Kavanaugh Thinks It's Okay to Perform Elective Surgery on People Without Their Consent

Right now, Congress is in a deadlock over Brett Kavanaugh, Trump’s nominee to the Supreme Court. Senators are reviewing more than 1 million pages of his legal writing—which have laid out his stance on women’s reproductive rights (opposed), the Consumer Financial Protection Bureau (opposed), and the Affordable Care Act (opposed)—and members are battling over access to additional documentation that could reveal past experience with torture and wiretapping. While many of Kavanaugh’s opinions have been controversial—in particular his dissent from a decision that allowed an immigrant woman to have an abortion—one of his most problematic rulings has gone unreported. As a Judge in D.C. Circuit Court, Kavanaugh argued that people with disabilities could be forced to undergo elective surgeries, including abortion, without their consent.

In 2001, three intellectually disabled D.C. residents brought suit against the city in Doe ex rel. Tarlow v. D.C, after they were subjected to at least three involuntary procedures: two abortions and one elective eye surgery. Ultimately, the district court agreed that these women’s due process rights had been violated and that “constitutionally adequate procedures” had not been followed. The District Court ruled for the plaintiffs and held that D.C. must make “documented reasonable efforts to communicate” with patients and if unsuccessful, the government had to take into account the “totality of circumstances” before proceeding to ensure any decision is in the best interest of the patient. This decision codified patients’ right to self-determination, and struck down the practice of elective surgeries without consent from the patients at stake.

The lifetime pass Kavanaugh seems to be arguing for does not exist.

On appeal, Judge Kavanaugh vacated the District Court’s injunction, arguing that “accepting the wishes of patients who lack, and have always lacked the mental capacity to make medical decisions does not make logical sense.” That stands in contrast to even the most conservative interpretations of the laws that existed at the time, which required two separate health professionals to determine whether a patient had the capacity to make medical decisions before every procedure. The lifetime pass Kavanaugh seems to be arguing for, which would allow doctors to perform any procedures they wanted on a person who was once ruled unfit, does not exist.

One hundred years ago, Kavanaugh’s ruling would have been at home on the Supreme Court. In the 1920’s, in the famous 8-1 ruling of Buck v. Bell, the Supreme Court found a Virginia statute that allowed for the sexual sterilization of a third generation, “feebleminded” women was constitutional because “three generations of imbeciles are enough.”

For context, when the Supreme Court made that ruling, John Scopes had recently been put on trial for teaching evolution in public schools. Penicillin hadn’t been invented. It was still illegal in most states to marry someone of a different race. There was no such thing as a chocolate chip cookie, Scotch tape, or the Golden Gate Bridge. We didn’t know Pluto existed.

The 57 million Americans with disabilities are bracing themselves

We’ve made progress since then. Twenty-eight years ago, the Americans with Disabilities Act granted people with disabilities access to society. The Individuals with Disabilities Education Act expanded the right to an education 43 years ago, and the Olmstead v. L.C. decision gave disabled people the right to live in their communities 19 years ago. All that will be meaningless the moment Kavanaugh is given a seat on the Supreme Court that allows him to rule that disabled Americans are not capable of deciding what’s best for them. It’s not hard to imagine that happening. He could rule that it’s okay for teachers to use seclusion and restraint because they know what’s best for the treatment of disabled children in school. He could say that community living isn’t the best option for someone successfully living in a home of their own because that’s what the nursing home lobby says.

As both Democrats and Republicans in the Senate gear up for what is likely to be a long hearing process, the 57 million Americans with disabilities are bracing themselves for the negative consequences of Judge Kavanaugh’s appointment. If that happens, the disability community’s history of activism in all forms—from their work to preserve the ACA, to fighting to end the use of electric shock therapy on children, to pushing for a fair day’s pay for a fair day’s work—shows that when it’s most needed, the moral arc of the universe can be bent into a ramp to achieve justice.

I watch Tucker Carlson’s show every night. I actually watch at least three hours of Fox News programming each evening, but Tucker Carlson Tonight is the network’s primetime anchor: He’s on five days per week, at 8 p.m.—the slot Bill O’Reilly held until the news of his sexual harassment settlements forced him out. I’ve been doing this every night for more than a year, but I still find Carlson’s opening jarring: As soon as I hear it, my shoulders tense, I roll my eyes, and sigh. Sometimes during commercial breaks, I lie on the floor.

