By Moya Shpuntoff
As disability leaders review the U.S. Supreme Court rulings issued over the past several weeks, many are concerned about the follow-on impacts. The World Institute on Disability believes that it’s important to voice the concerns of our communities, and to consider the full spectrum of people with disabilities and marginalized communities who will be impacted, especially those who are most marginalized by the systems of power that are in place.
WID fully supports the pursuit and protection of the rights and freedoms of over 61 million people with disabilities in the U.S., and over one billion people with disabilities globally, including but not limited to: rights to bodily autonomy, environmental protection and safety, and tribal sovereignty of indigenous people. Below we summarize several of the recent Supreme Court decisions and explain why we believe they will negatively impact people with disabilities.
Abortion Rights: Dobbs v. Jackson Women’s Health Organization
The Supreme Court ruled that a Mississippi law that bans abortion after 15 weeks of pregnancy is not unconstitutional, overturning the right to abortion that was decided in the 1973 case, Roe v. Wade.
Disability Rights often tie back to a central belief: that people with disabilities are people, and every person should have the right to decide what happens to their body. NPR reports that leaders in the Disability Rights and Disability Justice movements are deeply concerned about the ruling, citing healthcare disparities, increased rates of sexual assault experienced by disabled people, high rates of poverty, and the ongoing battle for bodily autonomy that people with disabilities still fight to this day. People with disabilities have experienced having their right to have children taken from them, including through forced sterilizations of disabled people, as well as discrimination through Child Protective Services, with 10% of children at risk of being removed from custody of their parents because of their parents’ disabilities. People with disabilities who want or need abortions should have their wishes and decisions honored and respected, with accessible and equitable care – just as people with disabilities who do choose to have children should be respected and supported.
Furthermore, the impact of this ruling will be most severe on people who are multiply marginalized, including disabled people who are Black, Indigenous, people of color, LGBTQIA+, poor, under 18, fat, immigrants, undocumented, and/or homeless. People at these intersections of oppression and exploitation are more likely to be disabled, less likely to have the financial resources to travel to obtain an abortion in another state if it is banned in their home state or to support a child, more likely to be criminalized and incarcerated for seeking an abortion, and more likely to experience sexual assault, lose custody of their children, or be injured or die in pregnancy or labor. Each of these risks are significant and can cause severe trauma to individuals and to our communities, in addition to further limiting the autonomy and freedom activists have fought so hard for.
We know some people with disabilities feel that the option of choosing to abort once disabilities are detected in a fetus is a eugenicist practice, and for that reason they believe abortions should not be permitted. However, we turn to the groundbreaking work of the late Dr. Marsha Saxton, who was WID’s beloved Director of Research for over 20 years, and a foundational scholar in the field of disability studies. In her paper, “Disability Rights and Selective Abortion,” excerpted from the anthology “Abortion Wars: A Half Century of Struggle, 1950 – 2000”, originally published in 1998. Dr. Saxton called for nuance and understanding of the choice to abort:
“I believe that at this point in history, the decision to abort a fetus with a disability even because it “just seems too difficult” must be respected. A woman who makes this decision is best suited to assess her own resources. But it is important for her to realize this “choice” is actually made under duress. Our society profoundly limits the “choice” to love and care for a baby with a disability. This failure of society should not be projected onto the disabled fetus or child. No child is “defective.” A child’s disability doesn’t ruin a woman’s dream of motherhood. Our society’s inability to appreciate and support people is what threatens our dreams…The great opportunity with this issue is to think and act and take leadership in the place where feminism, disability rights and human liberation meet.”
In response to the ruling, President Biden signed Executive Order 14076, titled Protecting Access to Reproductive Healthcare Services, on July 8. The order instructs the US Department of Health and Human Services to increase access to abortion pills, contraception, and family planning services, and asserts that doctors, people traveling for out-of-state abortions, and mobile abortion clinics at state borders will be protected. President Biden and his administration also pointed to the Emergency Medical Treatment and Labor Act (EMTALA), which requires that if a doctor believes a patient to be experiencing a medical emergency, that the physician is required to provide stabilizing treatment. This means that if an abortion is necessary to stabilize the patient, that the physician provides the abortion. As a federal law, this takes precedent over state laws that may outlaw abortion even in the case of medical emergency.
