1 Invasion of the Body Snatchers (Walter Wanger Productions 1956).

2 Id.

3 Id.

4 See Stuart Murray, Representing Autism: Culture, Narrative, Fascination 209 (2008). “Like cancer, autism is often seen as a remorseless attacker of innocents, a destroyer of lives and families.” Id. See also Susan Sontag, Illness as Metaphor (1978), reprinted in Susan Sontag, Illness as Metaphor and Aids and its Metaphors 3, at 68 (1990). Sontag refers to the movie “Invasion of the Body Snatchers” to describe, critically, a common image of cancer in the 1970s. Id.

5 The fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 70 (4th ed. 1994) [hereinafter DSM-IV], now under revision, listed among the marks of autism a “lack of … emotional reciprocity.” See also Waterstone, Michael E. & Stein, Michael Ashley, Disabling Prejudice, 102 Nw. U. L. Rev. 1351, 1352 (2008)Google Scholar (reporting, critically, an instance of the common assumption that people with autism do not feel).

6 Roy Richard Grinker, Unstrange Minds: Remapping the World of Autism 5 (2007) (noting that the talk of an autism “epidemic” “implies danger and incites fear, calling up associations with plagues that can sweep through the streets … threatening the ones you love. With autism, the label of ‘epidemic’ sounds both frightening and tragic.”).

7 The fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM), currently in draft form, refers to “lack of social reciprocity” but no longer lists deficits in “emotional reciprocity” among the diagnostic criteria for autism. Am. Psychiatric Ass’n, DSM-5 Proposed Revisions, 299.00 Autistic Disorder, http://www.dsm5.org/ProposedRevisions/Pages/proposedrevision.aspx?rid=94 (last visited Oct. 5, 2010).

8 A prevailing theory of the primary deficits of autism is the “Theory of Mind” thesis, which holds that autism results in a failure to recognize intentional states of others. See Deborah R. Barnbaum, The Ethics of Autism: Among Them, but Not of Them 21 (2008).

9 Jim Sinclair, Don't Mourn for Us, Our Voice (Autism Network Int’l, Syracuse, N.Y.), 1993, available at http://www.autistics.org/library/dontmourn.html. “[T]he child doesn't respond in any way you can recognize as being part of [your] system. That does not mean the child is incapable of relating at all. It only means you’re assuming a shared system, a shared understanding of signals and meanings, that the child in fact does not share.” Id.

10 Michelle Dawson, The Many Varieties of Being Written Off: An Argument About Autism As Catastrophe, No Autistics Allowed: Explorations in Discrimination Against Autistics, http://www.sentex.net/%7Enexus23/naa_wro.html (last visited Oct. 7, 2010). Ms. Dawson was one of the interveners in the case Auton v. British Columbia, [2004] 3 S.C.R. 657 (Can.).

11 See, e.g., the protests launched by the Autistic Self Advocacy Network (ASAN) against the “ransom notes” of the NYU Child Study Center in 2007, http://www.autisticadvocacy.org/modules/smartsection/item.php?itemid=21; Claudia Wallis, ‘I Am Autism’: An Advocacy Video Sparks Protest, Time, Nov. 6, 2009 (discussing analogous protests launched against a video produced for Autism Speaks by Billy Mann and Alfonso Cuaròn in 2009).

12 Hacking, Ian, Humans, Aliens & Autism, 138 Daedalus 44, 44 (2009)CrossRefGoogle Scholar (recalling that “[a] nasty variant [of the alien trope] was used in a disturbing autism awareness sound bite given wide distribution a couple of years ago by the advocacy group CAN: Cure Autism Now. After a bit of ominous music, an intensely concerned young father intones, ‘Imagine that aliens were stealing one in every two hundred children … . That is what is happening in America today. It is called autism.’ This is the ancient myth of the changeling, the troll child substituted in the dead of night for an infant sleeping in his cot at home.”).

13 Parents often reported that their children seemed to be thriving until age 18-24 months. Then, they became withdrawn, unhappy, often non-verbal, and “slipped away.” See, e.g., Hull, Helia Garrido, Induced Autism, 34 Cap. U. L. Rev. 1, 1 (2005)Google Scholar (describing the experience of regressive autism as follows: “[T]he little angel was quickly slipping into the darkness of his own deteriorating ability to communicate … .”).

