[NFBMO] Fresh from the June Monitor and a matter that has sparked discussion on our list

[Gary Wunder]

Progress and Peril: Developments in Texas v. Kennedy

by Chris Danielsen

As readers of the April 2025 Braille Monitor may recall, a lawsuit known as Texas v. Kennedy (formerly Texas v. Becerra) was filed by seventeen states against Robert F. Kennedy, Jr., in his official capacity as Secretary of Health and Human Services, and the United States Department of Health and Human Services (HHS). This lawsuit challenges HHS’s 2024 updates to the regulations implementing Section 504 of the Rehabilitation Act, which prohibits disability discrimination by recipients of federal funds. The updated regulations, issued in May 2024, modernized rules that were fifty years old. They prohibit discrimination in medical treatment and child welfare, require accessible websites and medical equipment, and reinforce the right of disabled people to receive services in the community, among other provisions. The states’ complaint specifically challenged language in the preamble of the updated regulations regarding gender dysphoria and the regulation on integration.

In addition to challenging specific aspects of the updated regulations, the states’ original complaint asked the court to declare Section 504 itself unconstitutional. As our article explained, such a ruling would have jeopardized all of the civil rights gains that blind and disabled Americans have accrued stemming from this bedrock of disability law. For this reason, we and others have advocated for the dismissal of the lawsuit, which still has not occurred. However, recent developments indicate a change in the states’ position on this claim.

In a Joint Status Report to the federal district court in Texas that is hearing the case, filed on April 11, 2025, the states explicitly clarified that they have never moved—and do not plan to move—the court to declare or enjoin Section 504 of the Rehabilitation Act as unconstitutional on its face. Furthermore, they stated that nothing in their complaint seeks to restrain the disbursement of federal funds or prevent the government from applying Section 504’s provisions to recipients based on the statute’s unconstitutionality. This clarification means that the court in this case will not rule on the fundamental constitutionality of Section 504. Taken together with the strident denials of intent to kill Section 504 issued by some of the attorneys general involved in the case, it is clear that advocacy and public pressure from the National Federation of the Blind and others has affected the legal stance the states are taking.

Despite this development, the lawsuit remains a significant threat to the rights of the blind and other people with disabilities. The seventeen states have not dropped the case. They continue to challenge other important aspects of the 2024 Section 504 regulations. These challenged provisions include:

The requirement for states to provide services in the most integrated setting, meaning the right to live in the community rather than institutions.

The ban on disability discrimination in medical treatment decisions, covering essential care like life-saving healthcare, organ transplants, and the allocation of scarce resources such as ventilators.

Requirements for accessible medical equipment, websites, and kiosks.

Provisions related to reasonable accommodations and effective communication.

Not only are the states still challenging the regulation, but so far, HHS and Secretary Kennedy have not made clear whether or not they will defend it. HHS issued a clarification on April 11 describing the preamble language about gender dysphoria as “unenforceable,” which possibly makes part of the lawsuit moot. Beyond that, HHS has not signaled one way or the other whether it will tell the court that it stands behind the regulation aside from that preamble language. 

The case currently remains stayed, or paused, at the request of both parties, who also proposed filing subsequent Joint Status Reports every other month on the twenty-first day, with the next report to come on June 21, 2025.

Advocacy remains critical. The Disability Rights and Education Defense Fund (DREDF) highlights that the ability of disabled people to live in the community, a key right affirmed by Section 504 and challenged in this case, is heavily reliant on Medicaid funding for services and supports. They urge those in the seventeen plaintiff states to continue advocating for their attorneys general to withdraw from the lawsuit.

The provisions in the regulation regarding accessible medical equipment, kiosks, and websites, as well as its effective communication and reasonable accommodation requirements, bear directly on the ability of blind people to access our healthcare information, check in for appointments, and receive accessible documents and other communications from healthcare facilities. All Americans with disabilities face the danger of medical professionals deciding that our quality of life is so diminished that we are not a high priority for lifesaving medical care, as many so-called medical ethicists have argued. Backtracking and clarifications are all very well, but this lawsuit still represents a danger, and our continued monitoring and advocacy is warranted.

 

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