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Read news coverage of Chambers' trial.

  Disabled woman's lawsuit exposes prejudices

Doctors do not take kindly to having their authority challenged. Faced with a federal lawsuit, the physicians fought back.

by Laura Hershey

EDITOR'S NOTE: Kijuana Chambers sued the Rocky Mountain Women's Health Care Center for stopping her fertility treatments in 1999 because doctors believed that as a blind woman she would not be able to care for her infant. In late Nov., 2003, she lost her case in U.S. District Court in Denver.

A jury has decided that a physician and a fertility clinic did not illegally discriminate against a blind woman by requiring "proof" of her ability to care for a child, or by stopping her treatments when she refused to satisfy their demands.

Perhaps we should not be surprised by the verdict. In over 90 percent of ADA jury trials, plaintiffs lose. This disturbing statistic illustrates the tenacious prejudice that surrounds people with disabilities every day -- and the difficulty of fighting that prejudice, even with federal legislation. It's the same prejudice we encounter in store owners, potential employers, teachers, even some close friends and family members. It's to be expected that disability prejudice would find its way into any given jury pool.

A case like Kijuana Chambers' reveals that prejudice in all its glaring complacency. "People with disabilities are equal in all respect as parents," said Carrie Lucas, Enforcement Law Clerk at the Colorado Cross-Disability Coalition, an advocacy group which filed suit on Chambers' behalf, alleging discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. "However, the public believes we must prove ourselves before we are allowed to do the things nondisabled people consider their right."

In her quest to become pregnant four years ago, Chambers' experience may have been further complicated by still-prevalent biases involving race, gender, and sexual orientation: She is African-American, a lesbian, and single. But it was her blindness that prompted doctors to doubt her parental fitness, and her blindness that led jurors to vindicate those doctors.

Physicians providing artificial insemination do not typically scrutinize their patients -- many of whom are single women -- for evidence of their fitness to parent. In Kijuana Chambers' case, however, the Rocky Mountain Women's Health Care Clinic in Englewood, Colorado, applied a double standard, ordering her to have an occupational therapy evaluation to prove that she could safely raise a child. It was clear to Chambers that this arbitrary requirement was a reaction to her blindness, and illegal.

As anyone who has questioned a medical prognosis or prescription knows, doctors do not take kindly to having their authority challenged. Faced with a federal lawsuit, the clinic physicians fought back. Denying that blindness was the determining factor in stopping Chambers' treatments after three visits, doctors conjured "a constellation of concerns" (a term the defense witnesses kept repeating) including ostensible problems with Chambers' personal hygiene, emotional stability, and support resources. None of these allegations appeared in the physicians' charts; Chambers' blindness did.

The defense didn't stop there. It bolstered its case with personal attacks against Chambers, evoking the nondisabled jurors' deepest prejudices. Court testimonies included weakly-supported assertions that Chambers needed help getting dressed and finding the bus stop; that she wore soiled underwear; and that sometimes, alone in the exam room, she swore out loud. The defense could not produce a single page of documentation of these incidents. Yet the physicians and attorneys opposing Chambers seemed acutely tuned into -- and willing to exploit -- some of our society's deepest fears and revulsions.

Foremost among those fears is a visceral terror of blindness. Surveys rank loss of sight high on the list of things that people dread the most, along with death, snakes and public speaking. The idea of Chambers groping her way randomly, recklessly toward an unseen bus stop could be counted on to strike a certain amount of fear in the jurors' hearts. This disturbing vision could trigger both a strong sense of disapproval, even contempt, for the public display of helplessness -- and, at the same time, a protective impulse which would mask the negative emotions, disguising intolerance as benevolent concern. (This shell game functions constantly, at multiple levels, insisting on "taking care" of disabled people rather than respecting their rights, and thus making disability discrimination both invisible and acceptable.)

