In Alabama, a young woman walks into the ER with severe COVID-19 symptoms. Doctors determine she needs to be placed on a ventilator. But, she eventually is not placed on a ventilator. The protocol used to arrive at this decision lists several health conditions such as heart disease, previous lung issues for which providers should “not offer mechanical ventilator support.” Except before COVID-19, this woman was healthy. But not for Alabama’s hospital protocols, for them, the fact that she has down syndrome, makes her life worth less than yours.
This wasn’t a unique situation. In fact, according to the Center for American Progress, during the pandemic it was legal to deny disabled people ventilators in 25 states because of our supposed “low quality of life.” If there is one thing that the pandemic has highlighted, it is the reality of discrimination and systemic inequities that lie for disabled people. When others can determine the value of life based on a disability, the basic rights of disabled people are denied and obliterated, and therefore need to be explicitly included as civil rights in our constitution. A constitutional amendment, which would be a supreme law enacted throughout our nation that cannot be revoked, can sound extreme but any person can become disabled.
What you may not know, is that 26 percent of Americans currently live with a disability according to the CDC, making disabled people the largest minority group in our nation. While some disabilities may disproportionately impact certain racial or ethnic minority groups, disability itself is an equal opportunity offender that does not discriminate based on gender, socioeconomic condition or age. Anyone can become disabled at any time, and people with disabilities are denied what we should all consider basic constitutional protections.
We see this everywhere; it is legal to pay someone who is disabled less than minimum wage and disabled people can be legally denied a job they are qualified to perform if the accommodations they need to do so are deemed “unreasonable” according to the Fair Labor Standards Act. As a result, disabled people are more than twice as likely to live in poverty, and even more likely to be unemployed according to disability statistics. A constitutional amendment addressing disabled persons would have the broadest reach and positive impact to change life in American society.
So why should this issue be addressed by a constitutional amendment rather than through legislation? To their credit, Congress has passed several laws that have protected the rights of those with disabilities. These began with the Architectural Barriers Act in 1968, to the most comprehensive legislative achievement in 1990 – the Americans with Disabilities Act, or “ADA”, which prohibits discrimination in employment, public services, public housing and telecommunications. With this legislation it may seem like disabled folk are properly protected, and therefore we don’t need a constitutional amendment, but at the end of the day: laws can be challenged and changed. They are often at the discretion of states, and their subjectivity is filled with bias. Unfortunately, current constitutional protections for disabled people are sorely inadequate. Rights for disabled persons are civil rights, basic human rights, that deserve to be protected.
The key constitutional amendment protecting our civil rights is the 14th Amendment, ratified by the states in 1868. This amendment contained the first equality guarantee in the history of the Constitution, requiring the states to afford a person the “equal protection of the law.” While the 14th Amendment to the Constitution has been used effectively to protect the civil rights of minorities, such as in the landmark 1954 Brown v. Board of Education case, in which the Supreme Court held that segregation in schools determined by race is unconstitutional, its record as applied to protect the rights of disabled people has been nothing short of abysmal.
In the 1927 case of Buck v. Bell, the Court ruled that the Fourteenth Amendment permitted the sterilization of a woman who, like her mother and daughter, was believed to be intellectually disabled.
Justice Oliver Wendel Holmes, wrote in his majority decision, “in order to prevent our being swamped with incompetence, it is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. Three generations of imbeciles are enough.’”
The Buck v. Bell decision has never been overturned. In fact, while the Supreme Court has ruled to uphold statutes that protect disabled people, not once have these ruling invoked the constitution and not once has the court said the constitution protects disabled people.
In 1985, the Court ruled in City of Cleburne v. Cleburne Living Center, Inc. that a permit for group home for developmentally disabled people should be granted. In their ruling, the court specifically did not find that intellectually disabled people were in a class that, like racial minorities, were “historically subjected to discrimination.” This meant that a higher level of scrutiny under the 14th Amendment was not required. This decision opened the floodgates, making it much easier for states to pass laws that discriminate against people with disabilities. A “reasonable and rational” excuse for not making accommodations for people with disabilities has never been held as unconstitutional, even in cases ruling on behalf of disabled people, all of which have had to rely on local statutes.
The Cleyburne decision rendered the 14th Amendment a dead letter with respect to protecting people living with disabilities. The risk of leaving the rights of the disabled at the whim of legislation is highlighted by the challenges surrounding the upcoming California v. Texas case, which could result in the repeal of the Affordable Care Act and leave millions of people living with preexisting conditions including disabilities without any healthcare coverage. The bottom line is that; until we have a constitutional amendment directly addressing and protecting disabled people, the largest minority group in the United States, we will continue to be at the mercy of inconsistent state legislation.
This is completely unacceptable. It is unacceptable for disabled people like me. My life has its challenges but I know that it has great value, my rights need to be protected and collectively we need to advocate for these protections. There has never been a better time to bring an Equal Protection for Disabled Persons amendment to the U.S. Congress. We are living in a battle against a Global Pandemic that, in addition to killing nearly half a million Americans, will leave millions of ‘long haulers’ of all ages potentially living with permanent disability, like me. This will almost certainly greatly increase the 26% of Americans currently living with a disability in our current generation by multiples. The time to explicitly protect the rights of disabled persons through a constitutional amendment is now.
