Analysis Law and Policy

Brett Kavanaugh’s ‘Forced Abortion’ Decision Is About Far More Than Reproductive Rights

s.e. smith

Coerced abortion and sterilization are recurring themes for the disability community, making this case cut particularly close to home for disability rights advocates who are concerned about the makeup of the Supreme Court with Kavanaugh on the bench. 

As the Senate barrels toward confirmation hearings for U.S. Supreme Court nominee Brett Kavanaugh, the millions of documents pertaining to his time in the White House under the Bush administration and his service on the U.S. Court of Appeals for the District of Columbia Circuit are being parceled out piecemeal. Meanwhile, legal sleuths are tracking down matters of public record to learn more about Kavanaugh’s positions, frustrated by the constriction of information about this critical judicial appointment.

Some of these documents are extremely troubling, as noted by Hannah Leibson and Rebecca Cokley at TalkPoverty when they brought a 2007 decision about bodily autonomy to the attention of the general public. In this opinion, Kavanaugh determined that disabled people who “lack mental capacity” do not have the right to weigh in on medical decisions. Because the case involved two women who were forced to have abortions, it is ringing alarm bells, and rightly so, for reproductive rights and justice advocates—but the decision goes beyond abortion alone. Rather, it suggests Kavanaugh might not rule favorably on cases surrounding bodily autonomy, from coerced sterilization to denial of transition care.

The case, Doe ex rel. Tarlow v. D.C., concerned three Jane Does with intellectual disabilities who said they were subjected to forcible surgical procedures in the 1970s through 1990s while they were under the institutional care of D.C.’s then-Mental Retardation and Developmental Disability Administration (now known as the Developmental Disabilities Administration). They claimed they weren’t consulted in the decision-making process as stakeholders in choices about their own bodies, saying their due process rights were violated. They brought the case to court, challenging the district’s policy regarding obtaining consent for medical conditions. The lower court found a constitutional violation, which Kavanaugh overturned on appeal.

One Doe’s procedure was an eye surgery to treat exotropia; institution officials consented to surgery on her behalf without even consulting her mother, who was her legal guardian. The two other Does were forced to get abortions. In both of their cases, officials did not obtain a court order for the procedure, nor did they discuss the decision with the women’s legal guardians. Forced and coerced abortion and sterilization are recurring themes for the disability community, making this case cut particularly close to home for disability rights advocates who are concerned about the makeup of the Supreme Court with Kavanaugh on the bench.

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Discussion about the case has been complicated by some misconceptions on social media, including from reproductive rights thought leaders. Kavanaugh did not force these women to get abortions or say that he supported forced abortion. This was a question of whether disabled people deemed incompetent can or should participate in medical decision-making, and Kavanaugh opined that their views on proposed medical procedures didn’t matter. In fact, the only mention of abortion in the decision was this: “the D.C. Code also explicitly provides that abortions, sterilizations, and psycho-surgeries may not be authorized [by someone empowered to make medical decisions for an ‘incompetent’ patient], at least absent a court order.” At the time the procedures were performed, this law was not in place; Kavanaugh appeared to be referencing its protective effect for future patients.

Indeed, the case is actually much more frightening in the sense that it could extend to a host of medical decisions. “Kavanaugh’s decision is so far out of the mainstream, and says effectively that there’s absolutely no reason to even consider the wishes of people with disabilities,” said Jennifer Mathis, deputy legal director and director of policy and legal advocacy at the Bazelon Center for Mental Health Law. “Even if the person lacks legal capacity, typically courts still find [what the person wants] relevant,” Mathis told Rewire.News, arguing that legal standards for the duty of care to the disability community have evolved.

“The nation’s traditions don’t always dictate precisely what people’s constitutional rights are,” Mathis said. “Kavanaugh redefined the liberty interest in a much narrower way.”

This worries Amy Myrick, a staff attorney for judicial strategy at the Center for Reproductive Rights. The implications of his opinion could be far-reaching, particularly for people with disabilities, if he’s confirmed. “Society has evolved,” Myrick told Rewire.News, speaking to the way the United States approaches questions of individual liberties and medical autonomy. The disability rights community has pushed for a move away from institutionalization, guardianship, and other practices that deprive disabled people of independence, and autonomy in medical decision making has been a big part of this movement.

“The other thing he failed to do was acknowledge that there is a history in this country of reprehensible violation of reproductive autonomy and decision-making, particularly with intellectual disabilities,” Myrick said. At least 60,000 people, many of whom were people of color with intellectual disabilities, were sterilized during the height of the eugenics era in the United States. Coerced sterilization was given the Supreme Court’s seal of approval in Buck v. Bell in 1927—and this case was never overturned. Refusing to consider that both social and legal attitudes about autonomy and decision-making have evolved since 1927—and 1787—and instead using what Myrick calls a “backward looking” approach, as Kavanaugh did when he relied on outdated case law and clinical practice, is an ominous sign for civil rights. “Many of the concerns people rely on today were not recognized historically. They have been recognized over time, as society have evolved. The concept of liberty has evolved and become more robust.”

There’s another dangerous implication to Kavanaugh’s decision, notes Mathis, who says the judge played “fast and loose.” One of the core arguments of his discussion involves differentiating between people who have always been determined legally incapable, versus those who “once possessed mental capacity.” The decision-making pathway, which disability rights advocates have challenged for years, is different for these two groups—in one, officials can make decisions based on “best interest,” while in the case of the other, they must consider “known wishes.”

Kavanaugh’s decision determined that the Jane Does had never had legal capacity, and therefore that their expressed wishes didn’t need to be weighed in the decision-making process. However, Myrick says later court filings actually indicate that this was not the case for two of the women. While Kavanaugh couldn’t project into the future to discover that information, Mathis says the arguments made before Kavanaugh were ambiguous, making their capacity status unclear. When a case hinges upon this question, as this one does, it would behoove the judge to make sure he clearly understands the facts.

This particular case remains open: In 2013, District Judge Rudolph Contreras denied the District of Columbia’s motion to dismiss, saying: “This case involves weighty allegations that have long awaited resolution … the court concludes that they must remain unresolved somewhat longer.” To this day, the district maintains the dualistic “known wishes” and “best interest” approach to medical decision-making for those deemed incompetent.

But Kavanaugh’s opinion that the voices of disabled people have no relevance to making decisions about their own lives if they’re judged “incompetent” should ring alarm bells, argue advocates. Myrick and Mathis both note that his tendency to ignore evolving attitudes about liberty suggest that he may have similarly narrow interpretations of the rights of other vulnerable or marginalized groups, which could affect the way he views civil rights laws as well as individual and potentially precedent-setting cases in which people say their liberty rights have been violated.

Kavanaugh’s conservative views, and attitude that judges should be “extremely cautious” when it comes to affirming rights under the Constitution, should concern disability rights advocates, says Mathis. These views could apply to other questions not just of medical autonomy—like challenges to forcible medication laws for people with mental illness such as Laura’s Law in California and the Baker Act in Florida—but also the legality of the Affordable Care Act and the Americans with Disabilities Act. Similarly, his narrow views would likely affect his interpretation of Roe v. Wade, which hinges on privacy rights granted under the Constitution.

In order to truly understand Kavanaugh’s thinking, both the public and the Senate need full access to all of the documents pertaining to his career and experience, along with the time to review them. “He’s going to have a lifetime appointment,” comments Myrick, “and vetting is essential.”

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