Disability Law Commons^™

Social Determinants Of Health And Slippery Slopes In Assisted Dying Debates: Lessons From Canada, Jocelyn Downie, Udo Schuklenk

Articles, Book Chapters, & Popular Press

The question of whether problems with the social determinants of health that might impact decision-making justify denying eligibility for assisted dying has recently come to the fore in debates about the legalization of assisted dying. For example, it was central to critiques of the 2021 amendments made to Canada’s assisted dying law. The question of whether changes to a country’s assisted dying legislation lead to descents down slippery slopes has also come to the fore—as it does any time a jurisdiction changes its laws. We explore these two questions through the lens of Canada’s experience both to inform Canada’s ongoing …

The New Eugenics, Samuel R. Bagenstos

Articles

During the first third of the Twentieth Century, the eugenics movement played a powerful role in the politics, law, and culture of the United States. The fear of “the menace of the feebleminded,” the notion that those with supposedly poor genes “sap the strength of the State,” and other similar ideas drove the enthusiastic implementation of the practices of excluding disabled individuals from the country, incarcerating them in ostensibly beneficent institutions, and sterilizing them. By the 1930s, with the rise of Adolf Hitler in Germany, eugenic ideas had begun to be discredited in American public discourse. And after the Holocaust, …

Telehealth And Telework Accessibility In A Pandemic-Induced Virtual World, Blake Reid, Christian Vogler, Zainab Alkebsi

University of Colorado Law Review Forum

This short essay explores one dimension of disability law’s COVID-related “frailty”: how the pandemic has undermined equal access to employment and healthcare for Americans who are deaf or hard of hearing as healthcare and employment migrate toward telehealth and telework activities. This essay’s authors—a clinical law professor; a computer scientist whose research focuses on accessible technology; and a deaf policy attorney for the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States—have collaborated over the past months on detailed advocacy documents aimed at helping deaf and hard of hearing patients …

Reimagining Disability: The Screening Of Donor Gametes And Embryos In Ivf, Isabel Karpin, Roxanne Mykitiuk

Articles & Book Chapters

In this article,we examine how disability is figured in the imaginaries that are given shape by the reproductive projects and parental desires facilitated by the bio-medical techniques and practices of assisted reproductive technologies (ARTs) that involve selection and screening for disability. We investigate how some users of ARTs understand and deploy these imaginaries in ways that are both concordant with and resistant to the understanding of disability embedded within the broader sociotechnical and social imaginaries. It is through users’ deliberations, choices, responses, and expectations that we come to understand how these imaginaries are perpetuated and resisted, and how maintaining them …

Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application Of Liberal Consideration For Veterans With Post-Traumatic Stress Disorder, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

In recent years, the Department of Defense (DoD) has responded to the growing awareness of mental health issues for military servicemembers during and after service. This Article focuses on veterans who have already been discharged from service, and specifically those who have been discharged under other-than-honorable conditions for misconduct that is likely the result of a mental health condition, including post-traumatic stress disorder (PTSD), traumatic brain injury, sexual assault, or sexual harassment. Thousands of former servicemembers have been kicked out of the military for misconduct rather than treated for mental health conditions they experienced due to their military service. When …

(Not The) Same Old Story: Invisible Reasons For Rejecting Invisible Wounds, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

Thousands of former military servicemembers have been discharged with other-than-honorable discharges due to misconduct that can be traced to a mental health condition. These veterans may request a post-discharge change to their discharge characterization—known as a “discharge upgrade.” Discharge review boards consider discharge upgrade requests and typically (90-99% of the time) deny the requests. In the past few years, the Department of Defense has issued new policy guidance partly in response to the low grant rate and to specifically address the growing understanding of the relationship between misconduct and mental health conditions for military servicemembers. The policy guidance requires the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Protecting The Rights Of People With Disabilities, Elizabeth Pendo

Chapters in Books

One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of underserved racial and ethnic groups with disabilities experience greater disparities in health status and access …

Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra

All Faculty Scholarship

As states reopen, an increasing number of state and local officials are requiring people to wear face masks while out of the home. Grocery stores, retail outlets, restaurants and other businesses are also announcing their own mask policies, which may differ from public policies. Public health measures to stop the spread of the coronavirus such as wearing masks have the potential to greatly benefit millions of Americans with disabilities, who are particularly vulnerable to the impact of COVID-19. But certain disabilities may make it difficult or inadvisable to wear a mask.
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/="/">Mask-wearing has become a political flashpoint, putting …

