Stigmatized Silence: The exclusion of HIV and AIDS Sufferers from the “Obamacare” Legal Landscape by Ashley Southerland

I.             INTRODUCTION

For some time now, American citizens infected with human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS)[1] have held a tenuous place amidst the substantively ambiguous concentric circles of the healthcare system, insurance regimes, and the law.  Literally and legally, these individuals—despite being engulfed in an epidemiological and often-losing battle for their lives—only have shaky ground, at best, upon which to demand per se protections under the law throughout the various stages of their disease.[2] Unfortunately for them, the economic rationales for health status-based insurance discrimination and the legislative silence on protection under the Americans with Disabilities Act have resulted in a legal “donut hole” that has left many asymptomatic[3] HIV and AIDS sufferers lost in the legal fray, further stigmatized and uninsured with mounting medical costs and no foreseeable economic relief.

However, now that the Obama Administration has instituted major health care reform, both the health care system and the insurance coverage regime will receive a significant overhaul.  This Blog posits that, while “Obamacare” reform is no doubt one of the most significant pieces of social legislation of this era, the two laws that define it—the Patient Protection and Affordable Care Act[4] (PPACA) and the Health Care and Education Reconciliation Act of 2010[5]—are both riddled with the same substantive ambiguities that plague their statutory predecessors, and ultimately leave asymptomatic AIDS and HIV suffers unprotected from discrimination.

Part II of this Blog examines the historical, statutory lineage of the legal duty to treat and addresses the most recent Supreme Court case, Bragdon v. Abbott, which directly addresses the ability of healthcare providers to discriminate against HIV-positive individuals in the non-emergency medical care context.  Part III provides a brief overview of the modern American insurance regime, particularly with regard to individuals that the insurance industry commonly perceives as “high risk”—including those with HIV and AIDS.  Finally, Part IV concludes by examining whether “Obamacare” might very well bring protection from discrimination to this legally “homeless” class.


  1. Statutory Duty to Treat

Today, statutory provisions and agency regulations have replaced much of the common law regime, and more accurately reflect the current mandate surrounding the duty to treat.

1. Rehabilitation Act of 1973.[6]

Under the relevant language of the statute, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[7] Courts use a case-by-case analysis to determine whether a plaintiff is disabled.  Under this analysis, “neither HIV infection nor the existence of full-blown AIDS automatically qualifies an individual as disabled.”[8] However, after proceeding through a three-point inquiry, most courts have found that a person infected with HIV does indeed qualify as disabled.

2. Americans with Disabilities Act (ADA).[9]

This 1990 Act is the most recent provision used in an attempt to “fill the gap.”  The statute mandates that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” [10]

Much of the problem comes in attempting to construe the statute’s definitional subsection to include HIV and AIDS sufferers.  The ADA defines “disability” in terms identical to those found in the Rehabilitation Act of 1973. [11] However, much of the debate lies in differentiating the statute’s plain language from Congress’s implicit meaning and intent.[12] Critics who champion adherence to the plain meaning of the statute cite Congress’s failure to explicitly list HIV infection as a disability,[13] particularly because Congress was very well aware of the 1980s[14] AIDS epidemic at the time that it passed the statute.  On the other hand, scholars who espouse a more expansive interpretation of the statute focus on its legislative history, which seems to support the implicit inclusion of HIV sufferers under the ADA’s first prong of the disability definition.[15]

  1. Bragdon v. Abbott

On June 25, 1998, the Supreme Court made landmark headway in favor of HIV-positive and asymptomatic AIDS suffers.  Justice Kennedy, writing for the majority, declared that plaintiff-respondent Sidney Abbott’s HIV-positive status was “a physical . . . impairment that substantially limit[ed] one or more of [her] major life activities,” and thereby qualified HIV infection as a disability under the ADA.[16]

In a three-step inquiry, the majority first concluded that, “in light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, . . . it is an impairment from the moment of infection.”[17] Second, the majority concluded that HIV infection affected a major life activity, namely Abbott’s ability to reproduce and bear children.[18] Finally, to satisfy the ADA’s definition of a disability, the majority concluded that HIV infection did indeed place substantial limitations on her ability to reproduce.[19] The majority further supported its conclusions by examining agency interpretations issued under the Rehabilitation Act of 1973, administrative guidelines and regulations issued by the Justice Department, and lower court decisions during the pre-ADA era.[20]


Insurers often go through a process called underwriting in order to determine whether it should extend insurance coverage to an applicant, as well as to determine the terms of that coverage.[21] In most cases, the individuals that insurers deem to be too “high-risk” may be completely “priced out” of the insurance pool when insurers set high premiums, and those individuals who are unable to pay those high premiums may therefore be denied health insurance coverage altogether.[22]

