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Janine Jackson: The Rehabilitation Act of 1973 addressed the rights of people with disabilities in their interactions with the federal government, including entities that receive certain federal contracts. Section 504 of that act prohibits organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services.

The hard-won Americans with Disabilities Act, passed into law in July of 1990, and specifically Title II of the ADA, emphasized disabled people’s access to civic life.

These laws have been interpreted for decades as meaning that our shared societal goal is to have disabled people live in community, with family, with friends. A new thing, a memo from the Office of Legal Counsel within the Justice Department, now says: “or maybe not.”

A professor at George Washington University — cited on NPR, one of few outlets to take this seriously — says, “It is now the position of the United States government that people with disabilities don’t have a right to be part of their communities,” adding, “I can’t overstate how significant this change in position is.”

Here to help us understand the meaning of this particular shift, and how it fits within a broader engagement, is Mia Ives-Rublee. She’s senior director of the Disability Justice Initiative at the Center for American Progress, and she joins us now by phone. Welcome to CounterSpin, Mia Ives-Rublee.

Disability Rights Are at Risk as 7 States Back Case Attacking Key Protections

Mia Ives-Rublee: Thank you so much. I’m so glad to be here.

JJ: This is a story about law, but we all know it’s not about just what’s legal to do or to not do. After the Rehabilitation Act, after the ADA, in 1999 we have Olmstead v. L.C. This is two women suing the state of Georgia, and the Supreme Court agrees, with reference to that existing legal underpinning, that states have a legal responsibility to provide services that integrate people into communities, that that integration is the goal; it’s the best way forward.

So now this person who wrote, this deputy assistant attorney general, says, “We recognize this view of Olmstead‘s import is out of step with a common understanding of that decision with the federal courts.” So this new memo, what does it mean? What could it mean? Why is it important?

MI-R: So this memo doesn’t change the current laws, or the decision that the Supreme Court made in 1999. What it does is provide specific avenue for states to try to challenge these laws and the Supreme Court decision, in hopes of getting it overturned by the Supreme Court. So people still have basic protections that emphasize their right to live in the community, but it provides this sort of crack in the armor that will probably be utilized by certain states to try to reduce the amount of money that they’re spending on things like home- and community-based services, and long-term support services.

JJ: Yeah. I see folks hearing “it opens a window.” It doesn’t require anything, but it’s offering something that we know that a lot of folks are going to take up.

I want to say, I’m creeped out by the memo saying that Olmstead “held only that a state cannot institutionalize such patients” — they’re talking about people with disabilities — “without justification,” and then adds, “What counts as adequate justification remains an open question.” That reads like a line from a horror movie to me, frankly. Talk about who and what could be affected by this.

MI-R: I think that the two communities that I’m extremely concerned about are individuals with significant mental health issues. So individuals who may be diagnosed as bipolar, or diagnosed with schizophrenia, individuals who have significant mental health issues and are more likely to be very vulnerable. These are individuals that need significant support to continue living in the community, often. And so that’s one portion of the population.

I think the other portion of the population is individuals with developmental disabilities. So we’re looking at people who have been diagnosed as autistic. This could include individuals who have different intellectual disabilities. It includes a wide variety of people, but these are individuals that are already significantly at risk of being institutionalized.

The thing that worries me is this comes after a lot........

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