The disability rights case against Kavanaugh

October 29, 2018

During the recent struggle to stop right-wing Supreme Court nominee Brett Kavanaugh from being confirmed, disability rights activists were on the front lines. Hannah Fleury, an occupational therapist who works in New York City schools, talked to Danny Katch about what Kavanaugh’s confirmation means for disability rights — and the shape of the organizing to come against the Trump administration.

WHEN BRETT Kavanaugh was nominated, why did disability organizations mobilize so strongly against him?

DISABILITY RIGHTS, in the end, are civil rights, and his whole record on civil rights is a huge threat to people with disabilities. His opposition to the Affordable Care Act (ACA), his opposition to parts of the Americans with Disabilities Act (ADA) and his opposition to basic civil rights mean that he could take away the limited but important rights people have in this country to accessibility and to health care.

One example of that was his ruling in Doe v. D.C. in a case of three people with intellectual disabilities who had been forced to undergo various medical procedures — two of which were abortions.

Protesters take direct action on Capitol Hill against the Republicans' agenda
Protesters take direct action on Capitol Hill against the Republicans' agenda

The question was: What’s the burden to get consent for medical procedures? In the appeals process, Kavanaugh said that people with intellectual disabilities have no right to ask for consent for these procedures, that it’s too hard a burden on these institutions. So that’s a big civil rights concern. People should have the basic right to consent to medical procedures.

HOW DO you explain why a notoriously anti-abortion judge would support the government’s decision to force people with intellectual disabilities to have unwanted abortions?

IT COMES down to that hypocrisy of the pro-birth movement, which is really not about women’s health or saving lives but who gets to control women’s lives or the lives of people with disabilities, and who gets to decide what happens to our bodies.

In his personal life as a rapist, and in his public life as a judge, he’s shown that he has no respect for bodily autonomy for women and basically for any oppressed people. The question of bodily autonomy is essential to the disability rights movement and to the abortion rights movement.

WHAT ARE some other ways that gender oppression and disability oppression intersect?

ONE SUBSET of this question is sterilization.

Within the 1970s abortion rights movement, sterilization was often ignored because it affected people of color and people with disabilities much more significantly than the white women who were the face of the movement, although by no means the only part of the movement.

Sterilization has been a very big issue for people with disabilities. In fact, the Supreme Court case Buck v. Bell, which says that the sterilization of people with intellectual disabilities is legal within the framework of the Constitution, has never been overturned.

While there’s been fightback so that sterilization isn’t as common now, it’s still a big issue for people with disabilities that they’re sterilized against their will.

Another issue is that because women are responsible under capitalism for social reproduction, so much of the burden of navigating systems and finding solutions for people with disabilities falls on women.

I work in schools with kids with disabilities. It’s a largely female workforce working with these kids, and then it’s the moms trying to figure out the hard choices, given the variety of pretty messed-up options they have for their kids for their education.

Then there’s so much fear about the burden that people will have to take on once their kids turn 21 because there’s so little public support. That’s a really difficult position for families to be in because they love their children, and they shouldn’t be forced to feel like it’s a burden because there’s no support.

The care that someone with a disability needs should be a public health issue. Unemployment is so high for all disabled populations. That’s been helped by the ADA — which Kavanaugh has suggested he doesn’t fully agree with — but even with that there’s so many limitations that are completely artificial. And it’s so often women who have to navigate those.

SPEAKING OF artificial limitations, can you talk about the social model of disability and how it’s related to the growing realization that gender is also a social construct?

IN SOME ways, they’re very similar. The social model of disabilities says that people may have impairments physically mentally or intellectually, but that there’s nothing intrinsically about those impairments that means they’re less capable of participating in society. The way our society is structured creates disability.

The classic example is that people who wear glasses aren’t considered disabled because glasses are available enough to allow those people to navigate the system. On the other hand, someone who uses a wheelchair may be completely able to perform an office job or a school job, but because so many offices and schools are inaccessible to wheelchairs, they are considered disabled and have less access to any number of things in our society.

The social model is saying that we need to change the system. There’s a lot of unwanted and unrequested sympathy for people with disabilities. This model pushes back on seeing people with disabilities as victims. It’s been people with disabilities who have put forward this model that we have to change both physical and invisible structures of the way our society is organized.

For the radicals and definitely the socialists who believe in the social model, capitalism is obviously a big part of that, because capitalism is interested in creating and exploiting workers, and people with disabilities don’t often fit into its model of “employable” workers.

Disability as we know it really didn’t exist until the rise of capitalism. Of course, people had all sorts of impairments — some people believe that in part because impairments were more common, everyone’s ability to contribute was harnessed for the common good. That’s a little different than what gender does for society, and women’s oppression goes back much further.

But it’s important [to make the connection] in terms of building ties and seeing how capitalism distorts so many central and intimate parts of our lives. You think about how many possibilities there could be in terms of gender expression and in terms of abilities if society were organized differently, and you see the potential for alliances.

Another thing that’s interesting is the high correlation between people who have diagnosed “autism spectrum disorder” (ASD) and people with a nonconforming gender identity.

That’s what the research says — and it’s hard to say because the autism diagnosis is contested and because many people don’t necessarily come out. So the question is whether people with autism are more willing to come out as gender-nonconforming, or if there’s something else at work.

But this shows that there’s so many potential alliances and so many ways that these struggles can fight together.

NOW THAT we have a very right-wing Supreme Court with Kavanaugh’s confirmation, why is it important for everyone to be involved in fighting their attacks on disability rights?

OBVIOUSLY, KAVANAUGH has already been exposed significantly. But his record on disability does expose the lie that his views on abortion are about “fetal rights” or religious morality, rather than in the end being about the needs of capitalism and who should have power.

I also think that in fighting along these lines, there’s potential to benefit much broader sections of people. People with disabilities were on the forefront of fighting attacks on the attacks on the ACA and cuts to Medicare and Medicaid because they’re the things that keep so many people alive.

Specifically around the women’s movement, where questions of sexual assault and abortion are so critical, people with disabilities have an important perspective that can help fill out the picture with what some of the demands can be and how to understand power in our country.

We need big numbers to fight the right. They are steamrolling us because they may be a minority, but they occupy positions of extreme power. But if we can unite around disability, gender and race, that gives us our best chance of winning.

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