Brett Kavanaugh Is a Threat to Disabled People’s Rights

Kavanaugh’s record suggests he doesn’t recognize the inherent humanity and value of the disability community at large.

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Sep 18 2018, 9:04pm

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One of the most informative speakers at Brett Kavanaugh’s confirmation hearings before the Senate Judiciary Committee wasn’t Brett Kavanaugh. It was Liz Weintraub, a senior advocacy specialist at the Association of University Centers on Disabilities. Weintraub’s testimony lasted just a few minutes, but it riveted the committee and the public because her voice represented a population with a lot at stake with the Kavanaugh nomination: The disability community, particularly people with developmental, intellectual, and cognitive disabilities.

“If he’s on the court, I’m afraid for my rights. When I say ‘my,’ I mean everyone’s,” says Weintraub, who has cerebral palsy and an intellectual disability. The disability community has grave concerns about what might happen with Kavanaugh on the bench, as noted by organizations like the AUCD and the Autistic Self Advocacy Network (ASAN), as well as the Bazelon Center for Mental Health Law.

As one of the roughly one in four disabled Americans, Weintraub said she is used to being dehumanized, told her voice doesn’t matter, and belittled. The disability community is often treated as less-than, she says, “but people with disabilities [like me] are citizens of the United States. I’m very proud of my job, I’m proud to be a taxpayer, and I vote.”

Kavanaugh’s record suggests he doesn’t recognize the inherent humanity and value of women like Weintraub and the disability community at large. One significant concern is Kavanaugh’s opinion in Doe v D.C., a case that involved three developmentally disabled women who received elective surgery without consent—two of the women had abortions, and another had eye surgery. Kavanaugh was tasked with determining whether the District of Columbia had violated its own policies and the women’s autonomy by proceeding with surgeries without consulting them.

He ruled no, claiming because they lacked legal capacity, their wishes didn’t need to be considered. This rings alarm bells for the disability community, which has faced a long history of forcible medical procedures including abortion and sterilization. It also has bigger implications for the discussion about disability and autonomy, especially in light of the movement to reform guardianship.

Susan Mizner, who works as disability counsel at the American Civil Liberties Union—which does not take a position on presidential nominees—says that the way society thinks about decision-making and disability is changing radically. Historically, “we haven’t had real alternatives” to guardianship, she says, making it quite difficult for disabled people to live independently in their communities without being under the care of a guardian.


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But that’s shifting in favor of less-restrictive supports for intellectually, developmentally, and cognitively disabled people. Someone might have a power of attorney for finances, for example, allowing them to get help if they have trouble managing their finances on their own. Others might benefit from a concept gaining ground called supported decision-making, in which a disabled person consults with a knowledgeable and trusted supporter while retaining the ability to make decisions independently.

Advocates like Weintraub fear that Kavanaugh’s ruling in the Doe case suggests he might not view alternatives to guardianship fairly.

“People with intellectual disabilities need to make decisions for themselves,” Weintraub says.

If someone takes the time to explain something she doesn’t understand, she says, she can make an informed choice—an experience shared by most people encountering unfamiliar situations regardless of disability. Kavanaugh’s belief that the women in the Doe case didn’t have opinions worth considering, she says, raises questions about things like her right to vote, too.

Autonomy isn’t the only thing disabled people are worried about. Kavanaugh publicly opposed the Affordable Care Act (ACA) in a lecture at the Heritage Foundation in November 2017, and he has authored dissenting opinions that questioned key components of the law, such as the individual mandate and requirement for contraception coverage.

“If these parts get struck down,” says Sam Crane, director of public policy and legal director at the Autistic Self Advocacy Network, “then we wouldn’t have an ACA anymore. The market just wouldn’t work.” That’s by design; Kavanaugh shares the popular conservative viewpoint that the law was an overreach.

If the law is gutted, says Rylin Rogers, director of public policy at AUCD, the results could be catastrophic. Aside from the potential risks to life and limb for everyone created by destabilizing access to healthcare, the ACA also represents something else that affects disabled people in particular: independence.

“Having job choices is partly dependent on maintaining the ACA as public policy,” she says, noting that the law freed many people to pursue their education and career dreams without having to worry about losing access to healthcare, hitting lifetime caps, and encountering devastating medical expenses. Rogers speaks from experience: Her children, who have complex health care needs, exceeded their lifetime caps even before they even left the NICU as infants, and without the ACA, her family would be saddled with medical debt, something painfully familiar to many disabled people who struggled before the ACA was implemented.

Further, Kavanaugh hasn’t ruled favorably in a number of cases delving into issues like employment discrimination where he ruled against a disabled employee in a discrimination suit, and the right to education for the disability community, as in a 2007 case where he overturned a court order requiring the District of Columbia to provide education services to an incarcerated minor. As Senator Tammy Duckworth noted in an opinion editorial for Time, many in the disability community are worried about what this means for the future of the Americans with Disabilities Act (ADA), landmark legislation that has been used extremely successfully to defend civil rights for the disability community.

His opinion in Doe may be a particularly troubling indicator, as it suggests Kavanaugh doesn’t view disabled people as equal participants and partners in society, or as people deserving of civil rights protections. It raises the spectre of Olmstead v. LC, a 1999 case involving two developmentally disabled women who sued for freedom from a mental health facility, arguing the ADA entitled them to community-based services, not segregation. If Kavanaugh believes that intellectually disabled people shouldn’t be consulted about life decisions, some fear he may be slow to defend their right to equal access.

Under Kavanaugh, decades of hard-fought civil rights gains for the disability community could come under threat, and even those who aren't disabled could suffer as a result. Roughly one in four Americans has a disability and may need access to accommodations and other rights, and nearly every American will interact with the health care system at some point.

Finally, it’s not just disability rights specifically that the community is worried about. Kavanaugh’s overall record on civil rights is cause for concern for the disability community. whether in discussions about voting rights, anti-discrimination protections, or the movement to end mass incarceration. All of these issues touch the disability community very intimately—voter ID laws often disproportionately affect the disability community. Disabled people may face discrimination on the basis of gender, sexual orientation, or faith in addition to disability, and jail and prison populations contain disproportionately large numbers of disabled people, particularly people with mental health conditions and developmental disabilities. Kavanaugh tends to rule in favor of power, and he’s likely to see cases that involve challenges to established laws, officials, and legal attitudes the disabled community has fought hard for.

There’s a lot at stake for all Americans if Kavanaugh is confirmed, replacing the moderate swing vote on the bench with a conservative one, but for minority communities like disabled people, these stakes will be magnified. Congress' attempts to undermine the ADA continue. “Progressive” California proposes expanding conservatorship of mentally ill homeless people, declaring adults "incompetent" and appointing other people to oversee their finances, medical decisions, and other life choices, including where they live and who they can date. Meanwhile, the Trump Administration attacks disabled immigrants, creating hostility on multiple fronts. It’s clear that Americans have a long way to go when it comes to acknowledging civil rights for the disability community—and the notoriously conservative judiciary lags even further behind.

This is seen most strikingly in attitudes about the capacity of developmentally disabled adults, which fail to account for our collective better understanding of how disabled people communicate, make decisions, and want to lead their lives. The disability community fears that a relatively young conservative justice with negative views about disability could further entrench the US in its outdated approach.

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