14 Leo Kanner, Autistic Disturbances of Affective Contact, in 2 Nervous Child, 217-50 (1943), reprinted in Childhood Psychosis: Initial Studies and New Insights (Leo Kanner ed., 1973).

15 Emilio Rodrigué, The Analysis of a Three-Year-Old Mute Schizophrenic, in New Directions in Psychoanalysis: The Significance of Infant Conflict in the Pattern of Adult Behavior 140, 178 (Melanie Klein et al. eds., 2003) (noting that “[t]he autistic child, like Narcissus, is beautiful.”). The overlap of beauty and disability is a remarkable prerogative of autism discourse. Cf. Susan M. Schweik, The Ugly Laws: Disability in Public 3-4 (2009) (discussing laws enacted with the explicit purpose of keeping disability out of sight).

16 Arthur Caplan, Would You Have Allowed Bill Gates To Be Born? MSNBC (May 31, 2005 12:33:55 PM), http://www.msnbc.msn.com/id/7899821.

17 Murray, supra note 4, at 65. The movie Rain Man (Guber-Peters Co. 1988) put great emphasis on the savant qualities of its main character.

18 Sontag, supra note 4, at 68.

19 Id. at 72-73. Sontag also acknowledges that her earlier predictions about the negative impact of breast cancer metaphors did not materialize. Id. at 103.

20 The law of autism might seem to mirror the law of the horse – an unnecessary effort to bring together unrelated and duly self-contained bodies of law. See Llewellyn, Karl N., Across Sales on Horseback, 52 Harv. L. Rev. 725, 729 (1939)CrossRefGoogle Scholar. Autism, however, is not just another quadruped in Llewellyn's world, and is already, for better or for worse, prompting system-wide legal changes, calling for panoramic investigation.

21 Grinker, supra note 6, at 5. It is often the case that “social movements in health” target “health and inequality based on race, ethnicity [and] class.” See Phil Brown & Stephen Zavetoski, Social Movement in Health: An Introduction, in Social Movements in Health 1, 1 (Phil Brown & Stephen Zavestoski eds. 2004).

22 Hacking, supra note 12, at 45.

23 The impetus for generalized early screening for developmental disabilities is to be found in the Children's Health Act of 2000, Pub. L. No. 106-310, 114 Stat. 1101 (2000), which is a product of autism advocacy. See infra note 63 and accompanying text.

24 Murray, supra note 4, at 212. See also Emens, Elizabeth F., Integrating Accommodation, 156 U. Pa. L. Rev. 839, 913 (2008)Google Scholar (discussing more generally the “thirdparty benefits” that may result from the accommodation of disabilities in education and at work).

25 See Genius Locus: Autism and Extraordinary Ability, Economist, Apr. 18 2009.

26 See Robert A. Burt, Promises to Keep, Miles to Go: Mental Health Law Since 1972, in The Evolution of Mental Health Law 11, 18-20 (Lynda E. Frost & Richard J. Bonnie eds., 2001) (discussing “historical cycles of public attention”).

27 See Trudy Steuernagel & Irene Barnett, U.S. Health Social Movements and Public Policy: Autism and Alzheimer's Disease, 2 (2007), available at www.allacademic.com/meta/p198556_index.html, for a comparison of the autism social movement and analogous forms of political mobilization around Alzheimer's disease.

28 Jolls, Christine et al., A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471, 1518-19 (1998)CrossRefGoogle Scholar (discussing cognitive salience and law).

29 Kanner, supra note 14. Swiss psychiatrist Eugen Bleuer had coined the term “autism” in 1910 to indicate a characteristic of patients with schizophrenia. Edward Shorter, A Historical Dictionary of Psychiatry 34 (2005).

30 Bishop, D. V. M., Autism, Asperger's Syndrome and Semantic-Pragmatic Disorder: Where Are the Boundaries?, 24 Brit. J. Disorders Comm. 109, 109 (1989).CrossRefGoogle ScholarPubMed

31 Hans Asperger, ‘Autistic Psychopathy’ in Childhood (1944), reprinted in Autism and Asperger Syndrome 37, (Uta Frith ed., Uta Frith trans., 1991) (originally published in German).

