Bragdon v. Abbott/Concurrence-dissent O'Connor

Justice O'Connor, concurring in the judgment in part and dissenting in part.

I agree with The Chief Justice that respondent's claim of disability should be evaluated on an individualized basis and that she has not proved that her asymptomatic HIV status substantially limited one or more of her major life activities. In my view, the act of giving birth to a child, while a very important part of the lives of many women, is not generally the same as the representative major life activities of '''[p. 665]''' all persons—"caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"—listed in regulations relevant to the Americans with Disabilities Act of 1990. See 45 CFR §84.3(j)(2)(ii) (1997); 28 CFR §41.31(b)(2) (1997). Based on that conclusion, there is no need to address whether other aspects of intimate or family relationships not raised in this case could constitute major life activities; nor is there reason to consider whether HIV status would impose a substantial limitation on one's ability to reproduce if reproduction were a major life activity.

I join in Part II of The Chief Justice's opinion concurring in the judgment in part and dissenting in part, which concludes that the Court of Appeals failed to properly determine whether respondent's condition posed a direct threat. Accordingly, I agree that a remand is necessary on that issue.