While some have applauded this as a good “first step”, the disability community knows all too well that leaving an important personal and medical decision to the sole authority of medical professionals is not enough, and does not guarantee safety. Having to secure the permission of a doctor can be difficult, and requiring people who are pregnant to wait until an emergency health situation is present or imminent will likely result in avoidable medical trauma, debt, and in some cases, additional disabilities or death. Especially for Black people, who are three times more likely to die from a pregnancy-related cause than their white peers, and who often experience racism from health care providers, who may be less likely to take their pain seriously – this executive order falls short of protecting those who will need protection the most.
Climate Change: West Virginia v. Environmental Protection Agency
The Supreme Court ruled in favor of West Virginia, limiting the Environmental Protection Agency (EPA)’s ability to place limits on the carbon emissions of existing power plants through generation shifting to cleaner sources.
Carbon emissions “cause climate change by trapping heat, and they also contribute to respiratory disease from smog and air pollution. Extreme weather, food supply disruptions, and increased wildfires are other effects of climate change caused by greenhouse gasses,” says National Geographic. Causing and exacerbating respiratory diseases is cause enough for concern for people with disabilities, with over 37 million people in the U.S. with respiratory diseases alone.
However, we know all too well that emergencies and disasters related to the increase in extreme weather and increased wildfires will disproportionately impact disabled people and people who are multiply-marginalized. “Research has found people with disabilities are 2-4 times more likely than others to be injured or die in disasters, primarily due to inadequate community-wide planning and access to emergency and disaster assistance,” says WID’s Executive Director and CEO, Marcie Roth. With such deadly disparities for our community, allowing climate change to continue to wreak havoc on the environment will lead to more deaths and injuries for disabled people. While we can improve emergency and disaster planning to improve outcomes for people with disabilities, climate action is necessary to ensure a livable future for all of us.
Environmental experts at the Sierra Club say that the process that was limited by this decision is “the most effective, efficient, and lowest-cost way of reducing climate pollution in the power sector.” While the EPA still has the general authority to place caps on greenhouse gas emissions, it will be more difficult, and experts worry that this ruling will embolden those who seek to further undermine efforts to curb climate change, at the very moment that swift and drastic action is required to keep the world from facing increasingly catastrophic impacts from climate change.
Miranda Rights: Vega v. Tekoh
The court ruled that when police fail to inform a person about their Miranda Rights, which include a right to silence and a right to be represented by a lawyer, the person does not have the right to sue the police officer for damages, even if the person is found not guilty. While the Miranda Rights are still in place, this means that the only recourse for a person who provides testimony without being aware of their rights is for that testimony to no longer be used in trial.
This is concerning for the disproportionately high numbers of people with disabilities who are arrested or incarcerated, especially people with disabilities who are Black, Indigenous, and/or People of Color. People with disabilities are 44% more likely to be arrested by age 28 than their nondisabled peers, and more than 55% more likely if they are both Black and disabled. Many of the behaviors that police interpret to be indicators of guilt or noncompliance are actions that may be disability related, including avoiding eye contact, not responding to an officer’s questions or orders, and being unable to communicate clearly. People with cognitive or intellectual disabilities are more likely to confess to crimes they did not commit, especially when facing pressure from police in an interrogation.
The Center for American Progress says, “A police officer’s failure to consider someone’s disability can lead to escalation or the use of excessive force, such as unnecessarily using pepper spray, tasing, or initiating an arrest. Depending on the type of disability a person has, officers can misread their ability or willingness to comply, which in many cases leads them to respond with inappropriate tactics.” Beyond inappropriate force and unwarranted arrests, many people are afraid that an encounter with a police officer will result in death – nearly 50% of all people who are killed by police are disabled. After an arrest, people with disabilities are very unlikely to receive the necessary accommodations that they are entitled to under the ADA, in court as well as in prisons and jails.
This sets the stakes very high for disabled people who encounter police, and makes it all the more important that they are informed of their rights. Experts are concerned that this Supreme Court decision erodes the Miranda Rights, and makes them harder to enforce. This will harm people with disabilities, only increasing the already horrifying disparities that they face within the legal system.
Native American Tribal Sovereignty: Oklahoma v. Castro-Huerta
In a decision upending over 200 years of legal precedent, the court ruled that states have the legal authority to prosecute crimes committed by non-Native people on tribal lands.
