As the date draws near for Senate hearings to consider the nomination of Brett Kavanaugh to the Supreme Court, the disability rights community is organizing in opposition. Over the last few weeks, most of the major cross-disability organizations in Washington, D.C., and plenty of regional organizations across the country, have released statements condemning both the general implications of Kavanaugh’s judicial philosophy and his decisions in specific cases.
According to these groups’ analysis of his record, the nominee does not support the federal oversight, regulation, and social programs (including health-care programs) that have greatly improved disabled Americans’ opportunities for education, work, and housing over the last 50 years. One case has emerged as particularly controversial. In Doe Tarlow v. District of Columbia, Kavanaugh ruled against against additional safeguards when disabled people are given surgery—even abortion—without their consent.
As Pacific Standard reported during the Neil Gorsuch nomination, disability cases often defy partisan politics when it comes to the Supreme Court. What’s more, because disability rights depend so heavily on federal regulation and, too often, litigation, the disability community must maintain strong relationships across the political spectrum. It’s been striking, therefore, to see so many major organizations come out against Kavanaugh in no uncertain terms. The American Association of Persons With Disabilities, a major cross-disability advocacy organization, released a strongly worded statement saying, among other things, that Kavanaugh’s rulings “have devalued the lives and liberty of people with disabilities.” The National Council on Independent Living, The Arc (which focuses on the rights and needs of people with intellectual and developmental disabilities), and the California-based Disability Rights and Education Fund have announced similar positions.
The most thorough legal analysis of Kavanaugh’s record as it pertains to disability comes from the Bazelon Center for Mental Health Law. The authors of the Bazelon analysis have focused on Kavanaugh’s skepticism regarding the constitutionality of the Affordable Care Act and his support for school vouchers, which they argue typically penalize students with disability-related educational needs. The authors observe that Kavanaugh has demonstrated a narrow view of the law’s power when it comes to workplace anti-discrimination protections and “agency authority.” On this last point, they write:
Administrative agencies … play a large role in enforcing civil rights protections and managing federal healthcare and benefits programs that are crucial to many people with disabilities. Judge Kavanaugh’s writings and opinions demonstrate that he shares Justice Gorsuch’s antipathy for agencies’ role in interpreting and implementing laws, including limiting their ability to make decisions regarding the laws they are expressly charged with implementing.
These administrative agencies oversee all the various kinds of laws promoting and enforcing equal access for disabled Americans. Kavanaugh’s antipathy stands opposed to these efforts.
In Doe Tarlow v. D.C., Kavanaugh ruled that providers did not have to seek consent from disabled people who have been legally ruled “mentally incompetent” before performing elective surgery, including abortion. The case was a class-action lawsuit meant to compel the District to make every effort to consult patients about their wishes before proceeding with surgery. The District argued that it had already implemented safeguards, including a consultation process with doctors, but the plaintiffs argued that these consultations amounted to no more than rubber stamps: For over 30 years, according to the complaint, the district had signed off on every request for surgery. As we recently covered at Pacific Standard, disabled patients, especially those with intellectual disabilities, are at high risk for abuse in hospital settings. The Tarlow plaintiffs had won in a lower court, but once the case reached the U.S. Court of Appeals in D.C., Kavanaugh overturned the earlier decision, writing, in part, that he supported the “best interests” standard rather than the “known wishes” standard. In other words, the court ruled that guardians could decide what was in the best interest of a patient deemed mentally incompetent, rather than trying to discover what the patient actually wanted.
As Jennifer Mathis, director of policy and legal advocacy at Bazelon, writes of the Doe Tarlow case via email: “Judge Kavanaugh ruled, contrary to the approach of most courts, that the views of people who had never had legal capacity to make medical decisions were entirely irrelevant to a determination of what they would choose if they were competent. In fact, Judge Kavanaugh viewed it as potentially dangerous or harmful to consider these individuals’ wishes.”
As has been widely reported, Kavanaugh’s anti-abortion credentials make him a threat to cast the decisive vote in overturning Roe v. Wade. His ruling in Doe Tarlow, meanwhile, demonstrates his willingness to enforce the power of the state to overrule the bodily autonomy of some citizens. His position against reproductive rights and for surgery without consent, seen in that perspective, is consistent.
Kavanaugh’s positions generally run counter to a broad push in the disability community to emphasize autonomy and agency, and to presume competence. When it comes to employment, Mathis adds, “Judge Kavanaugh appears to have a pattern of ignoring important evidence presented by the plaintiffs.” For example, Kavanaugh ruled in favor of a hospital against a woman who had sought reasonable accommodation—his justification being that the hospital hadn’t had enough notice about her disability. As Mathis writes, this reasoning ignores—astonishingly—”the fact that she [the plaintiff] was working in a ‘patient-hire’ program designed specifically for people with disabilities.”
The hearings for Kavanaugh will begin on September 4th. The senators will have to confront many pressing issues, and it would be good if disability were explicitly part of the conversation. These core questions about equal opportunity, access, and control over one’s own body transcend political divides and affect the lives of more than 60 million Americans. They deserve to hear Kavanaugh explain his troubling record on disability rights.
