On September 12, 2018, the legal Harvard Professor Lawrence Tribe @tribelaw tweeted the following: “In Doe Tarlow v. DC (6/12/07), Judge Kavanaugh wrote an opinion mocking claims by intellectually disabled women to at least be CONSULTED before being subjected to INVOLUNTARY SURGERY, including forced abortion. The Senate needs to press the nominee hard on that grotesque ruling.”
TerryinCA in a twitter @TerryPullBurd wrote the following in response:
“Kavanaugh’s ruling did not mention abortion, but the absence of that word did not exclude it from the ruling. Two of the mentally disabled plaintiffs were subjected to involuntary abortions. The court below found for the plaintiffs”
The important point is that the republican President Donald Trump has picked out of The Federalist Society list, (the conservative’s answer to the ACLU), Judge Brett Kavanaugh, as a nominee to be the next US Supreme Court judge who wrote the above decision. He needs to be confronted for an explanation.
When you read the below analysis by Snopes.com, please keep in mind the above response by TerryinCA.
This story also lays bare the hypocrisy of the Christian right’s Pro-Life movement as they don’t seem to give a damn for the value of each and every life, once the infant is born. For instance, it doesn’t matter that the USA has been rated #1 in infant mortality rates for decades out of all the developed countries.
Here is the rest of the story…
On August 16, 2018, Berthania Palma of Snopes.com penned the following fact checked report, “Did Brett Kavanaugh Argue That People with Disabilities Could Be Forced to Undergo Elective Surgeries, Including Abortions?” (“Advocates for the disabled community largely oppose Brett Kavanaugh, President Trump’s nominee for the Supreme Court.”
“U.S. Supreme Court nominee Brett Kavanaugh argued that disabled people could be forced to have elective surgeries, including abortions.”
“As a D.C. circuit judge, Kavanaugh overturned a lower court decision that enjoined Washington, D.C.’s disability services officials from authorizing elective medical procedures without first making an attempt to ascertain the wishes of the patient.”
“Kavanaugh’s ruling did not involve abortion.” (The result of the ruling was that 2 disabled patients were subject to forced abortions without their consent.)
“In mid-August 2018, as confirmation hearings for President Donald Trump’s U.S. Supreme Court nominee Brett Kavanaugh drew near, social media users shared a meme relating to a 2007 opinion Kavanaugh wrote as a D.C. circuit court judge:”
“The meme presented an over-simplified representation of a complicated legal case and misstated Kavanaugh’s role in it.”
“In 2007, Kavanaugh was part of a three-judge panel that overturned a district court injunction blocking Washington, D.C.’s Mental Retardation and Developmental Disabilities Administration (MRDDA) from authorizing elective medical procedures on patients who were certified to be intellectually incapacitated without first making a documented effort to ascertain those patients’ wishes. (The agency’s name has since been changed to Department of Disability Services.)”
“The matter before Kavanaugh did not pertain to specific medical procedures, but rather to the injunction itself. Kavanaugh supported reversing a 2005 lower court ruling that had found D.C.’s standard to be unconstitutional and had ordered the following:”
“Before granting, refusing, or withdrawing consent for any elective surgery on any MRDDA consumer, the District of Columbia must attempt to ascertain the known wishes of the patient; an inquiry which is not limited to but which must include documented reasonable efforts to communicate with that person regarding her wishes. If after such an inquiry the wishes of the patient are unknown and cannot be ascertained, the District of Columbia must then make a good faith determination of the best interests of the patient, a determination that requires consideration of the totality of that person’s circumstances” …
“MRDDA appealed that lower court decision and won, with Kavanaugh writing in his opinion that “Consideration of the wishes of patients who are not and have never been competent is … not required by the Supreme Court’s procedural due process cases,” and that “plaintiffs have not shown that consideration of the wishes of a never-competent patient is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [the asserted right] were sacrificed.’”
“Washington, D.C.-based attorney Shep Williams, who represented the plaintiffs in the appeal, told us that Kavanaugh “made a bad decision and he was wrong, but the issue of whether [the plaintiffs] could consent to an abortion was not before the court.” What was before the court, he said, was the idea that intellectually disabled people “are entitled to have an informed decision made on their behalf just like anyone else.” Williams added that he felt the lower court had it right: “We argued that they shouldn’t be making decisions until they talk to these people. They’re individuals, they’re not lumps of flesh.”
“In the underlying case, Does v. D.C., three intellectually-disabled women who lived in an MRDDA-administered group home filed suit claiming they had been forced to undergo elective procedures they did not want: One had an eye surgery, while two underwent unwanted abortions. As Kavanaugh’s opinion noted, however, D.C. law already rendered performing abortions (along with sterilization and “psycho-surgeries”) without consent to be off-limits in the absence of a court order.”
“Williams told us that in 2016 his clients won summary judgment against Washington, D.C. for the abortions and the case was settled, bringing the 15-year litigation to an end.”
“Kavanaugh’s 2007 opinion has been cited by disability advocacy groups that have come out in opposition to his nomination to the Supreme Court bench. They include the Disability Rights Education and Defense Fund (DREDF), the National Council on Independent Living (NCIL) and the American Association of People with Disabilities (AAPD), which said in a 15 August 2018 statement that:”
“The principle of self-determination holds that people with disabilities must have the freedom and authority to exercise control over their own lives. Based on his ruling in Doe ex rel. Tarlow v. D.C., Judge Kavanaugh believes otherwise. The Doe plaintiffs were subjected to elective surgeries based on the consent of DC officials; Judge Kavanaugh dismissed the notion that the plaintiffs could express a choice or preference regarding medical treatment on the basis of their intellectual disability. AAPD will not support a Supreme Court nominee who does not affirm the rights and abilities of people with disabilities to determine the course of their own lives.”
“Silvia Yee, senior staff attorney for DREDF told us that “There’s a movement being pushed across states and courts to recognize there are levels of capacity [among intellectually-disabled people] and we need to figure out what those levels are.” Kavanaugh’s 2007 decision flies so much in the face of that.”
Link to report: Did Brett Kavanaugh Argue That People with Disabilities