

Bragdon may refuse entirely to fill the cavities of HIV-infected

patients. As we demonstrate below, the ADA prohibits Bragdon's

blanket exclusion.

 II

 ABBOTT'S ASYMPTOMATIC HIV INFECTION IS A "DISABILITY"
 UNDER THE AMERICANS WITH DISABILITIES ACT

A. Asyptomatic HIV Infection Substantially Limits Major Life

 Activities

 1. Abbott's HIV infection substantially limits a variety of

her major life activities. The district court correctly conclud-

01-05430

 - 19 -

ed that Abbott's asymptomatic HIV infection constitutes a "dis-

ability." Even under the Rehabilitation Act, the predecessor to

the ADA, court decisions and administrative construction have

made clear that persons infected with HIV are protected by the

statute.6/ The ADA's protections are at least as broad as those

the Rehabilitation Act affords to persons with disabilities. 42

U.S.C. 12201 (a). Indeed, as we have noted, protecting persons

with HIV and AIDS was a principal concern of the drafters of the

ADA; when it passed the ADA, Congress specifically endorsed the

prior administrative construction of the Rehabilitation Act to

cover HIV infection. See pp. 12-14, supra.

 HIV infection fits comfortably within the ADA's definition

of disability. An individual has a "disability" for purposes of

the statute if she has "a physical or mental impairment that

substantially limits one or more of [her] major life activities."

42 U.S.C. 12102 (2) (A). HIV infection clearly constitutes a

physical "impairment," for it is a "physiological disorder or

condition" that affects, among others, the hemic and lymphatic
_______________________

6/ See, e.g., Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994)
("[W]e hold that a person infected with the HIV virus is an
individual with a disability within the meaning of the [Rehabili-
tation] Act."); Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir.
1990) ("[I]t is well established that infection with AIDS consti-
tutes a handicap for purposes of the [Rehabilitation] Act.")
(plaintiff had asymptomatic HIV), cert. denied, 499 U.S. 904
(1991); Memorandum from Douglas W. Kmiec, Acting Assistant
Attorney General, Office of Legal Counsel, to Arthur B. Culva-
house, Jr., Counsel to the President (Sept. 27, 1988) (concluding
that HIV infection -- symptomatic or asymptomatic -- is a "handi-
cap"), reprinted in Americans with Disabilities Act of 1989:
Hearings Before the Senate Comm. on Labor and Human Resources,
101st Cong., 1st Sess. 338-368 (1989).
01-05431

 - 20 -

system. 28 C.F.R. 36.104 (definition of "disability," subpart

(1) (i)). Indeed, Department of Justice regulations implementing

Title III of the ADA specifically list "HIV disease (whether

symptomatic or asymptomatic)" as an example of an "impairment."

Ibid. (definition of "disability," subpart (1) (iii)).

 The district court correctly concluded, moreover, that HIV

"substantially limits" a "major life activit[y]." A person is

"substantially limit[ed]" in an activity if, "in comparison to

most people," she is "restricted as to the conditions, manner, or

duration under which" she can perform it. 28 C.F.R. Part 36,

App. B.  36.104; accord H.R. Rep. No. 485, Part 2, 101st Cong.,

2d Sess. 52 (1990); S. Rep. No. 116, 101st Cong., 1st Sess. 23

(1989). HIV infection commences a process culminating in debili-

tating opportunistic infections and premature death. J.A. 51,

306. It thus substantially limits all major life activities, for

it materially restricts the "duration under which" they can be

performed. Even during the period before it results in death,

HIV infection substantially limits a variety of major life

activities. For example, people with HIV "are recommended not to

have unprotected inserted sexual intercourse and are recommended

not to have children." State v. Clausen, 491 N.W.2d 662, 666

(Minn. Ct. App. 1992). They also "become poor candidates" for

insurance, and their shortened life span limits career choices

that require extensive training. Ibid. And "HIV infected

persons who are on medication require visits to the clinic which

takes time away from work." Ibid. Asymptomatic persons with HIV

01-05432

 - 21 -

are also limited in their ability to travel, for they "must be

always mindful of exposure to bacterial infection and fungi or

even places requiring vaccinations." Anderson v. Gus Mayer

Boston Store, 924 F. Supp. 763, 777 n.37 (E.D. Tex. 1996).7/

 2. HIV has substantially limited Abbott's ability to engage

in the major life activity of reproduction. Of particular note

here, as the district court concluded, Abbott's own testimony

demonstrates that her HIV infection substantially limited her

ability to engage in the major life activity of reproduction and

childrearing. Abbott, 912 F. Supp. at 587; see, e.g., Doe v.

Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1320-1322 (E.D. Pa.

1994) (HIV substantially limits major life activity of reproduc-

tion); Doe v. District of Columbia, 796 F. Supp. 559, 568 (D.D.C.

1992) (same); Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa.

1990) (same).8/ While HIV does not completely prevent an indi-

vidual from reproducing, it significantly restricts the "condi-

tions * * * under which" she can do so. 28 C.F.R. Part 36, App.
______________________

7/ See also Austin v. Pennsylvania Dep't of Correction, 876 F.
Supp. 1437, 1465 (E.D. Pa. 1995) ("Several courts have also held
that HIV-infected individuals qualify as 'handicapped indivi-
duals' under the Rehabilitation Act even though they display no
outward manifestations of disease because the HIV virus impairs
multiple body systems, including the hemic, lymphatic and repro-
ductive systems, and by its biological effects and the fear it
inspires in others, clearly limits those infected in major life
activities.").

8/ See also Robert A. Kushen, Note, Asymptomatic Infection With
the AIDS Virus as a Handicap Under the Rehabilitation Act of
1973, 88 Colum. L. Rev. 563, 574 (1988); cf. Ennis v. National
Ass'n of Business & Educ. Radio, 53 F.3d 55, 60 (4th Cir. 1995)
(stating in dicta that asyptomatic HIV is not a "disability"
absent evidence that it substantially limited the particular
plaintiff in the ability to perform a major life activity).

01-05433

 - 22 -

B.  36.104. As the district court noted, a woman with HIV faces

increased risks to her own health if she undergoes childbirth.

Abbott, 912 F. Supp. at 587. She also "runs the risk of infect-

ing her child, during pregnancy, through child birth or, if she

chooses to do so, through breast feeding." Ibid. 9/ And HIV

limits a parent's ability to care for and raise her child,

because it limits the length of time during which she can do so.

Ibid. These risks deterred Abbott from having children. She

testified that she "made the decision after [she] tested positive

not to have children because of the risk of infecting the child

and the risk of impairing [her] own immune system, and also the

fact that this baby probably wouldn't have a mother after a

while." J.A. 173.

 Bragdon and his amicus argue, however, that reproduction is

not a "major life activity" for purposes of the ADA. As we have

noted, reproduction is far from the only activity that HIV
______________________

9/ Bragdon and his amicus contend that a factual question exists
regarding whether the risk of passing HIV along to a child
presents a substantial limitation to reproduction. Bragdon Br.
29; Ass'n Br. 11-13. But there is no dispute as to the facts: a
pregnant woman faces at least an 8%-25% risk of transmitting HIV
to her child. See Bragdon Br. 29. "[W]hen the only question is
what legal conclusions are to be drawn from an established set of
facts, the entry of a summary judgment usually should be direct-
ed." 10A Charles A. Wright, et al., Federal Practice & Procedure
 2725 at 85 (1983). This is not the sort of "rare case" (United
States v. Rule Indus., Inc., 878 F.2d 535, 542 (1st Cir. 1989))
that warrants an exception to that principle. Most people do not
face an 8%-25% risk of passing a progressive, debilitating, and
fatal disease to their offspring. A woman who cannot have a
child without confronting such a risk is, without question,
significantly "restricted as to the conditions" under which she
can reproduce "in comparison to most people." See 28 C.F.R. Part
36, App. B  36.104.

01-05434

 - 23 -

limits. Even asymptomatic HIV infection places significant

limitations on the ability to perform a variety of life func-

tions. See pp. 20-21, supra. In any event, Bragdon and his

amicus are incorrect. Both the ADA's text and its legislative

history make clear that reproduction is a major life activity.

 The ADA does not specifically define the term "major life

activities." Department of Justice regulations provide some

guidance by stating that the term refers to "functions such as

caring for one's self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working." 28 C.F.R.

36.104 (definition of "disability," subpart (2)). Although

reproduction does not appear on that list, it is a "major life

activity" in any meaningful sense. In many respects, it is

difficult to conceive of a life activity that is more "major"

than that of reproduction. As the district court recognized

(Abbott, 912 F. Supp. at 586), reproduction involves a great deal

more than the mere act of conception. It also involves the

physical processes facilitating conception, the ability to engage

in sexual activity leading to conception without endangering

oneself or one's partner, and the childrearing and nurturing

relationship following conception.

 Our society has deemed all of these activities fundamental.

The "decision whether to bear or beget a child," Eisenstadt v.

Baird, 405 U.S. 438, 453 (1972), involves "the most intimate and

personal choices a person may make in a lifetime, choices central

to personal dignity and autonomy." Planned Parenthood v. Casey,

01-05435

 -24-

505 U.S. 833, 851 (1992). Indeed, reproduction is essential to

the very propagation of the species, and it has been recognized

as "one of the basic civil rights of man." Skinner v. Oklahoma,

316 U.S. 535, 541 (1942). The interests in raising one's chil-

dren are similarly deep-rooted. See Stanley v. Illinois, 405

U.S. 645, 651 (1972). For these reasons, decisions relating to

procreation, reproduction, and childrearing are constitutionally

protected. Planned Parenthood, 505 U.S. at 851. Society's --

and the Constitution's -- recognition of the fundamental nature

of reproduction demonstrates that it is a "major" life activi-

ty.10

 Bragdon and his amicus contend that reproduction is a mere

"lifestyle choice," not an activity that "everyone does."

Bragdon Br. 26-27; accord Ass'n Br. 14-15; see Krauel v. Iowa
_____________________
10 Bragdon and his amicus also contend that even if HIV in general
limits the major life activity of reproduction, it did not do so
for Abbott. They rely on the fact that Abbott answered "No" to
the following question at her deposition: "Are you impaired in
your ability to carry out any of your life functions by the fact
that you are HIV positive?" J.A. 166. (Abbott also answered
"No" to defense counsel's statement that "I'm trying to find out
if there's any physical functions that you're prevented from
carrying out." J.A. 167.) The fact that Abbott did not mention
the specific issue of reproduction in response to the general
question regarding her "life functions" hardly indicates that she
considered the inability to have a child to be an insignificant
burden, especially in light of her specific testimony that her
HIV-positive diagnosis was the reason she decided not to have
children. "A court is not obliged to deny an otherwise persua-
sive motion for summary judgment on the basis of a vague supposi-
tion that something might turn up at the trial," Soar v. National
Football League Players' Ass'n, 550 F.2d 1287, 1289 n.4 (1st Cir.
1977) (internal quotation marks omitted), for "a mere challenge
to the credibility of a movant's witnesses without any supporting
evidence does not create a genuine issue of material fact."
Moreau v. Local Union No. 247, Int'l Bhd. of Firemen, 851 F.2d
516, 519 (1st Cir. 1988).
01-05436

 -25-

Methodist Medical Ctr., 915 F. Supp. 102, 106 (S.D. Iowa 1995).

The statute, however, refers to "major" life activities, not

"unchosen" or "universal" life activities.11 Bragdon argues

that "[i]f major life activities include lifestyle choices, then

major life activities must, in principle, include any chosen life

activity that is extremely important to an individual: Training

for the decathlon, being a foster parent, climbing Mt. Everest,

doing needlepoint, singing opera, eating rich foods, and so on."

Bragdon Br. 26. But reproduction is not just any "lifestyle

choice." Reproduction, unlike doing needlepoint, involves a

choice central to personal dignity and autonomy, essential to the

survival of the human race, and protected by the Constitution.

See Planned Parenthood, 505 U.S. at 851; Skinner, 316 U.S. at

541. The fact that many people exercise their constitutionally

protected choice to forego reproduction does not make the activi-

ty any less "major." To the contrary, the constitutional protec-

tion accorded to the choice underscores the very importance our

society places on the activity of reproduction.

 This construction accords with Congress's clear intent. In
______________________

11 Bragdon's amicus also relies on Zatarain v. WDSU-Television,
Inc., 881 F. Supp. 240, 243 (E.D. La. 1995), aff'd, 79 F.3d 1143
(5th Cir. 1996) (table), a non-HIV case that held that reproduc-
tion is not a "major life activity" because it "is not an activi-
ty engaged in with the same degree of frequency as" the activi-
ties in the regulatory list. But the frequency with which an
activity is performed is hardly the only way in which it can
become "major." Reproduction is "major" because society, the
courts, and the Constitution accept it as one of the most funda-
mental activities in human life. Moreover, the Zatarain analysis
inappropriately reduces the activity of reproduction to the
discrete act of conception. See Erickson v. Board of Governors,
911 F. Supp. 316, 322 (N.D. Ill. 1995).
01-05437
 -26-
enacting the ADA, Congress plainly contemplated that the term

"major life activities" would encompass reproduction, and it

intended that HIV infection be covered by the Act as an impair-

ment that substantially limits that activity. In 1988, the

Department of Justice authoritatively construed the definition of

"handicap" in the Rehabilitation Act, which was substantively

identical to the ADA's definition of "disability," to encompass

asymptomatic HIV infection. See Memorandum from Douglas W.

Kmiec, Acting Assistant Attorney General, Office of Legal Coun-

sel, to Arthur B. Culvahouse, Jr., Counsel to the President 9-11

(Sept. 27, 1988), reprinted in Americans with Disabilities Act of

1989: Hearings Before the Senate Comm. on Labor and Human

Resources, 101st Cong., 1st Sess. 346-348 (1989). In reaching

that conclusion, the Department relied on the fact that HIV

substantially limits the major life activity of reproduction.

See ibid. When it enacted the ADA two years later, Congress

explicitly endorsed the Department's construction: "As noted by

the U.S. Department of Justice, * * *, a person infected with the

Human Immunodeficiency Virus is covered under the first prong of

the definition of the term 'disability' because of a substantial

limitation to procreation and intimate sexual relationships."

H.R. Rep. No. 485, Part 2, supra, at 52 (citing Kmiec memoran-

dum); accord H.R. Rep. No. 485, Part 3, supra, at 28 n.18; S.

Rep. No. 116, supra, at 22. "When a Congress that re-enacts a

statute voices its approval of an administrative or other inter-

pretation thereof, Congress is treated as having adopted that

01-05438

 -27-

interpretation, and [the courts are] bound thereby." United

States v. Board of Comm'rs, 435 U.S. 110, 134 (1978).

B. Because Of Her HIV Infection, Abbott Was "Regarded As Having"
 A Disability

 Moreover, although the district court did not reach the

question, Bragdon's treatment of Abbott demonstrates that he

perceived her as having a disability. An individual has a

"disability," and is therefore protected by the ADA, if she is

"regarded as having" a substantially limiting impairment. 42

U.S.C. 12102(2)(C). This definition is satisfied where, as here,

an individual has an impairment that substantially limits major

life activities "as a result of the attitudes of others toward

such impairment." 28 C.F.R. 36.104 (definition of "disability,"

subpart (4)(ii)).

 The attitudes of others toward her impairment have imposed

significant limitations on Abbott in at least two respects.

First, Bragdon's own attitudes have prevented her from obtaining

a needed medical procedure. Bragdon excluded her from that

service simply because of his unfounded perception regarding the

contagious effect of her HIV infection. That conduct establishes

that Bragdon "regarded" Abbott as having a "disability." See

Harris v. Thigpen, 941 F.2d 1495, 1523-1524 (11th Cir. 1991)

(prison system's exclusion of HIV-positive prisoners from pro-

grams due to fear of contagiousness establishes that prisoners

were "regarded as" disabled and thus protected by the Rehabilita-

tion Act). Congress afforded protection to those who are "re-

garded as having" a disability precisely to cover cases such as

01-05439

 -28-

the present one, where a covered entity "exaggerates [the]

significance" of an admitted long-term impairment. Katz v. City

Metal Co., 87 F.3d 26, 33 (1st Cir. 1996). As the Supreme Court

has explained, "[a]llowing discrimination based on the contagious

effects of a physical impairment would be inconsistent with the

basic purpose of [the Rehabilitation Act], which is to ensure

that handicapped individuals are not denied jobs or other bene-

fits because of the prejudiced attitudes or the ignorance of oth-

ers." School Bd. of Nassau County v. Arline, 480 U.S. 273, 284

(1987).

