The Fifth Circuit Court of Appeals building in New Orleans, Louisiana.Rex Wholster/Getty
For decades, American hospitals have been subject to Section 504 of the Rehabilitation Act and to the Americans with Disabilities Act, landmark federal disability civil rights laws that guarantee equal access to health care. But Hickson v. St. David’s Healthcare Partnership, a case before the conservative Fifth Circuit Court of Appeals, could upend those protections—giving the court a chance to seriously undercut disability discrimination claims in medical settings.
In 2017, Michael Hickson, a 46-year-old disabled Black man in Austin, Texas, developed brain damage and became quadriplegic following a heart attack; in 2020, a court placed Hickson in the guardianship of an outside firm that took charge of his medical decisions.
The firm placed Hickson in a nursing home, where, in May 2020, he contracted Covid. Brought to an Austin-area hospital, Hickson was denied services including mechanical ventilation to help him breathe. At the time, early in the pandemic, 25 states maintained policies around triage procedures that seemingly deprioritized care for disabled people.
Hickson’s wife wanted her husband to receive the same quality of care as non-disabled people in the hospital’s ICU. But he didn’t.
In the early pandemic, some providers treated triage policies “as a sort of get-out-of-jail-free card.”
“As of right now, his quality of life, he doesn’t have much of one,” one doctor said of Hickson at the time.
Instead, Hickson was moved to hospice, where he died on June 11 that year. Hickson’s wife, who wasn’t notified for some 12 hours, alleged in a YouTube video after his death that the court “decided to place temporary guardianship with a company or organization that had no prior dealings with someone of this complexity.”
“They made decisions about the quality of his life, or whether he should even live, based on significant ableism that devalued his life,” says Robyn Powell, a professor of health and disability law at Florida’s Stetson University.
Powell, Hickson’s widow, and disability advocates see those decisions as violations of the ADA—which guarantees equal access to hospital services—and Section 504 of the Rehabilitation Act, which bars recipients of federal funding from discriminating on the basis of disability, including by denying care.
“I don’t know where this idea [came] from that in emergencies, the law doesn’t matter,” Powell says. In the early Covid-19 pandemic, Powell added, some medical providers treated triage policies “as a sort of get-out-of-jail-free card.”
As NPR reported following his death, Hickson’s widow and the Austin hospital dispute exactly what happened: The hospital has defended itself by arguing that invasive treatment would have been cruel and improper, prompting extensive backlash from disability advocates and pro-life groups both in Texas and nationwide, while Melissa Hickson has consistently argued that the hospital based its decisions on anti-disability bias. Hickson’s estate sued the hospital on that basis in 2021; it lost that case in October and appealed to the Fifth Circuit shortly after.
“What the district court said was, ‘This is really about medical malpractice, and you can’t bring those kinds of cases under Section 504,’” said Claudia Center, the Disability Rights Education and Defense Fund’s legal director. But Center, citing legal precedents and regulatory standards, argues that Hickson’s treatment constituted both malpractice and disability discrimination.
“When a medical facility makes a decision to deny medical care to a person with a disability,” or one influenced by “biased views about life with a disability,” Neil Romano, then chair of the National Council on Disability, said in a July 2020 statement on Hickson’s death, “it runs afoul of federal civil rights laws.”
On April 7, an amicus brief signed by 24 disability rights groups—including the Disability Rights Education and Defense Fund, New Disabled South, Not Dead Yet and Disability Rights Mississippi—raised concerns about the dangerous precedent that the Fifth Circuit could establish if it rules against Hickson’s estate.
“Many disabled people are denied medically necessary treatment because of deeply entrenched bias in the medical profession regarding the quality of life and inherent worth of people with disabilities,” the brief reads in part.
In addition to the ADA and Section 504 of the Rehabilitation Act, Jamelia Morgan, the faculty director of Northwestern University’s Center for Racial and Disability Justice, sees Hickson’s case as a potential violation of the Affordable Care Act—a possibility the district court ruling doesn’t address.
“The Fifth Circuit is, of course, just so notoriously conservative.”
“The ACA is very clear that in the clinical setting, there can be discriminatory acts even within this highly discretionary space,” Morgan says, calling it vital to understand Hickson’s case through an intersectional lens: “The product of disability discrimination, racial discrimination, and other factors like class,” Morgan continued, “will have an impact on how an individual is perceived, the quality and scope of resources like healthcare provision and medical equipment that they might have exposure to.”
While disability rights have historically been a more bipartisan issue—the ADA was signed into law by George H.W. Bush—tides have shifted: Section 504 is now under attack by conservative officials, including in a suit, led by Texas Attorney General Ken Paxton, over the Biden administration’s recognition of gender dysphoria among the disabilities the law includes.
“Disability is seen now as very much a Democratic issue and not a Republican issue,” Powell said. “I have significant concerns about what will happen, because the Fifth Circuit is, of course, just so notoriously conservative.”
Indeed, Fifth Circuit rulings have already put disability civil rights at risk in recent years, including a 2023 case in which the court broke with other federal circuits by holding that the risk of institutionalization wasn’t sufficient grounds for a disability discrimination claim.
Based on the language of the relevant laws, Morgan, of Northwestern University, believes the Hickson estate has a strong case—but the suit also offers the Fifth Circuit “a basis for restricting the scope of the ADA,” an opportunity she fears the court may not be able to resist.