On Friday, the final day of the confirmation hearings for Judge Brett Kavanaugh to replace U.S. Supreme Court Justice Anthony Kennedy, Elizabeth Weintraub, senior advocacy specialist at the Association of University Centers on Disabilities, unequivocally told the Senate Judiciary Committee, “If Judge Kavanaugh is confirmed, I’m concerned that my rights to make decisions for myself will be taken away.”
These highly contentious hearings had confirmed what many already knew: Judge Kavanaugh is a conservative ideologue who is staunchly anti-choice, pro-Second Amendment, and a threat to the environment. However, the danger of his appointment for people with disabilities has received relatively little attention—though Friday’s testimonies from disability rights advocates shed some light on the subject.
Weintraub, a woman with cerebral palsy and an intellectual disability, said she was particularly concerned about Judge Kavanaugh’s 2007 opinion in Doe ex rel. Tarlow v. District of Columbia, in which he ruled that medical procedures—including abortion—could be performed on people with disabilities who had guardians, no matter the individual’s wishes. Although in these cases courts usually consider the individual’s perspective an important factor in making medical decisions, Kavanaugh did not deem that necessary.
“Every adult deserves to be treated like a grown up and have the right to be asked what they wanted, especially when it’s about their own body. If they need support to understand and make an informed choice, then give it to them,” Weintraub told the committee.
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“There’s a saying that we hold very dear to our hearts, and that’s ‘Nothing about us without us.’ This means that any decision that affects us should include us. We expect to be part of the conversation, even to lead the conversation,” she continued, referencing the disability community’s mantra.
Weintraub isn’t the only one worried about how Judge Kavanaugh’s confirmation would harm the disability community. The Bazelon Center for Mental Health Law in July released a comprehensive legal analysis of Judge Kavanaugh’s record as it relates to people with disabilities. It states, among other things, “The appointment of Judge Kavanaugh would threaten hard-won rights and protections for people with disabilities. Judge Kavanaugh’s record demonstrates his great skepticism of the Affordable Care Act, his hostility to civil rights— including the rights of people with disabilities—and his narrow view of the authority of executive branch agencies to interpret and enforce the law. His confirmation could add a fifth vote for such regressive views.”
The American Association of People with Disabilities, a national, cross-disability organization, issued a similarly strong statement in August opposing Judge Kavanaugh’s nomination, saying, in part, “Judge Kavanaugh’s rulings and statements on health care, self-determination, employment, and education threaten the rights of all Americans with disabilities.”
A number of other disability rights organizations, including, among many others, the Autistic Self Advocacy Network, The Arc, the National Council on Independent Living, and the Center for Public Representation issued statements opposing Judge Kavanaugh’s confirmation. The Consortium for Citizens with Disabilities also published an outline of Kavanaugh’s record of disability-related cases.
In 2010, Judge Kavanaugh also upheld a decision in favor of an employer, holding that there was insufficient evidence to prove the employer had notice of the employee’s disability—despite her claim that her supervisors knew she had been hired under a “patient hire” program at the hospital that provided jobs to hospital residents with disabilities. In this case, the plaintiff had worked for the hospital for more than two decades and requested a transfer to a different job site as a reasonable accommodation. The hospital denied the employee, claiming that they did not know she had a disability.
And, in 2007, he overturned a district court order requiring the District of Columbia to provide compensatory education to a disabled student who had been incarcerated in Maryland, demonstrating little regard for the Individuals with Disabilities Education Act.
What a Kavanaugh confirmation means for the future of the Affordable Care Act (ACA) is particularly troubling for people with disabilities. Because of the ACA, health insurance providers are prohibited from denying coverage to the 133 million adults under the age of 65 in the United States with pre-existing conditions—many of which qualify as disabilities.
As I recently explained in an article for Rewire.News, a lawsuit brought by 20 states is currently underway challenging the constitutionality of the ACA: “And, to make matters worse, the Trump administration has decided not to defend the ACA, but instead has taken the position in a brief that the pre-existing conditions protections are unconstitutional.”
Many are worried about what will happen if this case reaches the Supreme Court after Judge Kavanaugh is confirmed.
For example, in 2011 in Seven-Sky v. Holder, Judge Kavanaugh described the ACA as “unprecedented on the federal level in American history” and suggested that as a result, the judiciary should “exercise great caution” in finding it constitutional. Further, Judge Kavanaugh indicated in that case that the president could legally refuse to enforce the ACA’s individual mandate if the president determined that it was unconstitutional.
Without the individual mandate, which congressional Republicans and the Trump administration have moved to end, fewer healthy people will buy health insurance, which in turn will increase the cost of coverage so high that many people with pre-existing conditions will no longer be able to afford it.
At Friday’s hearing, Jackson Corbin, a 13-year-old who has Noonan syndrome, as does his mother and brother, told the committee about how his family relies on the ACA.
“I am privileged to represent 130 million people with pre-existing conditions today, and I am grateful for the invitation to testify before you,” Corbin said. “If you destroy protections for pre-existing conditions, you leave me and all kids and adults like me without care and without the ability to afford our care. All because of who we are. We deserve better than that.”
Sen. Tammy Duckworth (D-IL), a disabled veteran, has also expressed opposition to Kavanaugh’s confirmation. In a strongly worded op-ed for Time magazine, she outlined her concerns that Kavanaugh will dismantle disability rights if confirmed to the U.S. Supreme Court. Among her fears is what will happen to the Americans with Disabilities Act (ADA), which has been under incessant attack in Congress. “But even so, it’s hard to imagine the exhaustion and frustration that Americans with disabilities must’ve felt every day in the years before the ADA became law—when our country openly and unabashedly discriminated against our entire community,” Duckworth wrote. “And I worry that rather than making progress, the hellish, relentless discrimination of pre-ADA America could become a reality once again for me and for millions of other people with disabilities if Judge Brett Kavanaugh is confirmed to the Supreme Court.”
Undoubtedly, Kavanaugh’s confirmation will have devastating consequences for the one in four people in the United States—60 million Americans—who have a disability.
As Weintraub ended her testimony, she told the committee, “Please do not vote to turn the clock back and take the rights that I and others have fought for.”