The current state of federal law reflects a melting pot of regimes aimed at regulating and deterring insurance discrimination based on health status, including civil rights, tax, and labor laws, as well as laws that provide federal funding for state public health activities.[23] However, many of the current regulatory regimes are inadequate to protect individuals infected with HIV and AIDS from discriminatory insurers.[24] Many of these regulations and laws are based upon the 1964 Civil Rights Act,[25] and are only intermittently helpful to those infected with HIV and AIDS.  Once again, the ADA offers limited protection, precisely because the narrow definition of a disabled person does not always include those infected with HIV and AIDS.[26] The Health Insurance Portability and Accountability Act (HIPPA)[27] does not reach far enough to address the content of health insurance plans, which is often where insurers do much of their post-enrollment discriminating.[28]


While the “Obamacare” plan is no doubt one of the most significant pieces of social legislation since the Social Security Act,[29] the PPACA is riddled with the same substantive ambiguities that plague its statutory predecessors.  To be fair, the statutory language goes to extreme and pain-staking lengths to prohibit health status-based insurance discrimination and exclusion based on preexisting conditions.  However, the law once again fails to address asymptomatic HIV and AIDS infection as a significant source of insurance discrimination.  Even if asymptomatic HIV and AIDS infection represents a minute subset of the “health status” category that is more likely to be addressed in the later regulations accompanying the law, there was still an opportunity to include this major health status issue as a part of the reform discussion, and lawmakers failed to take advantage of it.

As things stand now, any legal protections for asymptomatic HIV and AIDS sufferers that might arise out of the PPACA hang in a precarious balance, based solely on the discretion of the Secretary of Health and Human Services.  As a result, much of the responsibility to fill the substantive void and statutory ambiguity will therefore fall on the shoulders of the Secretary.  For one thing, extensive regulations and exhaustingly comprehensive definitional sections will be absolutely essential in this effort, and in ensuring that the law covers all of the groups—including asymptomatic HIV and AIDS sufferers—that have consistently been “priced out” and excluded from insurance coverage.

Based on the text of the statute, the two crucial areas where the Secretary can make the greatest strides for individuals with asymptomatic HIV and AIDS present themselves in (1) the amendments to the Public Health Act that prohibit discrimination based on health status (as defined by the Secretary)[30] and (2) the process to define the benefits that make up the essential benefits package.[31] In the battle against insurance discrimination, “health status” seems like the term that will be easiest to construe as inclusive of asymptomatic HIV and AIDS sufferers.  However, in promulgating regulatory guidelines or definitions, the Secretary will need to explicitly refer to HIV infection as a qualifying health status factor or a preexisting condition in order to avoid the same litigation battles that have plagued the debate between plain meaning and Congressional intent.  Unfortunately, the fact that Congress did not address or discuss the issue during the legislative process will make it more difficult to advance the argument that Congress intended HIV/AIDS to be a preexisting condition, much less a disability.  While it is possible that the members of the Senate and House were unable to address the issue because of certain concessions that were necessary in order to propel the law through Congress,  the fact that the incredibly controversial abortion issue made it into legislative discussion and ultimately the PPACA provisions[32] seems to indicate that lawmakers simply did not consider asymptomatic HIV infection to be an incredibly important health status insurance discrimination issue.

To its credit, the PPACA incorporates all of the healthcare reform suggestions championed by scholars in support of the inclusion of HIV and AIDS sufferers as a per se legally protected group.  The law refers to a single risk pool that insurance companies must consider when extending coverage to applicants.  The PPACA also incorporates the use of “benchmark” insurance plans after which to model the new insurance coverage regime, and there are provisions that explicitly create the essential health benefits package that outline the minimum standard of coverage that insurance providers must meet.  Overall, however, the incorporation of these elements have done little to champion the cause of asymptomatic HIV and AIDS sufferers.  “Obamacare,” despite the overall healthcare significance of its reformative effort, continues to foster the same legislative ambiguity and silence that has left HIV and AIDS sufferers as a legally homeless class.

[1] See generally Bragdon v. Abbott, 524 U.S. 624 (1998).  Justice Kennedy, for the majority, outlined the physiological character of HIV:

The disease follows a predictable and, as of today, an unalterable course.  Once a person is infected with HIV, the virus invades different cells in the blood and in body tissues.  Certain white blood cells, known as helper T-lymphocytes or CD4+ cells, are particularly vulnerable to HIV.  The virus attaches to the CD4 receptor site of the target cell and fuses its membrane to the cell’s membrane.  HIV is a retrovirus, which means it uses an enzyme to convert its own genetic material into a form indistinguishable from the genetic material of the target cell.  The virus’ genetic material migrates to the cell’s nucleus and becomes integrated with the cell’s chromosomes.  Once integrated, the virus can use the cell’s own genetic machinery to replicate itself.  Additional copies of the virus are released into the body and infect other cells in turn.  Although the body does produce antibodies to combat HIV infection, the antibodies are not effective in eliminating the virus.

