By John Weston Parry, J.D.
Introduction: Women and the Military
A fundamental lesson to be learned from persons with mental, physical, and/or sensory disabilities is the risks of inappropriately relying on special standards, care, or treatment, especially when principles of diversity would produce better outcomes. That lesson is useful in dealing with any human differences that are made burdensome by socially-imposed beliefs and presumptions. There also is a parallel danger in failing to rely on different standards, care, or treatment when human differences matter. A case in point is the media hoopla surrounding two extremely physically gifted women, who reportedly passed Ranger military training with flying colors. Their success, and the requirements that they had to meet, may have pushed back women’s rights in the military for years to come.
Such a counter-intuitive conclusion about women in the military may apply to rights of people with disabilities, or any marginalized group for that matter. It is based on understanding potential limitations of trying to help people, who are different, accomplish what they are not best suited to do by imposing universal standards that do not recognize or take advantage of inherent human differences. This inclination is exemplified in seemingly positive ways by the Special Olympics, but it also justifies various forms of discrimination and exclusionary practices. What usually makes better sense is to knock down barriers and obstacles to allow people who are different to accomplish what they can do best based on their talents and skill sets, as exemplified by Stephen Hawking.
In the cautionary tale of women in the military, standards, rules, and procedures that for centuries have been calibrated and improved upon based on the abilities and needs of men are now being applied to women recruits and soldiers, who have finally been allowed to join what traditionally has been a men’s club. These indiscriminate policies make about as much sense as basing medicine for women on the test results of men.
Diversity means providing all different types of people with the tools they need to be mainstreamed into society without having to be encumbered by rules and standards that limit or stunt their involvement, or encourage others to do the limiting or stunting. The natural advantages of relying on principles of diversity should be obvious from science, but those advantages tend to be hidden behind veils of social prejudice and false beliefs and presumptions.
For years our military has been evolving on a path in which the use of hand-to-hand combat as the primary method of fighting wars and protecting our borders has proven to be outmoded. Providing for the national defense and fighting wars has become a far more electronic pursuit. Given this evolution, resistance to using and rewarding women recruits and soldiers for skills and instincts, which are reflective of their strengths—instead of forcing them to pass tests and job performance evaluations that continue to primarily reward physical strength, stamina, and endurance—is not only short-sighted, but harmful and a needless waste of human resources. Diversity, properly introduced and implemented, will make the military stronger, not only with respect to women soldiers, but also soldiers with disabilities—particularly from injuries sustained in combat—and those with different sexual or gender orientations. The challenge and reward is learning how to best utilize the talent and skill sets of recruits and soldiers to the military’s best advantage, rather than ranking everyone according to mind-numbing and time worn stereotypes.
Diversity and People with Mental Disabilities in the Legal System
Diversity principles apply to people with mental disabilities, although in different ways and with more caveats to account for individual differences with respect to the variety of mental conditions that they might have. We still tend to pigeon-hole people with mental disabilities into rigid social structures that most people continue to believe are useful, by mandating special standards, care, or treatment based on outmoded notions of social utility. Instead, we should be introducing more diversity by changing those rigid social structures to better allow people with mental disabilities to be mainstreamed into our communities. This does not mean eliminating special assistance if it is needed, but rather providing it without all the strings attached, especially various forms of coercion and stigma that diminish the prospects for diversity and inclusion to be successful.
Our legal system, which generally reflects American society, greatly overestimates the actual dangerousness of people with severe mental disabilities to others and themselves, while largely ignoring the dangers our society presents to those people by mandating that they live their lives under special circumstances defined by others. The social risks in being a person with a life-altering mental disability are not well-known, not well-documented, and not well-understood. Yet, it seems apparent that given the many different ways our society places those people at heightened risk, the overall risk, if it could be properly measured, would be viewed as overwhelming if it were experienced by most Americans. These are socially-imposed risks that accumulate in addition to the natural risks created by the mental conditions themselves, which of course can vary depending on the disease, disorder, or impairment, its severity, and other biological factors.
The greatest proportion of risk, however, if it were to be measured collectively for people with severe mental disabilities, would likely emanate from what society does or neglects to do for these individuals, not what their conditions, if properly treated, might do to them. Suicide is an excellent example of something that has a biological risk component for people with certain mental disabilities, such as depression, but the impact of which is multiplied several fold by social and environmental factors or neglect. One of the greatest risks for people with severe mental disabilities are the special standards, care, or treatment we burden them with, which in many—and arguably most—instances have proven to be inadequate to be life-changing in positive ways, and also make it nearly impossible for them to be successfully mainstreamed into society. For the hundreds of thousands of people with mental disabilities, who are pushed into our criminal justice system, the special standards, care, or treatment tend to be inhumane and work to worsen their mental conditions.
