Bench Memos

Law & the Courts

Vicious Distortion of Kavanaugh Ruling

Wow, some on the Left are really getting desperate and nasty.

In Doe v. District of Columbia (2007), Judge Kavanaugh wrote a unanimous D.C. Circuit panel opinion that held that the policy that the District of Columbia adopted in 2003 for authorizing surgeries for a subclass of intellectually disabled persons in the District’s care did not violate the Due Process Clause. Specifically, the subclass consisted of intellectually disabled persons in the District’s care who have never had the mental capacity to make medical decisions for themselves and who have no guardian, family member, or other close relative or friend who is available to consent or withhold consent on their behalf. Under the District’s policy, the District would authorize surgeries for such persons when (1) two physicians have certified that the proposed surgery is “clinically indicated to maintain the health” of the patient, and (2) D.C. caregivers have made efforts to discuss the surgery with the patient at the level of the patient’s comprehension.

The case arose when three intellectually disabled persons who had never had the mental capacity to make medical decisions for themselves filed suit—or, more precisely, when someone purportedly acting on their behalf filed suit—to challenge the District’s policy. The District, represented by its attorney general Robert Spagnoletti and its solicitor general Todd Kim, vigorously defended the District’s policy. As Kavanaugh summarizes a key part of the District’s arguments:

The District of Columbia has argued that it legally and logically cannot consider the wishes of patients who lack—and always have lacked—mental capacity to make independent medical decisions because there is no information about what they would want if they were not incapacitated. The District of Columbia points out that consideration of the wishes of a patient who lacks mental capacity to make healthcare decisions could lead to denial of essential medical care to a patient who purportedly did not want it—even though the patient by law has always lacked the mental capacity to make such a decision. [Citation and internal quotes omitted.]

Agreeing with the District, Kavanaugh explained that “accepting the wishes of patients who lack (and have always lacked) the mental capacity to make medical decisions does not make logical sense and would cause erroneous medical decisions—with harmful or even deadly consequences to intellectually disabled persons.” He further pointed out that “the breadth of plaintiffs’ constitutional claims is extraordinary because no state of which we are aware applies the rule suggested by plaintiffs.”

In short, this case presented an easy legal question.

But that hasn’t stopped Jamie Davis Smith from penning an outrageous Huffington Post article titled “Brett Kavanaugh’s Supreme Court Confirmation Would Jeopardize My Daughter’s Life.” Smith is the mother of a daughter with serious health problems, including intellectual disabilities. She and her daughter deserve our sympathies. But those sympathies can’t excuse Smith’s outrageous falsehoods.

Smith asserts that Kavanaugh upheld “D.C.’s practice of not allowing the very people undergoing surgery or abortion to express their wishes before being subjected to invasive procedures.” She thus conceals that D.C.’s policy applies only to those (1) who lack, and who have always lacked, the mental capacity to make medical decisions for themselves, (2) who have no guardian, family member, or other close relative or friend to consent or withhold consent on their behalf, and (3) whom two physicians have certified need the proposed surgery to maintain their health. Her reference to abortion is also flat wrong: As Kavanaugh explains, “The D.C.Code also explicitly provides that abortions, sterilizations, and psycho-surgeries may not be authorized, at least absent a court order.” (The plaintiffs sought damages for involuntary abortions under earlier D.C. law, but their damages claim was not part of the case on appeal.)

But Smith doesn’t stop there. She makes numerous other vicious and baseless assertions, including: “With this man [Kavanaugh] on the bench, America could very well return to a time in which forced sterilizations or medical experimentation on disabled individuals is the norm.” (A blog post earlier this month co-authored by a Center for American Progress intern is similarly unhinged from reality.)

Even for those on the Left too lazy to read a judicial opinion, perhaps they could do a sanity check and stop to ponder whether a progressive D.C. government in 2003 would adopt the evil policy they imagine Kavanaugh to have deferred to and whether respected liberals like Spagnoletti (now CEO of the D.C. bar) and Kim (nominated by President Obama in 2014 to serve on D.C.’s highest court) would have vigorously defended such a policy.


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