The National Congress of American Indians (NCAI) President Fawn Sharp stated, “The Supreme Court’s decision today is an attack on tribal sovereignty and the hard-fought progress of our ancestors to exercise our inherent sovereignty over our own territories.” Of the many promises that the United States has made and then disregarded, tribal sovereignty is one of the most foundational to maintaining tribal lands as separate and independent from the U.S. government. “Unauthorized and unconsented intrusions on tribal sovereignty are antithetical to tribal sovereignty and tribal treaty rights,” says John Echohawk, Executive Director of the Native American Rights Fund (NARF). In a piece for the Washington Post, Stanford Law School’s Gregory Ablavsky and Elizabeth Hidalgo Reese said, “Now, as in the 1830s, jurisdiction is about power. Then, states sought to control Indian country not to protect Native people but to erode tribal sovereignty. Perhaps today, states will choose not to use their newly conferred power to usurp tribal authority over their lands. But there is good reason to doubt this.”
“After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation….Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.”
With people with disabilities experiencing more than 2.5 times the rate of violent crime experienced by nondisabled people, and more than 80% of Native American people experiencing violence within their lifetimes, the likelihood of indigenous people with disabilities being victims of violence is disproportionately high. Allowing state governments to prosecute crimes that previously would have been prosecuted by tribal governments is concerning in that not only does it chip away at the remains of tribal rights to sovereignty, but it is not likely to benefit Native American victims of crime. Sarah Deer, a professor of women, gender and sexuality studies at the University of Kansas and a citizen of the Muscogee Nation says, “I think it’s going to create more confusion and chaos. And that always concerns me, because victims of crime are often left out of those challenging discussions and end up not understanding who has their case and who’s prosecuting it and who’s investigating it.”
The Supreme Court is scheduled to hear a case in October, Brackeen v. Haaland, which will reopen the constitutionality of the Indian Child Welfare Act (ICWA), a law passed in the 1970s to protect Indigenous children from forced separation from their families and cultures. Advocates are especially worried after the Oklahoma v. Castro-Huerta ruling, fearing that the ICWA will also be decimated. In the wake of the recent federal investigation by the Interior Department that discovered the bodies of more than 500 children on the grounds of residential schools in the U.S., where Indigenous children were taken from their families and violently forced to assimilate, a practice the U.S. government funded and supported for over 150 years, to remove this protection is cruel. If the ICWA is overturned, Indigenous children could be adopted by families outside of their cultures – which may once again, force children to lose access to their cultures, leaving the children and their families with even more trauma. Both the Oklahoma v. Castro-Huerta ruling and the upcoming ruling that will impact the ICWA are continuations of the violence of colonization, repeating the cycle of the U.S. making promises to Indigenous people that are then disregarded, with violent consequences.
The principles of Disability Justice include a commitment to cross-movement solidarity and intersectionality, and it is with those values that we express concern over the ramifications of this Supreme Court decision. We know that it will harm indigenous people in this country, and that means it will harm indigenous people with disabilities. We support the sovereignty of Native American people and tribes, and hope other disability-led organizations will join us in denouncing this Supreme Court decision.
Concealed Carry of Guns: New York State Rifle & Pistol Association v. Bruen
The Supreme Court ruled that New York State’s limitations on carrying concealed handguns in public are unconstitutional, violating the Second Amendment right to bear arms.
In the wake of this decision, lower courts are required to revisit previous rulings on gun restrictions, including a Maryland ban on assault weapons, which was created after the deadly mass shooting at Sandy Hook Elementary School in 2012.
While many Americans value the right to own and carry guns, people with disabilities are at higher risk of being harmed by gun violence, despite public misconceptions about mental health disabilities being the cause of gun violence. “Research shows that there is no direct link between gun violence (excluding suicide) and mental health. In fact, people with disabilities of all kinds are more likely to be the victims of gun violence. People with disabilities in general are 2.5 times more likely to be the victims of a violent crime,” says the Autistic Self Advocacy Network (ASAN).
Similarly to our concerns about the lack of disability inclusion in disaster planning, while many schools have plans for how teachers and children should respond to an active shooter, most of those plans fall short when it comes to protecting students with disabilities. The strategy recommended by the Department of Homeland Security instructs students to “run, hide, fight”, where the students should first try to run and escape, but if they are unable to do so, to hide from the shooter, and in worst-case scenarios, fight back.