The Neglect Of Persons With Severe Brain Injury To The United States: An International Human Rights Analysis, Tamar Ezer, Megan S. Wright, Joseph J. Wright

Articles

Brain injury contributes more to death and disability globally than any other traumatic incident. While the past decade has seen significant medical advances, laws and policies remain stumbling blocks to treatment and care. The quality of life of persons with severe brain injury often declines with unnecessary institutionalization and inadequate access to rehabilitation and assistive technologies. This raises a host of rights violations that are hidden, given that persons with severe brain injury are generally invisible and marginalized. This article highlights the current neglect and experiences of persons with severe brain injury in the United States, analyzing the rights to …

Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos

Articles

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the …

Student Note: Finding The Positive In A Positive Drug Test: How Narrowing The Definition Of An Individualized Pre-Employment Assessment Under The Ada Can Encourage Recovery From Opioid Dependence, Sarah Ferraro

Belmont Health Law Journal

This note will address the disparities in the way courts have analyzed the direct threat exception to ADA protection, and why a uniform application of the exception is crucial to both employers and those in recovery. Part I examines how opioids have devolved from an effective pain management tool to a national enemy. This section will answer common questions about why opioids are so addictive and why doctors prescribe them in the first place. It also addresses the scope of the ADA and the direct threat exception used to justify a decision not to hire a prescription drug user, as …

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

Recognizing The Need For Mental Health Reform In The Texas Department Of Criminal Justice, Kara Mchorse

St. Mary's Law Journal

The ways in which mental health care and the criminal justice system interact are in desperate need of reform in Texas. The rate of mental illness in Texas is higher than the current state of mental health care can provide for. While state hospitals were once the primary care facilities of those with mental illness, the Texas Department of Criminal Justice (TDCJ) has taken on that role in the last few decades; and when the criminal justice system becomes entangled with mental health care, it often leads to “unmitigated disaster.” If Texas continues to allow the TDCJ to act as …

The Baker Act: Time For Florida To Get Its Act Together, Alexander Lemieux

Child and Family Law Journal

No abstract provided.

May Hospitals Withhold Ventilators From Covid-19 Patients With Pre-Existing Disabilities? Notes On The Law And Ethics Of Disability-Based Medical Rationing, Samuel R. Bagenstos

Law & Economics Working Papers

Thanks to the coronavirus pandemic, the threat of medical rationing is now clear and present. Hospitals faced with a crush of patients must now seriously confront questions of how to allocate scarce resources—notably life-saving ventilators—at a time of severe shortage. In their protocols for addressing this situation, hospitals and state agencies often employ explicitly disability-based distinctions. For example, Alabama’s crisis standards of care provide that “people with severe or profound intellectual disability ‘are unlikely candidates for ventilator support.’” This essay, written as this crisis unfolds, argues that disability-based distinctions like these violate the law. The Americans with Disabilities Act, the …

The Hidden Disability Consensus In The 2020 Campaign, Harold A. Pollack, Samuel R. Bagenstos

Articles

At this writing, the final results of the Iowa caucuses remain unreported. No one yet knows which candidates did well and which did poorly. We do know that health policy is a defining cleavage between left and liberal Democrats this primary season. Much of the press coverage will naturally focus on the implications of this vote for Democrats’ commitment to an incremental public option or a full-throated single-payer plan.

Olmstead V. L.C.: The Supreme Court Case, Samuel R. Bagenstos, Irv Gornstein, Michael Gottesman, Jennifer Mathis

Articles

You have an incredible luxury here at Georgetown Law. You have faculty who are engaged in the world like two of my colleagues on this panel. To my immediate left is Professor Michael Gottesman (Georgetown University Law Center) who argued the case on behalf of Lois and Elaine, and to my next far left, Professor Irv Gornstein (Georgetown University Law Center) who argued the case on behalf of the United States. Between them is Jennifer Mathis (The Bazelon Center for Mental Health Law) who has spent, I think, most of her career at the Bazelon Center litigating, and organizing, and …

Curb Ramps And The Americans With Disabilities Act: When Local Government Is Liable, April Gore

Online Blog

No abstract provided.

