Kavanaugh disregards rights of persons with disabilities

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“Three generations of imbeciles are enough.”

Thus, thundered Justice Oliver Wendell Holmes Jr. in the 1927 case of Buck v. Bell, using the power of the Supreme Court to protect the shameful “Eugenics Movement.” The proponents of eugenics believed that the government had the right — even the obligation — to forcibly and surgically sterilize, without their consent, those individuals who it deemed “incompetent” or “mental defectives.”

Justice Holmes wrote that, “It is better for all the world if… society can prevent those who are manifestly unfit from continuing their kind.” He deemed it an acceptable sacrifice to require, “to prevent our being swamped with incompetence.”

The “imbeciles” Holmes referred to were Carrie Buck, age 17, her daughter, Vivian, age 7 months, and Carrie’s mother. As we learned years after they were sterilized, there was nothing wrong with the Buck family. In fact, Vivian went on to make the honor roll in high school, only to lose her life to an illness shortly thereafter.

Fast forward 80 years to Judge Brett Kavanaugh and his 2007 ruling in Doe v. D.C. that women under the guardianship of the state because of their intellectual disabilities had no right to be consulted about medical procedures to be performed on them.

Let me be perfectly clear: these were non-emergency surgical procedures. The District Court, in hearing the case and sifting the evidence, had only ordered that the women should be consulted, that an attempt to ascertain their opinions and preferences be made and documented, and that their views mattered in the decision-making process, no matter what their guardianship status or their intellectual abilities were. Even that basic recognition of their civil and human rights was a bridge too far for Judge Kavanaugh when the case was appealed to his Circuit Court.

To Judge Kavanaugh, the women were, “by definition incompetent” and consideration of their views was beyond illogical. The doctors, he reasoned, were obligated to disregard their wishes and avoid any possible delays.

As Liz Weintraub, Senior Advocacy Specialist at the Association of University Centers on Disabilities and a person with an intellectual disability herself, said during her testimony before the Senate Judiciary Committee, “would it have been so hard to ask what the women wanted?” Ms. Weintraub went on to say that Judge Kavanaugh had the opportunity to extinguish the prejudice of the past and that he, “could have supported the civil rights of people with disabilities…but he failed.”

Judge Kavanaugh’s potential ignorance of one of the most abhorrent Supreme Court rulings of the 20th Century, Buck v. Bell, undermines the very notion that he is qualified to join the Supreme Court. The fact that he used similar logic to that case is appalling.

The Buck case may not have been overturned, but this is no simple case of an appellate judge being bound by Supreme Court precedent, as Judge Kavanaugh has repeatedly defended other questionable rulings. We have come a long way since Holmes and the Buck case, and Judge Kavanaugh’s ruling ignored many laws passed by Congress to ensure the rights of people with disabilities.

Bipartisan majorities of Congress have advanced the civil rights of people with disabilities repeatedly, including in the Rehabilitation Act (1973), the Education of All Handicapped Children Act (1975), the Individuals with Disabilities Education Act (1990), and the landmark civil rights act for persons with disabilities, the Americans with Disabilities Act (1990).

When we were constructing the ADA in the late 1980s, we were guided by four goals for all people with disabilities: full participation, equal opportunity, independent living and economic self-sufficiency. Since that time, the disability laws passed by Congress have been guided by those goals, assuming competence of individuals with disabilities and recognizing their right to self-determination.

This is a fundamental principle of civil and human rights, and it was completely dismissed by Judge Kavanaugh in Doe.

Courts — other courts — have advanced the cause of disability rights. PARC v. Pennsylvania (1972) guaranteed the right to a free, appropriate education for all children with disabilities. Olmstead v. L.C. (1999) mandated the least restrictive environment for people with mental disabilities.

Putting Brett Kavanaugh on the nation’s highest court would mean abandoning the principles of the Americans with Disabilities Act: full inclusion, breaking down society’s barriers of fear, segregation, and demeaning attitudes toward persons with disabilities. It would be a repudiation of the inalienable right of every person with a disability to “life, liberty and the pursuit of happiness.”

Judge Kavanaugh went out of his way to deny those rights to people with disabilities.

Perhaps you can now understand why over 100 disability groups opposed his nomination to the Supreme Court.

Sen. Tom Harkin (D-Iowa, retired) was the lead Senate sponsor of the Americans With Disabilities Act.

Tom Harkin

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