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Capitol Correspondence - 09.17.18

Committee Vote on Kavanaugh for Census Currently Scheduled for This Week, Disability Highlights from His Hearing

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According to CNN:

“In a vote on party lines, the [Judiciary] committee voted on Thursday, 11-10, to set the vote on Kavanaugh’s nomination for September 20.”

If the nomination passes the Judiciary committee, which oversees all judicial nominations including to the Supreme Court, the final step will be for a vote by the full Senate.

ANCOR has been following this nomination closely because of concerns we expressed regarding a decision Judge Kavanaugh wrote regarding people with I/DD.  During the confirmation hearing, the Senate Judiciary Committee included questions on this case and disability rights law in its questions for the record, from which we have shared relevant excerpts below. Members might also be interested in the Senate Judiciary Committee testimony of I/DD advocate Elizabeth “Liz” Weintraub, who works for the Association of University Centers on Disabilities (AUCD).

Relevant Questions for the Record – questions are italicized, answers are in regular text.

Feinstein: In 2007, you authored the opinion in Doe ex rel. Tarlow v. District of Columbia. That case was about whether it was constitutional to force individuals with intellectual disabilities to have medical procedures against their will. All that these individuals wanted was the right to have their wishes at least taken into consideration for major medical decisions. a. Does the existence of laws such as the Americans with Disabilities Act and the Individuals with Disabilities Education Act affect whether the rights of individuals with intellectual disabilities are rooted in history and tradition and implicit in the concept of ordered liberty? 

RESPONSE: The plaintiffs in Tarlow represented a narrow class of several intellectually disabled people who had “never had the mental capacity to make medical decisions for themselves” and who had “no guardian, family member, or other close relative, friend, or associate” available to provide or withhold consent for surgeries approved by two separate physicians. Id. at 377. The unanimous panel for which I wrote explained that allowing people who lack mental capacity to make important medical decisions “would cause erroneous medical decisions . . . with harmful or even deadly consequences to intellectually disabled persons.” Id. at 382. In part for that reason, no state applies the rule proposed by the plaintiffs in that case.

Q14. The Affordable Care Act (ACA) plays a vital role for millions of Americans in this country. Thanks to the ACA, people across the nation can no longer be denied coverage by insurance companies because of preexisting conditions. Families throughout the country enjoy the security and certainty that comes with having quality health coverage. Jackson Corbin made precisely these points in his testimony on September 7, when he said: “If you destroy protections for pre-existing conditions, you will leave me and all the kids and adults like me without care or without the ability to afford our care — all because of who we are.” (Corbin Testimony at p. 3) a. Do you believe Congress has the authority to enact legislation that prevents discrimination based on health status? 

RESPONSE: As I explained in Seven-Sky v. Holder, 661 F.3d 1, 52 (2011), “[t]he elected Branches designed [the Affordable Care Act] to help provide all Americans with access to affordable health insurance and quality health care, vital policy objectives.” I further noted that “[c]ourts must afford great respect to that legislative effort and should be wary of upending it.” Id. at 53. Nevertheless, as I discussed at the hearing, and in keeping with the practice of previous nominees, it would be improper for me as a sitting judge and a nominee to comment further on a matter that may come before me. Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way.

Durbin: In Doe ex rel. Tarlow v. District of Columbia, you examined the circumstances under which the D.C. Department of Disability Services could approve elective surgeries for a patient with intellectual disabilities who has been found to lack the mental capacity to make healthcare decisions. You held that the Department need not consider the known wishes of a patient, but rather could make a decision in the best interests of the patient. The Bazelon Center for Mental Health Law has noted that your opinion “raises serious concerns about [your] views on the rights and abilities of people with disabilities to determine the course of their own lives.” The Center went on to note that the opinion “is also inconsistent with the approach required by numerous states and used in many court decisions, which requires some consideration of the individual’s wishes even if the individual is not legally competent to make the decision.” Why did you decide that the perspectives and wishes of the individuals in this case could be completely ignored by the D.C. government? 

RESPONSE: The plaintiffs in Tarlow represented a narrow class of several intellectually disabled people who had “never had the mental capacity to make medical decisions for themselves” and who had “no guardian, family member, or other close relative, friend, or associate” available to provide or withhold consent for surgeries approved by two separate physicians. Doe ex rel. Tarlow v. D.C., 489 F.3d 376, 377 (D.C. Cir. 2007). The unanimous panel for which I wrote explained that allowing people who lack mental capacity to make important medical decisions “would cause erroneous medical decisions … with harmful or even deadly consequences to intellectually disabled persons.” Id. at 382. In part for that reason, no state applies the rule proposed by the plaintiffs in that case.

Harris: Senator Duckworth recently wrote an op-ed about how thankful she is that the Americans with Disabilities Act is in place to safeguard the basic rights she relies on to lead a full life. During your confirmation hearing, you agreed with Chief Justice Roberts that you had no basis for viewing Section 2 of the Voting Rights Act as constitutionally suspect. Do you have any basis for questioning the constitutionality of the Americans with Disabilities Act? 

RESPONSE: I have no basis for questioning the constitutional validity of the Americans with Disabilities Act. 

15. In Tarlow v. District of Columbia, three adult women with intellectual disabilities who received medical services from the District of Columbia brought suit alleging that the District illegally authorized elective medical procedures to be performed on them in violation of their procedural and substantive due process rights guaranteed by the Fifth Amendment. The District, without considering the women’s wishes, forced two of them to have their pregnancies involuntarily aborted, and the third to undergo eye surgery. You ruled that consideration of the wishes of patients who are not and “have never had the mental capacity to make medical decisions for themselves” is not required by due process. In Buck v. Bell (1927), the Supreme Court upheld a statute permitting compulsory sterilization of a woman believed to have an intellectual disability—rather than “waiting to execute degenerate offspring for crime,” the Court said, “society can prevent those who are manifestly unfit from continuing their kind.” 

a. Is Buck still good law? 

b. Was Buck correctly decided? On what basis? 

RESPONSE: As I said during the confirmation hearing, Buck v. Bell is a disgrace. 

16. Just last year, the Supreme Court issued a unanimous opinion in Endrew F. v. Douglas County School District, a case about what kind of “educational benefits” the Individuals with Disabilities Education Act (IDEA) requires public schools to provide to students with disabilities. The Court settled the issue by rejecting the Tenth Circuit’s rule (previously applied by Justice Gorsuch) that schools need only provide barely more than de minimis benefits, and holding instead that, “[t]o meet its substantive obligation under the IDEA, a school must offer an individualized education program (IEP)] reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court emphasized that schools must provide an IEP that is “appropriately ambitious in the light of” the student’s circumstances, and that while “[t]he goals may differ, . . . every child should have the chance to meet challenging objectives.” 

a. Do you believe this decision was a proper application of prior Supreme Court precedent on the Individuals with Disabilities Education Act? 

b. Do you believe that schools must proactively provide every child with a disability an IEP that rejects the “merely more than de minimis” standard and offer every child the chance to meet challenging state academic objectives? 

c. In your view, should the Supreme Court have gone further and adopted the standard urged by Endrew’s parents (i.e., one that would provide a child with a disability “opportunities to achieve academic success … substantially equal to the opportunities afforded children without disabilities”)? 

RESPONSE: Endrew F. is a precedent of the Supreme Court entitled to respect under the law of precedent. Because the scope of that precedent is the subject of pending litigation that could come before me, I cannot provide a view on the additional questions asked above.