32 In the English literature on the subject, Lorna Wing from the Institute of Psychiatry in London was the first to use and divulge the term “Asperger's Syndrome.” See Wing, Lorna, Asperger Syndrome: A Clinical Account, 11 Psychol. Med. 115, 115-29 (1981).CrossRefGoogle Scholar

33 Amaral, David G. et al., Neuroanatomy of Autism, 3 Trends Neurosci. 137, 137 (2008).CrossRefGoogle Scholar “Autism is a heterogeneous disorder with multiple cause and courses, a great range in the severity of symptoms, and several associated co-morbid disorders. Increasingly, researchers refer to ‘the autisms’ rather than a simple autism phenotype.” Id.

34 See generally Don Brown, Odd Boy Out: Young Albert Einstein (2004).

35 The DSM-IV, supra note 5, is currently undergoing revision and will ultimately be replaced by the DSM-V. See www.DSM5.org. It is possible that Asperger's Syndrome will no longer be a separate label and that autism spectrum disorders will remain the only overarching diagnosis. See Susan Swedo, Report of the DSM-V Neurodevelopmental Disorders Work Group, (Apr. 2009), http://www.psych.org/MainMenu/Research/DSMIV/DSMV/DSMRevisionActivities/DSM-V-Work-Group-Reports/Neurodevelopmental-Disorders-Work-Group-Report.aspx.

36 Liu, Ka-Yuet et al., Social Influence and the Autism Epidemic, 115 Am. J. Soc. 1387, 1389-40 (2010)CrossRefGoogle ScholarPubMed (providing an up-to-date discussion of the debate around the epidemic proportions of autism). According to a recent study of the Centers for Disease Control, “[a]lthough improved ascertainment accounts for some of the prevalence increases documented in the ADDM sites, a true increase in the risk for children to develop ASD symptoms cannot be ruled out.” Autism & Developmental Disabilities Monitoring Network 2006 Principal Investigators, Prevalence of Autism Spectrum Disorders — Autism and Developmental Disabilities Monitoring Network; United States, 2006, Morbidity & Mortality Wkly. Rep.: Surveillance Summaries, December 18, 2009, at 1, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5810a1.htm.

37 Id.

38 See DSM-IV, supra note 5, at 70-71. The Centers for Disease Control (CDC) website excerpts the relevant criteria. Autism Spectrum Disorders, Centers for Disease Control and Prevention, http://www.cdc.gov/ncbddd/autism/hcp-dsm.html. See also DSM-5 Proposed Revisions, supra note 7.

39 See Autism & Developmental Disabilities Monitoring Network 2006 Principal Investigators, supra note 36. The study reveals that Black and Hispanic children were less likely to be identified as having ASD in 2006, but variations may be due to later and fewer diagnoses of ASD in children of ethnic minorities. See Lord, Catherine and Bishop, Somer L., Autism Spectrum Disorders: Diagnosis, Prevalence, and Services for Children and Families, 24 Soc. Pol’y Rep. 1, 9-10 (2010).CrossRefGoogle Scholar

40 Liu, supra note 36, at 1387 (“As there are no definitive biological markers for the vast majority of cases, diagnosis relies on the recognition of a range of behavioral symptoms that vary greatly from case to case[.]”).

41 See Mandell, David S. et al., Racial/Ethnic Disparities in the Identification of Children with Autism Spectrum Disorders, 99 Am. J. Pub. Health 493, 496-97 (2009).CrossRefGoogle ScholarPubMed

42 Bryan Jepson & Jane Johnson, Changing the Course of Autism: A Scientific Approach for Parents and Physicians 11-17 (2007) (describing Kanner's theory and its development).

43 See Bruno Bettelheim, The Empty Fortress: Infantile Autism and the Birth of the Self (1967).

44 See Rodrigué, supra note 15, at 178.

45 Bernard Rimland, Infantile Autism: The Syndrome and Its Implication for a Neural Theory of Behavior (1964).

46 See NBC Nightly News: Meet Founders of “Cure Autism Now” (NBC television broadcast Feb. 22, 2005), available at http://media.autismspeaks.org/media/community/community_07_256k.wmv (describing the rise from grassroots to a full-blown organization). CAN started the Autism Genetic Resource Exchange (AGRE), http://www.agre.org/. NAAR spearheaded the Autism Genome Project. National Alliance for Autism Research, NAAR Autism Genome Project: Fact Sheet 1, http://www.autismspeaks.org/docs/agp1a.pdf. Both initiatives are now subsumed under the umbrella of Autism Speaks activities.