The underlying problem is that individuals with obvious mental disabilities tend to be viewed as abnormal, deviant, and/or dangerous, in large part because of the care and treatment that they receive, or need, but do not receive. Instead of being mainstreamed and treated like everyone else as much as possible, they are targeted for special handling, usually to their detriment. This targeting, particularly as reflected in our legal system, is more about controlling behaviors that are deemed to be antisocial, inconvenient, or disruptive, than providing meaningful assistance to the recipients in need, which will allow them to thrive in society. These legally imposed constraints stem from misplaced paternalism, fear, prejudice, and misleading beliefs and presumptions.
Special laws for people with mental disabilities tend to produce counterproductive results not only for those who are targeted, but for society more generally. These laws tend to treat the symptoms with a quick fix, but in the long run produce dismal results. In recent weeks, three stories have been reported about controversial new laws and policies—or suggestions for new laws and policies—in the United States and Europe, which illustrate in different ways the potential negative social consequences of treating people with mental disabilities differently from everyone else. The stories involve abortion, the right to die, and homelessness.
Down Syndrome and Women’s Right to Self-Determination
Without addressing whether a woman’s right to choose if, when, and how she should give birth to a child is absolute or should have specified limitations, the idea of enacting laws that would prohibit an abortion, if the fetus is known to have a specific type of birth defect, appears to be a cynical ploy fraught with problems. Such prohibitions not only would be an unconstitutional invasion of privacy in the most intimate choice a woman can make, but an invitation to create a legal hierarchy based on the popularity of a particular birth defect. What the Ohio legislature is poised to do in an effort to expand the right to life for fetuses with Down syndrome is an example of a special law that has disturbing social implications.
The appeal to justice as a justification for such a law is misleading. “`[E]veryone has a right to live, perfect or not,” says the president of Ohio Right to Life in Tamar Lewin’s recent article in the New York Times. North Dakota already has enacted an abortion law that applies to any type of “fetal genetic anomalies…,” while other states are considering similar legislation. The proposed Ohio legislation would be one more special law for people with mental disabilities, which is unnecessary and counterproductive. It is not designed to help people with Down syndrome. The intent is to fight the “abortion wars” using fetuses with Down syndrome as the ammunition.
If enacted the legislation would defy the Constitution as interpreted by the U.S. Supreme Court, which treats all fetuses equally regardless of disability. Roe v. Wade and its progeny focus on the stage of development that a fetus has attained and the health of the mother. These are considerations that can be applied equally to every fetus. It is far from a perfect solution, but it balances legitimate competing constitutional interests and has stood the test of time.
Another problem with the proposed Ohio statute is that it would place one type of disability above all others, creating the beginnings of another informal ranking system based on disability popularity like we already have for the funding of diseases. The impetus for choosing Down syndrome, while excluding all other conditions, is strategic rather than moral. Furthermore, such a law would create a logical imbalance in which a mother would be allowed to terminate her pregnancy during the first trimester for any reason, except if Down syndrome was present.
The motivation behind the law has little to do with protecting the rights of people with mental and developmental disabilities. As Lewin points out, the intention is to create “a new front in the abortion wars….” For many mothers and fathers raising a child with Down syndrome creates a substantial burden, both financially and with regard to providing the necessary level of care. Rather than forcing mother’s to have children with disabilities they are unable to properly care for, Ohio legislators would do far more good by providing financial assistance and social services to ensure that families who do have children with Down syndrome are able to successfully manage those added responsibilities. That type of special care and treatment would help to advance diversity and inclusion.
The Right to Die
Restrictions on the right to die based exclusively on the fact that the person trying to implement that right has a mental disability might appear to be analogous to Ohio’s proposed special legislation to prohibit the abortion of fetuses with Down syndrome. The two questions could be viewed as interrelated in the sense that they are both interventions involving persons with mental disabilities at the two most critical stages of human development: birth and death. Nevertheless, this is an apples and oranges comparison. A fetus is not capable of thinking for itself. Adults with mental disabilities, however, are presumed to be legally competent to make decisions, including the right to die, unless they have been adjudicated incompetent. Furthermore, even those individuals, who have been adjudicated as mentally incompetent, may have indicated while they were still competent to do so, what they would want done with regard to implementing a right to die.
