HEALTH CARE/Joan Retsinas

States' Rights to Ignore the Disabled

What Would Alabama Do? That is the advice from the Supreme Court, which has enthroned states' rights over those expensive, cumbersome regulations embedded in the Americans with Disabilities Act.

States' rights have a venerable, if sorry, history. Slave owners proclaimed "states' rights" to outraged abolitionists. Later on, poll taxes, literacy tests and Jim Crow laws found refuge under this banner. States operated separate-but-equal schools for decades -- it was their right, until the Supreme Court asserted federal sovereignty. This fall, the Alabama justice who blocked federal marshals from removing a statue of the Ten Commandments from the courthouse asserted state's rights.

Unhappily, states' rights have often conflicted with individuals' rights. Minorities (whether of race, ethnicity, or religion) have found "states' rights" a scary subterfuge, a legal artifice wielded to block their income, their political power, their status. And not surprisingly, the proponents of states' rights have not addressed the harm done to these individuals, but have asserted the sovereignty of a principal &endash;- a principal that just so happened to buttress an inequitable status quo.

People with disabilities have had the misfortune to come against "states' rights" &endash; and this time the Supreme Court sided with the states.

Under George Bush pere, people with disabilities gained federal protection. Title 1 of the Americans with Disabilities Act provided that employers had to make reasonable accommodations for those employees: the act did not insist that employers had to go bankrupt doing so, but had to try to find ways to keep workers in their workforce. Many accommodations have not been drastic: a ramp can suffice, as can a flexible schedule, or a computer fitted with special technology.

So when two state workers in Alabama requested special accommodations, they expected that the state would comply. One woman, a nurse at the University of Alabama Medical Center, was undergoing chemotherapy and radiation for breast cancer. She juggled treatments for the mornings and Friday afternoons, assuming that the state would be flexible. Instead, she found herself demoted to a lower-paying job. Another employee, working for the Department of Corrections, had asthma -&endash; a diagnosis known to his employer when he was hired. The employee alleged that leaking carbon monoxide in one vehicle exacerbated his asthma, as did the department's refusal to enforce the no-smoking policy. He too assumed the state would make some accommodation. No such luck.

So they sued for damages. That was their right. Eventually their case made its way to the Supreme Court, which ruled 5 to 4, that the 11th Amendment trumped the 14th [Board of Trustees of the University of Alabama v. Garrett]. Or, in non-legalese, Alabama had a constitutional protection: state employees could not sue their state employers for damages in federal court under the ADA, even if the state is violating that federal law.

The majority opinion suggested that the ADA was meant to redress ills found mainly in the private sector, not in the public sector, and drew on the history of the bill to support their contention. The Supreme Court did not find that people with disabilities suffered from the same history of entrenched discrimination as did minorities. (The ruling did not affect private employers, who can still be sued for flouting the ADA.)

The four dissenting justices (Souter, Stevens, Ginsburg, Breyer) noted the absurdity of the majority opinion. Decades of evidence documented the exclusion of people with disabilities from the workplace, and states were no exception. Ironically, the lawsuit itself testified to the fact that that states can be as unaccommodating as private-sector employers.

People with disabilities, admittedly, are not ethnic, racial or religious minorities; and there is no evidence that the state harbored a deep-seated antipathy towards them. This is not racism, or sexism, or any of the other isms that have clouded people's vision and blocked their compassion. Instead, this seems to be a case of "cheapism." Alabama didn't want to spend money to help these workers. Alabama doesn't want to spend money on much. (In September, when its governor urged voters to raise income taxes, he reminded them that higher, less regressive taxes would mark Christian charity, but the voters in this Bible Belt redoubt said no.) Without a strong federal prod, Alabama is unlikely to do anything to help workers with disabilities.

And now other financially-strapped states can flout the ADA with impunity. Thanks to the Supreme Court, states have found a financial refuge under the Constitution. It's too bad for employees with asthma, cancer, multiple sclerosis, arthritis, emphysema ... The states have triumphed.

For the country's sake, it is fortunate that past Supreme Courts have not held so dearly to the sovereignty of states' rights.

Joan Retsinas is a sociologist who writes about health care in Providence, R.I.

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