Unlike the 2.9 million people who choose to watch Fox News prime time, I do this as part of my job. When friends and family ask me about it, I usually just say, “I work in media” and hope that’s a satisfactory answer. What I actually do is track right-wing media and fringe outlets to hold bad actors accountable for their actions, whether it’s Sean Hannity’s conspiracy theories, Lou Dobbs’ insistence that Trump’s critics should be jailed, or Laura Ingraham’s campaign against immigrant children.

For a country that still relies on television for its news, this has always been important work. But it’s gotten more important now, since the president is Fox News’ most important and vocal fan. Trump reportedly forgoes daily intelligence briefings in favor of watching Fox and frequently tweets quotes from guests and hosts on the network. My colleague Matt Gertz has documented how the information feedback loop between Trump and Fox News has influenced immigration policy, generated presidential pardons, and launched daily attacks aimed at discrediting Robert Mueller’s probe into connections between the Trump campaign and Russian propaganda.

That would be terrifying enough if Trump was the only one watching, but he’s definitely not alone. Fox News is still the highest-viewed news network in the country, which means the stories it focuses on and the language it uses to report them holds a tremendous amount of sway. And more often than not, that sway is used to shame the poor and scapegoat immigrants.

This is where Tucker Carlson really shines. His bread and butter is pitting white working-class folks against immigrants (or, more accurately, his idea of white working class folks against his idea of immigrants). On the evening of Trump’s first State of the Union, he attacked Ohio Congressman Tim Ryan’s choice to host an empty chair as his guest to represent a Youngstown businessman who had been deported after 39 years in the U.S. In an interview with Ryan, Carlson dismissed concerns about deportations and suggested that Ryan’s concern for immigrants is at odds with addressing issues facing rural white communities. In another incident, he blamed immigrants for lowering the U.S. birth rate (to support this, Carlson incorrectly claimed that immigration is depressing wages among men, therefore decreasing “the attractiveness of men as potential spouses thus reducing fertility”). He’s also made the argument that DACA distracted congress from addressing unemployment and opioid overdoses, and claimed that Mexico in its entirety is a “dangerous country filled with violent people.”

This is how Trump garners support for dangerous policies

This fits into Carlson’s larger pattern that portrays white men as more deserving of aid than women, immigrants, and people of color. During Women’s History Month in March, Carlson ran a weekly series on “Men in America.” In the series’ first installment, he claimed the “so-called wage gap” not only doesn’t exist, but in many cases “may invert.” When HBO’s Insecure creator Issa Rae said she was “rooting for everybody black” at the 2017 Emmy awards, Carlson said her comments amounted to “race hostility” and “political indoctrination.” He repeats seemingly every night that diversity is an attack on white Americans and an attempt to “radically and permanently” change America.

This rhetoric is not a huge leap from a mob of white men chanting “you will not replace us” in Charlottesville last summer. In fact, white nationalists are big fans of Tucker Carlson. Richard Spencer described him as a “much better figure” than Bill O’Reilly because Carlson possesses “open-mindedness” towards white supremacist causes. Former grand wizard of the KKK David Duke has called Carlson a “hero” and “an influential voice,” and Carlson and his guests have repeatedly defended and promoted white nationalists on the show.

Honestly, watching this vitriol every day is exhausting. I deliberately unplug when I can, to clear out all of the racist hate that comes out of the television every night at work. It builds up in my brain, and unless I take care to let it go and not take it too personally, I drift towards hopelessness. But as tempting as it is to shut it out entirely, I still think it’s important to see it. Fox News reaches a tremendous audience—Tucker Carlson came in 3^rd in cable news ratings in the second quarter of 2018, and Sean Hannity came in first. (Rachel Maddow finished second). The millions of people who tune into Fox News primetime are exposed to a divide and conquer narrative that capitalizes on stereotypes, spins every negative story about Trump, and often fails to even mention the news of the day that the rest of the media is covering.

To be completely clear, this is how Trump garners support for dangerous policies that he wouldn’t be able to pass otherwise. Polling shows 75 percent of Americans say immigration is good for the country, but when family separation started Tucker Carlson fearmongered about “demographic replacement” to stoke racial animus, and then Laura Ingraham downplays horrific policies by describing child detention centers as “essentially summer camps.” And despite the fact that 7 in 10 Americans support Roe v. Wade, Fox News (and Carlson in particular) focus their coverage of reproductive health care on campaigns against it. That level of coordinated cruelty from public figures makes it possible for Americans to set their own beliefs aside. Unless progressives are familiar with the ways the right-wing media machine pushes misinformation and racism, we won’t actually be able to fight back.

