Elizabeth Rose Schiltz (University of St. Thomas School of Law) has posted Exposing the Cracks in the Foundations of Disability Law. This paper was presented at the September 9, 2011 Law & Contemporary Problems symposium, “Theological Argument in Law: Engaging with Stanley Hauerwas,” held at Duke Law School. The abstract follows. – ARH
The theologian Stanley Hauerwas has described people with intellectual disabilities as “the crack I desperately needed to give concreteness to my critique of modernity. No group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped.” Indeed, modern practices with respect to the mentally handicapped are undeniably puzzling. On the one hand, advances in the ability to prenatally diagnose genetic conditions that cause mental retardation are widely heralded and enthusiastically embraced, as evidenced by the declining numbers of children born with Down Syndrome worldwide, despite the fact that advancing maternal ages should be resulting in an increase in those numbers. On the other hand, laws that express a strong commitment to the equal treatment of our fellow citizens with disabilities continue to be enacted – from the Individuals with Disabilities Education Act in 1975, ensuring the education of children with disabilities in our public schools, to the Americans with Disabilities Act in 1990, prohibiting discrimination against people with disabilities in public accommodations and employment, to the Genetic Information Nondiscrimination Act in 2008, prohibiting employers or health insurers from discriminating based on information from genetic tests.
Hauerwas diagnoses these puzzling inconsistencies in contemporary society’s attitudes toward the disabled as evidence of the flaws of modern humanism. Humanism’s emphasis on rationality and capacity for reason is the most obvious target of any critique focused on people with intellectual disabilities, whose capacity for reason is, by definition, compromised to some degree. But the pretensions of the humanism on which Hauerwas focuses his critique are two different corollaries – namely, that autonomy and the ability to freely create one’s own identity constitute equally fundamental markers of humanity.
In his book LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT, disability law scholar Samuel Bagenstos identifies and tries to explain a series of contemporary contradictions in disability law, including recent case law restricting the scope of the ADA and the debate about abortion after a prenatal diagnosis of a disability. A careful analysis of these arguments reveals that Bagenstos’ explanations for the contradictions he notes are compatible with many significant aspects of Hauerwas’ critique of modern humanism, although Bagenstos does not characterize his critiques that broadly. Bagenstos’ arguments could be strengthened by incorporating more completely Hauerwas’ full critique. Appreciating how Bagenstos’ arguments are underpinned by these Haeurwasian insights does more, however, than simply clarify and strengthen Bagenstos’ arguments. More significantly, it is evidence of a growing and potentially powerful convergence of theological and secular reflection on the thorny conundrum posed by contemporary society’s treatment of the significantly disabled. By joining forces, proponents of these arguments might be able to work together for the development of a less contradictory – and more inclusive – set of laws and practices for people with disabilities.