February 10, 2006
Inside
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“We shouldn’t offer assistance with suicide until we all have the assistance we need to get out of bed in the morning and live a good life.”
■ Chemical Sensitivities— p. 8 ■ Dancing With Disabilities— p. 11 ■ Service Dogs— p. 14
— Anonymous Nonprofit Org. U.S. Postage PAID Mpls. MN Permit No. 4766
Volume 18, Number 2
Minnesota’s Disability
Community Newspaper
February 10, 2006
ADA Breaks Into Prison System T by Chuck Campbell
he Supreme Court has unanimously ruled that the Americans with Disabilities Act (ADA) applies to state prisons, “at least insofar as it reaches conduct that could also be challenged under the Fourteenth Amendment,” according to the Bazelon Center for Mental Health Law. The petitioner’s brief in the case of Goodman v. Georgia notes:
No room to turn!
“The State has confined Goodman to a 12-foot by 3-
foot cell for twenty-three to twenty-four hours each day because of the inaccessibility of other facilities in the Georgia State Prison. The cell is too narrow to permit him to turn his wheelchair around. And because the bed in his cell is inaccessible, Goodman is often forced to sleep in his wheelchair or risk injury in transferring to his bed. “The State has not provided Goodman with accessible sanitary facilities. He has on
The Death With Dignity Act by Mark C. Siegel “Everything dies.”
T
hat was the first sentence of a law journal article I began writing in 1996. I was a secondyear law student, and I had chosen as my topic a critical analysis of a new law that had passed in Oregon: the Oregon Death with Dignity Act (ODDA). For the first time in the history of the United States, a state had legalized a form of physician-assisted suicide. In the decade that followed, the ODDA would be a touchstone for both sides of the debate swirling around physician-assisted suicide; a debate that continues even after a recent Supreme Court decision blocked a federal attempt to dismantle the ODDA. That decision prompted me to think about how my own views on the topic have changed over time. First, a little background on the ODDA is in order. The ODDA enables terminally-ill individuals, defined in statute as individuals with a permanent and irreversible condition that is expected to result in death in six months or less, to request a lethal dose of medication for the purposes of ending his or her life in a
“humane and dignified manner.” The statute contains safeguards to ensure that only qualified individuals can receive lethal doses of medication. A second physician must confirm the individual’s terminal diagnosis. If either physician suspects that the individual is suffering from depression or another psychiatric illness, the physician must refer the individual to appropriate counseling. No physician can actually administer the lethal dose of medication. According to a 2004 annual report from the Oregon Department of Human Services, approximately 208 individuals have committed physicianassisted suicide since the ODDA’s enactment in 1997. The ODDA has had a contentious history since voters first approved it in 1994. After a series of court injunctions, voters again approved the ODDA in a second referendum in 1997. In 2001, Attorney General John Ashcroft issued a directive stating that the federal Controlled Substances Act vested the Justice Department with the authority to suspend the license of any Oregon physician who
prescribed lethal doses of medication under the ODDA. Oregon challenged the Attorney General’s action and the case ultimately went to the Supreme Court. In a 6-3 decision issued in January 2006, the Court ruled that Ashcroft could not prohibit Oregon physicians from prescribing medication under the ODDA. The Court went on to say that only the states have the power to determine the scope of acceptable medical practice. While many media outlets reported on this decision as a victory for those who favor legalized physician-assisted suicide, the legal basis for the opinion is actually quite narrow and technical. The Court did not rule on the merits of the ODDA and drew no conclusions about the statute’s constitutionality. In fact, the Supreme Court decided in 1997 that there is no constitutionally-guaranteed right to die. When I wrote my article, I was firmly opposed to the ODDA. Like many disability activists, I believed the ODDA was the first skid on a slippery slope leading to the legalized euthanasia of people with disabilities. A society that already devalued the lives of
people with disabilities would only be too eager to offer a quick and painless death to not only terminally-ill individuals, but perhaps also to people who depend on lifesupporting technologies such as dialysis or ventilators. I mingled with supporters of Not Dead Yet and other disability organizations that opposed physician-assisted suicide. I was part of a movement. I saw my article as a means to warn readers about the perils that physician-assisted suicide presented to the disability community. But in the intervening years, my beliefs shifted. I can’t trace my change of heart to a specific moment or event. Perhaps I became suspicious of the “slippery slope” argument when I realized how few people were making use of the ODDA. Perhaps I started to question those disability activists who, in opposing physician-assisted suicide, seem to reinforce some of the more insidious stereotypes of people with disabilities: that we are weak and defenseless and incapable of rising above society’s low expectations for us. Perhaps I began to see laws like the ODDA as a senOregon - cont. on p. 22
a number of occasions experienced significant injuries (including broken bones) while attempting to transfer from his wheelchair to the toilet in his cell.” Bazelon reports: “… he was forced to sit in his own feces and urine.”
At issue was whether a state prison inmate can sue for money damages under ADA Title II. The state of Georgia did not seriously contest Goodman’s right to seek injunctive relief. An injunction is an order to stop doing something. The only cost is that engendered by the change in future behavior. Money damages, including possible punitive damages, can be enormously expensive, and they apply retroactively. The availability of money damages provides a greater incentive for compliance with ADA. An injunction by the Supreme Court would theoretically compel states to provide accessible facilities for paraplegic inmates. However, the somewhat greater cost of doing this might lead states that, for instance, provide wider cells, not to comply. They could argue that the circumstances were different, and if they lost in the courts, the only expense would be that of providing accessible facilities in the future. Should such a case go again to the Supreme Court, which takes years, the state would retain funds saved by denying accessible facilities while the suit was pending? Availability of money damages, which can amount to millions of dollars, provides the states an incentive to avoid lawsuits by complying with all ADA requirements, including those applicable to inmates with other physical and mental disabilities.
In its brief, the State of Georgia argued: “Title II of the ADA is not validly applied to allow state prisoners to bring suits for damages, as that title is not ‘appropriate legislation’ under (Section) 5 of the Fourteenth Amendment.” Georgia continued, asserting: “ … more is required before such laws of general application can be applied to permit access to a sovereign state’s treasury.” ADA Title II, Section 202. “Discrimination.” reads: “Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” The Fourteenth Amendment prohibits a state from denying: “ … any person within its jurisdiction the equal protection of the laws.” Its Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The ADA is a federal law, which the Fourteenth Amendment gives Congress the right to enforce. The State of Georgia, however, in its brief, argued that it has “sovereign immunity:” “The resolution of each of these questions should lead the Court to conclude that Congress did not validly abrogate state Eleventh Amendment immunity as applied to the class of cases where disabled inmates seek money damages ….” The Eleventh Amendment reads: “The Judicial power of the United States shall not be conADA In Prison - cont. on p. 16