ASAN Opposes Supreme Court Nominee Brett Kavanaugh

The Autistic Self Advocacy Network opposes the confirmation of Brett Kavanaugh to the Supreme Court. As a judge on the D.C. Circuit Court of Appeals, Judge Kavanaugh has opposed the rights of people with disabilities to make our own choices. He has said that he might want to strike down the Affordable Care Act, which we depend on for health care. Supreme Court appointments are for life, and the cases he hears will determine how laws are applied across the country. If placed on the Supreme Court, Judge Kavanaugh could be the deciding vote in countless cases affecting our lives. This is a risk we cannot afford.

Judge Kavanaugh ruled that people with disabilities shouldn’t have a say in our health care

Judge Kavanaugh has ruled that people with intellectual and/or developmental disabilities do not have any right to a say in our own health care. In Doe ex rel. Tarlow v. D.C., Judge Kavanaugh ruled against two women who had been forced to have abortions and one woman who was forced to have eye surgery. The D.C. agency that serves people with developmental disabilities had consented to all three procedures without discussing them with the women. Judge Kavanaugh wrote that because the women lacked “capacity” to make their own medical decisions independently, they had no right even to be consulted. This decision dramatically delayed the women’s ability to obtain compensation for the harm they suffered.

The United States has a long history of eugenic policies that hurt people with disabilities. People with disabilities, especially people with intellectual and developmental disabilities, have been forced to have sterilizations and abortions, and our children have been taken away from us. These policies often are based on the assumption that people with disabilities should not have a say in our own health care. Judge Kavanaugh’s decision in Doe is an echo of these devastating policies, and his nomination threatens our right to parent, make our own reproductive and other health care decisions, and control our own lives and bodies.

Judge Kavanaugh wanted to strike down the Affordable Care Act

As a judge on the D.C. Circuit Court of Appeals, Judge Kavanaugh has repeatedly demonstrated that he wants to strike down parts of the Affordable Care Act. In one case, he wrote that the President should not have to follow parts of the Affordable Care Act, such as the individual mandate, which requires most people to buy health insurance.¹Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), abrogated by Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). Without the individual mandate, other parts of the Affordable Care Act – such as its requirement that insurance companies not discriminate against people with disabilities – would not work²Autistic Self Advocacy Network, Affordable Care Act Toolkit for Self-Advocates, https://autisticadvocacy.org/policy/toolkits/aca/ (last visited Aug. 10, 2018). and insurance would become unaffordable. He also suggested that he thought the Affordable Care Act was unconstitutional.³Sissel v. U.S. Department of Health and Human Services, 799 F.3d 1035 (D.C. Cir. 2015). In another Affordable Care Act case, he claimed that employers should be able to not only refuse to pay for their employees’ reproductive health care, but also prevent the employees from getting that health care paid for in another way.⁴Priests for Life v. U.S. Department of Health and Human Services, 808 F.3d 1 (D.C. Cir. 2015).

In each of these cases, he wrote for the dissent – meaning that the majority of judges looking at the case disagreed with him. However, if he is elevated to the Supreme Court, Judge Kavanaugh could have the power to actually make these opinions the law of the land. As people with disabilities, we cannot afford to confirm a Supreme Court nominee who will overturn a law so critical to our well-being.

Judge Kavanaugh said that the government can discriminate against some of its employees

In the case Miller v. Clinton, Kavanaugh wrote that the Age Discrimination in Employment Act (ADEA), an anti-discrimination law, should not apply to certain U.S. government employees who are working in foreign countries. The majority of judges ruling on the case disagreed. They noted that the ADEA had not made any exception for government employees in this situation.⁵Miller v. Clinton, 687 F.3d 1332, 1337-40 (D.C. Cir. 2012).  They also pointed out that Kavanaugh’s reasoning would let the government discriminate against similarly situated employees with disabilities. We cannot have a judge on the Supreme Court who would not strongly enforce our civil rights.

Judge Kavanaugh does not respect the rights of people in government-run institutions

In one case, Judge Kavanaugh wrote that an institution run by the Department of Health and Human Services should not have to let someone leave the institution in order to get reproductive health care. Jane Doe, an immigrant teenager, was living in the government-run institution because she had arrived in the United States without a parent. Judge Kavanaugh wrote that the institution should not have to let her go to the hospital to get an abortion.⁶Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017). This decision could affect the rights of all people living in institutions – including institutionalized people with disabilities.

Judge Kavanaugh’s overall record shows he would not respect the rights of the disability community

Judge Kavanaugh’s record is deeply alarming to the disability community and clearly shows that he does not value the civil rights of people with disabilities. For these reasons, ASAN urges the Senate not to confirm his nomination. Our most basic human rights are at stake.

For more information, please contact Sam Crane, Legal Director and Director of Public Policy, at scrane@autisticadvocacy.org.