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Independent Living News & Policy from the National Council on Independent Living

NCIL Opposes Nomination of Brett Kavanaugh to U.S. Supreme Court

The National Council on Independent Living (NCIL) is the longest-running national cross-disability, grassroots organization run by and for people with disabilities. Founded in 1982, NCIL represents thousands of individuals and organizations including individuals with disabilities, Centers for Independent Living (CILs), Statewide Independent Living Councils (SILCs), and other organizations that advocate for the human and civil rights of people with disabilities throughout the United States.

NCIL logo - National Council on Independent LivingBased on a careful review of Judge Brett Kavanaugh’s opinions, NCIL opposes his appointment to the United States Supreme Court. Judge Kavanaugh’s opinions on healthcare, self-determination, employment, and education for people with disabilities are damaging to disability rights and his appointment to the U.S. Supreme Court would threaten the rights and lives of Americans with disabilities.

Several of Judge Kavanaugh’s decisions are particularly concerning. One example of this is his ruling in Doe ex rel. Tarlow v. D.C., in which a class of people with intellectual disabilities living in facilities in the District of Columbia were subjected to elective surgeries (including unwanted abortions) based on the consent of District officials, without attempting to determine the individuals’ own wishes. While the district court ruled in favor of the plaintiffs, on appeal Judge Kavanaugh ruled in favor of the district stating that “accepting the wishes of patients who lack (and have always lacked) the mental capacity to make medical decisions does not make logical sense and would cause erroneous medical decisions – with harmful or even deadly consequences to intellectually disabled persons.” This decision is deeply discriminatory and based on flawed assumptions about the capacity of individuals with intellectual disabilities. It is in stark contrast to the philosophy of independent living, which is grounded in the belief that people with all types of disabilities are the best experts on their own needs and should be in control of the decisions impacting their lives. In situations where people with intellectual disabilities may need assistance with making decisions, emerging practices like Supported Decision-Making will allow them to receive the supports they need to make a decision while also respecting their rights.

Additionally, access to healthcare is critical for people with disabilities, and NCIL finds the opinions expressed repeatedly by Judge Kavanaugh against the Affordable Care Act (ACA) to be very concerning. Judge Kavanaugh’s repeated attacks on the ACA are a threat to healthcare access, and if appointed to the U.S. Supreme Court, he would jeopardize our ability to access the healthcare and other supports that allow us the ability to live, work, and participate fully in the communities where we reside. The ACA provides access to healthcare for many people with disabilities who had previously been denied due to pre-existing conditions, and many of the other protections under the ACA are critical for ensuring we can receive services in the community rather than in institutions. Rolling back the ACA would be an infringement on our civil rights that would ultimately result in a loss of independence and increased institutionalization. 

Another particularly concerning ruling was Judge Kavanaugh’s Baloch v. Kempthorne decision to reject a worker’s disability discrimination and retaliation claims. In this case, a worker with a disability sued his employer for imposing strict sick leave restrictions, giving him low performance reviews, and directing “profanity-laden yelling” at him after he made a formal administrative complaint. Judge Kavanaugh’s decision in this case shows his active complicity in allowing abusive environments that are a direct threat to the health and well-being of America’s workforce, and it sets the tone for complacency in the face of hostile and discriminatory work environments.

We encourage NCIL members to look further into Judge Kavanaugh’s additional decisions, as only a few have been mentioned here. Judge Kavanaugh’s views on the civil rights of people with disabilities are evident in his rulings and opinions. Twenty-eight years after the passage of the Americans with Disabilities Act, America must do better than this.

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