Whenever possible it is better to treat people with mental disabilities like everyone else, unless there is a compelling reason to treat them differently or treating them the same would be unfair. Special laws for people with mental disabilities should be scrutinized carefully. The issue of the right to die for people with mental disabilities, for instance, should focus first on what is deemed acceptable for everyone with regard to that right. Afterwards the question becomes how to best implement that right for people who have a severe mental disability that could temporarily or permanently impair their reasoning and other cognitive functions.
Throughout most of the United States with only a few exceptions, there either is no right to die or it is limited to extreme situations in which a person is brain dead, has no hope of any meaningful life activities, or is in the process of dying and is being helped along by pain relieving drugs or a decision by the patient not to use extraordinary life-sustaining measures. In a few states—most notably Oregon—and in places in Europe, the right to die standard is considerably less restrictive than the standard currently found in most American jurisdictions. In addition, according to Charles Lane in the Washington Post, 24 states are “considering” various types of “assisted-suicide legislation,” which would remove some of the existing restrictions.
Reportedly, two places in Europe have the fewest restrictions on the right to die. Belgium helps people to end their lives with lethal injections if they are “earnest” in that desire and have medical conditions, which their personal physician concludes are both “’untreatable’ and ‘”unbearable.’” In the Netherlands, euthanasia has been decriminalized, which means residents of that nation are allowed to decide for themselves when they are ready to die and may enlist assistance from “right-to-die activists” to help them carry out those intentions.
For Lane and certain well-known ethicists he interviewed, including Arthur Caplan, the lack of rigor in the European models constitutes a slippery slope as characterized in the media, often unfairly, by Dr. Jack Kevorkian. The stated concern is that a significant number of people with mental disabilities, like anyone else in those two nations, have been able to request and have been given lethal injections if they meet the governing standards. In the years to come, the numbers of such applicants are likely to spike because Europe, like the United States, “is aging, with all that implies for the spread of Alzheimer’s and other cognitive disorders.” Aging also means an increase in the prevalence of severe and debilitating physical conditions, which might well meet those standards. Moreover, if states in addition to Oregon enact assisted-suicide statutes, those same slippery slope concerns would apply to many jurisdictions in the United States.
The right to die, like the abortion issue, is one of moral sensibilities and whose sensibilities should matter most. From a legal vantage point, self-determination should be preserved whenever possible and special laws that impede self-determination, like special laws for people with mental disabilities, should be imposed only when there is a compelling governmental reason to do so. Simply wanting to impose one’s moral or religious values or preferences on others would not and should not be viewed as compelling.
In the United States, after long ignoring and marginalizing the right of people with mental disabilities to make their own decisions, we have developed the means to arrive at a just and fair way to determine when those decisions may be limited and how those decisions should be made when such limitations are imposed. Deciding how and when these limitations on the right to die should be applied is not a decision that individual physicians are best equipped to make. By training they are “`primarily healers.’” The right to die also is not a decision that should be made based on religious and other moral preferences that are imposed upon others. This is an important legal decision that should rely on medical findings, but it should be based on what the individual wants or would have wanted.
The threshold legal issue is the mental competency of the respondent to assert the right to die. The legal presumption should be that the individual is competent, unless there is clear and convincing proof showing that he or she is not. Previous findings of mental incompetency are only relevant if they shed light on current decision-making abilities about the right to die. Moreover, even persons who are in a mental hospital or under guardianship are not necessarily incapable of making this fundamentally important decision.
If the person is deemed competent, then he or she should be allowed to exercise the right to die in the same way as anyone else in that jurisdiction. The standards that various jurisdictions choose to use going forward are likely to vary considerably, but the Belgian criteria, which focus on whether a condition is treatable, and thus subject to significant improvement, and whether the physical and psychic pain of the condition is bearable is appealing and humane. In order to avoid the slippery slope problem, however, there should be certain specified procedural limitations to the right to die to guard against the coercion and greed of others. This vetting process requires an independent legal and/or medical authority to review the decision, since a personal physician or relatives of the individual may have competing duties or conflicts of interest.
If the person is deemed incompetent, then he or she should still be allowed to exercise whatever the right to die is in a given jurisdiction, based on a legally recognized document or recording or other clear and convincing expression about what he or she would have wanted to do in those circumstances. In this way, everyone is treated alike as much as possible and any special limitations based on a person’s mental disability are focused on implementing the right to self-determination, rather than the paternalistic or self-interested beliefs of others.
