Disability Organizations are opposing Nomination of Kavanaugh and here is why.
Kavanaugh Thinks It’s Okay to Perform Elective Surgery on People Without Their Consent
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Right now, Congress is in a deadlock over Brett Kavanaugh, Trump’s nominee to the Supreme Court. Senators are reviewing more than 1 million pages of his legal writing—which have laid out his stance on women’s reproductive rights (opposed), the Consumer Financial Protection Bureau (opposed), and the Affordable Care Act (opposed)—and members are battling over access to additional documentation that could reveal past experience with torture and wiretapping. While many of Kavanaugh’s opinions have been controversial—in particular his dissent from a decision that allowed an immigrant woman to have an abortion—one of his most problematic rulings has gone unreported. As a Judge in D.C. Circuit Court, Kavanaugh argued that people with disabilities could be forced to undergo elective surgeries, including abortion, without their consent.
In 2001, three intellectually disabled D.C. residents brought suit against the city in Doe ex rel. Tarlow v. D.C, after they were subjected to at least three involuntary procedures: two abortions and one elective eye surgery. Ultimately, the district court agreed that these women’s due process rights had been violated and that “constitutionally adequate procedures” had not been followed. The District Court ruled for the plaintiffs and held that D.C. must make “documented reasonable efforts to communicate” with patients and if unsuccessful, the government had to take into account the “totality of circumstances” before proceeding to ensure any decision is in the best interest of the patient. This decision codified patients’ right to self-determination, and struck down the practice of elective surgeries without consent from the patients at stake.
The lifetime pass Kavanaugh seems to be arguing for does not exist.
On appeal, Judge Kavanaugh vacated the District Court’s injunction, arguing that “accepting the wishes of patients who lack, and have always lacked the mental capacity to make medical decisions does not make logical sense.” That stands in contrast to even the most conservative interpretations of the laws that existed at the time, which required two separate health professionals to determine whether a patient had the capacity to make medical decisions before every procedure. The lifetime pass Kavanaugh seems to be arguing for, which would allow doctors to perform any procedures they wanted on a person who was once ruled unfit, does not exist.
One hundred years ago, Kavanaugh’s ruling would have been at home on the Supreme Court. In the 1920’s, in the famous 8-1 ruling of Buck v. Bell, the Supreme Court found a Virginia statute that allowed for the sexual sterilization of a third generation, “feebleminded” women was constitutional because “three generations of imbeciles are enough.”
For context, when the Supreme Court made that ruling, John Scopes had recently been put on trial for teaching evolution in public schools. Penicillin hadn’t been invented. It was still illegal in most states to marry someone of a different race. There was no such thing as a chocolate chip cookie, Scotch tape, or the Golden Gate Bridge. We didn’t know Pluto existed.
The 57 million Americans with disabilities are bracing themselves
We’ve made progress since then. Twenty-eight years ago, the Americans with Disabilities Act granted people with disabilities access to society. The Individuals with Disabilities Education Act expanded the right to an education 43 years ago, and the Olmstead v. L.C. decision gave disabled people the right to live in their communities 19 years ago. All that will be meaningless the moment Kavanaugh is given a seat on the Supreme Court that allows him to rule that disabled Americans are not capable of deciding what’s best for them. It’s not hard to imagine that happening. He could rule that it’s okay for teachers to use seclusion and restraint because they know what’s best for the treatment of disabled children in school. He could say that community living isn’t the best option for someone successfully living in a home of their own because that’s what the nursing home lobby says.
As both Democrats and Republicans in the Senate gear up for what is likely to be a long hearing process, the 57 million Americans with disabilities are bracing themselves for the negative consequences of Judge Kavanaugh’s appointment. If that happens, the disability community’s history of activism in all forms—from their work to preserve the ACA, to fighting to end the use of electric shock therapy on children, to pushing for a fair day’s pay for a fair day’s work—shows that when it’s most needed, the moral arc of the universe can be bent into a ramp to achieve justice.