 Second, Bragdon's decision to exclude Abbott from his own

services is merely an example of the significant limitation that

discrimination places on the ability of people with HIV to engage

in any number of activities. As we have noted, when Congress

passed the ADA it considered an extensive record of discrimi-

nation against people with HIV, including in the health care

field. See pp. 12-14, supra. Congress found that "discrimina-

tion against individuals with HIV infection is widespread and has

serious repercussions for both the individual who experiences it

and for this nation's efforts to control the epidemic." H.R.

Rep. No. 485, Part 2, supra, at 31; S. Rep. No. 116, supra, at 8.

The "regarded as" doctrine recognizes that where individuals with

a particular condition face such persistent discrimination and

exclusion, that fact itself warrants legal protection: "By

amending the definition of 'handicapped individual' to include

not only those who are actually physically impaired, but also

01-05440

 -29-

those who are regarded as impaired and who, as a result, are

substantially limited in a major life activity, Congress acknowl-

edged that society's accumulated myths and fears about disability

and disease are as handicapping as are the physical limitations

that flow from actual impairment." Arline, 480 U.S. at 284.

That rationale applies quite directly to Abbott's HIV infection.

As Congress found when it enacted the ADA three years after

Arline, there are many people like Dr. Bragdon who view all

people with HIV as having a disability. Accordingly, the dis-

trict court's judgment may be upheld on the ground that Abbott is

an individual "regarded as having" a disability.

 III

 THE DISTRICT COURT CORRECTLY REJECTED BRAGDON'S
 "DIRECT THREAT" DEFENSE

A. The District Court Correctly Held That Treating Abbott In
 Bragdon's Office Would Not Pose A "Direct Threat"

 The ADA does not require a public accommodation to serve an

individual who "poses a direct threat to the health or safety of

others." 42 U.S.C. 12182(b)(3). In this context, "direct

threat" means "a significant risk to the health or safety of

others that cannot be eliminated by a modification of policies,

practices, or procedures." Ibid. The Supreme Court originally

established the "direct threat" defense under the Rehabilitation

Act in Arline, 480 U.S. at 286-288. The Arline Court believed

that such a defense was necessary to serve the interest in

"avoiding exposing others to significant health and safety

risks." Id. at 287. At the same time, however, any test for

01-05441

 -30-

determining whether an individual posed a "direct threat" must be

very carefully circumscribed "if [the Rehabilitation Act] is to

achieve its goal of protecting handicapped individuals from

deprivations based on prejudice, stereotypes, or unfounded fear"

(ibid.) -- a goal shared by the ADA. See H.R. Rep. No. 485, Part

2, supra, at 53; H.R. Rep. No. 485, Part 3, supra, at 30. To

satisfy these concerns, the Court adopted a test that relied

exclusively on objective factors regarding the risk and normally

required deference to the judgments of public health officials.

Arline, 480 U.S. at 288.

 In continuing the "direct threat" defense under the ADA,

Congress incorporated "the same standard as articulated by the

Supreme Court in [Arline]." H.R. Rep. No. 485, Part 3, supra, at

45; accord H.R. Rep. No. 485, Part 2, supra, at 76. The Depart-

ment of Justice Regulations implementing Title III of the ADA

similarly "codif[y] the standard first applied by the Supreme

Court in [Arline]." 28 C.F.R. Part 36, App. B  36.208. In

keeping with Arline, any determination that an individual poses a

"direct threat" must rely on "an individualized assessment, based

on reasonable medical judgment that relies on current medical

knowledge or on the best available objective evidence." 28

C.F.R. 36.208(c). That assessment must consider: "the nature,

duration, and severity of the risk; the probability that the

potential injury will actually occur; and whether reasonable

modifications of policies, practices, or procedures will mitigate

the risk." Ibid. To protect against the exclusion of individu-

01-05442

 -31-

als based on fear or stereotype, the "direct threat" provision

requires the existence of a "significant" risk, "not a specula-

tive or remote risk." H.R. Rep. No. 485, Part 2, supra, at 56.

And "[t]he plaintiff is not required to prove that he or she

poses no risk," H.R. Rep. No. 485, Part 3, supra, at 46 (emphasis

added) (citing Chalk v. United States District Court, 840 F.2d

701, 707-708 (9th Cir. 1988)), for risks are inherent in daily

life -- particularly in a field like dentistry, where "[w]ell

before the advent of HIV, [dental health care workers] were at

risk of acquiring occupationally a number of diseases, from the

common cold to potentially lethal Hepatitis B and TB." J.A. 113.

In making the necessary findings under the "direct threat" test,

"courts normally should defer to the reasonable medical judgments

of public health officials." Arline, 480 U.S. at 288; see 28

C.F.R. Part 36, App. B  36.208; see also H.R. Rep. No. 485, Part

3, supra, at 45 ("Such risk of transmitting the infection to

others must be determined based on objective and accepted public

health guidelines.").

 Applying these standards, the district court properly

concluded that the treatment of an HIV-infected individual in a

private dental office does not constitute a "direct threat." The

Centers for Disease Control and Prevention (CDC) have assessed

the medical evidence concerning the risk that dentists can

contract HIV from their patients. The CDC has adopted recommend-

ed infection-control practices for dentistry under which all

patients are to be treated as if they carry an infectious disease

01-05443

 -32-

such as HIV. It has done so for the simple reason that dentists

cannot always know whether their patients carry such diseases --

indeed, not all patients who carry infectious diseases know that

they are infected. Refusing to treat the patients who both know

that they are infected and inform the dentist of that fact is

therefore not an effective way of reducing the risk. See J.A.

349. The CDC has found the risk of HIV transmission in the

dental context "so low as to be unquantifiable," and the univer-

sal precautions it recommends further reduce that already low

risk. J.A. 434.12 The CDC thus has taken the position that

"it is safe to provide routine dental care to patients with HIV

and AIDS in private dental offices when universal precautions are

utilized." J.A. 434.

 The CDC's conclusion is in accord with the positions of

other professional and public health organizations (including the

American Dental Association). J.A. 112; see pp. 7-8, supra.

Indeed, it is notable that, while the American Dental Association

supports Bragdon's appeal, it does not support his "direct

threat" argument. The position of the CDC and these other

organizations certainly constitutes a "reasonable medical judg-

ment[]," Arline, 480 U.S. at 288, for there has never been a

documented case of HIV transmission from infected patient to

dental health care worker. See pp. 6-7, supra. The CDC's

conclusion is therefore entitled to deference from the courts.
_____________________

12 In light of the extremely low risk of transmission, it is true
but irrelevant that universal precautions do not reduce the risk
to zero. Cf. Bragdon Br. 10, 17, 35.
01-05444

 -33-
Ibid.13 Because the probability of transmission in the course

of routine dental care is so extraordinarily low, even the severe

consequences of contracting HIV are not sufficient to establish

the existence of a "significant risk to the health or safety of

others." 42 U.S.C. 12182(b)(3) (emphasis added). In addition to

the district court here, both other federal court cases to have

addressed the issue have held that HIV-infected patients do not

present a direct threat to dental health care workers.14

B. The District Court Properly Accorded Deference To The CDC's
 Judgment That It Is Safe To Treat Persons With HIV In Private

 Dental Offices Where Universal Precautions Are Employed

Despite Arline's holding that courts should normally defer

to the judgments of public health officials, Bragdon argues that

the CDC's determination that it is safe to treat HIV-infected pa-

tients in private dental offices is not entitled to deference.

He gives three reasons. None is persuasive.

 First, Bragdon contends (Bragdon Br. 44-48) that the Arline
______________________

13 See also American Dental Ass'n v. Martin, 984 F.2d 823, 828
(7th Cir.) (stating that the CDC's judgments regarding precau-
tions to prevent the spread of bloodborne pathogens "are entitled
to respect by the nonspecialist, biomedically unsophisticated
Article III judiciary"), cert. denied, 510 U.S. 859 (1993); id.
at 832 (Coffey, J., concurring in part and dissenting in part)
(stating that 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 and, if so,
propose reasonable, efficient guidelines").

14 See United States v. Morvant, 898 F. Supp. 1157, 1166 (E.D. La.
1995) (noting "a plethora of expert testimony" stating "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"); D.B. v. Bloom, 896 F. Supp.
166, 170 n.6 (D.N.J. 1995).

01-05445

 -34-

decision contains four separate standards, and that the Depart-

ment of Justice regulations do not incorporate one of those

standards -- the rule of deference to public health officials.

That is incorrect. We view Arline as adopting a single standard

that serves public health and safety interests while at the same

time preventing discrimination on the basis of "prejudice,

stereotypes, or unfounded fear." Arline; 480 U.S. at 287; see 28

C.F.R. Part 36, App. B  36.208. The rule of deference to public

health officials, in conjunction with the reliance on objective

factors, is essential to achieving this purpose. Thus, when the

preamble to our regulation stated that it adopted "the test

established by the Supreme Court in Arline," ibid., it meant the

full test set forth in that opinion. See also H.R. Rep. No. 485,

Part 2, supra, at 76 ("[T]he term 'direct threat' is meant to

connote the full standard set forth in the Arline decision.").

The Department's interpretation of its own regulation is entitled

to "broad deference." Thomas Jefferson Univ. v. Shalala, 114 S.

Ct. 2381, 2386-2387 (1994).

 Bragdon also suggests that the Department's regulation does

not require deference to public health officials because the

following passage from the regulation's preamble (implicitly)

contemplates that public accommodations can rely on other sources

of information (28 C.F.R. Part 36, App. B  36.208):

 Making this assessment will not usually require the
 services of a physician. Sources for medical knowledge
 include guidance from public health authorities, such
 as the U.S. Public Health Service, the Centers for
 Disease Control, and the National Institutes of Health,
 including the National Institute of Mental Health.

01-05446
 -35-
But this passage simply suggests that the "direct threat" inquiry

will ordinarily not be a burdensome one for the regulated accom-

modation, because the accommodation can simply seek guidance from

public health authorities (a course Bragdon did not follow here).

Nothing in that passage suggests that public accommodations or

the courts are entitled to disregard those authorities' guidance

once it is given. To the contrary, the ADA requires that sub-

stantial deference be accorded to such guidance.

 Second, Bragdon contends (Bragdon Br. 48-50) that the CDC's

opinion is not entitled to deference here because it was "ex-

pressed by way of declarations in [a] private, civil action[]."

Bragdon Br. 49. Bragdon relies on this Court's decision in

Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981 (1st

Cir. 1995), which refused to defer to an Environmental Protection

Agency interpretation of a statutory term where that interpreta-

tion was "tailored to and articulated specifically for purposes

of this particular litigation." Id. at 991 (footnote omitted).

The CDC's position that it is safe to treat people with HIV in

private dental offices, however, was not "tailored to * * * this

particular litigation." To the contrary, it reflects "an en-

trenched [CDC] view." Cf. id. at 991 n.13. The position was

rendered in this case by Dr. Donald Marianos, the Director of

CDC's Division of Oral Health. J.A. 105.15 Dr. Marianos stat-
________________
15 Kohl v. Woodhaven Learning Ctr., 865 F.2d 930 (8th Cir.), cert.
denied, 493 U.S. 892 (1989), is therefore inapposite. In Kohl,
the court declined to "read Arline as requiring courts to give
decisive weight to any public health official's testimony simply
 (continued...)
01-05447

 - 36 -

ed -- and Bragdon offered no evidence to contest -- that his

declarations set forth the "position of the CDC." J.A. 383, 434-

435.

 Bragdon suggests (Bragdon Br. 49) that Blackstone Valley

requires this Court to disregard the CDC's position because it

was not generally published. Of course, the CDC's recommended

infection control practices for dentistry -- which require

dentists to assume that all patients have infectious diseases

such as HIV -- were published generally, most recently in 1993.

As Dr. Marianos's declarations make clear, the use of such

universal practices allows dentists safely to treat patients who

report that they have HIV. The American Dental Association had

taken an identical position in a policy statement that was

published in 1991. J.A. 273.

 In any event, Blackstone Valley is inapposite. There, this

Court stated that a regulatory agency enforcing a "complicated

regulatory regime" had an obligation to provide citizens "fair

notice of their obligations." Blackstone Valley, 67 F.3d at 991.

The CDC, however, is not before this Court as a regulatory

agency. The district court deferred to CDC's position that it is
______________________
15 (...continued)
by virtue of his position. The official must have particular
knowledge relevant to the issue in question." Id. at 938. Dr.
Marianos clearly has "particular knowledge relevant to the issue"
whether it is safe to treat HIV-infected persons in dental
offices. See J.A. 114-119. Conversely, Kohl demonstrates that
the court properly declined to accord deference to Bragdon's
assessment of the risk (cf. Bragdon Br. 46), for Bragdon is a
general dentist with no formal training in virology, microbi-
ology, epidemiology, or infection control. See R. 61.
01-05448

 - 37 -

safe to treat HIV-infected patients in private dental offices not

because the CDC has any authority to interpret the ADA, cf.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984), but because Arline requires deference to the

objective, specialized fact-finding competence of public health

officials.16 The notice concerns that arise when an agency

with authority to interpret a complex statute takes retrospective

enforcement action on the basis of a previously unrevealed

interpretation simply are not present when an agency with fact-

finding responsibilities states its findings for the first time

as evidence in the course of litigation. Any notice concerns are

satisfied by allowing regulated entities to seek guidance from

public health officials before they decide to exclude people on

the basis of disability -- a course the preamble to the Depart-

ment of Justice regulations specifically contemplates (28 C.F.R.

Part 36, App. B 36.208).

 Third, Bragdon argues that the CDC's position is irrelevant

because it was not available to him in September of 1994, when he
_________________________

16 Because the CDC's position is entitled to deference as a
finding of the underlying facts, and not as an interpretation of
the ADA, Bragdon is incorrect in suggesting (Bragdon Br. 49) that
Dr. Marianos's failure to use the words "direct threat" consti-
tutes a hedge. Although his testimony demonstrates, as a matter
of law, that Abbott does not present a direct threat, Dr. Mari-
anos quite properly declined to draw that or any other legal
conclusion. Contrary to Bragdon's suggestion (Bragdon Br. 32-
33), moreover, Dr. Marianos's opinions have been substantively
identical throughout this litigation. Bragdon's linguistic
demonstrations to the contrary (Bragdon Br. 21-23, 33, 41-42),
the import of all of Dr. Marianos's statements is clear: when
dentists use universal precautions, it is safe to treat people
with HIV in private dental offices.

01-05449

 - 38 -

refused to treat Abbott in his office. As we have noted, howev-

er, the CDC's recommendations for universal precautions were

published in 1986 and updated in 1993; the American Dental

Association had similarly stated as early as 1991 that "[p]a-

tients with HIV infection may be safely treated in private dental

offices when appropriate infection control procedures are em-

ployed." J.A. 273. No reasonable dentist could have concluded

in 1994 that it was proper to refuse to treat HIV-infected

patients in his office.

 In any event, Bragdon is incorrect to suggest that the

regulatory language requiring a judgment based on "current

medical knowledge or on the best available objective evidence"

(28 C.F.R. 36.208(c)) provides public accommodations with the

equivalent of a qualified immunity defense. The requirements of

"current" knowledge and the "best available" evidence are de-

signed to limit the discretion of accommodations to exclude

people on the basis of disability and thus to protect against

"deprivations based on prejudice, stereotypes, or unfounded

fear." Arline, 480 U.S. at 287. A public accommodation cannot

justify disability-based discrimination, as Bragdon does, on what

a reasonable dentist or shopkeeper could be "expected" to know

about the available medical evidence. Rather, just as covered

entities have an "affirmative obligation" to provide reasonable

accommodation to people with disabilities, so too do they have an

affirmative obligation to seek properly grounded guidance before

excluding individuals under the "direct threat" rule. See 28

01-05450

 - 39 -

C.F.R. Part 36, App. B, S 36.208. Had Bragdon sought guidance in

1994 from the CDC or from "any number of experts on HIV, [he]

would have learned `that an HIV-positive individual may be safely

treated in a private dental office which utilizes universal

precautions.'" D.B. v. Bloom, 896 F. Supp. 166, 170 n.6 (D.N.J.

1995) (quoting State v. Clausen, 491 N.W.2d at 667).17/

C. Bragdon Has Not Shown That The CDC's Medical Judgment Is
 Unreasonable

 Against the objective conclusions of the CDC, Bragdon did

not present the testimony of any public health official. In-

stead, as the district court concluded, Bragdon proffered only

unfounded assertions, speculative inferences, and nonresponsive

statistics. Abbott, 912 F. Supp. at 588. On appeal, he contin-

ues to rely solely on speculation, conjecture, and theory -- some

of which stems from a selective reading of the sources he cites,

and all of which has been rejected by the CDC. None of Bragdon's

contentions, individually or collectively, demonstrate that the

CDC's position is not a "reasonable medical judgment[]." Arline,

480 U.S. at 288. Because Bragdon did not demonstrate that the

CDC's position is unreasonable, there was no genuine issue of

material fact.