The virus eventually kills the infected host cell.  CD4+ cells play a critical role in coordinating the body’s immune response system, and the decline in their number causes corresponding deterioration of the body’s ability to fight infections from many sources.  Tracking the infected individual’s CD4+ cell count is one of the most accurate measures of the course of the disease.

Id. at 633–34.

[2] See Bragdon, 524 U.S. at 635.  Justice Kennedy chronicled the stages of HIV as follows:

The initial stage of HIV infection is known as acute or primary HIV infection.  In a typical case, this stage lasts three months.  The virus concentrates in the blood.  The assault on the immune system is immediate.  The victim suffers from a sudden and serious decline in the number of white blood cells.  There is no latency period.  Mononucleosis-like symptoms often emerge between six days and six weeks after infection, at times accompanied by fever, headache, enlargement of the lymph nodes (lymphadenopathy), muscle pain (myalgia), rash, lethargy, gastrointestinal disorders, and neurological disorders.  Usually these symptoms abate within 14 to 21 days.  HIV antibodies appear in the bloodstream within 3 weeks; circulating HIV can be detected within 10 weeks.

[3] See generally Bragdon, 524 U.S. at 635–36.

After the symptoms associated with the initial stage subside, the disease enters what is referred to sometimes as its asymptomatic phase.  The term is a misnomer, in some respects, for clinical features persist throughout, including lymphadenopathy, dermatological disorders, oral lesions, and bacterial infections.  Although it varies with each individual, in most instances this stage lasts for 7 to 11 years.  The virus now tends to concentrate in the lymph nodes, though low levels of the virus continue to appear in the blood.  It was once thought that the virus became inactive during this period, but it is now known that the relative lack of symptoms is attributable to the virus’ migration from the circulatory system into the lymph nodes.  The migration reduces the viral presence in other parts of the body, with a corresponding diminution in physical manifestations of the disease.  The virus, however, thrives in the lymph nodes, which, as a vital point of the body’s immune response system, represents an ideal environment for the infection of other CD4+ cells. . . .

A person is regarded as having AIDS when his or her CD4+ count drops below 200 cells/mm3 of blood or when CD4+ cells comprise less than 14% of his or her total lymphocytes.

[4] 42 U.S.C. § 18001 (2010).

[5] 42 U.S.C. § 1305 (2010).

[6] 29 U.S.C. § 794 (2010).

[7] Id. § 794(a).

[8] Jill Cohen, Access to Medical Care for HIV-Infected Individuals Under the Americans with Disabilities Act: A Duty to Treat, 18 Am. J.L. & Med. 233, 237 (1992).

[9] 42 U.S.C. § 12182 (2010).

[10] Id. § 12182(a).

[11] Id. § 12102(1)(A)–(C).

[12] See Lisa Taylor Hudson, The Duty to Treat Asymptomatic HIV-Positive Patients or Face Discrimination Under Abbott v. Bragdon: The Scylla and Charybdis Facing Today’s Dental and Heath Care Providers, 33 U. Rich. L. Rev. 665, 671–72 (1999).

[13] Id. at 673 (referring to “the ADA’s conspicuous silence on the inclusion of AIDS”).

[14] Bragdon, 524 U.S. at 633.

[15] Hudson, supra note 12, at 673.

[16] See Bragdon, 524 U.S. at 631.

[17] Id. at 637.

[18] Id.

[19] Id. at 641 (“It cannot be said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one’s child does not represent a substantial limitation on reproduction.”).

[20] See id. at 642–47.

[21] Lawrence O. Gostin and Peter D. Jacobson, Law and the Health System 340 (2006).

[22] Id.

[23] Sara Rosenbaum, Insurance Discrimination on the Basis of Health Status: An Overview of Discrimination Practices, Federal Law, and Federal Reform Options, 37 J.L. Med. & Ethics 103, 108 (2009).

[24] Id.

[25] 42 U.S.C. § 1971 (2010).

[26] Rosenbaum, supra note 23, at 108–09.

[27] Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, 104th Congress.

[28] See Rosenbaum, supra note 23, at 107–08, 109.

[29] Alan Silverleib, Senate Approves Health Care Reform Bill, CNN, Dec. 24, 2009, available at (last visited Oct. 5, 2010).

[30] 42 U.S.C. § 300gg-4 (2010).

[31] 42 U.S.C. § 18022 (2010).

[32] 42 U.S.C. § 18023 (2010).

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