Supreme Court hostility to disability rights is disheartening

Last month, before the Supreme Court announced its Dobbs v. Jackson Women’s Health Organization decision to overturn Roe v. Wade, the disability rights community celebrated the 23rd anniversary of Olmstead v. LC. But the anniversary of that ruling comes at a time when my sources within the disability rights community tell me that: many disability rights lawyers ultimately decide not to file lawsuitslest they give this Supreme Court a chance to curtail the rights of the disabled.

Disability rights lawyers decide not to file lawsuits because they are not giving this Supreme Court a chance to reverse rights.

Matthew Cortland, a disability rights attorney and senior resident fellow at Data for Progress, confirmed that to me in a text message last week. He wrote: “I think there… a fairly widespread concept among the disability rights bar that the majority of this illegitimate Supreme Court is fundamentally hostile to the principles of inclusion, access, and physical autonomy that inform the federal Disability Civil Rights Act.”

In what may have been Justice Ruth Bader Ginsburg’s best hour, she wrote the majority opinion in Olmstead, finding that unjustified segregation of people with disabilities in violation of the principles of the American With Disabilities Act, a ruling that was revolutionary for people with disabilities.

“First, institutional placement of individuals who can interact with and benefit from community environments perpetuates unwarranted assumptions that individuals so isolated are unable or unworthy to participate in community life,” she wrote. Ginsburg’s view was liberating because it supported people with disabilities to lead more integrated lives within their communities.

Judge Stephen Breyer retired on Thursday, leaving Judge Clarence Thomas as the only current judge who was also in court when Olmstead was decided, and he wrote the dissent. The same year that Olmstead was decided, Judge Antonin Scalia, who joined Thomas in his dissent, hired a young clerk named Amy Comey. Now Amy Comey Barrett, she was successfully nominated by then-President Donald Trump to take the seat left open when Ginsburg died.

The shift to the right in the court that made the Dobbs decision possible, and the fact that the author of the Olmstead dissent has outlived all the judges who supported it, shows how threatened the rights of the disabled are and explains why many people in the community fear that the ADA is next on the chopping block.

Those fears were most apparent late last year when pharmacy chain CVS was set to appear before the Supreme Court in a case that could have taken away the protections afforded by the landmark 1990 law. CVS eventually settled and partnered with disability rights groups, but if the case had gone to court, disability rights activists feared the ADA could have been gutted.

All three of Trump’s nominees are considered particularly hostile to disability rights.

In one case, three women filed a lawsuit alleging that the District of Columbia, which was caring for them, had improperly authorized elective surgery on them. When the case reached the U.S. Court of Appeals for the District of Columbia Circuit, where Judge Brett Kavanaugh then served as judge, he ruled in favor of the district.

He wrote in 2007 that “accepting the wishes of patients who lack (and have always had) the mental capacity to make medical decisions does not make sense and would cause incorrect medical decisions – with harmful or even fatal consequences for the mentally retarded.”

When Kavanaugh needed confirmation for his Supreme Court seat, Baselon Center for Mental Health Law said: that decision “raises serious concerns about Judge Kavanaugh’s views on the rights and possibilities of people with disabilities to determine the course of their own lives.”

All three of Trump’s nominees are considered particularly hostile to disability rights.

Judge Neil Gorsuch has also shown a special disregard for the rights of the disabled, as was the case in Hwang v. Kansas State University, where a professor named Grace Hwang was given six months of paid leave after a cancer diagnosis. Her doctor advised her to take extra leave, but when she asked, the university refused

Gorsuch, then a judge on the U.S. Court of Appeals for the 10th Circuit, sided with the university, write in a decision of 2014“The Rehabilitation Act seeks to prevent employers from heartlessly refusing reasonable accommodations that would enable otherwise qualified disabled people to work — not to turn employers into safety net providers for those unable to work.”

While it’s understandable that disability rights attorneys don’t want to risk tragedy by filing lawsuits that could lead to terrible decisions from this Supreme Court, it’s also a tragedy if they don’t file lawsuits. It means that many injustices are not addressed. The ADA and disability rights laws as a whole are inadequate, and because those laws aren’t actively enforced, people have to file lawsuits to address suspected violations.

While some smaller and narrower lawsuits will survive, those tackling bigger structural challenges are unlikely to be filed, meaning an already capable world won’t be forced to change. In that sense, by effectively terrifying lawyers into even suing to enforce the ADA, the Supreme Court has handicapped people with disabilities even more.

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