Use of Shock Therapy Denied by U.S. Court of Appeals

For several years we have followed and supported advocacy efforts at the federal level to ban the use of electric shock therapy. We were pleased that in 2020 the Food and Drug Administration finalized a rule banning the use of electrical stimulation devices (EDSs) for self-injurious or aggressive behaviors. The FDA banned the use of such devices citing the substantial and unreasonable risk of illness or injury that the device causes to the individuals they are used on. The Judge Rotenberg Educational Center – the only institution known to still use (and make) the devices – challenged the rule in court on the grounds that the FDA exceeded their authority in issuing the ban. In a 2-1 decision the U.S. Court of Appeals for the D.C. Circuit overturned the ban concluding that the device (EDS) was a medical device, and the FDA does not have the authority to issue the ban that interferes with the practice of medicine.  Disability advocates across the U.S. are deeply troubled by the court’s decision and asked the court for reconsideration which was ultimately denied.

The opinion can be found here: https://www.cadc.uscourts.gov/internet/opinions.nsf/C32A7577ED02127D8525870A00555511/$file/20-1087-1905079.pdf

I am taking the opportunity to republish Autistic Self Advocacy Network’s statement because it truly conveys our dismay regarding the decision of the lawsuit and the dismal of the appeal for reconsideration. We will continue to advocate to have the ban reinstated and we urge everyone to reach out to the ASAN to see how you can become involved in advocating for the ban to be reinstated.

ASAN Statement on DC Circuit’s Denial of Rehearing in Judge Rotenberg Center Case

December 6, 2021

Today, ASAN learned that the DC Circuit Court refused to reconsider a court ruling that allows the Judge Rotenberg Center to continue using skin shocks on disabled people. ASAN is outraged at the DC Circuit’s decision. ASAN calls on the FDA to do whatever it takes to reinstate a ban by immediately reintroducing a new rule that would address the court’s concerns while effectively banning these devices. The disability community has fought for decades against this torture – enough is enough. 

In 2020, the Food and Drug Administration (FDA) banned the use of skin shock devices on people with disabilities – a practice that the United Nations has recognized as torture. The ban was supported by decades of advocacy and extensive research. The Judge Rotenberg Center sued in order to keep using the devices. The case went before three judges on the DC Circuit Court of Appeals. Two out of those three judges sided with the Judge Rotenberg Center, striking down the ban. As a result, the Judge Rotenberg Center can continue subjecting disabled people to painful electric shocks on a daily basis. The FDA asked for a chance to argue its case before all of the judges on the DC Circuit, instead of just three. This is called a rehearing en banc. But the DC Circuit has said that it would not allow a rehearing en banc

The DC Circuit’s decision was based on the fact that the FDA banned some uses of shock devices but not others. The FDA said that shocks could not be used on disabled people, but that devices people chose to use to stop smoking were okay. The DC Circuit said that the FDA could not decide how a device could or couldn’t be used. 

The FDA should immediately issue a new rule that addresses the court’s ruling. The rule will have to ban all uses of skin shock devices like the ones used at the Judge Rotenberg Center. The devices used at the Judge Rotenberg Center are very different from devices used for other purposes, so this should be easy for the FDA to do. 

We call on the FDA to take immediate action to make sure that a new rule can go into effect as soon as possible. Disabled children and adults are being tortured every day. They cannot afford to wait any longer.

Our community has fought long and hard to end the Judge Rotenberg Center’s torture of disabled people. ASAN will continue to collaborate with state and federal policymakers, including the FDA, to end all forms of abuse against disabled people. We will not rest until no disabled person is subjected to torture in the name of “treatment.”

For more information, contact Sam Crane, ASAN’s Legal Director, at scrane@autisticadvocacy.org.

 

 

 

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