 Some of Bragdon's factual arguments rely on unfounded

statistics. For example, Bragdon states that the "risk of a
_______________________

17/ In any event, the district court awarded only prospective
relief; indeed, the district court denied Bragdon's motion to
vacate the injunction (see R. 108), a motion Abbott opposed on
the ground that Bragdon's public statements indicated an unwill-
ingness, even in 1996, to comply with the CDC position reported
by Dr. Marianos.
01-05451
 - 40 -
dentist sustaining one [fatal needlestick] injury over a lifetime

of practice is greater than 10%." Bragdon Br. 39. But that

statistic, generated by Bragdon's expert, relies on a series of

unfounded assumptions. Most notably, it assumes that the dentist

"gives an average of 235 injections per year to HIV-positive

patients." J.A. 367. There is no evidence in the record to

suggest that this assumption comports with the facts of Bragdon's

practice. Bragdon's estimate also assumes that 1.5 accidental

needlesticks occur per 100 injections, a rate substantially

higher than recent studies suggest. See J.A. 393-394. It also

assumes that 3 out of every 1000 contacts with blood from HIV-

contaminated needles will result in transmission of the virus;

while that figure is correct in the health care field generally,

it significantly overstates the risk to dental health care

workers, who use needles containing a much smaller amount of

blood. See J.A. 394. In light of these flaws, Bragdon's statis-

tical estimate does not undercut the CDC's conclusion that "the

risk of acquiring HIV occupationally from a needlestick in a

dental setting is so low that it cannot be accurately quanti-

fied." Ibid.

 As the district court found, moreover, some of Bragdon's

factual arguments rely on conjecture. See Abbott, 912 F. Supp.

at 588. Specifically, although the CDC has not identified a

single case in which a dental worker has contracted HIV through

occupational exposure, Bragdon suggests that such cases have

occurred. As Bragdon notes (Bragdon Br. 9), 6% of health care

01-05452

 - 41 -

workers with HIV, compared with 3% of all persons with HIV, have

no identifiable risk factors for the disease. In particular, the

CDC is aware of six dental health care workers with HIV who had

no identifiable, nonoccupational risk factors. J.A. 395; see

also Bragdon Br. 39 (stating that a study found 1 case of HIV

infection out of 1309 dental workers, and that the infected

individual had no identified nonoccupational risk factors).

Bragdon's attempt to infer the existence of occupational trans-

mission from these statistics is mere speculation. As Dr.

Marianos testified, "it is likely that a number of health care

workers identified as having no identifiable risk factors actual-

ly had nonoccupational risk factors that either they or their

proxies did not report or recognize." J.A. 395; accord J.A.

386.18/

 Other factual arguments raised by Bragdon rely on a selec-

tive reading of scientific journal articles. For example,

Bragdon contends that HIV can be present in aerosol mists created

by the operation of dental drills and that there is a risk that

dental workers can contract HIV when those mists come into

contact with mucous membranes or are inhaled. See Bragdon Br. 9,
______________________
18/ To similar effect is Bragdon's attempt to infer a significant
risk from the case of the Florida dentist who transmitted HIV to
six of his patients. Bragdon Br. 34. That one incidence is the
only reported case of HIV transmission from health care worker to
patient, and "[t]he specific mechanism of transmission has not
been identified and it is unlikely to be identified in the
future." J.A. 113; see n.3, supra. Moreover, evaluations of
over 22,000 patients of HIV-infected health care workers --
including 33 dental health care workers -- have failed to detect
any transmission from health care worker to patient. J.A. 112.
01-05453

 - 42 -

14-15, 19, 34. Dr. Marianos testified, however, that "[n]o

scientific data is available to support the hypotheses that

aerosolized particles containing infective HIV may be produced in

dental or medical settings or that HIV may be transmitted by

aerosols by the respiratory route (Short 1993)." J.A. 384.

Taking a passage out of context from the Short 1993 article on

which Dr. Marianos relies, Bragdon states (Bragdon Br. 15) that

"[t]he only authority cited by Dr. Marianos in support of [his]

opinion is the 1993 CDC article concluding that `further study of

the issue is warranted.'" The Short article actually said,

however, that despite one experiment's laboratory findings that

HIV was present in certain aerosols, the clinical significance of

those findings is unclear in light of the results of "HIV sero-

surveys of surgeons and dentists," which "do not suggest a risk

of HIV transmission by aerosol." R. 103, Exh. 9 at 347. Summa-

rizing its conclusions, the Short article stated (ibid.):

 [A]lthough further study of the issue is warranted,
 there are currently insufficient data to support the
 hypotheses that aerosolized particles containing infec-
 tive BBPs [blood-borne pathogens] may be produced in
 clinical settings or that BBPs may be transmissible by
 aerosols in a clinical setting.

That conclusion fully supports Dr. Marianos's testimony.

 To similar effect is Bragdon's assertion (Bragdon Br. 38)

that he could, "consistent with CDC recommendations regarding

tuberculosis (`TB')," refuse to fill the cavity of any HIV-

infected person in his office on the ground that a person with

HIV may reasonably be suspected as having TB. But, as Dr.

Marianos noted, "[t]he CDC has never stated that all persons with

01-05454

 - 43 -

HIV should be referred to an appropriately TB-engineered facility

for dental treatment." J.A. 397 (emphasis in original). Rather,

CDC guidelines require that persons suspected of having active TB

should be referred to a physician for evaluation; only if the

physician diagnoses active TB should dental care be deferred or

referred to a facility that provides TB-isolation. Ibid. And

the suspicion of TB "should be based on a patient's medical

history (i.e., whether they have a history of TB disease) and

whether they have symptoms suggestive of TB (cough, night sweats,

bloody sputum, anorexia, and fever), not solely on a patient's

HIV status." Ibid. The categorical refusal to treat persons

with HIV is thus neither a precise nor an appropriate means of

protecting against TB.19/

 As the district court recognized, Bragdon's factual argu-

ments reduce to "a combination of [Bragdon's] conjecture as to

potential transmission and statistics which at best may place

health care workers at a higher risk of contracting HIV."

Abbott, 912 F. Supp. at 588-589. A court may not reject the

reasonable medical judgments of public health officials in favor

of such speculation. Chalk, 840 F.2d at 707-708. When resolving

complicated medical questions, public health organizations have

an institutional competence far superior to that of "the nonspe-

cialist, biomedically unsophisticated Article III judiciary."
______________________
19/ Indeed, people with HIV are not the only people the CDC consid-
ers to be "at risk" for TB. Other such groups include "the
elderly, persons with cancer who are immunocompromised, and
residents of mental health institutions." J.A. 397-398.
01-05455

 - 44 -

American Dental Ass'n v. Martin, 984 F.2d 823, 828 (7th Cir.),

cert. denied, 510 U.S. 859 (1993). Reliance on such a special-

ized, objective judgment prevents decisions from turning on

litigating adversaries' selective excerpts from medical materials

and therefore limits the risk that unjustified fears or stereo-

types will infect the decision making process.

 For these reasons, where public health authorities make the

reasonable judgment that a practice can be engaged in safely, the

courts must defer to that judgment. This is true even if some

uncertainties remain (cf. Bragdon Br. 31), for "[l]ittle in

science can be proved with complete certainty." Chalk, 840 F.2d

at 707. "Confronted with some uncertainties about scientific

truth, judges, perhaps above all others, should act on the basis

of that which is known, or, where this is not possible, on the

basis of that which those best qualified to speak say is known."

Id. at 712 (Sneed, J., concurring). The district court properly

deferred to "those best qualified to speak" here. Because

Bragdon did not demonstrate that the CDC's judgment was medically

unreasonable, the district court properly granted summary judg-

ment on the "direct threat" question.

D. The District Court Properly Found Inapposite The Cases
 Involving HIV-Infected Health-Care Workers

 Bragdon contends (Bragdon Br. 42-43) that several cases

which have held it permissible for hospitals to suspend or

terminate HIV-infected health care workers mandate a finding of

"direct threat" here. See Doe v. University of Maryland Medical

System Corp., 50 F.3d 1261, 1265-1266 (4th Cir. 1995) (hospital

01-05456

 - 45 -

did not violate ADA by suspending HIV-positive neurosurgical

resident and offering him alternative residencies in nonsurgical

fields); Bradley v. University of Texas M.D. Anderson Cancer

Ctr., 3 F.3d 922, 924-925 (5th Cir. 1993) (hospital did not

violate Rehabilitation Act by reassigning HIV-positive surgical

assistant to procurement department), cert. denied, 510 U.S. 1119

(1994).20 Bragdon's argument proceeds by way of mathematical

syllogism: (1) the cited cases held that HIV-infected health

care workers pose a "significant" risk to patients; (2) the risk

that an HIV-infected patient poses to a health care worker is

quantitatively larger than the risk an infected health care

worker poses to a patient (although, in the dental context, both

risks are "so low as to be unquantifiable," J.A. 434); and

therefore (3) HIV-infected patients must, a fortiori, pose a

"significant" risk to their health care workers. But "the

requirement that a 'significant' risk be identified is not a

mathematical straightjacket." Industrial Union Dep't, AFL-CIO v.

American Petroleum Inst., 448 U.S. 607, 655 (1980) (plurality

opinion). Any determination whether a risk is "significant," and

therefore unacceptable, must necessarily take account of the

context.21 Several key differences between infected doctors
________________________
20/ See also Mauro v. Borgess Medical Ctr., 886 F. Supp. 1349, 1354
(W.D. Mich. 1995); Scoles v. Mercy Health Corp., 887 F. Supp. 765
(E.D. Pa. 1994); Doe v. Washington Univ., 780 F. Supp. 628, 634
(E.D. Mo. 1991); cf. Leckelt v. Board of Comm'rs, 909 F.2d 820,
830 & n.19 (5th Cir. 1990) (hospital did not violate Rehabili-
tation Act by terminating nurse for refusing to take HIV test).
21 For similar reasons, it is irrelevant that the Food and Drug
 (continued...)
01-05457

 - 46 -

and infected patients render the infected health care worker

cases inapposite.

 First, the CDC has recommended that medical institutions

make their own case-by-case determinations regarding whether

particular HIV-infected health care workers can perform exposure-

prone invasive procedures. See Doe v. University of Maryland, 50

F.3d at 1266; Bradley, 3 F.3d at 924; Leckelt v. Board of

Comm'rs, 909 F.2d 820, 828, 830 (5th Cir. 1990); Doe v. Washing-

ton Univ., 780 F. Supp. 628, 629 n.2 (E.D. Mo. 1991). Thus, the

cited cases have determined that deference to the reasonable

medical judgments of public health officials counsels in favor of

allowing HIV-infected health care workers to be excluded from

invasive procedures in certain circumstances. But the CDC

unequivocally states that it is safe to treat HIV-infected

patients in private dental offices. The rule of deference thus

cuts in precisely the opposite direction in this context.

 Second, patients cannot control whether infected health care

providers scrupulously employ universal precautions. Abbott, 912

F. Supp. at 590. Patients therefore bear all of the risk of
______________________
21 ( ... continued)
Administration (FDA) recommends deferring persons who have had
percutaneous contact with blood and body fluids from donating
blood for 12 months. Cf. Bragdon Br. 10-11. The FDA has not
determined whether the risk of HIV is "significant" for ADA
purposes; its determination merely reflects that even an excep-
tionally small risk of transmission is unacceptable when it can
be avoided simply by keeping a single pint of blood out of the
nation's blood supply for a year. That determination is hardly
controlling where, as here, the cost of avoiding the exceptional-
ly small risk is to deny entirely the medical or dental care a
person needs.
01-05458

 - 47 -

transmission without having any ability to assure that the risk

is minimized. Bragdon, by contrast, "bears the consequences of a

lapse in his diligence. That critical difference fatally under-

mines Defendant's efforts to apply the health care worker[] cases

to the direct threat analysis in this case." Ibid.

 Third, patients and doctors are not similarly situated. "It

is the stated goal of the medical profession to heal, and its

secondary axiom, if healing is not possible, is not to harm."

Doe v. Washington Univ., 780 F. Supp. at 633. Patients have a

legitimate expectation that their doctors will not expose them to

unnecessary risks, and doctors have an ethical duty not to do so.

A medical institution may therefore make "a considered decision

to err on the side of caution in protecting its patients." Doe

v. University of Maryland, 50 F.3d at 1266. By contrast, doctors

and dentists inherently assume certain risks as a part of their

daily professional responsibilities. See J.A. 113, 349. The

district court thus properly held that the cases involving

infected health care workers are not controlling here. Instead,

the court correctly deferred to the CDC's judgment and found that

treatment of Abbott in Bragdon's office would not pose a "direct

threat."

01-05459

 - 48 -

 CONCLUSION

 The judgment of the district court should be affirmed.

 Respectfully Submitted,

 DEVAL L. PATRICK
 Assistant Attorney General

 JESSICA DUNSAY SILVER
 SAMUEL R. BAGENSTOS
 Attorneys
 Department of Justice
 P.O. Box 66078
 Washington, D.C. 20035-6078
 (202) 514-2174
01-05460

 CERTIFICATE OF SERVICE

 I hereby certify that on September 6, 1996, two copies of

the Brief for the United States as Amicus Curiae were served by

first-class mail, postage prepaid, on:

 Peter M. Sfikas, Esq.
 American Dental Association
 211 East Chicago Avenue
 Chicago, IL 60611

 Patrick J. Quinlan, Esq.
 55 Pine Street
 Providence, RI 02903

 John W. McCarthy, Esq.
 Rudman & Winchell
 84 Harlow Street
 P. O. Box 1401
 Bangor, ME 04402-1401

 Charles E. Gilbert, III, Esq.
 82 Columbia Street
 P.O. Box 2339
 Bangor, ME 04402-2339

 Bennett H. Klein, Esq.
 Gay & Lesbian Advocates &
 Defenders
 P.O. Box 218
 294 Washington Street
 Boston, MA 02112

 David G. Webbert, Esq.
 Law Office of Phillip E. Johnson
 160 Capitol St., P.O. Box 29
 Augusta, ME 04332-0029

 John E. Carnes, Esq.
 Maine Human Rights Commission
 State House Station 51
 Augusta, ME 04333

 SAMUEL R. BAGENSTOS
 Attorney
01-05461

 IN THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF MAINE
 )
SIDNEY ABBOTT, )
 )
 Plaintiff, )
 )
v. ) Civil Action No. 94-0273-B
 )
RANDON BRAGDON, D.M.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
01-05462
 TABLE OF CONTENTS
INTRODUCTION......................................................................1

ARGUMENT..........................................................................1

 I. THE AMERICANS WITH DISABILITIES ACT....................................1

 II. TITLE III OF THE ADA IS CONSTITUTIONAL AS APPLIED TO
 BRAGDON'S PRACTICE....................................................2

 A. Prohibiting Disability-Based Discrimination By Health Care Providers
 Like Bragdon is Within Congress' Power to Regulate
 Commerce ......................................................... 3

 1. Redressing Discrimination in Commercial Activities is a
 Legitimate Legislative Goal and Title III's Proscriptions are a
 Reasonable Means of Achieving That Goal.........................4

 2. Title III of the ADA Is Constitutionally Applied to the
 Operations of Bragdon's Individual Dental Practice..............6

 3. The Court's Decision in Lopez Does Not Diminish Congress'
 Commerce Clause Power...........................................9

 B. Bragdon has No Constitutional Right to Continue Discriminating on
 the Basis of Disability...........................................10

 1. The Contracts Clause Does Not Apply to Title III of the
 ADA ...........................................................10

 2. Imposing New Obligations on Existing Businesses Does Not
 Infringe the Constitution......................................11

 C. Title III Does Not Abridge Bragdon's Liberty Rights as Protected By
 the Due Process Clause of the Fifth Amendment.....................13

 1. Title III's Proscriptions Are Neither Arbitrary Nor Irrational.14

 2. Title III Does Not Require Bragdon to Treat Patients who Pose
 a Significant Risk to His Health or Safety.....................15

01-05463

III. THIS COURT SHOULD GRANT PLAINTIFF'S MOTION FOR SUMMARY
 JUDGMENT ON LIABILITY.......................................................17

 A. Bragdon Has Discriminated Against Sidney Abbott on the Basis of
 Disability in Violation of the ADA ...............................18

