Analysis Law and Policy

Kennedy’s Retirement Will Leave the Rights of People With Disabilities in Danger

Robyn Powell

Because disability crosses all identities—race, gender, sexual orientation, religion, and more—all issues and threats to inequality affect the disability community. But Justice Anthony Kennedy's retirement could directly affect issues specific to people with disabilities as well.

On Wednesday last week, Justice Anthony Kennedy announced that he was retiring from the U.S. Supreme Court, sending progressives into panic mode. Though Kennedy is not exactly liberal, President Donald Trump will undoubtedly select a replacement who has far more conservative ideologies. This is frightening for members of communities whose rights hang in the balance, including people with disabilities—and Kennedy’s retirement makes the situation even more precarious.

Although Kennedy was nominated by President Ronald Reagan, progressives found hope that he would, at times, vote with his liberal colleagues, as he did in Planned Parenthood v. Casey, which upheld the right to an abortion. Since that 1992 decision, Kennedy has ruled in support of the right to choose, including a 2016 decision to strike down a series of Texas anti-abortion laws.

The right to reproductive health care, including abortion, is an important issue for women with disabilities, and losing that right would have serious consequences. Although one in four women in the United States have a disability, this sizable population is already wholly underserved by reproductive health-care providers, especially when it comes to contraception and abortion. People with disabilities often contend with providers that are inaccessible—such as lacking ramps, elevators, or sign language interpreters—as well as pervasive myths that they are sexually unwilling or unable, leading to assumptions they do not need sexual and reproductive health care. For people of color with disabilities, access is even further limited, owing to racism and ableism.

If access to reproductive health care is further restricted, as is expected if Roe v. Wade is overturned, those with disabilities will face even greater barriers than already exist. While overturning Roe v. Wade would not immediately outlaw abortions, it would allow states to pass laws banning them, forcing people to—for example—travel longer distances to get them.

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Likewise, Kennedy offered some hope that the Affordable Care Act (ACA) would be safe from repeal by the Supreme Court after his 2015 ruling to uphold the law. As I have written previously for Rewire.News, repeal of the ACA would have devastating consequences for people with disabilities and others with pre-existing conditions. Indeed, without the ACA or with the GOP’s proposed cuts to Medicaid, people with disabilities are at risk of being institutionalized.

Of course, abortion rights and the ACA are not the only two areas at peril because of Kennedy’s retirement. While not perfect, Kennedy was seen as a “champion for LGBTQ rights,” for his support in ending the federal ban on same-sex marriages in the 2013 United States v. Windsor decision, as well as his ruling in the 2015 decision Obergefell v. Hodges striking down state laws that prohibited same-sex marriage.

LGBTQ rights are important to the disability community, especially because research suggests that disability is more prevalent among LGBTQ people. Similarly, marriage equality is critical to people with disabilities, who still face restrictions because they could lose government benefits if married. While the success of marriage equality for same-sex couples did not specifically address issues facing people with disabilities, it did reinforce the right to marry, which disability rights advocates believe will help as they fight such restrictions. Indeed, ensuring that all people—including those with disabilities—enjoy the same right to marry is the next logical step in the fight for marriage equality.

The Trump administration has been incredibly hostile to the LGBTQ community. Trump sought to ban transgender people from serving in the military. The administration withdrew guidance to schools on the rights of transgender students. Attorney General Jeff Sessions has undone protections for LGBTQ employees, contending that discrimination by employers is acceptable if based on religious freedoms. Vice President Mike Pence has a long and shocking history of bigotry toward the LGBTQ community. And in June, Trump failed to even acknowledge LGBTQ Pride Month.

Should any of these discriminatory policies make their way up to the Supreme Court, the Trump administration’s disdain for the LGBTQ community, coupled with Kennedy’s retirement, could be devastating for LGBTQ people—including those with disabilities.

People with disabilities are diverse. Because disability crosses all identities—race, gender, sexual orientation, religion, and more—all issues and threats to inequality affect the disability community. But Kennedy’s retirement could directly affect issues specific to people with disabilities as well.

For example, in 2014, Kennedy sided with his liberal colleagues to impose greater restrictions on capital punishment for people with intellectual disabilities, holding that Florida’s IQ score cutoff was too strict in deciding which people should be safe from the death penalty. This decision affected a number of states, requiring them to take a more holistic approach when considering death penalty cases involving people with disabilities.

People with disabilities, particularly disabled people of color, are “dramatically overrepresented in the nation’s prisons and jails,” says the Center for American Progress. Trump is a staunch supporter of the death penalty, including calling for capital punishment for drug traffickers. Without Kennedy, there is a strong likelihood that the Supreme Court could expand the death penalty, potentially affecting countless people with disabilities.

Access to fair housing is also at risk with Kennedy’s retirement. In 2015, the Supreme Court considered a disparate impact housing case, related to a 2013 policy adopted by the U.S. Department of Housing and Urban Development (HUD) that recognized that the Fair Housing Act banned housing practices that discriminate on the basis of race, sex, religion, disability, and other federally protected classes, whether the discrimination is a stated goal or not. Kennedy, along with his liberal colleagues, ruled that the Fair Housing Act of 1968 prohibits both explicit discrimination and implicit discrimination.

People with disabilities are disproportionately affected by housing discrimination, according to a report by the National Fair Housing Alliance. In fact, the report found that 55 percent of discrimination complaints reported in 2016 were based on disability, compared with 19 percent based on race and 9 percent based on familial status.

Fair housing has been in jeopardy under the Trump administration. Just last month, HUD issued a federal notice indicating its intent to reexamine the disparate impact rule involving implicit discrimination. This action may lead to the agency repealing the policy entirely—despite the Supreme Court upholding it as constitutional.

Disability rights have been under constant attack by the Trump administration, and Republicans writ large. Indeed, Congress currently has legislation that would drastically weaken the Americans with Disabilities Act (ADA).

Nonetheless, the Supreme Court has often been able to protect disability rights when others failed. For example, the 1999 Supreme Court decision in Olmstead v. L.C.on which Kennedy concurred—upheld the rights of people with disabilities to live in the community and ruled that unjustified segregation violated the ADA. Five years later, the Supreme Court ruled that people with disabilities can sue states for money damages in cases that involve their fundamental right to access courts in Tennessee v. Lane, in which Kennedy dissented from the majority. Just last year, the Court unanimously decided two cases that safeguarded the rights of students with disabilities to receive appropriate educations.

Justice Kennedy is certainly not a progressive, and yet many found comfort in him being one of the more reasonable justices. Now, with Kennedy’s retirement pending, communities at the margins—including people with disabilities—face the likelihood that their fundamental rights could be overturned.

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