AUCD Opposes the Nomination of Judge Brett Kavanaugh to the Supreme Court of the United States
July 31, 2018
| Plain Text Nomination of Judge Brett Kavanaugh (286KB) [download]
Statement Nomination of Judge Brett Kavanaugh (236KB) [download]
>>Download and read a PDF plain language summary as well as the full text of AUCD’s statement at right
The Association of University Centers on Disabilities (AUCD) is a national organization that supports the right of self-determination for individuals with intellectual and other disabilities. After carefully reviewing opinions that fail to affirm this right and jeopardize access to healthcare for people with disabilities, AUCD has decided to oppose the nomination of Judge Brett Kavanaugh to serve on the U.S. Supreme Court. “The appointment of Judge Kavanaugh threatens civil rights protections for people with disabilities including access to healthcare,” said Andrew Imparato, Executive Director of AUCD. “Judge Kavanaugh’s record on the D.C. Circuit has failed to support the critical principle of self-determination for people with intellectual disabilities and the importance of access to healthcare for millions of Americans with disabilities.” Two cases in Judge Kavanaugh’s record form the primary basis for our concerns.
In the 2007 ruling DOE v. District of Columbia and Mental Retardation and Developmental Disabilities Administration, Judge Kavanaugh ruled that people with intellectual disabilities could be presumed incompetent to make medical decisions:
Judge Kavanaugh overruled multiple district court orders that had given people with intellectual disabilities who had been deemed not legally competent the right to have input into whether or not they would be subject to elective surgery. The lower courts had affirmed that a legally incompetent individual may be capable of expressing a choice or preference regarding medical treatment. The court therefore ordered the District of Columbia to make “documented reasonable efforts to communicate” with patients “regarding their wishes.” If communication was unsuccessful and a patient’s wishes couldn’t be determined, however, the lower court had allowed the government to determine the patient’s “best interests” by considering the “totality of the circumstances.”
In his written decision, Judge Kavanaugh neither acknowledged nor appeared to consider that a person could have an intellectual disability but still might understand the nature of a surgery or have a right to know, think about, or decide whether to undergo a procedure. Making an effort to communicate was viewed as an unnecessary standard to apply to the government when it wanted to perform surgery on a person with an intellectual disability because, in Judge Kavanaugh’s words, they were “by definition” incompetent so their input was not relevant to the decision. In his view, the Constitution would not protect people with intellectual disabilities from a state agency policy that allowed non-emergency elective surgery without informing them or making any effort to ascertain whether they wanted it. Liz Weintraub, Senior Advocacy Specialist at AUCD, commented on the ruling, “As a woman with an intellectual disability, I know what it is like for other people to try to make decisions about my life, my relationships, and my body. Judge Kavanaugh seems to think people like me don’t deserve a say in our own healthcare, and that to me is dangerous, discriminatory, and shows he doesn’t really understand the idea of ‘nothing about us without us’.”
Judge Kavanaugh’s dissent in Seven-Sky v. Holder illustrates his belief that the Affordable Care Act is unconstitutional:
Judge Kavanaugh’s dissent from the D.C. Circuit Court ruling that upheld the Affordable Care Act reflects his view that the law is unconstitutional and beyond the power of Congress. He rejected all of the government’s defenses of the ACA, concluding specifically that the individual mandate to purchase health insurance could not be justified under either the Taxation or Spending Clauses of the Constitution. Judge Kavanaugh’s rationale for overturning on the ACA was so extensive that it formed the basis of the four-vote dissent that would have struck down the ACA at the Supreme Court. “The Affordable Care Act is what stopped insurance companies from excluding people with pre-existing conditions, making it foundational to the lives of people with disabilities. If Judge Kavanaugh leads the Supreme Court to overturn the ACA, people with disabilities will lose access to health insurance and affordable medical care,” says AUCD Executive Director Andrew Imparato.
AUCD urges individuals and organizations to learn about Judge Kavanaugh’s record on the DC Circuit and use this opportunity to educate your Senators about the importance of self-determination and access to healthcare for millions of Americans with disabilities and their families.
The Association of University Centers on Disabilities, located in Silver Spring, MD, is a national, nonprofit organization that promotes and supports the national network of interdisciplinary centers advancing policy and practice through research, education, leadership, and services for and with individuals with developmental and other disabilities, their families, and communities. For more information, visit www.aucd.org or contact firstname.lastname@example.org