America's 'disability alibi'

One thing should now be clear: In America, disability can be a license to kill, to surveil, to disregard human beings. George Floyd is just the latest example.

On June 1,  autopsy reports from the Hennepin County (Minn.) Medical Examiner and the Floyd family revealed that Mr. Floyd’s death was indeed a homicide, but diverged with respect to causation. The independent report — consistent with the viral videos capturing the encounter — found that Mr. Floyd died of “asphyxiation from sustained pressure,” or suffocation, after 8 minutes and 46 seconds of oxygen deprivation. By contrast, the county report concluded that Mr. Floyd’s cause of death was “cardiopulmonary arrest complicating law enforcement subdual, restrain, and neck compression.”

Mr. Floyd, in other words, had a heart attack while Minneapolis police officers restrained him, echoing Friday’s preliminary finding Mr. Floyd’s heart conditions (derivative of high blood pressure and cholesterol) played a central role in his death. This causal divergence is (and will be) significant in how the public and the criminal justice system assign liability and mete out punishment. Whether these underlying health conditions played a role in Mr. Floyd’s death, however, is not the key question. Should the presence or absence of disability make his death any less meaningful or problematic?

Disability offers a convenient, publicly acceptable alibi for bad actors in our country. It is a way of excusing heinous crimes and acts against our fellow human beings and, in the process, earning public sympathy or support. It is a visible reminder of what little value society places on the lives of people with disabilities. The recent news cycle demonstrates other examples of the disability alibi at work.

First, Miami-Dade police arrested and booked Patricia Ripley on a charge of first-degree murder for taking her 9-year-old autistic son, Alejandro, to a nearby canal and drowning him. In her defense, she reportedly told police officers, “he’s going to be in a better place.” Researchers estimate that every week, one person with a disability is murdered by a family member or caregiver who then receives greater leniency for “mercy killings.” Reports of family members assaulting or killing their disabled kin often fly under the radar, or worse, engender public support for the killer. A New York Times Magazine cover story from December, for example, framed the killing of an older woman with dementia by her husband as an act of “love.”

Second, YouTube personalities Myka and James Stauffer ignited a social media firestorm when they announced their decision to “rehome” Huxley, their 4-year-old autistic son adopted from China. The Stauffers explained to their YouTube followers that the international adoption service did not tell them that Huxley had “special needs” when they adopted him and, they said that though they provided therapies for him, Huxley’s needs were more than they could deal with.

Some followers criticized the family for using Huxley as a social media prop and then discarding him when he manifested typical behaviors associated with his disability. Others defended and praised the Stauffers for “having the courage to make such a heartbreaking and hard decision.” While adoptive families should be afforded some latitude to define and determine what a “fit” might look like to maximize the potential for success, these discussions should focus on balanced, evidence-based information and not on misperceptions about the quality of life a child with a disability (and the child’s family) will have in the future. For example, although people without disabilities would predict that the lives of those with disabilities are unhappy, research shows that people with disabilities report levels of happiness similar to those of nondisabled people.

Third, and perhaps the most literal deployment of the disability alibi, are the well-funded nursing facility lobbyists who have convinced 20 states to limit the legal liability of long-term care facilities for COVID-related harm. This request for safe harbor comes at a time when more than 28,000 people — a majority older adults and people with disabilities — have died of COVID-19 in these care facilities. To put this in perspective, this number represents almost a third of the country’s overall pandemic losses. The prospect of granting immunity to these facilities without legal process for those who bear the disproportionate costs of the pandemic shines an industrial-sized spotlight on the devaluation of disabled lives.

This is not the first time America has reached for the disability alibi in this pandemic. Consider, for example, health care rationing policies that explicitly excluded some people with cognitive disabilities from receiving life-saving treatment based on stereotypes about their quality of life relative to nondisabled people.

Disability advocates responded to national reports of shortages of ventilators and hospital beds by swiftly filing legal complaints with the U.S. Department of Health and Human Services to challenge rarely questioned (and well-defended) bioethics principles underwriting the rationing policies. Close examination of these arguments reveals an eerie similarity to the reasoning proffered by Supreme Court Justice Oliver Wendell Holmes in his infamous 1927 majority opinion upholding the constitutionality of Virginia’s compulsory sterilization law. Justice Holmes in Buck v. Bell reasoned that “the public welfare may call upon the best citizens for their lives” — a reference to soldiers — and, therefore, “it would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned” — a reference to people with disabilities.

While state rationing policies do not reflect the same vitriolic language on their face, the notion that disabled lives can and should be sacrificed for a greater public good remains true.

The presence of disability should never be a legal or moral alibi, an excuse for unethical or illegal actions. George Floyd and the countless others who have died at the hands of those charged with protecting them deserve better, they deserve justice. The differential treatment of people with disabilities on the basis of disability — in adoption, rehoming, rationing medical care, or “mercy killing” — is immoral and, in many cases, illegal. The Americans with Disabilities Act, the civil rights act for people with disabilities, turns 30 years old in less than two months. The ADA offers legal remedies for discrimination in employment, public services, and places of public accommodations. Yet the ADA’s promise of meaningful equality remains unfulfilled in large part because of widespread misconceptions about disability.

The death of George Floyd, too, despite what you will hear from reports and medical experts during Officer Derek Chauvin’s trial, should not be excused because America, once again, accepts the disability alibi.

[Cross-posted from the San Francisco Chronicle]