This morning, the Trump administration proposed rolling back the clean car standards, Obama-era regulations that require new cars for model years 2017-2025 to average more than 50 miles per gallon by 2025. In addition to the environmental impact that has already been reported by the New York Times and the Washington Post—which could be massive, since cars and trucks account for 45 percent of U.S. oil consumption and 20 percent of U.S. greenhouse gas emissions—this rollback will be expensive for the American public.

Today’s announcement, published in the Wall Street Journal by Transportation Secretary Elaine Chao and Acting Administrator of the E.P.A. Andrew Wheeler, is part of a plan that was set in motion by Wheeler’s predecessor, Scott Pruitt. In just over a year as head of the E.P.A., Pruitt managed to roll back, reconsider, delay, or otherwise tinker with more than 14 safeguards that protect everything from the air we breathe to the water we drink. In total, taking away all of these protections will cost Americans upwards of $260 billion annually in climate, health, and fuel impacts—that’s $2,000 in costs annually for every American household.

Here’s how the cost breaks down specifically for today’s clean cars rollback announcement:

The average American family will pay an additional $500 per year in fuel costs.

The current rules require automakers to nearly double the fuel economy of passenger vehicles by 2025. But with today’s announcement, the standards will be frozen at 2020 levels—meaning that fuel economy for new cars will stay lower, and Americans will be stuck with cars that consume more gasoline.

That increased cost to individuals will in turn cost the U.S. economy more than $450 billion over the next thirty years. Each family’s increased fuel expenses are ultimately withheld from the economy, and will grow with each year the standards are not in place and fuel savings are relinquished.

If the existing standards were left in place, Americans would have saved $1.7 trillion on fuel. Owners of model year 2025 cars were likely to see a personal savings of $2,800 over the lifetime of their vehicles compared to 2020 vehicles. For light trucks, owners would save $4,500.

The country will take on another $5.5-$7.9 billion in additional costs from worsening air pollution.

Already, 25 million Americans, including 6 million children, suffer from asthma; that’s around $81 billion annually in medical costs and lost work and school days nationwide. With a rollback of these standards, Americans would be stuck with the bill for an additional $5.5-7.9 billion each year in health and climate impacts. Those impacts can be anything from additional medical costs associated with bad air quality (treating asthma and purchasing inhalers), to costs associated with climate change (such as damage from extreme weather).

The country will also lose about 60,000 jobs.

According to an analysis by the Union of Concerned Scientists, the United States could lose 60,000 jobs in 2025 as we turn over leadership on efficiency technology to other countries like China. With the clean car standards in place, the economy was projected to add nearly 100,000 jobs by 2025.

The great irony here is that the administration claims that the regulation would “impose significant costs on American consumers and eliminate jobs.” But basic math says the plan to roll it back will hurt a whole lot more.

By July, farmers’ markets across the country are in full swing. But for many farmers’ market managers, the mid-season momentum turned to confusion and scramble on July 9, after The Washington Post reported that a change in government contracts could leave 1,700 farmers’ markets without the ability to accept SNAP dollars from low-income customers.

Nova Dia Group, an Austin-based tech provider, processes up to 40 percent of all farmers’ market SNAP transactions nationwide. But two weeks ago, they announced they would discontinue the service on July 31 (this deadline has since been extended by another month). While Novo Dia has largely received the brunt of everyone’s frustrations these last two weeks, it hardly seems their fault. Instead, the debacle exposes a tangle of federal, state, and private entities and a failure to coordinate government technology in a rapidly evolving landscape.

SNAP customers use Electronic Benefits Transfer (EBT) cards just like a credit card. When a customer pays for groceries with an EBT card, the transaction information is sent from the grocery store to the state processing agency, and funds are deducted from the SNAP customer’s account. With the emergence of programs aimed at encouraging SNAP customers to spend their benefits at farmers’ markets, a mobile solution for card processing had to be created. That’s where Nova Dia’s MobileMarket Plus app comes in—it’s currently the only app that works on Apple systems.

