In 2001, three
intellectually disabled D.C. residents brought suit against the city in
Doe ex rel. Tarlow v. D.C, after they were
subjected to at least three involuntary procedures: two abortions and one elective eye surgery
.
Ultimately, the district court agreed that
these women’s due process rights had been violated and that “constitutionally adequate procedures” had not been followed.
The District Court ruled for the plaintiffs and held that D.C. must make “documented reasonable efforts to communicate” with patients and if unsuccessful, the
government had to take into account the “totality of circumstances” before proceeding to ensure any decision is in the best interest of the patient.
This decision codified patients’ right to self-determination, and struck down the practice of elective surgeries without consent from the patients at stake.
On appeal, Judge Kavanaugh vacated the District Court’s injunction,
arguing that “accepting the wishes of patients who lack, and have always lacked the mental capacity to make medical decisions does not make logical sense.”
That stands in contrast to even the most conservative interpretations of the laws that existed at the time, which required two separate health professionals to determine whether a patient had the capacity to make medical decisions before every procedure. The lifetime pass Kavanaugh seems to be arguing for, which would allow doctors to perform any procedures they wanted on a person who was once ruled unfit, does not exist.
Kavanaugh Thinks It's Okay to Perform Elective Surgery on People Without Their Consent
Twenty-eight years ago, the Americans with Disabilities Act granted people with disabilities access to society.
The Individuals with Disabilities Education Act expanded the
right to an education 43 years ago, and the
Olmstead v. L.C. decision gave disabled people the
right to live in their communities 19 years ago.
All that will be meaningless the moment Kavanaugh is given a seat on the Supreme Court that allows him
to rule that disabled Americans are not capable of deciding what’s best for them. It’s not hard to imagine that happening. He could rule that it’s okay for teachers to use seclusion and restraint because they know what’s best for the treatment of disabled children in school. He could say that community living isn’t the best option for someone successfully living in a home of their own because that’s what the nursing home lobby says. As both Democrats and Republicans in the Senate gear up for what is likely to be a long hearing process,
the 57 million Americans with disabilities are bracing themselves for the negative consequences of Judge Kavanaugh’s appointment.