However, many students with disabilities may not be able to run, hiding places big enough to accommodate wheelchairs or other equipment are likely to be scarce, or escape routes may not be accessible, and additional factors like alarms, gun shots, and complex verbal instructions may leave a disabled student even more overwhelmed and unable to act than their nondisabled peers. School districts across the country have been sued repeatedly over inadequate or absent evacuation procedures and drills that left disabled students behind, instructed to simply sit and wait for an adult to come and assist them. With rates of school shootings at their highest in the past 20 years, many students are far too likely to be harmed by gun violence, and relaxing gun restrictions only threatens to increase the risk.
Additionally, gun violence directly causes disabilities. A study published in 2020 found that “gun death statistics underestimate the extent of health losses from long-term disability, particularly for those with intentional injuries”. With over 67,000 gun-related injuries each year, many of which cause permanent disability, an erosion of the safety requirements in place can only lead to more instances of gun-related disabilities – and in a country that is unlikely to protect disabled people from further gun violence, this ruling is a significant cause for concern.
Prayer in Public Schools: Kennedy v. Bremerton School District
The court ruled that a high school football coach had the constitutional right to lead students in prayer during football games.
While many people with disabilities find religion and prayer to be helpful and positive aspects of their lives, the continued separation of church and state is vital to the safety and well-being of disabled people. Many of us have experienced ableism under the well-meaning umbrella of faith – from being harassed by strangers wanting to pray for disabilities to be “healed” to being told that disabilities are caused by a lack of faith, or are punishments for the sins of the disabled person or their ancestors, these prayers can be harmful. People with disabilities report feeling uncomfortable, ostracized, or that our bodies are inferior, in need of fixing. Similar to the medical model of disability, these beliefs place unfair blame on the disabled person. People with disabilities globally have written extensively about how religious bias has fueled ableist discrimination. For example, in Kenya, people with disabilities are protected by law under both the United Nation’s Convention on the Rights of Persons with Disabilities and Kenya’s Persons with Disabilities Act. However, discrimination persists – and researchers believe that one of the most impactful causes of the discrimination is religious beliefs around disability. This is common in many other countries, and happens in parts of the U.S. as well. Several of WID’s international fellows have remarked that one of the hardest parts of returning home after spending time at our office in Berkeley, California, is having to once again be routinely subjected to inappropriate religious comments about their disabilities. We are concerned that this Supreme Court decision opens the door to more of these non-consensual prayers and discrimination against disabled people in public settings, threatening the progress that we have made.
Additionally, the power dynamic between a teacher or school staff member and their students is such that students are unable to freely give consent to participate. As reported by The New York Times about student opinions on the case, student Cam from Connecticut says:
“Having an authority figure encouraging the people he mentors to do something like pray, ups the pressure to participate in an activity that is completely subjective to the person. Students who have no religious beliefs or practice a religion where prayer is regulated would most likely, in these circumstances, feel the need to go down to the 50-yard line with their coach just to stay in his good graces.
Asking a teacher not to pray somewhere that should be free of religion isn’t violating his rights as an American citizen when he has ample opportunity to pray alone, either on the field or off it. He wasn’t persecuted for being a religious man, he was just asked not to practice his beliefs with students, and that is perfectly acceptable in a school that should be safe for children of all religious beliefs and practices.”
Disabled students may feel especially pressured to participate in prayer with a teacher or school staff member. That pressure may stem from being singled out by the adult, with comments like those mentioned previously about praying for healing. However, it may also be rooted in fear that without participating in the prayer, the student with a disability may be denied support needed to reach their goals. Like other marginalized groups, students with disabilities report having to work harder than their peers, while receiving poor support. In discussing returning to campuses in November of 2021, college student Jessica Chaikof said, “I have to work 10 times harder than my classmates just to be able to succeed, and yet I’m not being supported.” A study surveying dozens of disabled students, parents, and disability experts and advocates across 34 states found that students with disabilities were fighting “low expectations and constant battles to make sure students get the support they need”. With these challenges to getting help from their school teachers and staff, a disabled student may feel uncomfortable refusing prayer, believing that they need to endure whatever it takes to keep an adult they rely on from revoking that support. To put students in this position is dangerous and unethical.
A Call for Something Better
The Constitution was the foundation that shaped the United States, but it is not an infallible document. It was created by a group of people who enslaved others, who did not see Black people, Indigenous people, disabled people, or women as humans deserving of rights and protections. Bodily autonomy was not protected because bodily autonomy for everyone would have been damaging to their financial and personal interests. Our current system privileges the interpretation of this document over the needs, autonomy and safety of those who are governed by it.
