Editorial
The Supremes rule:
Legal thumbscrews and
culture chasms
You'd have to be living under a rock not to know the U.S. Supreme Court ruled on the Americans with Disabilities Act in a big way this spring.
The Court upheld the ADA's "integration mandate" in the case Olmstead v. L.C. and E.W. "Undue institutionalization qualifies as discrimination," wrote Justice Ruth Bader Ginsburg, delivering the 6-3 opinion of the court.
But it said the ADA didn't apply to people whose disabilities could be "mitigated" -- people with bad vision that could be corrected with glasses; with high blood pressure getting medicine; people with diabetes taking insulin. The 7-2 ruling made headlines across the nation: The ADA had been "restricted"; "reined in"; "narrowed."
Justice Stephen G. Breyer, in an eloquent and widely quoted dissenting opinion, said this might mean even people with prostheses weren't covered, since a prosthesis "mitigated" their disability. He suggested the Court had been " cowed" by the "persistent argument that viewing all individuals in their unmitigated state will lead to a tidal wave of lawsuits."
The Title I decisions were "dead wrong," says Bob Burgdorf, who wrote the original version of the law when he was with what was then called the National Council on the Handicapped.
"Any person who is disadvantaged by an employer because of a real or imagined physical or mental impairment should be entitled to claim the protection" of the ADA, he says; the law was "intended to protect the entire 250 million or so people who live in America." Its "protection against discrimination on the basis of disability should be available to all Americans who experience such discrimination."
The rulings focus attention on "how different from the rest of us" disabled people are, he said -- when the law's real focus "should be on eliminating employers' practices that make people unnecessarily different because of their mental or physical limitations."
The only total victory was the Court's unanimous decision in Cleveland: being certified "unable to work" for the purposes of getting Social Security, said the Court, didn't mean you couldn't file an ADA employment suit. As Ragged Edge went to press (held back till we knew how the Court would rule), activists were taking a 'wait-and-see' attitude on the other four cases.
ADAPT was saying the Olmstead victory wasn't a total one; it didn't mean the end to forced institutionalization -- that the only way to ensure real choice was to get the Medicaid Community Assistance Services and Supports Act (MiCASSA) through Congress. National disability groups said they'd wait for what the U.S. Dept. of Justice would say on the Title I decisions.
The Culture Chasm and Not Dead Yet's message
Of all the issues that emerged from our May Media Meeting, one continues to echo: the Culture Chasm issue.
Our movement has trouble getting reporters and editors to recognize disability rights as an important national issue -- an issue on which we have a crucial voice that needs to be heard -- because we face each other across a culture chasm. Reporters, producers, editors are on one side, activists are on the other, seen by reporters as different, unimportant, inarticulate -- or it seems that way to reporters uncomfortable (yes, scared, maybe) of our speech, our movements, our appearance.
Not Dead Yet has had to reach across the culture chasm to get reporters' attention.
With the Kevorkian jailing and the Georgette Smith death (story coming online Aug. 16) Not Dead Yet's voice has begun to be heard in the press. NDY's Diane Coleman calls NDY's appearance "the first time the victims of an euthanasia movement have fought back."
That and other NDY soundbites seem to have started to catch reporters' attention. . Not Dead Yet's is at its heart an economic argument, as our profile of the group shows. The people behind the assisted-suicide movement are the "white, well-off worried well," says Coleman. And the people who fear it are disadvantaged.
In California, which recently saw a coalition stall a right-to-die bill, NDY's economic analysis may be taking hold. NDY intends to keep stressing that people are choosing death because they don't have other choices. Or, as one activist put it, "Is this a free choice to die? Or a choice imposed by a system that doesn't make other choices available to us."
NDY wants to open up the "right to die" to public scrutiny and expose its lies. Yet people won't be dissuaded from supporting the right to die just by being shown the movement's deviousness, says NDY supporter Andrew Porter. "The great majority of voters don't care about the poor or the disabled -- they are afraid for themselves or their relatives. People fear losing control: of their bowels, their bladder, and, they say, their dignity.
In order for people to let go of wanting the "right to die," their fear has to be allayed, says Porter; somebody has to show them some alternative.
The disability rights movement has had an alternative for decades -- personal assistance services, a concept of getting "care" that retains the "dignity" people are so scared they'll lose.
But we haven't gotten that message out; haven't explained clearly enough what most disability activists know -- that you can have somebody wipe your butt without losing your dignity. That's something we are going to have to teach our nation. Soon.
