Kavanaugh’s treatment of disabled women’s rights is a preview

There is an uncomfortable truth that must be acknowledged. Any society that treats the disabled community as less than, as less worthy of life and liberty, or justice, has an argument primed against everyday, “regular” people’s rights too. No one is really exempt from oppression.

Arguments used against the disabled on their own medical and life decisions, while different on the face of it, share an attack on basic autonomy. In 2007, then-Judge Kavanaugh, regarded as a “pro-life” judge heard an appeal case (Doe Tarlow v. District of Columbia) consisting of three women with intellectual disabilities who were determined legally incompetent. They had been forced to have medical procedures against their wishes while they worked with a government agency (District of Columbia Mental Retardation and Developmental Disabilities Administration). Under that agency's rules, two of them had abortions. They sued, arguing their wishes had not been considered. Kavanaugh ruled against them, saying “that the right to be involved in their own medical decisions was not ‘deeply rooted in this Nation's history and tradition’ and that ‘neither liberty nor justice’ were imperiled by denying the women the right.”

It was not a ruling expressly about abortion, but rather the autonomy of making a medical decision. Disability rights advocates were shocked at the blanket dismissal of the right to consideration of their wishes. If “pro-life” Kavanaugh agreed with the forced abortions, it is clear that the real issue is control over people’s bodies, and in this case, regarding people with disabilities becoming parents.

That bias stems from the entrenched history of eugenics in disability and racial history, the forced sterilizations of an estimated 65,000 people, based on their “feeblemindedness,” or determinations they were “insane,” “criminalistic,” “deformed, ”crippled,“ ”epileptic“ ”inebriate,“ diseased,” “blind,” “deaf,’”and “dependent” (including orphans and paupers). Racially motivated eugenics sought to prevent mixed race marriages and families that would result, and sterilized women perceived as disabled or mentally “unfit.” The eugenics era continued shockingly longer in some areas: It wasn’t until 1974 that North Carolina’s state sterilization program was stopped.

Disability rights justice seekers push back against the paternalistic view they are unable to make their own decisions, that someone else is more qualified than they are, such as a parent or conservator, or a state agency. The reproductive justice movement, begun in 1994 and led by feminists of color, is also a response to the struggle for freedom from a paternalistic and oppressive agenda forcing particular reproductive choices on women of color. Disability justice and reproductive justice are overlapping movements that share a common framework. They both push back against a paternalistic viewpoint, and both are concerned with not only reproductive rights but also the “human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”

Kavanaugh, in 2007, said “that the right to be involved in their own medical decisions was not ‘deeply rooted in this Nation's history and tradition’ and that ‘neither liberty nor justice’ were imperiled by denying the women the right.” It appears he would argue the same in the current Mississippi challenge to Roe vs. Wade, challenging the constitutionality of the right to an abortion. About the case, Mark Sherman of Times of Israel noted that “’The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,’ Mississippi says.”

Lawyer Julie Rikelman of the Center for Reproductive Rights is quoted on the case: "What's critical to remember," she contends, "is that the court has long said that a woman's liberty interests are unique when it comes to pregnancy. Her body and health are deeply affected by pregnancy, as is the course of her life, her ability to work, go to school and to prosper.”

Will the Supreme Court reinterpret the Constitution for all people capable of pregnancy? Will they attempt to usher in a regressive era that is again, both paternalistic and oppressive? Not only is it important to look at the parallels to disability and racial reproductive history, but we must assess and contrast the current climate of activism around social justice.

American scholar and social justice advocate Dorothy Roberts writes in “Killing the Black Body”: “Reproductive liberty must encompass more than the protection of an individual woman’s choice to end her pregnancy. It must encompass the full range of procreative activities, including the ability to bear a child, and it must acknowledge that we make reproductive decisions within a social context, including inequalities of wealth and power. Reproductive freedom is a matter of social justice, not individual choice.”

In the University of Alabama at Birmingham Institute for Human Rights’ blog, reproductive justice is described this way, “Built upon the United Nations human rights framework, reproductive justice is an intersectionality issue where reproductive rights and social justice are combined so the voices of LGBTQ+ people, marginalized women, and minority communities are uplifted.” By inference the disability community is included.

Disability justice is social justice. Reproductive justice is social justice, activists say, including this one. Liberty. Justice. Imperiled words in our Constitution. Imperiled rights of Americans to liberty and justice. Framing the debate this way instead of “personal choice,” though undeniably a personal choice, gives weight to our understanding of a complex, nuanced environment in which this decision takes place, and the autonomy and freedom in which it must take place.

Access to reproductive health services looks different for those on lower income or without insurance. It looks different for rural communities in Iowa where there are no labor and delivery services nearby. It looks different for those discriminated against by the health care system because they are disabled. It looks different for a white woman with adequate income able to exercise her reproductive rights. But when reproductive rights and social/disability justice are combined in holistic reproductive justice goals, a more equal and inclusive framework for all is possible. It is not only access to health care decisions, but the social and economic supports that make it possible to live with those decisions.

The challengers to Roe v. Wade may think they can turn back time, but what they may not anticipate is between now and next summer, when a decision is handed down, there is plenty of time for activists to raise their voices. There is time for our Democratic leadership to enact federal legislation in support of reproductive justice, so we don't go down the path again of an oppressive, regressive and dangerous regime. We must protect not only marginalized groups like the disability community, but all Americans who deserve reproductive health and justice. We must start by passing the Women’s Health Protection Act.

Julie Russell-Steuart is the chair of the Disability Caucus of the Iowa Democratic Party, an organizer in Science for Safe Schools and an artist/activist from Reinbeck, Iowa.