A disproportionate percentage of persons who are homeless and living on the streets or our urban and suburban communities have mental disabilities. In large part this is because people with mental disabilities are much more likely to be poor and without a family support system to ensure that they have a safe, healthy, and clean place to stay. Many of the non-violent antisocial behaviors that communities find most objectionable, which they attribute to homeless people, are characteristics of mental impairments. Thus, as a practical matter both the problems and rights of people who are homeless and/or have mental disabilities become inextricably linked.
Given our nation’s history with regard to the criminalization of persons with mental disabilities, it should not be surprising that an increasing number of municipalities have enacted—or are enforcing existing—laws that criminalize the status of being homeless. As Gina Bellafante observed in a New York Times article, former New York Mayor Rudolph Giuliani embraces this widespread and “morally appalling” attitude towards people who are homeless. Giuliani believes that the ultimate objective is to “[get] rid of the homeless….`You chase `em and you chase `em, and they either get the treatment that they need or you chase `em out of the city.’”
One way to “chase `em” is to pass laws that make it a serious misdemeanor to sleep in public places. The Justice Department has pointed out that “[c]riminalizing public sleeping in cities with insufficient housing and support for homeless individuals does not improve public safety outcomes or reduce the factors that contribute to homelessness.” Studies also show that homeless people are much more likely to be victims of violent crime or other felonies than to be perpetrators.
As has happened to people with mental disabilities, criminalizing behaviors that are annoying or inconvenient to a community creates a revolving door in which the targeted individuals are shuttled back and forth between various criminal and quasi-civil detention systems and the streets. Having a criminal record for repeated misdemeanors and other non-violent offensive behaviors makes it more difficult, and sometimes impossible, for these individuals to find a job or qualify for various social services. It also substantially increases the probability that something far more serious will happen to them.
Special laws and policies that criminalize homelessness are popular because they avoid having to deal with the real problem, which is the absence of safe and reasonably comfortable housing and other essential services for homeless people. It may seem to be much cheaper to arrest them than to provide for them humanely, but this is illusory. By the time one calculates the cost of arresting, prosecuting, sentencing, and jailing all these individuals, most of the financial savings disappear, while the human suffering becomes substantial.
An unusual story, which illustrates the unfairness and futility of these “chase `em” laws, involves a homeless man with a diagnosis of schizophrenia, who was arraigned in Washington D.C after being arrested. Terrence McCoy of the Washington Post described the defendant’s alleged crime as “sleeping beside an office building….” The accused also had been cited for entering establishments open to the public, which had barred him because the proprietors felt he was a nuisance. What made the story so compelling was that this “cultured, thoughtful and soft-spoken” defendant and the judge had both graduated from Harvard Law School in 1979, as had John Roberts, the Chief Justice of the U.S. Supreme Court.
Yet, the defendant’s past did not matter in court. Through the narrow prism of the law, the judge said “`I have no choice’” and proceeded to order “his former classmate back to the D.C. jail until the charges against him could be resolved.’” Most Americans would never be sent to jail to await trial for committing a misdemeanor that posed no danger to anyone. However, since this defendant, like almost every defendant who is homeless, had no money to post bail and no legally meaningful ties to the community, he could not be released. Moreover, given the backlogs in the D.C. courts, which are found in the courts of almost every major city, this defendant probably will spend more time in jail waiting for his trial than what he could have received as a maximum sentence if he had been found guilty of this misdemeanor offense.
Even with the Justice Department’s support, the legal grounds for repealing these laws have been limited to a constitutional argument that requires proof that the criminal sanctions violate the Eighth Amendment. In other words, where there are no reasonable alternative places for them to go, prohibiting people who are homeless from sleeping in public places is cruel and unusual punishment. This is a considerable legal burden and one that people who are homeless should not have to overcome, especially if they have mental disabilities, which are likely to become much worse if they are jailed. For every homeless person who is able to find the legal resources to give them the opportunity to prevail on such a legal theory, there will be countless more homeless people who will be ensnared within the criminal justice system, or pushed into accepting even more dangerous sleeping alternatives.
The cruel and unusual punishment argument is a clever one that can help a relatively small number of homeless people. Ultimately, though, the argument can only be used successfully if the municipal laws and policies are proven to be unconscionable. A legal argument that more accurately reflects what has been happening to these people is based on the Fourteenth Amendment’s equal protection clause.
Special laws that target people who are homeless in order to chase them away should be recognized as a modern version of a suspect classification, meaning those laws should be reviewed using a heightened scrutiny standard. Today, people with mental disabilities and people who are homeless comprise two of the most discriminated against groups in our society. People with mental disabilities, who also are homeless, are burdened by invidious discrimination in the law based on both statuses.