Much was made of Chambers' apparent lack of a partner or involved friends (i.e., sighted parental surrogates) to reassure the physicians that the baby would be in good (nondisabled) hands. The jurors were urged to admire the doctors for wondering who would help Chambers with child care. Thus the clinic based much of its defense on the contradictory notions about disability and help to which nondisabled people cling. On the one hand, Chambers felt confident she could raise a child largely by herself, yet because of her stubborn refusal to prove this to anybody, she was denied treatment. On the other hand, if Chambers sometimes did ask for assistance -- perhaps with finding her clothes in an unfamiliar environment, for example -- this was viewed as reason enough to doubt her competence. For a disabled person to request help when she needs it, and yet to reject the suggestion for an occupational therapist's expert assessment of her need for help, is an affront to the medical model which sees people with disabilities as controlled by, rather than controlling, the help they need.

She proved them wrong -- and still the jury ruled against her

Clinic staff also claimed to be alarmed when they heard Chambers emit a loud profanity while alone in an examining room. Note that this "outburst" was not directed at anybody; no verbal abuse was alleged. It was simply -- oh, horrors! -- an expression of strong emotion. It violated a bourgeois code of conventional "appropriateness" and superficial conformity. This code functions oppressively, as a way to control or condemn people with disabilities, working-class people, and other marginalized groups. It's not always possible, desirable or healthy to remain calm when faced with unjust or frustrating situations. It can be even harder for people who face frequent obstacles, and who thus live each day closer to their own anger threshold. Chambers' private outburst, if it happened at all, was probably a natural human reaction to the disappointment of a negative pregnancy test. Yet it was transformed into pathology by judgmental others who happened to overhear it.

If all that were not enough, the doctors and their attorneys played the soiled underwear card. Few topics trigger more irrational shame and repugnance than human excrement and other bodily fluids. Even the unproven suggestion of a small smudge or stain in someone's panties could derail listeners' concentration, shifting the focus away from civil rights, or even parenting responsibilities, to the frightening wilderness represented by bodily fluids.

Most of these "concerns" raised at the trial were not well-documented, not even in the physicians' own notes. Nevertheless, the allegations created an impressionistic collage of emotional and physical messiness. The power of this collage is evidenced by the final verdict, which exonerated the clinic from any wrongdoing.

The verdict represents a setback to disabled women's rights, says advocate Trish Day, who manages a large, active online community of parents with disabilities. Day knows this kind of discrimination happens all the time, and she worries about the "legal precedent" of allowing medical practitioners to get away with it.

This case case is both encouraging and disappointing because for once, a woman and her advocates actively opposed the discrimination being practiced against her -- and lost. Many other women simply back down in the face of doubts about their ability to become good parents. Many others never even get that far. "Disabled girls," says Day, "are not generally raised to believe that they can have 'normal' lives -- marriages or long-term partners, a job, a home of their own, and their own children."

Slowly, disabled people are changing our own expectations of ourselves. People with all kinds of disabilities can and do raise children, often despite the disapproval of friends, strangers and yes, doctors. Chambers herself gave birth to a little girl three years ago, after finding a clinic that was willing to provide her fertility treatments. Laurina, who will turn three on January 1, is by all reports a happy and healthy child. Chambers "proved them wrong," says Day. "Her beautiful daughter proves them wrong every day."

Yes, she proved them wrong -- and still the jury ruled against her. That's where the outcome of the Chambers case leaves us: Proving ourselves, or failing to; each of us individually, striving to prove ourselves fit, or qualified, or deserving, or worthy. It's sadly ironic, because Kijuana rightly saw her suit in terms of a larger struggle for disabled women's equality.

But the clinic and the jury would not see it that way. Instead they zeroed in on Chambers herself, on what made her different from them, or different from their expectations of her. She moves differently through the world, carefully sweeping the space before her with a cane. She looks different, not performing the morning mirror ritual by which they sculpt their appearance. She acts different, expressing her anger as a means of survival.

Discomfort and stereotype overwhelmed the judgment of those who saw themselves as gatekeepers, deciding who should and should not have children. More than ever, women with disabilities must defy negative expectations of our lives, act on our own desires, and find advocates willing to take on the gatekeepers.

For more information on the case of Chambers v. University Hospital and M. H. Melmed, M.D. P.C., Civ. Act. No. 00-N-1794 (CBS) (D.C. Colo. 2000), go to http://www.ccdclegal.org/rmwhcc.htm

Posted Nov. 26, 2003

Laura Hershey is a freelance writer and activist in Denver.

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© Copyright 2003 by Laura Hershey.


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