Because mobile devices were often too expensive for markets to afford, the USDA began a program in 2012 to provide free devices, including tablets and card readers, to farmers’ markets. The agency outsources the management of that program through a bidding process. Until last November, that contract was awarded to the Farmers Market Coalition, which hired tech companies, including Novo Dia, to develop the necessary software and equipment. But in March, a new $1.3 million management contract was awarded to a Virginia-based tech company Financial Transaction Management (FTM). FTM had been formed just two months previously and reports only one employee. While Novo Dia stated that they had hoped to continue as a service provider under the new management, it seems that FTM either chose not to work with Novo Dia, or was unresponsive to Novo Dia’s request to bid. Without the government contract to sustain it, Novo Dia President Josh Wiles announced they would be shutting down their SNAP processing system.

1,700 farmers’ markets outfitted specifically for Novo Dia’s system will be unable to take EBT cards

Once Novo Dia closes up shop, the 1,700 farmers’ markets outfitted specifically for Novo Dia’s system will be unable to take EBT cards, a problem that could leave thousands of farmers and hundreds of thousands of low-income customers in a lurch. Markets must now wait for FTM to roll out its new devices and software, a process rumored to take up to six months.

In the wake of the shakeup, a loud outcry from farmers’ market managers, advocates, customers, and farmers has caught the attention of officials. A statement by USDA Food and Nutrition Service Administrator Brandon Lipps on July 14 promised to “[explore] all available options in an attempt to avoid a service disruption.” Two days later, fourteen Democratic senators sent a letter to Lipps expressing concerns. “Any disruption in EBT service at these markets would have devastating impacts on SNAP families as well as farmers who sell their products to these local families,” they wrote. “We ask that the Food and Nutrition Service explore every possible option to ensure there is no disruption in EBT service at farmers markets during this critical market time.”

By July 19, a temporary solution was reached when the National Association of Farmers Market Nutrition Programs (NAFMNP) stepped in to provide Novo Dia with operational funding for an additional 30 days. A well-known nonprofit that advocates for farmers’ markets, NAFMNP says it’s committed to working with the USDA to find a permanent solution to the problem, but for now, affected markets have at least been bought another month.

* * *

In March, I wrote about how DoubleUp SNAP programs at farmers’ markets were providing much-needed economic support for small-scale growers. If a service lapse were to occur, not only would countless numbers of low-income customers lose access to food, but farmers would lose critical dollars in SNAP sales at farmers’ markets that they’ve come to count on. Adrienne Udarbe of Pinnacle Prevention, the group that manages Arizona’s statewide DoubleUp program, says that while Arizona is less impacted by Novo Dia’s departure than some other states, “even having just one market impacted is not okay.”

The lowest-income farmers’ markets are more likely to face disruptions

When Udarbe heard the news, she immediately reached out to several farmers markets in Arizona contracted with Novo Dia to offer support. She says the markets were left with two choices: Wait for the free equipment to be distributed by FTM, basically ensuring a disruption in services, or find a way to purchase new equipment on their own, to the tune of approximately $1,000 per market. The latter option means forgoing the USDA free equipment program and contracting with one of the more than 30 other companies that process EBT cards.

Through Pinnacle Prevention, Udarbe launched an emergency crowdfunding campaign to help the markets purchase new technology. The fundraiser generated private donations and caught the attention of two organizations, the Valley of the Sun United Way and Vitalyst Health Foundation, that covered the remainder of the costs. Udarbe says the Arizona markets hope to have funds in place, equipment ordered, and contracts with new companies finalized by this week.

While the Arizona markets were able to fundraise to avoid waiting for the free equipment program, other farmers’ markets may not have that option—the irony being that the lowest-income farmers’ markets are more likely to face disruptions in serving their low-income customers, because there are fewer community members with extra money to donate to the cause.

Udarbe says that any disruption in services for SNAP customers has the potential to erode a foundational element of these programs—trust. “Building trust with both farmers and families has been years in the making,” she says. “Farmers now trust that SNAP is an income source they can rely on to feed their families, and SNAP customers now put their trust in us and in the market to provide them food. When you break that trust, it does a lot of damage and there’s a lot of repair that has to happen.” Udarbe also notes the “trickle effect” a disruption could have on other incentive programs, such as DoubleUp Food Bucks, which allows customers to swipe their EBT card for $20 and receive an additional $20 from the market to purchase locally grown fruits and vegetables.