 1. Sidney Abbott is A Person With a
 Disability.....................................................18

 2. Bragdon Owns and Operates a Place of Public
 Accommodation ................................................ 20

 3. Bragdon Discriminated against Abbott on the Basis of Her
 Disability .................................................. 20

 a. Bragdon's Treatment of Abbott Constitutes an Outright
 Refusal of Care ........................................... 21

 b. Bragdon's Offer to Treat Abbott in a Hospital Also
 Violates the ADA .......................................... 23

 B. Bragdon Fails in His Attempt to Establish an Affirmative Defense to
 Excuse His Discriminatory Conduct.................................24

 1. The Provision of Routine Dental Care to Persons with
 HIV/AIDS in a Private Dental Office Does Note Constitute a
 "Direct Threat".............................................. 25

 2. The Infected Health Care Worker Cases are
 Inapposite .................................................. 28

CONCLUSION ..................................................................... 33

01-05464

 TABLE OF AUTHORITIES

CASES:

Allen v. Brottman, AIDS Litig. Rep., March 9, 1993, p. 56977 23

American Dental Ass'n v. Martin, 984 F.2d 823
 (7th Cir. 1993) 25, 27

Amsden v. Moran, 904 F.2d 748 (1st Cir. 1990) 14

Anderson v. Little League Baseball, Inc., 794 F. Supp. 342 (D.Ariz. 1992) 25

Andrus v. Allard, 444 U.S. 51 (1979) 11

Austin v. Pennsylvania Dep't of Corrections, 876 F. Supp 1437 (E.D.Pa. 1995) 28

Barton v. New York City Comm'n on Human Rights, 531 N.Y.S. 2d 979 (1988) 13,23,26

Bechtel v. East Penn Sch. Dist. of Lehigh County, PA, 1994 WL 3396
(E.D. Pa. Jan 4, 1994) 17,30

Bowles v. Willingham, 321 U.S. 503 (1944) 13
Bradley v. University of Texas M.D. Anderson Cancer Center,

3 F.3d 922 (5th Cir. 1993) 28,31

Campanella v. Hurwitz, AIDS Litig. Rep., August 29, 1991, p. 6800 23,26,33

Chalk v. U.S. Dist. Court Cent. Dist. of Cal., 840 F.2d 701 (9th Cir. 1988) 28

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) 17, 19

Concerned Parents to Save Dreher Park Ctr, v. City of West Palm Beach, 846 F. Supp. 986
(S.D. Fla. 1994) 17

Cox v. Hart, 260 U.S. 427 (1922) 12

D.B. v. Bloom, 1995 WL 490481
(D.N.J. Aug. 15, 1995) 18,20,21,22,24,26,33

Daniel v. Paul, 395 U.S. 298 (1969) 7

Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) 13

01-05465

District 27 Community Sch. Bd. v. Board of Educ., 502 N.Y.S.2d 325 (N.Y. Sup. Ct.
1986) 29

Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) 29

Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill.(1988)... 29

Doe v. Kohn Nast & Graf. P.C., 862 F. Supp. 1310
(E.D. Pa., 1994) 18

Doe v. University of Maryland Medical System Corp..
50 F.3d 1261 (4th Cir. 1995) 28,30,32

Doe v. Washington University, 780 F. Supp. 628
(E.D. Mo. 1991) 28,31

EEOC v. Ratliff, 906 F.2d 1314 (9th Cir. 1990)
EEOC v. Wyoming, 460 U.S. 226 (1983) 4

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Trades Council, 485 U.S. 568 (1988) 16

Ennis v. National Ass'n of Business and Educ. Radio, Inc.,
53 F.3d 55 (4th Cir. 1995) 18

Estate of Behringer v. Medical Ctr., 592 A.2d 1251 (N.J. Super. Ct. 1991) 28,32

FTC v. American Tobacco Co., 264 U.S. 298 (1924) 16

Federal Housing Admin. v. Darlington, Inc., 358 U.S. 84 (1958) 12

Ferguson v. Skrupa, 372 U.S. 726 (1963) 14

Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994) 17,29

Fleming v. Rhodes, 331 U.S. 100 (1947) 12

Fry v. United States, 421 U.S. 542 (1975) 8

Fulton v. New England Teamsters and Trucking Indus. Pension Fund, 762 F.2d 1124 (1st
Cir. 1989) 11,14

G.S. v. Baksh, Charge No. 1987CP0113, slip op.
(Illinois Human Rights Commission, July 8, 1994) 22,26

Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) 13

01-05466

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) 3

Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964) 4,7,12,13

Hodel v. Virginia Surface Mining & Rerclamation Ass'n, Inc.,
452 U.S. 264 (1981) 3,4,5,8

Howe v. Hull, 873 F. Supp. 72 (N.D. Ohio, 1994) 18, 21, 22

In re Baby K, 832 F. Supp. 1022 (E.D. Va. 1993) 21

In re Westchester County Medical Center, 2 Emp. Prac. Guide
(CCHP) 5340 at 6999-318 (April 20, 1992) 29

Katzenbach v. McClung, 379 U.S. 294 (1964) 3,4,5,7,8

Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993) 17

Lewis v. Runkle, District of Columbia Comm'n on Human Rights Docket No. 92-154-
PA(N), slip op. (July 1, 1993) 13,23,26,33

Lincoln Fed. Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 525 (1949) 14

Lochner v. New York, 198 U.S. 45 (1905) 14

Lyng v. Payne, 476 U.S. 926 (1986) 17

Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (1991) 17

Martinez v. School Bd. of Hillsborough County, Fla.,
711 F. Supp. 1066 (M.D. Fla. 1989) 28

Mauro v. Borgess Medical Ctr., 886 F.Supp. 1349 (W.D. Mich. 1995) 28,32

Mayberry v. Von Valtier, 843 F. Supp. 1160 (E.D. Mich. 1994) 20,21

McAndrews v. Fleet Bank of Massachusetts, N.A., 989 F.2d 13 (1st Cir. 1993) 11

McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 (1980) 6

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 6

Miller v. Amusement Enters., Inc., 394 F.2d 342 (5th Cir. 1968) 7

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) 16

01-05467

Nebbia v. New York, 291 U.S. 502 (1934) 14

Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993) 17

Parham v. J.R., 442 U.S. 584 (1979) 16

Pension Benefit Guaranty Corp. v. R.A. Gray & Co.,
467 U.S. 717 (1984) 10,11

Perez v. United States, 402 U.S. 146 (1971) 6,8,9

Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276 (W.D. Wis. 1993) 17

Pinnock v. International House of Pancakse Franchisee,
844 F.Supp. 574 (S.D. Cal. 1993) 4,7,8,11

Polish Nat'l Alliance v. Labor Bd., 322 U.S. 643 (1944) 8

Preseault v. Interstate Commerce Comm'n, 494 U.S. 1 (1990) 4,5

Ray v. School Dist. of Desoto County, 666 F. Supp. 1524 (M.D. Fla. 1987) 29

Rochin v. California, 342 U.S. 165 (1952) 16

Russell v. United States, 471 U.S. 858 (1985) 8

Scoles v. Mercy Health Corp. of Southeastern Pa.,
887 F. Supp. 765 (E.D. Pa. 1994) 28, 32

School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987) 13,25,27,29,30

Seniors Civil Liberties Ass'n, Inc. v. Kemp, 965 F.2d 1030 (11th Cir. 1992) 5

Shahawy v. Harrison, 778 F.2d 636 (11th Cir. 1986) 7

Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield,
907 F.2d 239 (1st Cir. 1990) 14

Minnesota v. Clausen, 491 N.W.2d 662 (Minn.App. 1992) 22,26

Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991) 7

T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah, 1993) 18

Tenoco Oil Co., Inc. v. Dept. of Consumer Affairs, 876 F.2d 1013 (1st Cir. 1989) 14

01-05468

Thomas v. Atrascadero Unified Sch. Dist., 662 F. Supp. 376 (C.D. Cal. 1987) 29

Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381 (1994) 17,29

Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) 17

United States v. Carlton, 114 S.Ct. 2018 (1994) 11

United States v. Carolene Products Co., 304 U.S. 144 (1938) 14

United States v. Darby, 312 U.S. 100 (1941) 3,6,8

United States v. Dye Constr. Co., 510 F.2d 78 (10th Cir. 1975) 7

United States v. Lopez, 115 S.Ct. 1624 (1995) 3,4,5,6,9,10

United States v. Manufacturers Nat'l Bank of Detroit, 363 U.S.194 (1960) 12

United States v. Morvant, 1995 WL 13093 (E.D.La. 1995) passim

United States v. Vizena, 342 F. Supp. 553 (W.D.La. 1972) 7

United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942) 6

Washington v. Harper, 494 U.S. 210 (1990) 16

Washington Star Co. v. International Typographical Union Negotiated Pension Plan,
729 F.2d 1502 (D.C. Cir. 1984) 14

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) 14,15

Wickard v. Filburn, 317 U.S. 111 (1942) 6,8

Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955) 14

Woolfolk v. Duncan, 872 F. Supp. 1381 (E.D.Pa. 1995) 20,21

Youngberg v. Romeo, 457 U.S. 307 (1982) 16

01-05469

STATUTES:

U.S. Constitution, art. I, S 8, cls. 3, 18 3

U.S. Constitution, art. I, S X 3

Rehabilitation Act of 1973,

 29 U.S.C.  706(7)(B) 19

Americans with Disabilities Act,

 42 U.S.C.  12101 et seq. 1
 42 U.S.C.  12101(a)(3) 5
 42 U.S.C.  12101(b)(1) 1
 42 U.S.C.  12101(b)(4) 3
 42 U.S.C.  12102(2)(a) 18
 42 U.S.C.  12181-9 2
 42 U.S.C.  12181(1) 3
 42 U.S.C.  12181(7) 2,10
 42 U.S.C.  12181(7)(F) 2,5,20
 42 U.S.C.  12182(a) 18
 42 U.S.C.  12182(b)(1)(A)(i) 21,22
 42 U.S.C.  12182(b)(1)(A)(iii) 21,24
 42 U.S.C.  12182(b)(3) 15,24,27
 42 U.S.C.  12186(b) 17

REGULATIONS:

 28 C.F.R. pt. 36 17
 28 C.F.R. pt. 36, App. B 25
 28 C.F.R.  36.104 2
 28 C.F.R.  36.104(1)(B)(ii) 18
 28 C.F.R.  36.208(c) 25,28,30
 28 C.F.R.  36.302(b)(2) 21

LEGISLATIVE HISTORY:

 136 Cong. Rec. H4623 (daily ed. July 12, 1990) 19
 136 Cong. Rec. H4626 (daily ed. July 13, 1990) 19
 136 Cong. Rec. S9696 (daily ed. July 13, 1990) 19
01-05470
136 Cong. Rec. E1913-01 (daily ed. May 22, 1990) 4
S. Rep. No. 116, 101st Cong. 1st Sess. (1989) 19
H.R. Rep. No. 485, 101st Cong. 2d Sess. pt. 2 (1990) 5, 19

MISCELLANEOUS

American Dental Association, Principles of Ethics and Code of Professional Conduct,
Principle 1, Advisory Opinion 32

American Hospital Association, Recommendations for Health Care Practices and Public
Policy, 1992 31

CDC, Recommendations for Preventing Transmission of Human Immunodeficiency Virus
and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures,
40 MMWR 1, 3-4 (July 12, 1991) 31

Department of Justice, ADA Title III Technical Assistance Manual,
1994 Supplement 29

B. Gerbert, Ph.D. et al., Primary Care Physicians and AIDS, Attitudes and Structural
Barriers to Care, 266 Journal of the American Medical Association 2837
(Nov. 27, 1991) 5

C. Lewis, M.D. & K. Montgomery, M.D., Primary Care Physician's Refusal To Care For
Patients Infected With the Human Immunodeficiency Virus, 156 Western Journal of
Medicine 36 (1992) 5

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) 19,20

National Commission on AIDS, Annual Report to the President and the Congress,
163-65 (August 1990) 5

Report of the Presidential Commission on the Human
Immunodeficiency Virus Epidemic, 126 (June 24, 1988) 5
01-05471

136 Cong. Rec. E1913-01 (daily ed. May 22, 1990) 4
S. Rep. No. 116, 101st Cong. 1st Sess. (1989) 19
H.R. Rep. No. 485, 101st Cong. 2d Sess. pt. 2 (1990) 5, 19

MISCELLANEOUS

American Dental Association, Principles of Ethics and Code of Professional Conduct,
Principle 1, Advisory Opinion 32

American Hospital Association, Recommendations for Health Care Practices and Public
Policy, 1992 31

CDC, Recommendations for Preventing Transmission of Human Immunodeficiency Virus
and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures,
40 MMWR 1, 3-4 (July 12, 1991) 31

Department of Justice, ADA Title III Technical Assistance Manual,
1994 Supplement 29

B. Gerbert, Ph.D. et al., Primary Care Physicians and AIDS, Attitudes and Structural
Barriers to Care, 266 Journal of the American Medical Association 2837
(Nov. 27, 1991) 5

C. Lewis, M.D. & K. Montgomery, M.D., Primary Care Physician's Refusal To Care For
Patients Infected With the Human Immunodeficiency Virus, 156 Western Journal of
Medicine 36 (1992) 5

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) 19,20

National Commission on AIDS, Annual Report to the President and the Congress,
163-65 (August 1990) 5

Report of the Presidential Commission on the Human
Immunodeficiency Virus Epidemic, 126 (June 24, 1988) 5
01-05472 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 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 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 seq., 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

 - 1 -

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

 - 2 -

01-05474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, S 8, cls 3, 18. Katzenbach v. McClung, 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., 452 U.S. 264, 276 (1981);

accord United States v. Lopez, 115 S.Ct. 1624, 1626, 1634 (1995); United States v.

Darby, 312 U.S. 100, 114 (1941); Gibbons v. Ogden, 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
_______________________

 1 See Answer, First, Third, Seventh and Ninth Defenses; Defendant's Pretrial
Memorandum at PP 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. S 12181(1).
 - 3 -
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, 494 U.S. 1, 17 (1990). See Lopez, 115 S.Ct. at 1629

(affirming the standard of rationality review); Hodel, 452 U.S. at 276 (citing Heart of

Atlanta Motel, Inc. v. United States, 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,

379 U.S. 241; Katzenbach, 379 U.S. 294; EEOC v. Wyoming, 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." 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,

e.g., Pinnock v. International House of Pancakes Franchisee, 844 F. Supp. 574, 579

(S.D.Cal. 1993)(upholding title III's application to a restaurant), cert. denied, 114 S. Ct.

2726 (1994); United States v. Morvant, 1995 WL 131093, *3 (E.D. La. March 22, 1995)

attached hereto as Exhibit A (upholding title III's application to a dental office).

 - 4 -

01-05476
 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, 163 (August 1990).
________________________
 3 Courts must defer to congressional findings that an activity affects commerce,if there
is "any rational basis" for such a finding, but formal congressional findings are not
necessary. Hodel, 452 U.S. at 276; see Lopez, 115 S.Ct. at 1631; Katzenbach, 379 U.S. at
303-04; Seniors Civil Liberties Ass'n, Inc. v. Kemp, 965 F.2d 1030, 1034 (11th Cir. 1992)
(citing Preseault, 494 U.S. at 18).