If hard-won rights can be decimated by an unelected, non-representative group of government officials, are they rights, or are they simply privileges? A disability justice approach reminds us that rights are often fallible, revocable, and are not enough to change a culture. As President Biden and Democratic party officials insist that voting and securing a Democratic majority in Congress is “the only way” to restore and protect abortion rights, voters are unimpressed, having heard the same refrain for decades, with little to show for it. A vote contains some power, but that power too is limited by the Supreme Court. In February’s Merrill v. Milligan, the Supreme Court “barred federal courts from requiring states to fix their newly adopted, but unlawful, congressional maps before the 2022 midterm congressional elections.” The maps were found by a lower court to violate the Voting Rights Act, and will result in Black and Democratic voters having less power in 2022 elections than they should, based on population. If the power of votes can be gerrymandered away, it is not an answer to this problem of power.
It may be tempting to say that if only we could replace the current Supreme Court Justices with multiply-marginalized people with disabilities, surely, we would be safer. However, no marginalized group is a monolith, and while leaders who have experienced the intense complexities of layered oppression are more likely to see the full scope of an issue, that does not preclude them from making choices that support their own opinions, biases, and desires. Representation does not change the fundamental issue: that anyone who has the level of power that the Supreme Court justices have can take away our rights.
While executive orders can help, they also represent an immense and dangerous power – the next president may choose to get rid of them, or issue new ones that cause more harm.
What will we do if the Supreme Court acts to reverse the Americans with Disabilities Act, the Olmstead decision, or Section 504 of the Rehabilitation Act? We know that would be catastrophic, leaving more than 61 million people without the rights that we need to survive and thrive as whole people, on our own terms.
Disability rights lawyers are hesitant to take on cases that they would normally pursue, because they are afraid that their case will be the one that this court uses to unravel the disability rights we fought so hard for. Matthew Cortland, disability rights lawyer and a senior resident fellow at Data for Progress said, “I think there’s a fairly widespread understanding among the disability rights bar that the majority of this illegitimate Supreme Court is fundamentally hostile to principles of inclusion, access, and bodily autonomy that animate federal disability civil rights law.”
The answer is also larger than simply creating a document that better represents our wishes and values, by making further amendments or even starting from scratch. The UN Convention on the Rights of Persons with Disabilities (CRPD) comes to mind – it is a beautifully written treaty, and asserts the kind of rights that many disabled people have been demanding for decades. But despite being ratified by 185 countries, inequitable conditions persist, discrimination persists, and many have come to criticize the agreement as unenforceable. When a country who has ratified breaches the rights of disabled people, individuals or groups can submit a complaint to the Committee on the Rights of Persons with Disabilities, who will then investigate, and may provide recommendations to the state, but there is no further consequence. Other nations, like the United States, have failed to ratify the CRPD, due to a majority of our Senate believing that our own Americans with Disabilities Act is stronger – despite the evidence that it is not. How do we make these kinds of promises actionable? Is there a way to make disability rights laws enforceable without relying on oppressive power dynamics? However we attempt to solve this, it will require a kind of accountability that is different from what we know now – we cannot punish our way to safety for disabled people, to the collective liberation we all need, but we cannot expect it to be given freely, either.
These Supreme Court rulings show us that in no uncertain terms, a systemic power grab is underway. People with disabilities know: this is a process that will not end with someone in power just deciding to grant us our rights out of the goodness of their heart. We have seen this before, on a national and global scale all the way down to our individual battles for the right to stay alive. We know that the answer is to build collective power, to build communities that spread power out equitably among the masses instead of handing it all to a small group of people, trusting them to not abuse it. We have to build systems that are accountable, with limited capacity to harm, creating among us power with each other, rather than continuing to rely solely on systems that require such power over others.
Building something better will be difficult, time-consuming, and requires us to be committed to a livable future, committed to hope, and committed to accountability in a time when the future feels more fraught than ever. To quote author Arundhati Roy, “Remember this: We be many and they be few. They need us more than we need them. Another world is not only possible, she is on her way. On a quiet day I can hear her breathing.”
Our system is not working in a way that equitably represents and serves us – and it’s time to work together to build something truly better, for people with disabilities and with people with disabilities, making a system that supports all of us.
Moya Shpuntoff is the Senior Marketing & Communications Specialist at WID.