At last week’s market in Payson, the market’s co-founder Lorian Roethlein says a single mother came up to the information booth, having been sent by the Arizona Department of Economic Security (DES). After Roethlein explained how the Double Up program worked, the woman began to cry. “She said, ‘Would it be okay if I hugged you?’” says Roethlein. “People who need this program just so desperately need it.”

Last Friday night I had the fortune of attending Janelle Monae’s concert. I’d been looking forward to it for weeks. I’m a huge Prince fan, and Prince and Monae’s working relationship, the value both place on instrumentation, and Monae’s musical range of influences are all impressive to me. Her showmanship is legendary, and it has a crisp professionalism to it that’s hard not to identify with in a city like D.C.

My husband and I sat in the ADA section towards the back of the main floor—I’m a little person, so the only thing I can see in general seating is other concert-goers butts. The show was extraordinary—it was visually stunning, and emotionally empowering. Towards the end of her set, The Electric Lady took a moment to talk about the dark times we are in and the interdependence of social justice movements. As she rattled them off—telling her fans that we “need to fight for black and brown communities, immigrants, the disability community…” —my jaw fell open. Never, in my (almost) 40 years on this planet, have I heard an artist specifically call out my community, let alone use our preferred language (too often we are called “special needs,” “differently abled,” or “handicapable”). There was a flurry of activity as everyone I was sitting with checked with their seatmate to make sure it had actually happened: That a mainstream artist, at a public event, had just included us in their activism.

Monae was leaning into a shift that we’ve seen take place over the past year. Last month, Ava DuVernay pushed back when fans of Queen Sugar asked her to reverse a character’s Lupus. Many folks felt like having a disability made the character weak. But instead of caving to pressure and “healing” the character, DuVernay focused on how disability adds important complexities. She replied, “[r]espectfully, we can have physical illness and still be whole. That’s what this storyline explores among other things. Many of us live with chronic illness and still we thrive and live and love wholeheartedly.”

I want to be specific about the role black women are playing here. When a community member thanked Brittany Packnett, from Operation Zero and Teach for America, for highlighting the perspectives of the disability community in response to the straw ban and other acts of ableism, Packnett said that it’s “because we’re used to not being listened to.” That open acknowledgement of interdependence makes this feel like it’s part of a bigger movement—the intersectional kind that Monae called for.

We can have illness and still be whole

Most years, this last week in July is the only time that the media turns its attention to people with disabilities. It’s the anniversary of the Americans with Disabilities Act (ADA), so there are usually a smattering of stories about the importance of including people with disabilities in American society. But this year has been different. The ongoing assault on health care has forced the media to grapple with its tendency to cast disabled people as either vulnerable victims or powerful protestors. We’ve seen a phenomenal series of stories by Joe Shapiro talking about sexual assault of people with intellectual and developmental disabilities. We’re seeing on-going discussion of the trauma being experienced by the children at the border, which will follow them for a lifetime. We saw open discussions of mental health rise when Anthony Bourdain and Kate Spade died. We got to watch W. Kamau Bell do a #UnitedShades segment with powerhouse Alice Wong, and Drunk History covered the 504 Sit-ins (the longest occupation of a federal building in U.S. History.)

So it feels appropriate that this is the week that the Center for American Progress (CAP) is launching the Disability Justice Initiative. CAP is the first D.C.-based national progressive organization to have a disability shop, and I am thrilled to build off of the work of folks like Eli Clare, Mia Mingus, and Sins Invalid, to work on cross-movement organizing and to center multiply-marginalized disabled people. The project is working to bring the disability lens across issues progressives are working on, and will also work to get progressives to the table as allies and accomplices fighting for the rights of people with disabilities.

We are setting a big table—a massive table. We’re including people with mobility, sensory, mental health, and learning disabilities, and calling in our siblings with chronic health conditions (like diabetes, migraines, fibromyalgia and IBS/IBD), eating disorders, folks in recovery from substance use, and people living with and learning how to navigate trauma.

There is not a single issue, whether it be health care, paid leave, immigration, climate change, education, or voting, that does not impact the 1 in 5 Americans that lives with a disability. Now that Americans are starting to recognize that—that we are a part of every community, that we are here to fight, and that we are worth fighting for—it is time to formalize our seat at the table. And we’re leaving another seat open for you.

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The average American family will pay an additional $500 per year in fuel costs.

The country will take on another $5.5-$7.9 billion in additional costs from worsening air pollution.

The country will also lose about 60,000 jobs.

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