 4 See, e.g., C. Lewis, M.D. & K. Montgomery, M.D., Primary Care Physician's
Refusal To Care For Patients Infected With the Human Immunodeficiency Virus, 156
Western Journal of Medicine 36 (1992); B. Gerbert, Ph.D. et al., Primary Care Physicians
and AIDS, Attitudes and Structural Barriers To Care, 266 Journal of the American Medical
Association 2837 (Nov. 27, 1991); National Commission on AIDS, Annual Report to the
President and the Congress, 163-65 (August 1990); Report of the Presidential Commission
on the Human Immunodeficiency Virus Epidemic, 126 (June 24, 1988).
 - 5 -
01-05477

 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 dental

practice, because it does not affect interstate commerce and, in particular, because his so-

called "infectious disease policy" does not affect interestate commerce. Answer, First

Defense; Defendant's Pretrial Memorandum at P 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, e.g., Lopez, 115 S.Ct. at 1628-

9; McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 241 (1980). See also

Perez v. United States, 402 U.S. 146, 151 (1971) (citing United States v. Wrightwood Dairy

Co., 315 U.S. 110, 119 (1942)); Wickard v. Filburn, 317 U.S. 111, 122-25 (1942); Darby,

312 U.S. at 118; McCulloch v. Maryland, 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 P II.A. In addition, Bragdon's office is located 1.9

miles from Interstate 95. Id. In Morvant, 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
________________________
 5 Morvant, 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
 (continued...)
 - 6 -
01-05478

 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 P 11.A. See United States v. Dye Construction Co., 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 P 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

P II.C. These factors amply demonstrate as a matter of law that Bragdon's practice
______________________

 5 (...continued)
Katzenbach, 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, 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, 395 U.S. 298, 305 (1969)(where ingredients of the food most often sold probably
originated out of state, entity affected commerce); EEOC v. Ratliff, 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., 394 F.2d 342, 345, 352-53 (5th Cir. 1968) (amusement park 150
yards from intrastate highway, affected commerce); Pinnock, 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, 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. Summit Health, Ltd. v. Pinhas, 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, 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 -

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 decision, 379 U.S. at 303 (no need for case-by-case

determination that racial discrimination in a particular restaurant affects commerce) (citing

Darby, 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. at 304.8
_______________________
 7 See Pinnock, 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,
471 U.S. 858, 862 (1985); Hodel, 452 U.S. at 277 (citing Fry v. United States, 421 U.S.
542, 547 (1975)); Perez, 402 U.S. at 151-54 (1971). As the Supreme Court stated in Darby,
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, 312 U.S. at 123; Wickard, 317 U.S. at 128-29. See also Ratliff, 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, 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
 (continued...)
 - 8 -
01-05480

 3. The Court's Decision in Lopez Does Not Diminish Congress'
 Commerce Clause Power

 The Supreme Court's recent decision in United States v. Lopez, 115 S.Ct. 1624

(1995), does not change this analysis. At issue in Lopez was the Gun-Free SchoolZones

Act, which forbade the possession of firearms in a school zone, and which the Court ruled

exceeded Congress' commerce clause power. The Lopez decision, however, specifically

reaffirmed the validity of the Court's previous commerce clause decisions. Id. at 1634.9

 Of particular concern in Lopez was the fact that the School Zones Act was a criminal

statute, typically a subject of state and local, not federal legislation, id. 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. at 1630-31; see also id. 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
_____________________
 8(...continued)
Nat'l Alliance v. Labor Bd., 322 U.S. 643, 648 (1944); Perez, 402 U.S. at 150. As argued
supra, Congress formally found that the discrimination against indivuduals 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
discussion supra, at 4-5.

 9 See id. 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").
 -9-

01-05481

seeking professional dental services for a fee -- a quintessential commercial transaction.

Moreover, "the design of the statute ha[s] an evident commercial nexus,": id.; 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, 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 Congress' findings, supra. Also unlike the

statute at issue in Lopez, 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 Lopez, 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, Sectin 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.
______________________
 10 See Answer, Third Defense; Defendant's Pretrial Memorandum at P 6.
 -10-

01-05482

R.A. Gray & Co., 467 U.S. 717, 732 & n.9 (1984); Fulton v. New England Teamstersand

Trucking Industry Pension Fund, 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 circumstanceswhere the

legislation is applied retroactively. Id.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, 844 F. Supp. at 584 (title III is not retroactive); see

McAndrews v. Fleet Bank of Massachusetts, 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 rightto 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, 444 U.S. 51, 65 (1979). As the Court has

stated:
_______________________
 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 United States v. Carlton, 114 S.Ct. 2018, 2022 (1994); Pension
Benefit Guaranty Corp., 467 U.S. at 733 (1984); Fulton, 762 F.2d at 1127-29.
 -11-

01-05483

 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., 358 U.S. 84, 91 (1958)(quoting Fleming v.

Rhodes, 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, suchlosses 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 thesame

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:

 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 discriminationis
 completely obliterated as to all public accommodations. But whether this be trueor
 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.
_______________________
 12 See also United States v. Manufacturers Nat'l Bank of Detroit, 363 U.S. 194, 200
(1960); Cox v. Hart, 260 U.S. 427, 435 (1922).
 -12-
01-05484

379 U.S. at 260, citing Bowles v. Willingham, 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

P 3. Neither challenge is meritorious. As discussed below, there is no recognized
_____________________
 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 P A.8. This argument, too, was rejected
by the Court in Heart of Atlanta Motel, 379 U.S. at 261, where the Supreme Courtfound
"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, e.g., Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 389 (5th Cir.),
cert. denied, 404 U.S. 950 (1971); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th
Cir. 1982).

 15 See, e.g., Barton v. New York City Comm'n on Human Rights, 531 N.Y.S.2d 979
985 (N.Y. Sup. Ct. 1988), attached hereto as Exhibit B; Lewis v. Runkle, 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).
 -13-

01-05485

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, 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 Lincoln Fed. Labor Union v. Northwestern Iron and Metal Co., 335U.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., 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 Ferguson v.

Skrupa, 372 U.S. 726, 730-31 (1963); Williamson v. Lee Optical of Okla., 348 U.S. 483,

487-88 (1955); Fulton, 762 F.2d at 1129; Washington Star Co. v. Internat'l Typographical

Union Negotiated Pension Plan, 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. 17

"[T]he requisite arbitrariness . . . must be stunning," Amsden v. Moran, 904 F.2d 748, 754

n.5 (1st Cir. 1990), cert. denied, 498 U.S. 1041 (1991) (empahsis added).
_____________________
 16 See also West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391-94 (1937); Nebbiav.
New York, 291 U.S. 502, 523 (1934); cf. Tenoco Oil Co., v. Dept. of Consumer Affairs,
876 F.2d 1013, 1020-24 (1st Cir. 1989)(discussing disfavored status of substantive due
process claims).

 17 Cf. Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d
239, 243 (1st Cir. 1990); Tenoco Oil Company, 876 F.2d at 1021.
 -14-
01-05486

 No such showing can be made here. Indeed, as demonstrated, supra, 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 supra 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 West Coast Hotel Co., 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. S 12182(b)(3) ("direct threat" defense). See

discussion infra 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, 480 U.S. 273 (1987),

a case decided under section 504 of the Rehabilitation Act of 1973, the precursor to the
______________________

 18 In his liberty of contract argument, Defendant makes some of the same claims about
selecting his patients that we addressed supra, at 11-13, when discussing Bragdon's contract
clause argument. See Defendant's Pre-Trial Memorandum at P 3.

 - 15 -

01-05487

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. 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, 485 U.S. 568, 575 (1988); see NLRB v.

Catholic Bishop of Chicago, 440 U.S. 490 (1979); FTC v. American Tobacco Co., 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
_____________________
 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 Rochin v. California, 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, e.g., Washington v. Harper, 494 U.S. 210
(1990)((prison) significant liberty interest in avoiding unwanted administration of anti-
psychotic drugs); Parham v. J.R., 442 U.S. 584 (1979) ((institutionalization) substantial
liberty interest in avoiding unnecessary confinement for treatment). Cf. Youngberg v.
Romeo, 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'").
 - 16 -
01-05488

 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 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
_____________________

 20 Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994); Martin v.
Occupational Safety & Health Review Comm'n., 499 U.S. 144, 150 (1991), citing Lyng v.
Payne, 476 U.S. 926, 939 (1986); Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 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., 871
F. Supp 35, 38 (D.D.C. 1994), citing Thomas Jefferson Univ., 114 S. Ct. at 2386. See also
Kinney v. Yerusalim, 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, 846 F. Supp. 986, 989 n.9 (S.D. Fla. 1994);
Tugg v. Towey, 864 F. Supp. 1201, 1205 n.6 (S.D. Fla. 1994); Bechtel v. East Penn School
Dist. of Lehigh County, PA, 1994 WL 3396, *2-*3 (E.D. Pa. 1994); Petersen v. University
of Wis. Bd. of Regents, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993); Noland v. Wheatley,
835 F. Supp. 476, 483 (N.D.Ind. 1993).
 - 17 -

01-05489

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 D.B. v. Bloom,

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, 1995 WL 131093, *3; Howe v.

Hull, 873 F. Supp. 72, 78 (N.D. Ohio 1994); T.E.P. v. Leavitt, 840 F. Supp. 110, 111 (D.

Utah 1993); Doe v. Kohn Nast & Graf, P.C., 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
_______________________
 21 But see Ennis v. National Ass'n of Business and Educational Radio, Inc., 53 F.3d 55,
60 (4th Cir. 1995)(suggesting, in dicta, that HIV-positive status alone may not constitute a
per se disability).
 - 18 -
01-05490

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 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 P III.A.

It is similarly undisputed that her HIV status has imposed major limitations on important
_______________________
 22 To succeed on this argument, Bragdon must show that the regulatory interpretation is
"arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 844; see
n.20, supra. This he cannot do.

 23 See, e.g., comments of Representative Owens, 136 Cong. Rec. H4623 (daily ed. July
12, 1990)("People with HIV disease are individuals who have any condition along with 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 29 U.S.C. 
706(7)(B).
 - 19 -
01-05491

activities and decisions in her life, including her decision to have children. Id.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, e.g., Bloom, 1995 WL 490481, *3 ("dental services

provider is a place of public accommodation by the terms of the ADA"); Morvant, 1995 WL

131093, *3 (same); Woolfolk v. Duncan, 872 F. Supp. 1381, 1391 (E.D. Pa.

1995)(physician's office is a place of public accommodation); Mayberry v. Von Valtier, 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

P 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. 
________________________
 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 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").
 - 20 -

01-05492

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, 1995 WL

131093.26 While a health care provider is not required to treat a person seekingtreatment

or services outside of the provider's area of specialization, the failure to treat must be based

on the treatment the patient is seeking or requires (e.g., filling a cavity), rather than the

disability (e.g., HIV/AIDS) that he or she has. 28 C.F.R. S 36.302(b)(2); Howe, 873 F.

Supp. at 78-79; Morvant, 1995 WL 131093 at *4; Baby K, 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. at I.A); and c) Bragdon's refusal to

treat Abbott in his office was based solely on Abbott's HIV-positive status (id. 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.

at P IV.B), the undisputed facts demonstrate that this argument is pretextual. Bragdon has
______________________
 26 See also Bloom, 1995 WL 490481 (D.N.J. 1995); Woolfolk, 872 F. Supp. 1381;
Howe, 873 F. Supp. at 78; Mayberry, 843 F. Supp. at 1166; In re Baby K, 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, 16 F.3d 590 (4th Cir.), cert, denied, 115 S.Ct. 91 (1994).
 - 21 -

01-05493

never had privileges to practice dentistry in any hospital, at any time, since he began

practicing. Id. at P 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. at P VI.A. Indeed, it was not until after this very lawsuit had

been filed that Bragdon first applied for hospital privileges. Id. at P 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. at P VI.E. To date, Bragdon has not received admitting privileges at Down

East, nor at any other hospital in the state of Maine. Id. at P 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, 1995 WL 490481, *3

(denial of dental services on the basis of HIV-positive status violates the ADA as a matter of

law); Morvant, 1995 WL 131093 (same); Howe, 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
________________________
 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 U.S. Facts at PVII.

 28 State cases have held similarly. See, e.g., Minnesota v. Clausen, 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, Charge No. 1987CPO113, slipop. at
59 (Illinois Human Rights Commission, July 8, 1994), attached hereto as Exhibit G (denial
 (continued...)
 -22-
01-05494

 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 PI.A), Abbott would have had to travel over sixty

miles to Down East to receive such care (id. at PV.B), and would have had to pay

substantially more than Bragdon's customary charges for use of the hospital operatory (id.).

 The consensus of every leading dental, medical, and/or scientific association isthat

there is no medical or scientific reason for treating HIV-positive dental patients in a hospital

setting. Id. at PVII.K.29 Rather, these associations maintain that when universal

precautions are utilized, persons with HIV/AIDS can and should be safely treatedin private

dental offices. Id. at PVII.G. Where, as here, there is neither a scientific normedical basis

for a health care provider's actions, different treatment of persons with disabilities constitutes
______________________
 28(...continued)
of dental services to person with HIV violates Illinois Human Rights Act); Lewis, 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, 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, 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, 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., 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 PVII.J.
 -23-

01-05495

a violation of the ADA. 42 U.S.C.  12182(b)(1)(A)(iii). See, e.g., Bloom, 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, 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 risk to the health or safety of
 others that cannot be eliminated by a modification of policies, practices, or
 procedures ....

Id. (emphasis added).

 In determining whether an individual poses a "direct threat," a public accommodation

must make:

 an individualized assessment, based on reasonable judgment that relies on
 current medical knowledge or on the best available objective evidence to
 ascertain: [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.
 -24-
01-05496

28 C.F.R.  36.208(c)(emphasis added); Anderson v. Little League Baseball, Inc.,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, 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, 480 U.S. at 288. This Court cannot

substitute its judgment for those entrusted to protect the public health. Id.; see American

Dental Ass'n v. Martin, 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. 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 carearea")(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"
_______________________
 30 As noted supra, the direct threat defense codifies the standard first articulated by the
Supreme Court in School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987). In
Arline, 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).
 -25-
01-05497

 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, 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 Bloom, 1995 WL 490481 (default judgment). Morvant 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, e.g., Baksh, Charge No. 1987CP0113, slip op. at 62 ("there [is] no

significant risk of HIV infection being transmitted to others in a dental office")(emphasis

added); Clausen, 491 N.W.2d. at 667 (no "reasonably probable risk of serious harm"

associated with treating HIV-positive patients in the dental office); Lewis, 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,

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,
 -26-

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 be

transmitted from a patient to himself, his staff, or his other patients, it is undisputed that

such theoretically possible transmissions have never been documented. U.S. Factsat

P 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. Id.31

Moreover, to the extent there is any 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. at P VIII.E. See 42 U.S.C.

S 12182(b)(3) (direct threat must be one that cannot be mitigated by the modification of

policies, practices, or procedures); see also Morvant, 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. American Dental Ass'n v.

Martin, 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).
________________________
 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 Marianos Declaration, Exhibit 15 to U.S. Facts, at P 18.
 -27-

01-05499

 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 Doe v. University of Maryland Medical System Corp., 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.; see 28 C.F.R.  36.208(c)(listing the requisite factors); Arline, 480 U.S. at 288. In

every other 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
_________________________________
 32 See also Bradley v. University of Texas M.D. Anderson Cancer Ctr., 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.,
886 F. Supp. 1349, 1354 (W.D. Mich. 1995)(HIV-positive surgical technician poseddirect
threat to others that could not be eliminated by reasonable accommodations); Scoles v.
Mercy Health Corp., 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, 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, 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, e.g., Chalk v. U.S. Dist. Court Cent. Dist. of California, 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., 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, 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.
 (continued...)
 - 28 -
01-05500

importantly, as discussed above, in every 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
___________________________________
 33 (...continued)
District of Columbia, 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, 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,
666 P. 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., 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, 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., 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, 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 infinitestimal,
 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, 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., citing Thomas Jefferson Univ., 114 S. Ct. at 2386. See
 (continued...)
 - 29 -

01-05501

 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 Arline, 480 U.S. at 288 (courts should defer to the judgments

of public health officials); see also 28 C.F.R. S 36.208(c). Thus, for example, in University

of Maryland, 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
_____________________________________________
 34 (...continued)
also Bechtel, 1994 WL 3396, *2-*3 (deferring to Department's regulation and Technical
Assistance Manual); n.20, supra.

 - 30 -

01-05502

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 be reasonable to preclude HIV-infected health

care workers from practicing under particular circumstances, however, it unequivocally

maintains that it is safe for dentists like Bragdon to treat HIV-infected patients in a private

dental office. U.S. Facts at P 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, e.g., Doe v.

Washington University, 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
________________________________

 35 See CDC, Recommendations for Preventing Transmission of Human
Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive
Procedures, 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. American Hospital Association,
Recommendations for Health Care Practices and Public Policy, 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 also Bradley, 3 F.3d at 924; Doe v. Washington University, 780 F.Supp. at 629
n.2 (citing 1987 CDC recommendations).
 - 31 -

01-05503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 American Dental

Association, Principles of Ethics and Code of Professional Conduct, 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 Behringer, 592 A.2d at 1278. In contrast, health care
___________________________________
 37 See also Univ. of Maryland, 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, 887 F. Supp. at 772 (finding that patient's have a "right to know" of
surgeon's HIV status before undergoing invasive procedure); Mauro, 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, 595
A.2d at 1282 (noting that "the ethical relationship of doctor to patient" requires a restriction
or 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 P VIII.F. Bragdon
heat sterilizes his dental instruments and handpieces. Id. at P VIII.E.

 39 Bragdon's own expert concurs. See 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 also U.S. Facts at
 VII.Q (detailing dental ethical policy statements).
 - 32 -

providers have undertaken to work in a profession that poses inherent risks. U.S. Facts at

PVIII.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. Some of these diseases are more infectious than HIV; some pose a

higher risk of death. Id. 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:

 [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

 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
_______________________________
 40 Cf. Bloom, 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, 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.").
 -33-
01-05505

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
 -34-
01-05506
 CERTIFICATE OF SERVICE

 I, the undersigned, attorney for the United States of America, do hereby certify that I

will serve upon all counsel in this matter, by overnight mail on September 19, 1995, a true

and correct copy of the foregoing United States' Motion and Memorandum for Summary

Judgment on Constitutional Issues and Memorandum in Support of Plaintiff on Statutory

Issues.

