Judge Kavanaugh: Wrong on the Facts, Wrong on the Law, Wrong for People with Disabilities

September 19, 2018

Wrong on the Facts: In his Doe v. D.C. ruling, Judge Kavanaugh repeatedly misrepresented the plaintiffs' position and the lower court's ruling. He claimed that the lower court had ordered that the District government use the "known wishes" standard, which would allow any intellectually disabled person's wishes, regardless of the level of understanding they might have, to reject medical care, even in life-threatening situations. He also claimed that the plaintiffs in Doe were seeking this power.

Truth: The women in Doe wanted the right to be informed, asked what they wanted, and have their preferences considered. Nothing more, nothing less. Nothing about us, without us.

The lower court granted them that right, requiring the government to use the "substituted judgement" standard-not the "known wishes" standard that Kavanaugh claimed-which meant trying to find out what the person would have chosen if he or she had legal capacity. If that could not be determined, then a good faith determination of what was in the person's best interests would have to be made. That is the right the lower court granted under D.C. law and the U.S. Constitution. Of course, any legitimate determination of a person's best interests would have to include consideration of their expressed preferences.
The case was about non-emergency surgeries-two were abortions, one an eye surgery-and had nothing to do with emergency care or life-threatening illnesses.

Wrong on the Law: In the Doe v. D.C. case and in his written responses to the Senate Judiciary Committee, Judge Kavanaugh wrote that no state uses the standards that the women in the Doe case wanted - that District government be required to inform them, try to understand their preferences, and consider their wishes when making medical decisions.

Truth: At least 20 other states have guardianship laws with requirements similar to what the women in Doe wanted-simply that they be informed and their preferences be considered.[1]

In fact, the District of Columbia itself has a law granting this right and Judge Kavanaugh took that right away from the three women in Doe and from any other people with intellectual disabilities who might be in their position in the future.
The National Guardianship Association's Standards of Practice also call for guardians to maximize the participation and consider the preferences of the person in healthcare decision making.

Wrong for People with Disabilities: Judge Kavanaugh made his views about people with intellectual disabilities clear:

He doesn't see people with intellectual disabilities as individuals who may have abilities to understand or express themselves, and preferences or desires.
He completely dismissed the possibility that any of the women-or anyone in the class of people under state guardianship because they had intellectual disabilities-could understand or had any right to know about medical decisions, including being subjected to surgeries.
He took away their civil and human rights to know and have a say in what happens to their bodies.

[1] Arizona, California, Colorado, Connecticut, Florida, Georgia, Kansas, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Vermont, and Virginia.