The Normative Bases of Medical Civil Rights
chapter in BEYOND DISADVANTAGE: DISABILITY, LAW, AND BIOETHICS (Glenn Cohen et al, eds., (Cambridge Univ. Press, expected publication 2020).
16 Pages Posted: 21 May 2020 Last revised: 28 May 2020
Date Written: May 19, 2020
Being designated as disabled under the law comes with an array of legal rights. These rights range from negative rights against discrimination by the state and by private actors in employment and public accommodations to positive rights to accommodations, financial (welfare) benefits, and even healthcare. Other kinds of status also trigger these kinds of protections, but few produce the same panoply of benefits: for example, race discrimination similarly elicits antidiscrimination protections by the state, and by employment and public accommodations, but rarely any positive rights. Unemployment can yield welfare benefits, but is rarely protected under antidiscrimination law. Thus, “the antidiscrimination laws that govern disability are significantly more equality enhancing than those governing race.” Even if one would think otherwise, the fact remains that a legal designation based on disability produces legal rights that are robust when compared to those that other designations trigger.
Where do these rights come from? To see why this is a puzzle, it is helpful to note where these rights do not come from. When it comes to rights driving from other kinds of designations, the Constitution is an important (although not exclusive) part of the story. The racial justice movement, for example, will include in its narrative the Reconstruction amendments and Brown v. Board of Education, the women’s rights movement Roe v. Wade, and the gay rights movement the recent marriage equality decisions. Those rights exist, some in the movements would argue, because the Constitution says they do. Disability rights, however, do not have the same constitutional pedigree. Constitutional victories have been limited in scope; statutory claims have been far more impactful.
I claim that the reach – and limits ¬¬– of disability rights are best explained by how society conceives of the onset and causes of disability. There are three dominant causal paradigms that drive disability rights. The first paradigm saw disability as the result of bad luck and offered resources for the disabled. This paradigm yielded a first round of rights legislation. The second paradigm realized that the burdens of disability arose, not just from a lack of resources, but also from a lack of social regard and respect and yielded a second generation of rights. Finally, a third paradigm limited the reach of these rights, as it saw disability as individual fault.
Before I proceed, it is worth noting that I subsume conceptions about disability as falling within a larger universe of medical designations of impairment. Prominent disability theorist, Simi Linton, explains that to be disabled a person must have an impairment that “significantly affect[s] daily life and . . . with some consistency . . . present[s] himself/herself to the world at large as a disabled person.” Both as a theoretical matter, and as a legal matter, disability designations borrow from medical designations. Thus, conceptualization of disability in each of these paradigms essentially turns on conceptualization of medical status in a particular context.
Keywords: Disability, rights, bioethics
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