SO CERTIFIED this day of 18th day of Sept.,1995.

 KATE NICHOLSON
 United States Department of Justice
 Civil Rights Division
 Disability Rights Section
 P.O. Box 66738
 Washington, D.C. 20035-6738
 (202) 307-0663
01-05507
 IN THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF MAINE

 SDNEY ABBOTT, )
 )
 Plaintiff )
 v. ) Civil Action No. 94-0273-B
RANDON BRAGDON, D.M.D., )
 Defendant )

 UNITED STATES' STATEMENT OF UNCONTESTED FACTS
 IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
 ON CONSTITUTIONAL ISSUES

 The following facts are undisputed:

I. Randon Bragdon's Dental Practice

 A. Defendant Randon Bragdon, D.M.D., is a dentist who has been licensed to

practice in the state of Maine since 1978, the year he graduated from Tufts University Dental

School, where he trained in general dentistry. Deposition of Randon Bragdon, D.M.D.,

June 5, 6, 13 and 14, 1995, attached hereto and referred to hereinafter as U.S. Ex. 1, (U.S.

Ex. 1 p. 16). Since 1978, Bragdon has operated a dental practice located at 30 Judson

Boulevard in Bangor, Maine. Deposition of Randon Bragdon, D.M.D., October 9, 1994, in

the case of Maine Human Rights Commission (MHRC) v. Bragdon, attached hereto and

referred to hereinafter as U.S. Ex. 2 (U.S. Ex. 2, p. 10). In his office, Bragdon routinely

fills cavities, and performs crown and bridge work, root canal therapy (both surgical and

01-05508non-surgical), periodontics (gingiva and soft tissue work), and some minor oral surgery

(tooth extractions, and occasional removal of soft tissue lesions). U.S. Ex. 2, pp. 22-24.

II. Bragdon's Operation in Interstate Commerce

 A. Bragdon's dental office is located approximately 1.9 miles from U.S. Interstate

Highway 95. Defendant's Response to United States' First Set of Interrogatories and

Request for Production of Documents, attached hereto and referred to hereinafter as U.S.

Ex. 3 (U.S. Ex. 3 at Interrog. No. 1). In his dental practice, Bragdon accepts payment for

dental services from at least eight different insurance plans, seven of which are from

insurance companies located in states other than Maine. Deposition of Judith Bragdon,

August 28, 1995, attached hereto and referred to hereinafter as U.S. Ex. 4 (U.S.Ex. 4, pp.

39-44). Bragdon also accepts payment from patients by credit card; specifically, MasterCard

and Visa. Id. at 44. When a patient pays by credit card, the "slip" is filled out by

Bragdon's staff and mailed to Utah for payment by return mail. Id. Bragdon purchases

equipment and supplies for use in his dental practice from at least 21 out-of-state companies.

U.S. Ex. 3 at Interrog. No 9, and Declaration of Laurel F. Tanaka. September 15,1995,

attached hereto as U.S. Exhibit 27. Invoices and receipts from 1990 to 1994 for purchases

of such equipment and supplies indicate that approximately 58% of Bragdon's expenditures

during this period were from companies located outside Maine. Id.

 B. Bragdon has attended many conferences, meetings, seminars and courses

related to his practice of dentistry in recent years in states other than Maine. U.S. Ex. 3 at

Interrog. No. 7. Bragdon's staff has also attended mandatory continuing education courses

 2

01-05509

held outside of the State of Maine. Deposition of Kristin Long, August 28, 1995,attached

hereto and referred to hereinafter as U.S. Ex. 5 (U.S. Ex. 5, p. 6).

 C. Bragdon is a dues-paying member of at least eight professional associations

related to the practice of dentistry, including the American Dental Association, the American

Orthodontic Society, and the Academy of General Dentistry. U.S. Ex. 3 at Interrog. No. 2.

He pays dues, fees or other charges for the privilege of membership in each of the eight

associations. Id. Six of the eight associations are located in states other than Maine. Id.

III. Sidney Abbott Has A Physical Impairment that Limits One or More Major Life
 Activities

 A. Sidney Abbott has tested positive for HIV. Deposition of Sidney Abbott, May

16, 1995, attached hereto and referred to hereinafter as U.S. Ex. 6 (U.S. Ex. 6,p. 14).

Sidney Abbott has stated that she is substantially limited in the major life activity of

procreation. Id. at 79. 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." Id.

IV. Sidney Abbott's Appointment with Dr. Bragdon

 A. On September 16, 1994, Plaintiff Sidney Abbott had an appointment to see

Defendant Bragdon at his dental office in Bangor. Id. at 35, (Defendant's) Amended

Defenses and Answer to Amended Complaint and Demand for Jury Trial, attached hereto

and referred to hereinafter as U.S. Ex. 7 (U.S. Ex. 7 at Admission No. 5). When she

 3

01-05510

arrived for the appointment, Abbott was asked to fill out a medical questionnaire which

inquired, among other things, whether the patient was HIV-positive or had AIDS. U.S. Ex.

6, p. 36, U.S. Ex. 1, p. 260. Abbott filled out the form, affirming that she is HIV-positive.

Id. Abbott subsequently entered a treatment room where Bragdon performed a routine dental

examination and determined that she had a "buckle lesion of the cervix of the number

nineteen tooth" (i.e., she had a cavity). U.S. Ex. 1, p. 261, U.S. Ex. 6, p. 37.

 B. After the examination, Bragdon informed Abbott that he had an "infectious

disease policy," according to which he would not treat her in his office. U.S. Ex. 1, p. 272,

U.S. Ex. 6, p. 38. Bragdon advised Abbott that he would instead treat her "in a surgical

suite at Eastern Maine Medical Center." U.S. Ex. 6, p. 38. He also informed her that he

would charge his regular fee (for filling a cavity) plus whatever charge the hospital imposed

for use of its facility. U.S. Ex. 1, Pp. 260, 275, U.S. Ex. 6, pp. 38, 39. Abbott did not

immediately accept this offer but indicated that she wished to consider the matter. U.S. Ex.

6, p. 39.

V. Bragdon Lacked Hospital Privileges

 A. Bragdon could not have provided the offered treatment for Abbott or any other

patient at Eastern Maine Medical Center because he had no patient admitting privileges there

in September 1994 or at any time previously or subsequently. U.S. Ex. 1, p. 282. Nor has

he ever had patient admitting privileges at any other hospital facility. Id. at 282, 300.

Indeed, Bragdon only sought admitting privileges at a hospital. Down East Community

 4
01-05511
Hospital, in November 1994, nearly two months after this suit was filed. Id. at 288. The

Hospital has yet to act on Bragdon's request. Id. at 300.

 B. Down East Memorial Hospital is located in Machias, Maine. Id. at 281.

Machias is at least 60 miles from Bangor, Maine. Id. Use of an outpatient operating room at

Down East Memorial Hospital would cost approximately $5.00 per minute of use.

Deposition of David Kennedy, September 1, 1995, attached hereto and referred to hereinafter

as U.S. Ex. 8 (U.S. Ex. 8, p. 5).

VI. Bragdon's Infectious Disease Policy

 A. It is and has been Bragdon's policy and practice to deny treatment in his dental

office to any patient who is HIV-positive, on the basis of the patient's HIV-positive status.

U.S. Ex. 1, p. 245. Bragdon states that his "Infectious Disease Policy" has been in place

since he began his dental practice in 1978. Id. at 220. He did not put this policy into

writing until 1991, after a complaint was filed against him.1 Id. at 221-222 Bragdon states

that, prior to 1991, his policy was communicated orally to his staff and patients. Id. at 221.

The written policy states:

 Patients will not be treated in the office who are known to be infectious and/or
 contagious with a disease that is life threatening or may cause long term or permanent
 debility. This includes but is not limited to strep throat, hepatitis A, B, C, and non-
 A-B, HIV+/AIDS, TB, measles, etc.

 Patients will be treated when their attending physician determines that the patient is no
 longer infectious and/or contagious.
____________________________________
 1 In June, 1991, a complaint was filed with the Maine Dental Association against Dr.
Bragdon alleging refusal to treat an individual who was HIV-positive. U.S. Ex. 1, pp. 440-
441.
 5
01-05512 Patients of record who require emergency dental treatment and are infectious and/or
 contagious as specified above will be referred to an appropriate treatment setting.

 This policy has been in effect since September, 1978.

Attached hereto as U.S. Exhibit 26.

 B. Nothing in this written policy indicates that routine dental care to individuals

with HIV (or other infectious diseases) is to be made available in a hospital. Indeed, prior to

the initiation of this lawsuit, Bragdon's staff was unaware that Bragdon ever offered a

hospital treatment option. Deposition of Kimberly Hayward, August 28, 1995, attached

hereto and referred to hereinafter as U.S. Ex. 9 (U.S. Ex. 9, pp. 13, 14; U.S. Ex. 5, p. 8).

 C. Bragdon asserts that providing routine dental care in a hospital operatory to

patients who are HIV-positive affords greater infection control measures than does his dental

office and is therefore safer. "Report of Randon Bragdon, D.M.D. Re: Sidney Abbott v.

Randon Bragdon, D.M.D.," attached hereto and referred to hereinafter as U.S. Ex. 10 (U.S.

Ex. 10, P 4).

 D. Bragdon states that the following "infection control" measures, which are not

in place in his private office, could be utilized in a hospital: Air filtration, ultraviolet lights,

and negative air pressure.2 U.S. Ex. 10, p. 2; U.S. Ex. 1, pp. 347-350.
_________________________________
 2 In addition, Bragdon states that a second chairside assistant is necessary for the
treatment of HIV-positive patients to "minimize cross-contamination." U.S. Ex. 1, p. 483.
Bragdon has introduced no support for this assertion. Bragdon's own chairside assistant,
Kimberly Hayward, testified that she believed that Defendant Bragdon's dental office has
sufficient space to accommodate two chairside assistants working on the same patient. See
U.S. Ex. 9, p. 12, lines 10-13.
 6

 E. The "head of infectious control" at Down East Community Hospital, Dr.

Robert Verasloff, testified that he has no knowledge of the rate of air exchange at the

hospital, and that the hospital is neither equipped with ultraviolet lights nor with negative air

pressure. Deposition of Dr. Robert Verasloff, September 1, 1995, attached hereto and

referred to hereinafter as U.S. Ex. 11 (U.S. Ex. 11, pp. 4, 5, 7). Dr. Versaloff further

testified that he had no knowledge of the existence of a dental chair or dental delivery unit in

the hospital. Id. at 7.

VII. Bragdon has Stated Publicly His Opposition to Treatment of Patients with HIV or
 AIDS in Any Setting

 A. Bragdon has authored a number of writings that demonstrate his strong bias

against treating persons with HIV/AIDS in any setting. See, Bragdon, Randon, "A Short

Critique of the Recommended M.D.A. [Maine Dental Association] AIDS Access Policy," at

3, attached hereto as U.S. Exhibit No. 12 (emphasis added):

 The law for the practice of dentistry has always been one of mutual consent. The
 patient freely agrees to be treated and the practitioner freely agrees to treat.

 It is not a question of availability of dental care for HIV+/AIDS persons. There are
 dentists and specialists who are willing to treat them. HIV+/AIDS persons comprise
 less than 0.3% of the population of the state. Clearly, only a small percentage of the
 dentists in the state are needed to treat them. Why should 100% of the Maine dental
 offices be exposed to the danger of an epidemic deadly infectious disease to
 accommodate 0.3% of the population? The 99.7% HIV free deserve and need
 protection from infectious disease too.

 B. In response to the Maine Dental Association (M.D.A.) Proposal that "Patients

of record remain with their dentist," Dr. Bragdon wrote:

 No one is recommending the abandonment of patients. However, the medical or
 emotional or infectious status of a patient may change. As a result, a dentist may not

 7
01-05514
 feel that he/she can safely o[r] adequately treat that patient. This may require the
 dentist to refer the patient elsewhere. For example, I personally feel that
 HIV+/AIDS patients should be treated in a hospital environment. I do not feel that a
 private dental operatory can compare to a hospital operatory.

Id. at 4-5 (emphasis added).

 C. In response to the M.D.A. proposal that "Patients of record referred to a

specialty practice retain the referring dentist as their primary care provider," Dr. Bragdon

wrote:

 This takes away the right of a dentist to decline to continue to be a primary care
 provider when he/she does not feel that it can be safely done.

Id.

 D. In response to the M.D.A. proposal that "We suggest that the Maine Dental

Association provide at least two choices from a list of dentists, by town ...." Dr. Bragdon

wrote:

 This completely takes away the right of a dentist to choose who he/she is willing to
 treat. It takes away your right to take what measures you deem prudent to protect
 your patients, staff, and family from infectious diseases.

Id. at 5.

 E. In "Removing the Rhetoric and Exposing the Grim Reality, AIDS and

Dentistry," at 1, attached hereto as U.S. Exhibit No. 13, Dr. Bragdon wrote:

 We often hear the rhetoric that it is embarrassing that HIV+/AIDS individuals cannot
 get into any dental office they wish. . . . What is truly embarrassing is that there is
 not more being done to protect the 99+% part of the public.

 F. Finally, in the same article, Dr. Bragdon wrote:

 What are the consequences of overreacting to the threat of infectious disease vesus
 under-reacting? Overreacting is, I believe, the safer course. Because the homosexual
 subculture has generally accepted the rhetoric instead of the reality of the HIV/AIDS

 8

01-05515

 danger, they are almost all infected. If the homosexual subculture had adopted a
 lifesaving fear of contracting HIV/AIDS, this country would not be confronted with
 the reality of the present AIDs [sic] epidemic.

Id. at 6 (emphasis added).

VIII. HIV and AIDS, Infection Control, and Dr. Bragdon's Dental Practice

 A. HIV is a retrovirus and is the causative agent of the Acquired Immune

Deficiency Syndrome ("AIDS"). Declaration of Deborah Greenspan, BDS, DSc ScD(hc),

FDS RCSEd(Hon), attached hereto and referred to hereinafter as U.S. Ex. 14 (U.S. Ex. 14,

 1); Declaration of Donald Wayne Marianos, D.D.S., M.P.H., attached hereto and referred

to hereinafter as U.S. Ex. 15 (U.S. Ex. 15,  2). Persons exposed to HIV may contract the

virus, and, if so, will develop HIV antibodies, thus becoming HIV-seropositive within six

months. U.S. Ex. 14,  2. The collection of symptoms that characterizes AIDS may not

appear for seven to ten years after seroconversion. Id. During this period, persons who are

HIV-positive are asymptomatic but infectious. Id. As HIV infection progresses to AIDS,

immunodeficiency develops. Id. at  3. AIDS is characterized by opportunistic infections

with abnormalities or malignancies arising with progressive compromise of the immune

system. Id.

 B. HIV is transmitted through (1) intimate sexual contact with an infected person,

(2) invasive exposure to infected blood or blood components, and (3) perinatally from mother

to neonate. Id. at 5, U.S. Ex. 15,  2. Sexual contact with exchange of bodily fluids

constitutes the major risk factor for transmitting or contracting HIV infection. U.S. Ex. 14,

 9

01-05516

 5. Intravenous drug use with shared needles is also a major risk factor. Id. HIV cannot

be transmitted by casual contact. U.S. Ex. 15,  2.

 C. In 1986 the Centers for Disease Control and Prevention ("CDC") issued

recommended Infection-Control Practices for Dentistry. Centers for Disease Control,

Recommended Infection-Control Practices for Dentistry, 35 Morbidity and Mortality Weekly

Report (April 18, 1986), attached hereto as U.S. Exhibit 16. In 1987 the CDC issued

Recommendations for the Prevention of HIV Transmission in Health-Care Settings, including

dentistry. Centers for Disease Control, Recommendations for Prevention of HIV

Transmission in Health-Care settings, 36 Morbidity and Mortality Weekly Report Supp. (Aug

21, 1987), attached hereto as U.S. Exhibit 17. In 1991 the Occupational Health and Safety

Administration ("OSHA") issued its final rule on Occupational Exposure to Bloodborne

Pathogens, which protects, inter alia, all dental employees. 29 C.F.R. Ch. XVII 1910.1030

(July 1, 1992 ed.), attached hereto as U.S. Exhibit 18. In 1993 the CDC issued revised

Recommended Infection-Control Practices in Dentistry. Centers for Disease Control,

Recommended Infection-Control Practices for Dentistry, 1993, 42 Morbidity and Mortality

Weekly Report (May 28, 1993), attached hereto as U.S. Exhibit 19.

