The Supreme Court has released its decision in Dobbs v. Jackson Women’s Health Organization on hugely polarizing Culture War issue: abortion. Before we go any further, we recognize that there are a range of opinions in the Disability Community about the underlying issue, but – whatever those opinions are – as Disability Rights advocates it is important to recognize the potential implications that the decision in Dobbs and the new direction of the Supreme Court may have on the rights of people with disabilities, specifically the freedom of individuals who rely on Long Term Services and Supports (LTSS).
As a starting point, people frequently refer to “Olmstead” as an “act”, meaning a statute or law, when in fact it is a Supreme Court interpretation of the Americans with Disabilities Act of 1990. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court sided with Lois Curtis and Elaine Wilson – two Disabled women institutionalized in the state of Georgia who wanted to receive LTSS in the community.
Instead of accepting a fate of being locked away from society, these two women fought for and secured their freedom – and the freedom of so many others – by taking their fight to the Supreme Court. It was a historic decision and has had far-reaching implications, but the decision was actually more limited than the hype in the Disability Community suggests. Instead of being a firm endorsement of the right of Disabled people to live in freedom, the decision – written by the venerable Justice Ginsberg – argued that for some Disabled individuals “no placement outside the institution may ever be appropriate.” Although it wasn’t the strongest decision we could have hoped for, we have made advances using it. However, the Supreme Court’s action in Dobbs has put that progress at risk.
The Supreme Court’s action overturning Roe v. Wade in Dobbs is unprecedented. Roe was decided about 50 years ago, more than a quarter century before Olmstead. It has long been considered “settled law”. Roe wasn’t just precedent, a decision about a particular legal case that makes it likely that other similar cases will be decided in the same way. There was “precedent on precedent” because in 1992 the Supreme Court ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed a woman’s right to an abortion.
In overturning Roe and Casey, the Supreme Court has dramatically changed course with potentially far reaching consequences. Although Justice Alito’s decision asserted that Dobbs would not affect other rights, Justice Clarence Thomas asserted that “in future cases, we should reconsider all of this Court’s substantive due process precedents”. He cited three specific cases the Court should go back and reconsider providing a roadmap for reversing the rights established in those cases:
- Griswold v. Connecticut which established the Constitutional right to marital privacy in regard to contraception;
- Lawrence v. Texas which determined that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional; and
- Obergefell v. Hodges which determined that the right to marry was a fundamental liberty protected by the Constitution.
Although Justice Thomas didn’t cite the case, the same premise was used in Loving v. Virginia to determine that a Virginia ban on inter-racial marriage was also unconstitutional.
Just as these rights and a women’s right to get an abortion were affirmed in Supreme Court decisions, the right of people with Long Term Service and Support (LTSS) disabilities has been entirely underpinned by Olmstead. With the Supreme Court having overturned 50 years of Constitutional precedent under Roe, it is clear that any deference to precedent that the Supreme Court might have shown to Olmstead is also stone-cold dead. That means individuals with LTSS Disabilities are just one Supreme Court decision away from the freedom and bodily autonomy of being taken away.
Although disability issues are not centered in the Culture War and the rights of Disabled people are not necessarily a direct target of the far right, the legal arguments being crafted by conservatives in their fight against abortion and same sex marriage can – and will – be used against people with disabilities and our right to live in freedom. Prior to the decision in Dobbs, in the face of an attack on Olmstead, disability rights advocates could have counter-argued that the freedom of people with LTSS disabilities was Constitutionally-protected under the 14th amendment – employing the same approach used in Roe.
However, in Dobbs, the Supreme Court has decided – under the framework of “Originalism” – that the only rights protected under the Constitution are the rights that would have been understood by the individuals who wrote the Constitution (in 1788) and the 14th amendment (in 1868). It is important for the Disability Community to recognize that our lives are a 20th century phenomenon, and any argument for a Constitutionally-protected right to community integration of Disabled Americans fails under the doctrine of “Originalism”.
What were the lives of people with significant disabilities like before 1868?
Were the writers of the 14th amendment considering the implications for people who used attendant services, mobility devices, feeding tubes and ventilators?
Olmstead may not be put directly at risk by Dobbs, but the decision in Dobbs underscores how rights granted solely through court decisions, including the right of Disabled Americans to live in freedom, are precarious.
We also don’t need to theorize how the Supreme Court could dismantle Olmstead. Justice Thomas – in his Olmstead dissent – also described his approach to doing just that by questioning the basis for any claim of discrimination in that case.
Rather than wait for the Supreme Court to reverse Olmstead, the Disability Community needs to take action now, working with Congress to affirm our right to live in freedom in statute.
Congress should stand with us in these efforts. In response to Dobbs, members of the Democratic caucus have universally reaffirmed their support for bodily autonomy and highlighted the negative impact that carrying an unwanted pregnancy can have on people’s lives. The same reasoning applies to securing the right of individuals with disabilities to remain free to be in control of their own bodies and lives.
In May, when the draft Dobbs decision was leaked, three Disabled women – all who had been institutionalized at some point in their lives and who also chaired our boards of directors – recognized this disconnect. After Senator Gillibrand made an impassioned plea for reproductive justice and bodily autonomy, these Disabled women publicly called on the senator to cosponsor the LaTonya Reeves Freedom Act (S. 3417/H.R.6860) – legislation that would clearly establish in statute an enforceable right to community integration of individuals with LTSS disabilities. To her credit, Senator Gillibrand recognized how a million women and many more people in the United States have lost all bodily autonomy because they were institutionalized, and that she needed to affirm their rights as well. She heeded the call to action and immediately cosponsored the bill.
We are in a time in our country when there is an intentional conversation and focus on civil and human rights. Yet Congressional leadership have blocked this important civil rights bill in deference to the institutional unions and insurance companies that benefit from our institutionalization. Members of Congress who truly believe that individuals should have control over our own bodies need to ensure that everyone – including Disabled individuals – have those rights protected in law. We have seen the dire consequences of inaction.
There are those in the Disability Community who will be outraged or elated by the Dobbs decision based on their political affiliation. Some may view the case through a disability-specific lens, fearful of being forced to carry a pregnancy that could endanger their lives or fearful that individuals like themselves may be entirely eliminated from society based on ableist views. Regardless, we should all recognize that it is more important than ever to establish a right to Disability Freedom in law.