The Autistic Self Advocacy Network opposes the confirmation of Amy Coney Barrett to the Supreme Court. In light of the critical role that the Supreme Court plays in interpreting and enforcing laws that affect people with disabilities, all nominees to our nation’s highest court must be evaluated carefully based on their known record. Judge Barrett’s record on the Seventh Court of Appeals and her writings and presentations as faculty at Notre Dame Law School expose her hostility to the laws that protect people with disabilities and our ability to live fulfilling lives in the community, including the Affordable Care Act and the Americans with Disabilities Act. Our community is likely to experience serious harm if Barrett is confirmed for a lifetime appointment to the Supreme Court. We further oppose efforts to rush confirmation on an impossibly short timeline in the midst of the COVID-19 pandemic.
Judge Barrett Opposes The Affordable Care Act
Amy Coney Barrett has argued that critical parts of the Affordable Care Act (ACA) – or even the entire statute – should be struck down. In a law review article for Notre Dame Law School, Barrett criticized Chief Justice Roberts’ opinion in NFIB v. Sebelius, a landmark ACA case which found that the ACA’s individual insurance mandate was constitutional. Judge Barrett also said that she did not agree with the Supreme Court’s decision in King v. Burwell. The Court in King v. Burwell upheld tax credits in the ACA that help millions of Americans afford health insurance coverage. The Urban Institute estimated that, if the Court had gone the way Judge Barrett thought it should, 8.3 million people would have lost their health insurance.
The Affordable Care Act is of life-and-death importance to people with disabilities. The ACA expanded Medicaid, made sure all health insurance plans covered basic benefits and people with pre-existing conditions, including people with disabilities, and even protected people from discrimination in health care. The ACA has given countless members of our community access to health care, lifted people out of poverty, and made it easier for people with disabilities to work in the community. ASAN’s toolkit on the ACA has even more information about why the ACA is important to us. For the disability community, access to health care is a fundamental civil rights issue. The ACA is foundational to that right.
Confirming Judge Barrett to the Supreme Court right now puts the entire ACA in danger. The Supreme Court will very soon hear a case that could strike down the whole ACA. If it does strike down the ACA, this would threaten the health of millions of people, including people with disabilities – during a global pandemic. Confirming Judge Barrett makes that dangerous decision more likely.
Judge Barrett Supported the Department of Homeland Security (DHS)’ Discriminatory “Public Charge” Rule
In late 2019 the Department of Homeland Security (DHS) finalized new “public charge” regulations which discriminate against immigrants with disabilities. These regulations would exclude immigrants who are likely to need benefits, including Medicaid or home and community-based services (HCBS). The regulations would also penalize immigrants for even having a disability that impacts their need for treatment, education, or ability to work. The Seventh Circuit Court of Appeals rightly decided in Cook County v. Wolf that the public charge rule was illegal and discriminated against people with disabilities. But Judge Barrett disagreed with the other judges on the court, arguing that DHS’ “public charge” rule was not illegal. This calls into question her willingness to protect all people with disabilities from government actions that discriminate against us.
Judge Barrett Has Ruled Against Including Students with Disabilities
Judge Barrett has a history of ruling against people with disabilities in the cases she has heard. For example, in the disability discrimination case P.F. v. Taylor, Judge Barrett was one of three judges who ruled that a school district should be allowed to reject transferring students with disabilities because it had not accounted for their support needs in its budget. Wisconsin law allows students to transfer between school districts, but it treats special education students differently. The law allows school districts to reject students who need special education services, based on their support needs. Judge Barrett joined a ruling saying that because the exclusion was based on a student’s “actual attributes” and not just stereotypes, the state’s plan was legal. This absurd decision is wholly contrary to the purpose of disability discrimination laws, which mandate inclusion of people with disabilities – even when we have support needs.
Judge Barrett Has a Troubling Civil Rights Record
Judge Barrett ruled against employees who had been segregated into different retail stores on the basis of their race. In EEOC v. AutoZone, other judges on the Seventh Circuit had ruled that this segregation was legal as long as the employee’s pay, job benefits, and responsibilities were the same. This is the same antiquated and blatantly discriminatory “separate but equal” reasoning that the Supreme Court rejected in Brown v. Board of Education. By refusing to grant a rehearing, Judge Barrett essentially endorsed this reasoning. Her failure to recognize segregation as discrimination calls into question her ability to fairly decide racial and disability discrimination cases – including cases about our right to live in the community.
Judge Barrett Opposes Bodily Autonomy and LGBT Rights
Judge Barrett’s opinions, interviews, and presentations consistently show a disdain for and disrespect of the right of people to exercise control over their own bodies. These opinions endanger people with disabilities, who are at added risk of being denied autonomy over our bodies, including our sexual and reproductive choices.
Judge Barrett has opposed a requirement in the Affordable Care Act that employer-sponsored health plans must offer basic contraceptive coverage to their employees. Judge Barrett has also consistently disagreed with the Supreme Court’s cases protecting reproductive rights, such as Roe v. Wade. In light of her other statements that the Supreme Court should be more willing to overturn its previous decisions, this raises the very real possibility that she will vote to overturn Roe v. Wade.
Additionally, Judge Barrett has previously expressed strong opposition to technologies that enable some people, including people with certain disabilities, to form their own families and conceive children in the way that works best for them. While some families might pursue foster care or adoption instead, people with disabilities and LGBTQ people are often denied their right to foster or adopt children. In November the Supreme Court will hear a case concerning religiously-affiliated organizations who refused to provide adoption services to LGBTQ people. Judge Barrett’s weak civil rights record raises concern that, if she is confirmed before the Court hears this or similar cases, she will not uphold our fundamental right to have or adopt children.
Judge Barrett also criticized the Supreme Court’s decision that same-sex couples have the right to marry under the US Constitution. In the same lecture, Barrett also said that it would “strain the text” of sex discrimination laws to interpret them in a way that protects transgender people. Autistic people are more likely to be LGBT, and we’re particularly more likely to be transgender. We deserve judges who seek to uphold our rights, not to interpret them as narrowly as possible.
Records Matter
In response to concerns from the disability community, some supporters of Judge Barrett have pointed out that she has a son with Down Syndrome. ASAN notes that while many parents of people with disabilities are strong advocates for disability rights, some parents with political power have advocated for policies that would harm our community. This is why ASAN has focused so closely on Judge Barrett’s record as a judge and professor. That record shows a consistent hostility to disability rights, civil rights, and the core values of our community. In contrast, while not a parent of a disabled child, Justice Ginsburg authored the majority opinion in the Olmstead decision and consistently sought to protect and advance disability rights.
The Senate Should Not Rush Confirmation
Aside from our concerns with Barrett’s record, ASAN also objects to the Senate’s plan to rush a confirmation without the full hearing process. In the past 25 years, the Senate has never confirmed a Supreme Court Justice less than 90 days after the previous Justice left. In order to rush through a confirmation, the Senate is ignoring other pressing issues like COVID-19 relief funding. Over 200,000 Americans have already died of COVID-19, and more than 40% of those people were people with disabilities living in congregate settings. The Senate’s decision to ignore pandemic relief in favor of a hurried confirmation of an anti-ACA judge is not only troubling – it is dangerous.
ASAN urges the Senate to reject Barrett’s nomination. The next Supreme Court Justice should be someone who honors the work, life, and legacy of Justice Ginsburg by protecting our access to health care and protecting civil rights. For more information on ASAN’s positions on any of the issues discussed in this statement, please contact Sam Crane, our Legal Director, at scrane@autisticadvocacy.org.