 D. All of the above guidance recommends the use of "universal precautions" --

infection control procedures whereby every patient is treated as if infectious for HIV.

Hepatitis B, and other bloodborne pathogens. U.S. Ex. 14,  8. Universal precautions are

recommended in dental and other health care situations because health care workers have no

way of knowing whether or not the patient they are treating is infectious. Id.: Deposition of

Sanford Kuvin, M.D., July 20, 1995, attached hereto and referred to hereinafter as U.S. Ex.

 10

01-05517

21 (U.S. Ex. 21, p. 36). The entire rationale underlying universal precautions is that each

and every patient should be treated as if he or she is infectious for HIV. U.S. Ex. 14,  11.

 E. In the dental setting, universal precautions include the use of protective attire,

such as gloves, gowns, protective eyewear, surgical masks, and/or face shields; proper

sterilization of all dental instruments, including the heat sterilizing of dental handpieces after

each use; and proper disinfection of the dental unit and operatory surfaces. U.S. Ex. 15, 

6. Bragdon has testified that he and his staff comply with CDC recommended universal

precautions, and with the OSHA bloodborne pathogen rule. U.S. Ex. 1, p. 520, lines 16-19;

U.S. Ex. 2, p. 70, lines 15-22; p. 78, lines 7-25; p. 79, lines 1-6 and 11-17; p. 90, lines 12-

14; p. 113, lines 18-25, p. 114, lines 1-3.

 F. If a dentist follows universal precautions -- including, specifically, the heat

sterilization of dental instruments and handpieces -- there is virtually no risk of patient-to-

patient transmission of HIV. U.S. Ex. 15,  11; U.S. Ex. 21, p. 87; Lewis, David and Max

Arens, "Resistance of microorganisms to disinfection in dental and medical devices," Nature

Medicine, Vol. I, No. 9, Sept. 1995, at 938, attached hereto as U.S. Ex. 28.

 G. It is the position of the CDC, and of other experts in the field of infection

control and dentistry that so long as a dentist uses universal precautions, HIV-positive

patients may be safely treated in the dental office. U.S. Ex. 14, 13; U.S. Ex.15, 10.

According to the American Dental Association, no additional infection control procedures --

above and beyond universal precautions - are required to provide dental treatment to persons

with HIV infection or AIDS. American Dental Association, 132nd Annual Session of the

ADA. Annual Session Report, (Oct. 1991), attached hereto and referred to hereinafter as

 11

01-05518

U.S. Exhibit No. 20 ("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.").

 H. Probably over one billion dental procedures have been performed by over

250,000 dental health care professionals in the past fourteen years, and approximately

1,000,000 individuals in the United States are estimated to be infected with HIV. U.S. Ex.

15,  16. 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. Id.

 I. Bragdon believes that by refusing to treat patients who acknowledge that they

are infectious with HIV he reduces the risk of infection to himself, his patients and his staff.

U.S. Ex. 10,  4. Bragdon concedes, however, that individuals may be infectious with HIV

and not know it or choose not to tell him that they are HIV-positive. U.S. Ex. 1, pp. 225-

226.

 J. To the extent that there have been cases of occupationally transmitted HIV in

the health care setting, the transmissions have resulted not from the failure of universal

precautions, but rather, from accidental injuries (e.g., accidentally being stuck with a

contaminated needle). U.S. Ex. 14, 14. There is no evidence that treating a person with

HIV in a hospital operatory would in any way reduce the risk of accidental injuries. Id. In

fact, the majority of accidental injuries resulting in occupationally acquired HIV have

occurred in the hospital setting. Id.

 K. Leading dental and scientific associations have stated that there is no medical

or scientific reason to treat all HIV-positive patients in a hospital setting. U.S. Ex. 14, 

 12

01-05519

13, 14, 17, 18; U.S. Ex. 15,  7, 9, 10, 11; U.S. Ex. 21, pp. 41, 263.

 L. There are inherent risks associated with the practice of dentistry. Well before

the advent of HIV, DHCW's were at risk of acquiring occupationally a number of diseases,

from the common cold to potentially lethal Hepatitis B and TB. U.S. Ex. 15, 19.

 M. The nation's leading dental associations have stated that general dentists have

an ethical duty to treat persons with HIV or AIDS. In 1988 the American Dental

Association's Council on Ethics, Bylaws and Judicial Affairs issued an advisory opinion to

the Association's Code of Conduct concerning the dental treatment of persons with HIV or

AIDS. The opinion states:

 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.

This opinion is incorporated into the Association's Principles of Ethics and Code of

Professional Conduct, which is made available to every member. Attached hereto as U.S.

Exhibit No. 22.

 N. In the same year, the American Dental Association's House of Delegates, the

policy-making arm of the Association, adopted a policy statement on the treatment of persons

with HIV or AIDS. The policy states:
 A dentist should not refuse to treat a patient whose condition is within the dentist's
 current realm of competence solely because the patient is HIV infected.

U.S. Ex. 20, p. 539.

 O. Since that time, other dental associations have issued similar policy statements.

For example, the American Association of Oral and Maxillofacial Surgeons Board of

Trustees Statement on AIDS cautions that "...refusal to treat a patient because that patient

 13

01-05520

has or may have an infectious disease such as acquired immunodeficiency syndrome (AIDS)

is unethical." American Association of Oral and Maxillofacial Surgeons, Position Paper on

Acquired Immune Deficiency Syndrome (AIDS), 2 (Sept. 1991), attached hereto as U.S.

Exhibit No. 23. The Association of State and Territorial Health Officials and the Association

of State and Territorial Dental Directors recommended that "(Dental Health Care Workers)

have an ethical obligation to provide dental care to HIV-infected individuals, or to those

perceived to be at risk of HIV-infection, in the same manner as they would to other

patients." Guide to Public Health Practice: HIV and the Dental Community, 7 (Oct. 1991),

attached hereto as U.S. Exhibit No. 24.

 P. The American Association of Dental Schools Policy on Infectious Diseases

takes a similar position: "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 HIV

infection, AIDS or hepatitis B infection. These patients must not be subjected to

discrimination." American Association of Dental Schools, Revised Policy Statement, III B 2

(March 1993), attached hereto as U.S. Exhibit No. 25.

 Q. Bragdon's own expert has testified 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. U.S. Ex. 21, pp. 99, 188.

 14

01-05521

 CERTIFICATE OF SERVICE
 I, the undersigned, attorney for the United States of America, do hereby certify that I

will serve upon all counsel in this matter, by overnight mail on September 19, 1995, a true

and correct copy of the foregoing United States' Statement of Uncontested Facts In Support

of its Motion for Summary Judgment on Constitutional Issues.

SO CERTIFIED this 18th day of Sept., 1995.

 (SIGNATURE)
 MARGARITA M. PRIETO
 United States Department of Justice
 Civil Rights Division
 Public Access Section
 P.O. Box 66738
 Washington, D.C. 20035-6738
 (202) 307-0663

01-05522

 IN THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF MAINE

 )
SIDNEY ABBOTT, )
 )
 Plaintiff )
 ) Civil Action No. 94-0273-B
v. )
 )
RANDON BRAGDON, D.M.D., )
 )
 Defendant )
 )

 UNITED STATES' MOTION AND INCORPORATED MEMORANDUM
 TO INTERVENE AS OF RIGHT AND
 FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE

 The United States hereby moves this Court, pursuant to

Federal Rule of Civil Procedure 24(a), for an order granting

intervention as of right under 28 U.S.C.  2403(a). The United

States moves to intervene as of right because Defendant, in his

Answer, has challenged the constitutionality of the Americans

with Disabilities Act ("ADA"), 42 U.S.C.  12181-12189. In

addition, the United States hereby moves this Court for leave to

address other issues in this case as amicus curiae. The

government has important regulatory and enforcement

responsibilities under the ADA. The United States believes that

its interests may be affected by the outcome of the case and,

further, that the government's views will be of assistance to the

Court and the parties in resolving the issues before the Court.

I. Background

 Plaintiff Sidney Abbott alleges that she has tested positive

for the Human Immunodeficiency Virus (HIV), the causative agent

of the Acquired Immune Deficiency Syndrome (AIDS). Ms. Abbott

01-05523

filed this action on December 1, 1994, alleging that she sought

routine dental care from the defendant, Dr. Randon Bragdon, who

refused to provide her dental care in his office on the basis of

her HIV-positive status. Ms. Abbott alleges that this refusal

constitutes discrimination on the basis of disability in

violation of title III of the ADA.

 On February 27, 1995 the defendant filed his Defenses and

Answer, asserting that various provisions of the ADA are

unconstitutional under Article I, Section X of the United States

Constitution, the Fifth Amendment to the United States

Constitution, and the Fourteenth Amendment to the United States

Constitution. Defendant also asserts defenses raising issues of

statutory construction, claiming, for example, that positive HIV

status is not a disability within the meaning of the ADA and that

defendant's denial of routine dental treatment to persons with

HIV or AIDS is not discriminatory because "they are necessary for

the provision of the services being offered." (See 42 U.S.C. 

12182(2) (A) (i) (imposition of eligibility criteria not

discriminatory where necessary for the provision of the services

being offered)).

 For the reasons stated below, this Court should grant the

government's motion to intervene as of right to defend the

constitutionality of the ADA and to address other issues in this

case as amicus curiae.

01-05524

II. The United States Is Entitled to Intervene as of Right

 Under Rule 24(a) of the Federal Rules of Civil Procedure, a

party may, if application is timely, intervene as of right "when

a statute of the United States confers an unconditional right to

intervene."

 The United States has the right to intervene pursuant to

28 U.S.C.  2403(a), which provides as follows (emphasis added):

 In any action, suit, or proceeding in a court of
 the United States to which the United States or any
 agency, officer or employee thereof is not a party,
 wherein the constitutionality of any Act of Congress
 affecting the public interest is drawn in question, the
 court shall certify such fact to the Attorney General,
 and shall permit the United States to intervene for
 presentation of evidence, if evidence is otherwise
 admissible in the case, and for argument on the
 question of constitutionality.

As set forth below, the requirements of 28 U.S.C.  2403 are

satisfied, and the United States' motion to intervene should be

granted.1 See, e.g., Jones v. City of Lubbock, 727 F.2d 264,

372 (5th Cir. 1984) (government has "absolute right" to intervene

in case challenging constitutionality of the Voting Rights Act);

O'Keefe v. New York City Board of Elections, 246 F.Supp. 978, 980

(S.D.N.Y. 1965) (same).

 There can be little doubt that the ADA, like the Voting

Rights Act, is an Act of Congress that affects the public

interest. The ADA was enacted on July 26, 1990. According to

findings made by Congress, there were nearly 43,000,000 people

 1 The government's application to intervene is timely. In
the certification notice issued pursuant to 28 U.S.C. 2403, the
Court allowed the United States until March 31, 1995, to
intervene.

 3

01-05525

with disabilities in the United States who were subjected to

discrimination based on their disabilities in nearly every facet

of American life. 42 U.S.C.  12101(a). Congress further stated

that its goal in passing this landmark legislation was to

"provide a comprehensive national mandate for the elimination of

discrimination against individuals with disabilities." 42 U.S.C.

 12101(b).

 The United States has intervened in three other cases

raising constitutional challenges to provisions in title III of

the ADA. See Pinnock v. International House of Pancakes, 844 F.

Supp. 574 (S.D. Cal. 1993), cert denied, 114 S. Ct. 2726 (1994),

appeal dismissed as moot, No. 94-55030 (9th Cir. July 21, 1994);

Posner v. Central Synagogue, No. 93 Civ. 2448 (LRS), slip op.

(S.D.N.Y. Sept. 19, 1994), pending on appeal, No. 94-6273 (2d

Cir.); Chipkevich v. University of Scranton, No. 92-1283, slip

op. (M.D. Pa. Mar. 5, 1993), pending on appeal, No. 94-7401 (3rd

Cir.).

III. The United States Should Be Permitted To Address Other
 Issues as Amicus Curiae

 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 42 U.S.C.  12186(b)), promulgated

the regulation implementing title III found at 28 C.F.R. Pt. 36.

The United States thus has a strong interest in ensuring that the

case law developed in this suit is consistent with its

 -4-

01-05526

interpretation of the statute and the Department of Justice's

regulation.2

 This case presents critical issues under title III of the

ADA, the resolution of which is likely to have far-reaching

effects. Under the ADA, individuals with disabilities are

entitled to be free from discrimination in the "full and equal

enjoyment" of services offered by health care providers,

including dentists. See 42 U.S.C.  12182(a). This mandate of

nondiscrimination is expressed in several general and specific

prohibitions that are implicated by the defendant's alleged

failure to treat plaintiff. See 42 U.S.C.  12182(b) (1) (A) (i) &

(ii), 28 C.F.R.  36.202 (a) and (b) (Denial of Participation and

Participation in an Unequal Benefit); 42 U.S.C. 12182 (b) (1) (B),

28 C.F.R.  36.203(a) (Failure to Provide Goods, Services,

Facilities, Privileges, Advantages, and Accommodations in the

Most Integrated Setting Appropriate); 42 U.S.C.

 2Because the Department is the rule-making agency for
title III, both its regulation and its interpretation of the
regulation are entitled to deference. See Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 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."). See also Petersen v.
University of Wis. Bd. of Regents, 818 F. Supp. 1276, 1279 (W.D.
Wis. 1993) (applying Chevron to give controlling weight to
Department of Justice interpretations of title II of the ADA).
The United States District Court for the District of Columbia
recently recognized that the Department is entitled to deference
in interpreting its title III regulation. Fiedler v. American
Multi-Cinema, Inc., 1994 WL 728460 at *4 n.4 (stating that the
Department, as author of the regulation, is the principle arbiter
of its meaning, and according Department interpretations
substantial deference) (citing Thomas Jefferson Univ. v. Shalala,
114 S. Ct. 2381, 2386 (1994)).

 -5-

01-05527

 12182(b)(2)(A)(i), 28 C.F.R.  36.301(a) (Imposition of

Discriminatory Eligibility Criteria); 42 U.S.C.

S 12182 (b) (2) (A) (ii), 28 C.F.R.  36.302 (a) (Failure to Make

Reasonable and Necessary Modifications to Policies, Practices and

Procedures). The United States believes its participation will

be useful to the court in setting forth the legal requirements

for providing dental care services to individuals with HIV or

AIDS.3

 Also at issue in this case is the meaning of the ADA

provision permitting public accommodations to impose or apply

eligibility criteria that screen out individuals with

disabilities when such criteria are "necessary" for the provision

of the services being offered. See 42 U.S.C.  12182 (2) (A) (i);

28 C.F.R.  36.301(a). We believe that this is one of the first

cases presented under title III of the ADA to raise the

"necessary eligibility criteria" exception in the context of the

treatment of persons with HIV or AIDS. Again, the United States

has a strong interest in ensuring that the case law developed in

this suit is consistent with its interpretation of the "necessary

eligibility criteria" exception.

 Other courts have granted the United States leave to

participate as amicus curiae in title III cases. See, e.g.,

 3The United States has filed two suits under the ADA
alleging that dentists violated the ADA when they refused to
provide routine dental care to persons with HIV or AIDS. United
States v. Castle, Case No. H-93-3140, (S.D. Tx.) (settled by
Consent Order, September 22, 1994); United States v. Morvant,
Civ. Act. No. 93-3251 (E.D. La.) (cross motions for summary
judgment pending).

 -6-

01-05528

Kovacs v. Kawakami, No. 93-2576 (PLF), Order (D.D.C. Feb. 2,

1995); Fiedler v. Amer. Multi-Cinema, Inc., No. 92-486 (TPJ),

Order (D.D.C. Oct. 28, 1994); Cohen v. Trustees of Boston

University, No. 93-10667WD, Order (D. Mass. Dec. 8, 1993);

Rosenthal v. New York State Board of Bar Examiners, No. 92-Civ-

1100 (JSM) (S.D.N.Y. 1992).

III. Conclusion

 For the reasons set forth above, the United States' Motion

to Intervene as of Right and for Leave to Participate as Amicus

Curiae should be granted. A proposed Order is attached.

