The Justice Department's general attitude toward civil rights is that they have gotten out of hand and must be put in their place. But the leadership there does deserve full credit for refusing to give up on one civil rights issue. It has received no credit at all from the civil rights establishment for its zeal in this case because those groups, except for disability rights organizations, have themselves ignored the question of whether handicapped infants are being discriminated against when, for example, they are being starved to death because they have Down's syndrome.
This stubbornness by the Justice Department on behalf of the civil rights of handicapped newborns led it to appeal lower court judgments that the federal government has no business demanding medical records or otherwise interfering in the treatment decisions made by parents, physicians and hospitals concerning these infants.
The Supreme Court has now decided to hear the case, Margaret M. Heckler v. American Hospital Assocation, et al.
The court's decision to grant certiorari disconcerted a number of civil liberties lawyers who have been supporting the privacy rights of the parents in these cases. (So far only a few members of the civil liberties establishment are slowly groping toward an understanding that infants, like the rest of us, are entitled to due process and equal protection of the laws, especially if they are about to be killed).
The core of the case to be heard by the court is Section 504 of the Rehabilitation Act of 1973. The relevant passage is:
"No otherwise qualified handicapped individual in the United States . . . shall solely by reason of his handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . . "
Congress, say the lower courts, did not intend to include handicapped babies within this protection against discrimination. For example, even if -- as has happened more than a few times -- a infant is not operated on for a blocked esophagus only because he is mentally retarded, there is no federal remedy. Yet a child who is not retarded and has a blocked esophagus would routinely be given that surgery so that he can eat normally. One would think the Leadership Conference on Civil Rights could not avoid seeing egregious dicrimination in such treatment decisions, but not a word has been heard from that usually forthright consortium.
In all the opinions of the judges below, only Ralph Winter of the Second Circuit Court of Appeals, writing in dissent, saw the case with compelling clarity. As for the legislative history of Section 504, he noted that the Senate report on the measure made clear it was patterned and "is almost identical to, the anti-discrimination language of Section 601 of the Civil Rights Act of 1964 . . . (relating to race, color or national origin)."
Congress, Winter continued, "was pursuaded that a handicapped condition is analogous to race and that, so far as the administration of federal assistance is concerned, discrimination on the basis of a handicap should be on statutory par with discrimination on the basis of race."
On the other hand, the hospitals and doctors claim that the federal government should have no right to second guess medical judgments. That depends, says Judge Winter, on whether those judgments are bonified. For instance, "A judgment not to perform certain surgery because a person is black is not a bonified medical jugement, so too is a decision not to correct a life-threatening digestive problem because an infant has Down's syndrome is not a bonified medical judgment."
But don't the parents ave the right to make the ultimate decision? Think again, says Judge Winter: "A denial of medical treatment to an infant because the infant is black is not legitimated by parental consent."
Is this further debate before the Supreme Court necessary, though, since Congress enacted the Child Abuse Amendments of 1984 which contained certain protections for handicapped newborns against summary private judgments? That legislation, however, places primary responsibility on the individual states for setting up due-process procedures. As the Justice Department points out, there is no independent federal law to enable "direct investigation and enforcement by Health and Human Services regarding particular cases of discriminatory withholding of medically indicated treatment."
If a child happens to be born in a state with slipshod child protection services, should geography determine whether he or she lives or dies? Or should the child, as a citizen of the United States, be protected in these matters by a law -- Section 504 of the Rehabilitation Act -- that applies to all the states and to all of the most powerless of the handicapped?