“If you’re not going to wear a mask, you take a paper that has the Americans for [sic] Disabilities Act on it, and no one is allowed to ask you why you cannot wear a mask. So you can say that you have a medical condition. And the medical condition might be that wearing a mask is strangling your sense of free speech...” --- Dr. Christiane Northrup
Dr. Christiane Northrup’s recent viral video that included those comments exposed a larger phenomenon: the blatant attempt to miscast disability law under the guise of protecting individual liberty.
And the cruel irony of this phenomenon? Anti-maskers are attempting to use disability law in ways that put disability communities at greater risk. Now that New York State has partially opened, these issues are more urgent than ever.
For six years, I’ve studied the fear of the disability con: the widespread moral panic that people fake disabilities to gain unfair advantage from extra time on exams to cutting lines in theme parks to obtaining a favorable parking spot.
While the 30-year-old Americans with Disabilities Act (ADA) has helped the disability rights movement increase awareness of disability, perception of disability in courtrooms and the public sphere remain largely stuck in the past. Fears of disability fraud date to 19th century Ugly Laws that prohibited “unsightly” disabled beggars from appearing in public for fear they might elicit sympathy or spare dimes. Although the ADA was intended to be transformative, pervasive assumptions about disability have proven more difficult to shake.
My research shows people are on the lookout for visible signs of disability (whether it’s an assistive device like a cane, wheelchair or a hearing aid), but also for visible signs of compliance with disability laws. The rise of vests and tags for service animals, not required under federal law, yet easily bought online, signal to others: “This is not a pet but a legitimate service dog I’m bringing aboard the plane.”
Legally, shopkeepers cannot ask what someone’s disability is. Northrup’s logic similarly suggests that a piece of paper should be enough to legitimize anti-maskers on the basis of disability. This is untrue. ADA regulations balance enforcement and privacy by limiting what questions can be asked. In the service dogs context, for example, a shopkeeper is still allowed to ask a person who’s not visibly disabled whether the animal is required because of a disability and what tasks it performs for its owner. Applying this principle to the anti-mask scenario, a shopkeeper could still inquire whether refraining from wearing a mask is an accommodation, and why a mask isn’t being used.
But here’s the rub: While there are instances where mask-wearing could create a problem (epilepsy, asthma, certain experiences of autism), nowhere in the ADA or in the legal cases it has informed since its passage has the “suffocation of free speech” been recognized as a disability. HIPAA regulations don’t protect the privacy of mask haters either, since only insurance companies, clearinghouses and health care providers, not shopkeepers or other purveyors of public accommodations, are covered.
The attempt to co-opt disability law by anti-maskers exposes two counterproductive flaws: First, it runs the risk of eroding the legitimacy of disability laws by perpetuating the falsehood that anyone is protected when that's not the case. Among an already skeptical public this could easily backfire leading to the opposite of the desired result once people catch on or if COVID-19 cases increase. Second, disability law is not only about disabled people but also it codified valuable lessons about solidarity and interdependence by everyone in society. By accommodating everybody, we guarantee everyone has a seat at the table and can all lean on each other in times of need.
The cynical use of disability law punctures our social fabric and undermines both the common values we champion and supposedly believe in.
Doron Dorfman is an associate professor at Syracuse University’s College of Law whose research focuses on disability law and health law.