Dated: Washington D.C.
 March 23, 1995

 Respectfully Submitted,

JAY McCLOSKEY DEVAL L. PATRICK
United States Attorney Assistant Attorney General
 for the District Civil Rights Division
 of Maine

 By: (SIGNATURE)
JAMES M. MOORE, Bar #2041 JOHN L. WODATCH
Assistant United States JOAN A. MAGAGNA
 Attorney for the SHARON N. PERLEY
 District of Maine MARGARITA M. PRIETO
99 Franklin Street Attorneys
Second Floor Disability Rights Section
Bangor, Maine 04401 Civil Rights Division
(207) 945-0373 U.S. Department of Justice
 P.O. Box 66738
 Washington, D.C. 20035-6738
 (202) 307-0663

 - 7 -

01-05529

 IN THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF MAINE

 )
SIDNEY ABBOTT, )
 )
 Plaintiff )
 ) Civil Action No. 94-0273-B
v. )
 )
RANDON BRAGDON, D.M.D., )
 )
 Defendant )
 )

 (PROPOSED) ORDER

 Before the Court is the United State's Motion to Intervene

as of Right and for Leave to Participate as Amicus Curiae.

Having read and considered the foregoing, it is hereby

 ORDERED that the motion by the United States is granted, and

the United States is hereby granted leave to intervene as a party

to defend the constitutionality of the Americans with

Disabilities Act and to participate in this case as amicus curiae

to address other issues. It is

 FURTHER ORDERED that the United States shall file its brief

or briefs 14 days after the parties have submitted their briefs

on issues the government wishes to address.

 MORTON BRODY
 United States District Judge
01-05530

 CERTIFICATE OF SERVICE

 I, the undersigned, attorney for the United States of

America, do hereby certify that I have this date served upon the

persons listed below, by facsimile and first class mail, a true

and correct copy of the foregoing United States' Motion and

Incorporated Memorandum to Intervene as of Right and for Leave to

Participate as Amicus Curiae, and the Proposed Order:

 Mr. John McCarthy
 Rudman & Winchell
 84 Harlow St.
 P.O. Box 1401
 Bangor, ME 04402-1401
 (Counsel for the Defendant)

 Mr. Charles Gilbert, III
 82 Columbia Street
 P.O. Box 2339
 Bangor, ME 04402-2339
 (Counsel for the Defendant)

 Mr. Bennett Klein
 AIDS Law Project
 Gay & Lesbian Advocates & Defenders
 P.O. Box 218
 Boston, MA 02112
 (Counsel for the Plaintiff)

 Mr. David Webbert
 Law Offices of Phillip E. Johnson
 160 Capitol Street
 P.O. Box 29
 Augusta, ME 04332-0029
 (Counsel for the Plaintiff)

SO CERTIFIED this 23rd day of March , 1995.

 (SIGNATURE)
 SHARON PERLEY
 United States Department of Justice
 Civil Rights Division
 Public Access Section
 P.O. Box 66738
 Washington, D.C. 20035-6738
 (202) 514-6016

01-05531

 IN THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT OF MAINE

 )
SIDNEY ABBOTT, )
 )
 Plaintiff )
 ) Civil Action No. 94-0273-B
v. )
 )
RANDON BRAGDON, D.M.D., )
 )
 Defendant )
 )

 UNITED STATES' AMICUS CURIAE MEMORANDUM
 IN SUPPORT OF PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF
 AND IN OPPOSITION TO DEFENDANT'S MOTION FOR RELIEF FROM ORDER

 INTRODUCTION

 Plaintiff Sidney Abbott filed this action in December 1994,

alleging that Defendant Randon Bragdon, a dentist, violated the

Americans with Disabilities Act ("ADA") when he refused to

provide her with routine dental care in his Bangor office because

she is HIV-positive. The United States was granted leave to

intervene to defend the constitutionality of the statute and to

participate as amicus curiae. In December 1995, this Court

concluded that Defendant had violated the ADA, and granted

summary judgment to plaintiffs Sidney Abbott, the United States,

and the Maine Human Rights Commission.

 Pursuant to this Court's order, the parties have filed

supplemental memoranda concerning the nature and scope of relief.

Plaintiff requests that Defendant be ordered to: a) adopt a

01-05532

policy of non-discrimination, b) post this policy in his waiting

room and on his Patient Registration and Health Record, and c)

undergo training concerning infection control in the dental

setting. Defendant opposes Plaintiff's motion for further

injunctive relief and requests that this Court vacate its current

injunction and replace it with a declaratory judgment. The

United States now files this memorandum to support Plaintiff's

request for further injunctive relief and to oppose Defendant's

Rule 60 motion for declaratory relief only.

 I. INJUNCTIVE RELIEF IS APPROPRIATE AND NECESSARY

 In adopting the remedies and procedures available under

Title II of the Civil Rights Act of 1964, Congress specifically

provided private plaintiffs like Sidney Abbott the right to

injunctive relief under Title III of the ADA. See 42 U.S.C. 

12188(a) (1); 42 U.S.C.  2000a-3(a). To obtain an injunction,

Plaintiff need only demonstrate "a real threat of future

violation or a contemporary violation of a nature likely to

continue or recur." United States v. Oregon State Medical Soc.,

343 U.S. 326, 33(ILLEGIBLE) (1952). See also United States v. W.T. Grant

Co., 345 U.S. 629, 633 (1953) (plaintiff must demonstrate "some

cognizable danger of recurrent violation"); Maine v. United States

Dep't of Labor, 770 F.2d 236, 238 (1st Cir. 1985) (plaintiff "must

show some reasonable likelihood of unlawful future behavior");

Lovell v. Brennan, 728 F.2d 560, 562 (1st Cir. 1984) (same).

Plaintiff has more than met her burden in the instant case.

 -2-

01-05533

 Defendant's actions and statements evidence a strong and

continued commitment to refusing treatment to individuals with

HIV or AIDS. Defendant has long maintained a written policy of

not treating individuals with infectious diseases, including HIV

and AIDS. In the past, Defendant waged extensive mail campaigns

against the Maine Dental Association's AIDS Access Policy.1 This

Court's ruling has not shaken his resolve. Just last month,

defendant published a vigorous defense of his discriminatory

policy in a Bangor newspaper. See, Randon Bragdon, "Dentistry in

a Time of Tyranny," Bangor Daily News, at A7 (February 12, 1996).

Indeed, Defendant stated in that article that he would choose to

be held in contempt of Court, rather than treat a patient with

HIV or AIDS:

 If Judge Brody determines that our state and federal
 governments have become so tyrannical and oppressive that it
 is now a high crime to be a responsible, caring dentist
 willing to treat HIV patients in a controlled environment.
 . . , then I shall willingly hand him the keys to my home
 and office, pack my bag and check in at whatever jail or
 prison that he and this government run-amok designate. But
 I will never betray the thousands that depend on my
 integrity and professional judgment!

(emphasis added).

 This evidence of Defendant's unchanged discriminatory

intentions demonstrates the insincerity of his representations to

this Court that he will abide by the law. See W.T. Grant Co.,

 1See Randon Bragdon, "A Short Critique of the Recommended
M.D.A. AIDS Access Policy, "and Randon Bragdon, "Removing the
Rhetoric and Exposing the Grim Reality, AIDS and Dentistry"
(attached to the United States' Statement of Uncontested Facts in
Support of its Motion for Summary Judgment, at Exhibits 12 and
13).

 -3-

01-05534

345 U.S. at 633 (court must consider the "bona fides of the

expressed intent to comply"); United States v. Hunter, 459 F.2d

205, 220 (4th Cir. 1972) ("An injunction should not be refused

upon the mere ipse dixit of a defendant that, notwithstanding his

past misconduct, he is now repentant and will hereafter abide by

the law."). An injunction is the only means by which to ensure

that Plaintiff and other persons with HIV/AIDS will be treated in

a non-discriminatory manner. A declaratory judgment will not

suffice. See Bailey v. Patterson, 323 F.2d 201, 205-06 (5th Cir.

1963) (noting insufficiency of declaratory relief in civil rights

action where threat of continued or resumed violations remains).

 In both United States v. Morvant, 898 F. Supp. 1157 (E.D.

La. 1995), and D.B. v. Bloom, 896 F. Supp. 166 (D.N.J. 1995), the

defendant dentist refused to provide routine dental care to HIV-

positive persons because of the alleged attendant risks. And in

both cases, the court ordered injunctive relief -- namely, that

defendants adopt and post a policy of non-discrimination (and in

Morvant, also undergo training concerning HIV and the practice of

dentistry) -- to prevent future violations of the law. This case

is no different. See Rogers v. 66-36 Yellowstone Blvd. Coop.

 2 The fact that the United States was plaintiff in Movant
and only amicus in this case should play no role in the court's
determination of the nature of appropriate relief. Although the
Attorney General is authorized to sue in every case where she has
reasonable cause to believe that a pattern or practice of
discrimination or a matter of general public importance exists,
she is not required to do so. Cf. Hunter, 459 F.2d at 220-21.
Indeed, in light of the government's limited resources, this
would be an impossible task. See Trafficante v. Metropolitan
Life Insurance Co., 409 U.S. 205, 211 (1972) (noting that the
 (continued...)

 - 4 -
01-05535

Owners, Inc., 599 F. Supp. 79, 84 (E.D.N.Y. 1984) (reviewing

judicial orders in similar cases as basis for formulating

injunctive relief).3

 In light of Defendant's existing infectious disease policy,

it is crucial that he be ordered to adopt a policy of non-

discrimination. Similarly, persons with HIV and AIDS should not

be apprised of their rights via Defendant's patient association's

literature or the media, especially where Defendant's

editorializing is likely to confuse or dissuade HIV-positive

 2 (...continued)
government has limited resources and must rely on private
attorneys general to enforce civil rights laws). As amicus we
addressed the same issues that we would have had we prosecuted
the case.

 3 The cases upon which Defendant relies in support of his
request for declaratory relief only are readily distinguishable.
In Hunter, 459 F.2d 205 (4th Cir. 1972), the question before the
lower court was whether a newspaper's publication of a
discriminatory advertisement violated the Fair Housing Act or was
protected by the First Amendment. Both the lower and appellate
courts found that an injunction was not necessary to prevent
future violations in that particular case, because the defendant
ceased publishing discriminatory advertisements as soon as the
law was brought to his attention. The Court emphasized, however,
how carefully the courts must be in refusing injunctive relief in
civil rights cases:

 . . . our decision is in no way intended to deprecate
 injunctions as appropriate remedies in housing
 discrimination cases. Trial judges must remain
 vigilant to protect minorities from deprivation of
 their statutory and constitutional rights. . . . Denial
 of an injunction is proper only in cases where . . .
 the judge is fully satisfied that the defendant will
 not continue his unlawful conduct.

Id. at 220 (citations omitted). See also Tyler v. City of
Manhattan, 857 F. Supp. 800, 820 (D. Kan. 1994) (noting
defendant's good faith efforts to comply with the ADA yet issuing
mandatory injunction to ensure compliance).

 - 5 -

01-05536

persons. Instead, they should be apprised of their rights by

Court-approved language, and Defendant should be ordered to post

that language prominently. Finally, while Defendant may have

attended numerous seminars concerning how infection control

procedures should be implemented, both he and his staff require

training concerning the efficacy of those procedures.

 II. THE SCOPE OF RELIEF SHOULD PROTECT ALL HIV-POSITIVE
 PERSONS, INCLUDING THOSE WHO HAVE AIDS

 Injunctive relief in this case should protect all persons

who have tested positive for HIV, both asymptomatic, like Sidney

Abbott, and symptomatic, including those who fall within the CDC

definition of having AIDS.

 Contrary to Defendant's assertions that there are additional

complications related to treating persons with AIDS as compared

to treating persons with asymptomatic HIV, the unequivocal

testimony of Dr. Marianos, upon which this Court relied, is that

it is safe to treat both persons with asymptomatic HIV and

persons with AIDS in the private dental office.4 Thus, because

 4 Declaration of Donald Wayne Marianos, D.D.S., M.P.H. at
 7 ("No infection control procedures beyond the use of universal
precautions are necessary when providing routine dental care to
persons with HIV and AIDS.") (attached to the United States'
Statement of Uncontested Facts in Support of its Motion for
Summary Judgment, at Exhibit 15). Id. at  10 ("If dentists,
including general dentists such as Dr. Bragdon, follow universal
precautions in their practice, persons with HIV or AIDS or other
blood-borne pathogens can be safely treated in private dental
offices."). See also Abbott v. Bragdon, Order and Memorandum of
Decision (December 22, 1995) at 13 (emphasis added):

 Dr. Marianos testified that when implemented, the CDC
 recommendations reduce the already low risk of disease
 transmission in the dental environment, from either
 (continued...)

 - 6 -

01-05537

the record in this case expressly dealt with the minimal risks of

HIV transmission when treating either class of patients, this

Court's injunction properly covers individuals who have HIV or

AIDS.

 Moreover, it is common for courts to award broad based

injunctive relief in civil rights cases. As the Fourth Circuit

explained in Sandford v. R.L. Coleman Realty Co., Inc., 573 F.2d

173 (4th Cir. 1978), the general rule in civil rights cases is

that:

 '[w]hether plaintiff proceeds as an individual or on a
 class suit basis, the requested [injunctive] relief
 generally will benefit not only the claimant but all
 other persons subject to the practice or the rule under
 attack.'

Id. at 178, quoting 7 Wright & Miller, Federal Practice and

Procedure  1771, at 663-64 (1972). Indeed, because the

vindication of the public interest is an important facet of

private civil rights litigation, and because the evil sought to

be ended is discrimination on the basis of a class characteristic

(i.e., race, sex, religion, disability, etc.), "the court has a

special responsibility in the public interest to devise remedies

which effectuate the policies of the Act as well as afford

private relief to the [individual] instituting the complaint."

Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1201 (7th Cir.

 4 (...continued)
 patient to dental health care worker, dental health
 care worker to patient, or patient to patient. Dr.
 Marianos further testified that routine dental
 treatment to persons with HIV or AIDS requires no
 additional procedures beyond the CDC recommendations.

 - 7 -

01-05538

1971); Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963). Cf.

Dionne v. Bouley, 757 F.2d 1344, 1355-56 (1st Cir. 1985) (no need

for class certification because any declaratory or injunctive

relief in constitutional rights case will inure to the benefit of

all similarly situated persons).

 III. DEFENDANT'S PROPOSED LANGUAGE IS INCOMPATIBLE WITH THIS
 COURT'S DECISION AND SHOULD BE REJECTED
 Finally, Defendant's proposed injunctive relief would allow

him to do what this Court already has told him he cannot. While

Defendant incorporates the Court's language concerning his right

to conduct an individualized assessment, he omits altogether any

acknowledgement that the provision of routine dental care to

persons with HIV/AIDS does not pose a direct threat. Defendant's

proposals are premised on the assumption that he still has the

unfettered right to refuse treatment, to defer treatment, and/or

to second guess the reasonableness of the judgments of public

health officials.

 To avoid these problems, yet to be fully consistent with the

language of this Court's order, the government proposes that

Defendant be required to adopt the following policy, and be

required to post the policy, or a variation thereof, in his

waiting room and on his Patient Registration and Health Record:

 Under federal and state law, this office may make an
 individualized assessment, based on current medical
 knowledge and the reasonable judgment of public health
 officials, concerning whether any patient poses a
 significant risk to the health or safety of others.

 Federal and state law prohibit discrimination against
 persons with HIV and AIDS in the dental setting. This
 prohibition is based on current scientific and medical

 - 8 -

01-05539

 evidence, which demonstrates that patients with HIV
 infection may be safely treated in private dental offices
 when universal precautions are employed. Such infection
 control procedures provide protection for patients and
 dental personnel.5

 This office thus provides treatment to persons with HIV and
 AIDS equal to that it provides its other patients. No
 current or prospective patient shall be refused in-office
 treatment merely because he or she has tested positive for
 HIV or has AIDS.

 CONCLUSION

 For the reasons stated above, the United States respectfully

requests that this Court grant Plaintiff's Motion for Further

Injunctive Relief and deny Defendant's Rule 60 Motion for Relief

from Order.

JAY McCLOSKEY DEVAL L. PATRICK
United States Attorney Assistant Attorney General
 for the District Civil Rights Division
 of Maine
 by: (SIGNATURE)
JAMES M. MOORE, Bar #204 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

 5 See American Dental Association, 132nd Annual Session of
the ADA, Annual Session Report, (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.").

 - 9 -

01-05540

 CERTIFICATE OF SERVICE

 I, the undersigned, attorney for the United States of

America, do hereby certify that I have served upon all counsel in

this matter, by first class mail on March 7, 1996, a true and

correct copy of the foregoing United States' Amicus Curiae

Memorandum in Support of Plaintiff's Motion for Injunctive Relief

and in Opposition to Defendant's Motion for Relief from Order.

SO CERTIFIED THIS 7th day of March, 1996.

 SHARON N. PERLEY
 United States Department of Justice
 Civil Rights Division
 Disability Rights Section
 P.O. Box 66738
 Washington, D.C. 20035-6738
 (202) 514-6016

01-05541