PHIL PONCE: Two cases before the court. Today the justices heard the first major challenge to the Americans With Disabilities Act, and they agreed to hear a case on attorney-client privilege connected to the Whitewater investigation. And here to tell us more is David Savage of the Los Angeles Times. Welcome, David. First of all, on the AIDS and Americans With Disabilities Act story, again, a brief recitation of the facts that led to this case.
DAVID SAVAGE, Los Angeles Times: This is one of these seemingly small disputes that raises a major issue of the law. A woman named Sidney Abbott goes to a dentist in Bangor, Maine, in September of 1994, routine checkup. She puts down on the patient registration form that she has the HIV virus. The dentist checks her, says she has a cavity, and he says--he says it's his policy that he will be glad to fill the cavity but only in a hospital. She files suit.
Now, that's the small dispute. The big issue it raises is what is a disability, who is disabled? It's sort of surprising that eight years down the road, since Congress passed this law the Supreme Court has never heard one of these cases, and it's actually never heard a case on the issue of AIDS. It was a--sort of a lively argument, sort of divided between sort of conservative justices who say we should read the law narrowly, based on what Congress said, the actual words. And the liberals say this was a civil rights law and intended to protect all kinds of people with disabilities, and we ought to read it broadly.
PHIL PONCE: And what exactly does the law say? What is the language in the Americans with Disabilities Act?
DAVID SAVAGE: Well, the language is actually the problem for Sidney Abbott and her lawyers. It says somebody who has a physical or mental impairment that substantially limits a major life activity. You could say what is that. The Justice Department has said somebody--that could mean if you can't walk or see or hear or work. Sidney Abbott says I've got an incurable, probably fatal disease. The other side says that she's fine now. She has no symptoms, so she's not disabled.
PHIL PONCE: And so what did she argue was the major life activity that was being impeded?
DAVID SAVAGE: In the lower courts they said she had a disability because she was fearful of having children; she couldn't reproduce. The U.S. court of Appeals said she has an impairment, which is the HIV infection, and because of the risk of having the baby get the HIV virus, she was--could not reproduce. I think that struck a lot of the justices something of a stretch, and I think it's going to be very hard for them to win on that point.
PHIL PONCE: So, just to get it straight, in order for her to qualify as--making her argument as to why she should be included under the Americans With Disabilities Act, she had to argue that a major life activity was being affected, and in this case, it was her ability to have children?
DAVID SAVAGE: Yes, that's right. And it doesn't strike you, on the face of it, as an obviously powerful argument, but let me try the other side of it. Suppose you and I--suppose I have the HIV virus, and you have cancer, and both of us could sit here and say, well, you know, let's keep our fingers crossed, this disease certainly has probably changed our lives, but at this moment we're fine. But one of us seeks a promotion. The supervisor, editor, whatever, says, well, to be honest with you, you're the top candidate for this job, but we've decided to promote Smithers instead because of the uncertainty over your health. I would feel, and I think you would feel I was discriminated against because of my HIV or your cancer.
PHIL PONCE: And right now the law does not prohibit discrimination--
DAVID SAVAGE: If the court rules narrowly--
PHIL PONCE: --if one has cancer, one has high blood pressure, or another--
DAVID SAVAGE: Well, that's sort of what's at issue here. If the court were to read the definition broadly and say, somebody is disabled, they have a disability if they have an incurable disease that changes their life, they could read it broadly and all those people would be protected from discrimination. If they read it narrowly and say, disability really means something like you're incapacitated, as I say, you can't walk, can't see, you can't hear, that's going to exclude most of the estimated 1 million persons who have the HIV virus and I don't know how many millions of others who have cancer or epilepsy or any number of diseases that could affect their lives and cause them to be discriminated against. So that's why I say this is one of these small issues that opens a big issue of the law.
PHIL PONCE: And what kinds of questions were the justices asking today? Did they give any indication as to what their thinking might be?
DAVID SAVAGE: Justice Breyer, the Clinton--second Clinton appointee--Steven Breyer--was the only one who sort of strongly said we should interpret this law broadly. Congress wanted to cover people he said at one point, well, you know, isn't sex and reproduction a normal part of human life, and that would suggest somebody who is, you know, incapable of having children, is, you know, not--can't participate in the major part of human life and we ought to consider that person disabled. Justice Scalia and Chief Justice Rehnquist, who are much more of the view that we ought to read law strictly based on the words, said that doesn't make any sense.
Somebody who's impotent or infertile, are all those persons disabled? Scalia also used the example: Suppose I had in my family a gene for the manic depressive diorder. And for that reason I'm reluctant to have children, would you classify me as disabled? And I think the answer from his point of view it's obviously no. So I think most of the conservative justices are skeptical of reading law in such an open-ended way.
PHIL PONCE: Moving on to the other--the other story out of the Supreme Court, and that is their decision to consider the Vince Foster, attorney-client privilege question. What's at stake there?
DAVID SAVAGE: Well, I would say two things about it. It's good news for the Clinton White House, even though it's a small part of the Starr investigation, because, in the past, last year or so, the Supreme Court's been very hard on President Clinton. As you know, they let the Paula Jones case proceed. Last year in June, they said that White House lawyers were not lawyers, and they had to turn over notes taken by Hillary Clinton.
What's at stake here is that what seems to be a very small part of Starr's investigation, he's seeking some notes that Vince Foster consulted a lawyer, Jim Hamilton, nine days before he died. Foster was apparently worried that he was going to be called to Congress to testify about the firing of the seven Travel Offices--you remember that from the spring of 1993. This was a private lawyer. Nine days later, Foster killed himself. In 1995, Starr said, I want those notes--
PHIL PONCE: And why does he want those notes?
DAVID SAVAGE: Well, apparently he thinks that Foster said something about perhaps the First Lady's role in the Travel Office firing. I have no idea. I don't know that Jim Hamilton knows. But Hamilton invoked the attorney-client privilege.
PHIL PONCE: So the question now becomes--
DAVID SAVAGE: The question is: Does the attorney-client privilege live after the client, because the U.S. Court of Appeals upheld the subpoena on the grounds that Foster is dead, he can't be--he has no criminal liability, he can't be sent to jail, so the attorney has no reason to shield his thoughts from the prosecutor. Hamilton appealed to the Supreme Court, and they agreed to hear the case, which, at minimum, will have the effect of delaying this for another year.
PHIL PONCE: So, basically the question is whether or not the attorney-client privilege dies with the client.
DAVID SAVAGE: Absolutely. That's the issue.
PHIL PONCE: David, thank you very much for joining us.