Disability Law And The Case For Evidence-Based Triage In A Pandemic, Govind Persad

Sturm College of Law: Faculty Scholarship

This Essay explains why model policies proposed or adopted in response to the COVID-19 pandemic that allocate scarce medical resources by using medical evidence to pursue two core goals—saving more lives and saving more years of life—are compatible and consonant with disability law. Disability law, properly understood, permits considering medical evidence about patients’ probability of surviving treatment and the quantity of scarce treatments they will likely use. It also permits prioritizing health workers, and considering patients’ post-treatment life expectancy. These factors, when based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Covid-19 And Public Accommodations Under The Americans With Disabilities Act: Getting Americans Safely Back To Restaurants, Theaters, Gyms, And “Normal”, Frank Griffin M.D., J.D.

SLU Law Journal Online

THIS IS A PRELIMINARY EXPEDITED VERSION OF THE OFFICIAL ARTICLE TO BE ORIGINALLY PUBLISHED IN SAINT LOUIS UNIVERSITY LAW JOURNAL VOLUME 65 NUMBER 2

COVID-19 permanently changed the way places of public accommodation like restaurants, theaters, medical facilities, arenas, gyms, and many other proprietors of mainstream American activities must operate in order to accommodate people with newly-defined, COVID-19-related disabilities under Title III of the Americans with Disabilities Act (ADA). The required modifications will affect all patrons and employees of these establishments. Under the ADA, places of public accommodation are barred from discriminating against people with disabilities in the full and …

Covid-19 And Individuals With Developmental Disabilities: Tragic Realities And Cautious Hope, Samuel J. Levine

Scholarly Works

The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal or …

Cruzan And The Other Evidentiary Standard: A Reconsideration Of A Landmark Case Given Advances In The Classification Of Disorders Of Consciousness And The Evolution Of Disability Law, Joseph J. Fins

SMU Law Review

No abstract provided.

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

All Faculty Scholarship

As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications …

Medicalization And The New Civil Rights, Craig Konnoth

Publications

In the last several decades, individuals have advanced civil rights claims that rely on the language of medicine. This Article is the first to define and defend these “medical civil rights” as a unified phenomenon.

Individuals have increasingly used the language of medicine to seek rights and benefits, often for conditions that would not have been cognizable even a few years ago. For example, litigants have claimed that discrimination against transgender individuals constitutes illegal disability discrimination. Others have argued that their fatigue constitutes chronic fatigue syndrome (which was, until recently, a novel and contested diagnosis) to obtain Social Security disability …

The Role Of Law And Policy In Achieving Healthy People’S Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa I. Iezzoni

Articles

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss

All Faculty Scholarship

Battles around workplace vaccination policies often focus on the annual influenza vaccine, but many healthcare employers impose requirements for additional vaccines because of the increased likelihood that employees in this sector will interact with populations at increased risk of acquiring or experiencing harmful sequelae of vaccine-preventable diseases. The federal Centers for Disease Control and Prevention and many states recommend healthcare employees receive numerous vaccines, including measles, mumps, and rubella (“MMR”); tetanus, diphtheria, and pertussis (“Tdap”). However, recent outbreaks of once-eliminated diseases that are now resurgent and the rising antivaccination movement raise questions about how far employers can go to mandate …

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

All Faculty Scholarship

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

Ensuring The Reproductive Rights Of Women With Intellectual Disability, Nicole Agaronnik, Elizabeth Pendo, Tara Lagu, Christene Dejong, Aixa Perez-Caraballo, Lisa Iezzoni

All Faculty Scholarship

Background: Women with intellectual disability experience disparities in sexual and reproductive health care services.

Methods: To explore perceptions of caring for persons with disability, including individuals with intellectual disability, we conducted open-ended individual interviews with 20 practising physicians and three video-based focus group interviews with an additional 22 practising physicians, which reached data saturation. Interviews were transcribed verbatim. We used conventional content analysis methods to analyse transcripts.

Result: Physicians indicated that intellectual disability can pose challenges to providing sexual and reproductive health care. Observations coalesced around four themes: (1) communication; (2) routine preventive care; (3) contraception and sterilisation; and (4) …