September 18, 2020 Supreme Court Justice Ruth Bader Ginsburg passed from pancreatic cancer. Saturday, September 19, 2020, I opened my facebook feed, which is dominated by disability advocacy posts, as usual, which are typically inspiring or heartbreaking. Missing autistic, autistic that gets a job, autistic abused or restrained inappropriately leading to death. You know what I mean. On this day after RBG's death I'm subjected to some disturbing comments in those realms of facebook. "Yes! I will vote to replace her with someone who doesn't vote for the death of children after they're born" and "AMEN! I WILL REMEMBER HER WHEN I VOTE FOR PRESIDENT TRUMP!" and "GOOD RIDDENS! PRO LIFE!" Again, you get the picture. I also awoke to see Georgia SENATOR DOUG COLLINS, tweet, "RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws. With@realDonaldTrump nominating a replacement that values human life, generations of unborn children have a chance to live."
Too many to count. How, especially on these disability advocacy pages, are people so unfiltered and so incapable researching previous assumptions, about someone in such a prestigous position of the American Judiciary system. Does one of God's own children not deserve one ounce of solemn respect for her 87 years of LIFE lived on this planet? Does she not deserve respect and gratitude for protecting the rights of women (many of whom are disabled, raped and consequently pregnant) and the disabled? Has the election caused us to forget that the court evolves, interprets and reinterprets the Constitution and is not perpetually black and white? And that LIFE, liberty and the pursuit of happiness" has been upheld in many ways, even by RGB herself? Directly benefitting the disability community, giving them opportunities they wouldn't have otherwise.
Fueled by what politicians and pastors direct us to consume, people seem to let Roe v Wade overshadow ALL SCOTUS opinions that pertain to "life". Is that to be considered more important than other opinions penned by RBG and the Court? Do other families outside of Christian pews have the right to be thankful for some of the courts (RBG included) protections and advocacy rights being upheld, without being called "baby killers". Ignorant. Ridiculous. Self centered. Uneducated.
You should know, and feel free to sink into some reading material, RBG delivered the opinion in Olmstead v L.C. the case of two GEORGIA women with disabilities, deemed appropriate to integrate into the community, but remained unlawfully held in state custody. The opinion asserted,
"that unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act. The Court held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.
The Supreme Court explained that its holding "reflects two evident judgments." First, "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life." Second, "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." (https://www.ada.gov/olmstead/olmstead_about.htm)
(Full text of opinion at https://supreme.justia.com/cases/federal/us/527/581/ )
The opinion also maintained the protection and livelihood of those unable to benefit safely from community living.....
““We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 601-602.
RBG also wrote in another opinion which included “individuals with disabilities among people who count in composing ‘We the People.’"
Can I just get and actual, authentic "AMEN" for that one, at least?
RBG also wrote the 5 justice majority in the Bobby James Moore case, questioning the use of Texas' Briseno factors, a collection of lay stereotypes, adopted by the Texas Court of Criminal Appeals, to determine intellectual disability. (Moore was sentenced to death after killing a store clerk during a botched robbery. He had known disabilities since the age of at least 13).
"On June 6, 2016, the Supreme Court agreed to hear Bobby James Moore’s case. On March 28, 2017, it unanimously struck down Texas’s use of the Briseño factors, calling them an unscientific “invention” of the TCCA that was “untied to any acknowledged source” and that lacked support from “any authority, medical or judicial.” Justice Ruth Bader Ginsburg, writing for the five-justice majority (for other reasons, three justices dissented on granting Moore relief), reiterated, “States’ discretion … is not unfettered.” “[A] court’s intellectual disability determination,” she wrote must be “informed by the medical community’s diagnostic framework.” The TCCA refused to grant relief on remand, and the Supreme Court again reversed."
Previous to this, in 2014, Justice Roberts wrote for the majority in Hall v Florida "Intellectual disability is a condition, not a number." indicating that states must consider other factor in determining disability as an exemption from the death penalty, considering its use in such cases a "cruel and unusual punishment".
"However, Justice Kennedy and the concurring Justices went further in describing the importance of the Eighth Amendment, the risks of the death penalty, and our responsibility as a leader in the civilized world:
The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.
And later concluding:
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects."
These rulings have actually forced states to evolve and expand their programs in the support and safety of people with disabilities.
It should be pointed out, because Roe often overshadows any discussion, that RBG argued with the ACLU to protect the RIGHT of a female Air Force Captain, Susan Struck (serving during Vietnam) to GIVE BIRTH to her child, stating that it was in her Catholic belief, when the Air Force instructed her to abort or leave the service. This was actually previous to Roe. SCOTUS agreed to hear this case but the Air Force allowed Struck to remain in service. This could have reframed the entire narrative.
To the Senate Judiciary Committee, Ginsburg wrote:
"First, that the applicable Air Force regulations — if you are pregnant you are out unless you have an abortion — violated the equal protection principle, for no man was ordered out of service because he had been the partner in a conception, no man was ordered out of service because he was about to become a father.
Next, then we said that the Government is impeding, without cause, a woman’s choice whether to bear or not to bear a child. Birth was Captain Struck’s personal choice, and the interference with it was a violation of her liberty, her freedom to choose, guaranteed by the due process clause.
Finally, we said the Air Force was involved in an unnecessary interference with Captain Struck’s religious belief.
So all three strands were involved in Captain Struck’s case. The main emphasis was on her equality as a woman vis-à-vis a man who was equally responsible for the conception, and on her personal choice, which the Government said she could not have unless she gave up her career in the service.
In that case, all three strands were involved: her equality right, her right to decide for herself whether she was going to bear the child, and her religious belief. So it was never an either/or matter, one rather than the other. It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law…
The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices."
I unapologetically publish this. It should be recognized that we not throw the term "LIFE" around, as if it only pertains to some, for some. I know there's a lot here and that most people wont read the majority of it. But it has to be said, especially during these tumultuous times, we must EDUCATE ourselves. We cannot succumb to headlines and snippets of information.
Why is this so important to me? Well, you may think of Roe v Wade when you hear RBG mentioned. I think of her advocacy for the disabled community and how just a few short years ago, a local family, endured an autistic family member wrongfully jailed, when they trusted the state with his safety and well being. He was not looking at the death penalty, but we can NEVER assume any of us in the autistic community are beyond that reach. This young man was detained and only released after a protest was planned on District Attorney Grady's front steps (DA of Duchess County, NY). Miraculously, this young man was no longer a threat at the eleventh hour. How frightening.