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Professor Doron Dorfman Reweighs Medical Civil Rights in Stanford Law Review

Posted on Tuesday 10/6/2020
Doron Dorfman
Reweighing Medical Civil Rights. Stanford Law Review 72 (2020). (With Rabia Belt.)

Civil rights law is at a crossroads. It’s tough to find vindication for injustice claims in the courts. Scholars and advocates are looking elsewhere for legal paradigms that will help provide relief.

Disability law seems seductive. Despite the general parsimoniousness of U.S. welfare benefits, disabled people can receive tax breaks, financial payments, and health care. Disability accommodations and modifications oblige employers, government programs, and purveyors of public accommodations to provide remedies to the mismatch between people’s disabilities and their services and programs. 

Disabled people may escape the weight of victim-blaming and fault attributed to others who ask for recognition and benefits from the government and from law. Social science research has found that in industrialized Western countries, people with disabilities are considered highly deserving of social protection (an identity category second only to that of older people).

The disability community is a diverse group. It includes people with mobility, visual, hearing, mental, and intellectual impairments (just to name a few) whose various needs require multiple degrees of support and care. It also comprises people of different genders, classes, and races, and who experience different types of stigma and discriminatory patterns.

As the original Americans with Disabilities Act of 1990 (ADA) recognized, what unites people in all of those categories is stigma and subordination. They all experienced a history of purposeful unequal treatment by a society skeptical of their abilities and potential. 

Craig Konnoth’s Article, using “medical civil rights” as an angle onto disability, captures the ostensible benefits of disability legal claiming. His Article provides voluminous coverage of examples of individuals and communities framing their grievances and difficulties in medical terms within the law. He also charts out how this strategy may offer benefits that other non-medical framing does not. 

We partially agree with him on this, but we also believe that he does not fully account for the weight on the other side of the negative aspects of medical framing. The remainder of our Response notes some of these negative aspects.

Our Response unfolds as follows. We first discuss the benefits and recognition granted to medicalized individuals. We then contextualize these benefits by noting the drawbacks to medicalization. Finally, we conclude by proposing a new way forward for disability justice ...