“Nothing About Us Without Us” — Judge Kavanaugh May End, Weaken Disability Rights

On September 7, 2018, the last day of the Senate Judiciary Committee’s confirmation hearings to determine whether Judge Brett Kavanaugh should be appointed to the U.S. Supreme Court, a representative of the nation’s disabilities community testified that Kavanaugh might take from disabled individuals the right to make their own decisions.

Elizabeth Weintraub, Senior Advocacy Specialist of the Association of University Centers on Disabilities, said this right was hard-won.

“Fifty-one years ago, I was born with cerebral palsy and an intellectual disability,” said Weintraub. “I entered a world that had low expectations for me and people like me. Judge Kavanaugh mentioned that he has the same low expectations, and I am here to tell you he’s wrong.

“In my 20s, some professionals and my parents decided to put me into a private institution. My parents loved me, but instead of treating me like an adult with opinions and preferences and asking what I wanted, they made the decision for me like I was a child. This was wrong.”

Despite her disabilities, Weintraub noted that she works full-time for the Association of University Centers on Disabilities. Her advocacy work includes hosting a program on YouTube, “Tuesdays with Liz,” in which she interviews people regarding disability policies, and explains the policies in ways that viewers with intellectual disabilities would understand them.

“Today I live with my husband who also happens to have a disability,” she said. “Together we make our own decisions. It has not always been this way.”

Although Kavanaugh has not discussed how he would rule on disability cases as a U.S. Supreme Court justice, disability rights groups believe his rulings on disability cases that were before him when he was a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit are indicative of his positions on disability rights.

In  the 2007 Doe Tarlow v. District of Columbia case, three individuals with intellectual disabilities living in a Washington, D.C. institutional setting, said that doctors were not considering their choices concerning elective surgeries. Kavanaugh ruled that people who have intellectual disabilities lack the capacity to decide anything for themselves, and therefore had no right to make their own medical decisions.

In cases where disabled plaintiffs said their employers were discriminating against them because of their disabilities, Kavanaugh generally ruled in favor of the employers. Kavanaugh supports voucher programs, in which public school students use a voucher to pay part of their tuition to private schools. But disabled students would have to waive their rights to a free and appropriate education under the Individuals with Disabilities Education Act (IDEA). Without special education, students with intellectual disabilities would simply be allowed to fall behind academically.

Kavanaugh has also indicated his opposition to the Affordable Care Act, under which health insurance companies cannot refuse to insure people with pre-existing conditions. Individuals with disabilities who were finally able to access affordable health care under the act could lose it again if Kavanaugh and other conservative justices rule favorably on cases designed to eliminate the act.

As Kavanaugh opposes government regulations, the disabilities community is alarmed that he may rule against the Americans with Disabilities Act should cases involving the law come before him. The ADA applies to businesses and other entities which serve the public, insisting that their facilities must accommodate people with disabilities, such as elevators with instructions in Braille, and ramps that provide access to and within buildings for wheelchairs. But Arlene Mayerson, the directing attorney for the Disability Rights Education & Defense Fund, wrote in a July 16 Fund publication that Kavanaugh  “really is a poster boy  for not honoring agency regulations. We want more enforcement of our laws by the federal government, not less.”

Black people with disabilities would find life especially hard under a U.S. Supreme Court with Kavanaugh joining the conservative wing of the bench.  Knowing Kavanaugh’s penchant for finding in favor of employers in job discrimination cases, disabled Black people’s efforts to find employment would be even more difficult.

According to a National Disability Institute report, “Financial Inequality: Disability Race and Poverty in America,” Black people are more likely to have a disability — 14 percent — than any other demographic group. Nearly 40 percent of Black people with disabilities live in poverty, compared to 24 percent of non-Hispanic whites. Only one in four Black people with disabilities are employed, compared to Black people without a disability (25 percent compared to 70 percent). Two-thirds of Black families with a disability are unbanked or underbanked, meaning that they have very little savings, and may not even have checking or savings accounts in a bank.

The report also says that Black people with disabilities are more than two times more likely to not have graduated high school than Black people without disabilities (25 percent compared to eleven percent). That statistic could increase if Kavanaugh’s rulings help to create more private school voucher programs — schools which are not obligated by law to provide special education to students with disabilities.

Senator Tammy Duckworth lost both of her legs when a grenade exploded and blew up the helicopter she piloted during the Iraq war. She wrote about Kavanaugh in a recent Time magazine article. “Judge Kavanaugh’s rulings make clear that he’s just not concerned whether we’re able to go to school, get decent health care, eat at a restaurant like anyone else or even earn a liveable wage.

“Every issue is a disability issue,” wrote Duckworth, “because our community — at 60 million strong — is beautifully diverse. That’s a gift, but also a responsibility. Because it means we have to fight for every American with disabilities, whether they’re undocumented or disenfranchised or sick and in need of care. No matter what.”

The Senate Judiciary Committee is scheduled to vote for or against Kavanaugh’s confirmation on September 20. Before doing so, its members should think about how Kavanaugh’s uncaring attitude towards people with disabilities could worsen their lives, and vote accordingly.

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