from Down's Syndrome, and the infant would benefit from and is thus otherwise qualified for having the obstruction removed in spite of the handicap. In this case, the treatment is completely unrelated to the baby's handicapping condition. If an otherwise normal child would be given the identical treatment, so should the handicapped child if discrimination on the basis of the handicap is to be avoided." 610 U.S. at 655.
I think that a reasonable reading of that series of sentences could well lead to the conclusion that Justice White saw only one handicap within the meaning of the statutory language, that being the Down's Syndrome. Under that reading, what he was addressing was a situation in which discrimination against the category of infants suffering from Down's Syndrome would lead to a medical determination not to address a particular baby's esophageal obstruction for the reason that the baby suffered from the "handicap," to use the statutory word, of Down's Syndrome.
Under that reading of Justice White's language, it would not seem an indispensable part of the logic to characterize the esophageal obstruction as itself a "handicap" within the meaning of the statute. By contrast, in the case before us, the differentiating condition, according to the complaint as enlarged in memorandum and argument, is not the cystic fibrosis that Erika suffered from, as the differentiating complaint in Justice White's example was the Down's Syndrome. The differentiating complaint is the condition of incompetence that flows from Erika not having been a "conscious adult."
If, however, we were to accept that indeed Justice White did perceive the Down's Syndrome baby as suffering from two handicaps, the Down's Syndrome and the esophageal obstruction, we must then consider whether, in the case before us, the discrimination described in paragraph 28 hinges upon a "handicap" within the meaning of the statute. That is to say whether the condition of being not a "conscious adult" is such a statutory handicap.
It is clear that cystic fibrosis is such a handicap, but, as noted, that is not the condition that is alleged to be the occasion for this challenge of discrimination. It would, in my judgment, be relatively easy to suppose sorts of incompetence which could very readily be characterized as handicaps within the meaning of the statutory language.
A person who is retarded, for example, would, notwithstanding adultness, perhaps depending on the degree of retardation, not be in a position to present in an effective and coherently communicating fashion a range of questions and complaints about administrative protocol being administered; so, too, would a person suffering from forms of senility, perhaps including -- most surely including -- Alzheimer's disease. These would be conditions of non-competence, as would, perhaps, conditions of untreatable schizophrenia that would render a person arguably -- I should suppose not with great difficulty -- arguably handicapped within the meaning of the statute.
Infancy is not having attained adulthood, being indeed so many years away from an adulthood that one cannot articulate in words, that is to say, in noises that would be understood by other than a baby's parents. Is that a condition of incompetence that would qualify as a handicap under the statute?
I think we must look again at the definition. An "individual with handicaps" is described by the statute as being "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 706(8)(B).
In my judgment, to characterize infancy as "a physical or mental impairment" involves such tortured use of language that, without far more specific direction from Congress than is afforded by anything in the statutory language or the attendant legislative history, I would see no reason to subscribe to. Infancy is a universal stage. It is most surely a stage of dependency, but it is not in any common parlance a stage of physical or mental impairment.
So I find myself unable to assent to a characterization of the cause of action in this case, which depends upon Erika's being a member of the universe of non-conscious adults (because she was an infant) as the occasion for the alleged discrimination, thereby bringing her within the statute. I would note parenthetically that in the Health and Human Services regulations elaborating on the statute (regulations not disturbed by the decision in Bowen), we are told in Appendix A that "the definition of handicapped person also includes specific limitations on what persons are classified as handicapped under the regulation. The first of the three parts of the definition specifies that only physical and mental handicaps are included. Thus, environmental, cultural, and economic disadvantage are not in themselves covered; nor are prison records, age, or homosexuality. Of course, if a person who has any of these characteristics also has a physical or mental handicap, the person is included within the definition of handicapped person." 45 CFR § 84, App. A at 345 (1987).
In the present case, however, as I have noted, the discrimination which is alleged is not a discrimination said to arise from Erika's undoubted status as a person handicapped by cystic fibrosis. The discrimination is alleged on the basis of her infancy.
For these reasons, I conclude that the complaint does not state a claim under Section 504 of the Rehabilitation Act. Since the complaint fails with respect to the federal claim, it must be dismissed also with respect to the asserted state law claim or claims. I will enter a written order granting the motions to dismiss the complaint.
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