47 See, e.g., Sears, Paul B., Ecology: A Subversive Subject, 14 BioScience 11, 13 (1964)CrossRefGoogle Scholar (laying the groundwork for the environmental social movement that would take off in the 1970s).

48 One especially important effect of the awareness campaign is that police and medical emergency responders are increasingly being trained to deal with persons with autism in order to prevent possibly fatal misunderstandings. See Osborn, Elizabeth Hervey, What Happened to “Paul's Law”?: Insights on Advocating for Better Training and Better Outcomes in Encounters Between Law Enforcement and Persons with Autism Spectrum Disorders, 79 U. Colo. L. Rev. 333, 376-78 (2008).Google Scholar

49 ASA and Autism Speaks are the two centers of autism activism that the Combat Autism Act of 2006 lists as members of the Interagency Autism Coordinating Committee. Combating Autism Act of 2006, 42 U.S.C. § 280i-2 (2006). The Committee is entrusted with the task of coordinating all efforts within the Department of Human Health Services concerning autism spectrum disorders. Id.

50 Carin Yavorcik, ASA and Kirkman Honor Dr. Bernard Rimland with a Memorial Challenge, Autism Society, Nov. 19, 2007, http://www.autism-society.org/site/News2?page=NewsArticle&id=9943 (reminding us that Bernard Rimland “was among the first to realize the importance of combining a focus on medical interventions with support services and advocacy, inspiring him to found ASA”).

51 Autism Speaks Launches National University Program, Autism Speaks, Oct. 9, 2008, http://www.autismspeaks.org/press/autism_speaksu_launched.php.

52 In 2007 Bob and Suzanne Wright, the founders of Autism Speaks, did not subscribe to the vaccine theory of causation, while their daughter Katie (mother of their autistic grandson Christian) did. See Jane Gross & Stephanie Strom, Debate Over Cause of Autism Strains a Family and Its Charity, N.Y. Times, June 18, 2007, at A1.

53 See, e.g., Autism Sci. Found., http://www.autismsciencefoundation.org/home.html (last visited Oct. 2, 2010) (co-founded in April 2009 by Alison Singer, formerly executive vice president of communications and awareness at Autism Speaks). Eric London, who founded NAAR, now serves on the science advisory board of ASF. Id. See also the independent work of the Simons Foundation Autism Research Initiative, https://sfari.org/.

54 See Autism Speaks History, Autism Speaks, http://www.autismspeaks.org/about_us.php (last visited Oct. 5, 2010) (outlining the activities of Autism Speaks).

55 In 2005, the privately raised budget for research in matters of muscular dystrophy, leukemia, and child diabetes (conditions whose incidence is much less alarming) totaled $500 million, while only $15 million were devoted to autism research. See Today Show (NBC television broadcast Feb. 25, 2005) (segment of Suzanne and Bob Wright: Autism Speaks) (graph at 5:38) available at http://media.autismspeaks.org/media/community/community_01_256k.wmv.

56 In February 2010, Sumner Redstone donated $1 million to Autism Speaks. Celebrities who have brought attention to autism include Silvester Stallone, Jenny McCarthy (founder of the organization Generation Rescue), Jim Carey, Joe Mantegna, Brad Whitford, Dan Marino, and Doug Flutie. “In the US in particular, the power of celebrity has become vital in drawing attention to the condition.” Murray, supra note 4, at 134.

57 Stanley Cohen, States of Denial 171 (2001).

58 Bob Wright, co-founder of Autism Speaks, is the former chairman of NBC Universal.

59 A chief lobbyist for Autism Speaks, Craig Snyder, used to be chief of staff to Pennsylvania Senator Arlen Specter. See Alex Wayne, Spending Surge on Autism Outpaces Understanding, Cong. Q. Wkly., Dec. 16, 2007, at 3697. See also Baker, Dana Lee & Steuernagel, Trudy, Comparative Policy Entrepreneurship: The Case of Autism Related Policy in North America, 11 J. Comp. Pol’y Analysis 233, 240 (2009)Google Scholar (“To date, most federal autism policy in the United States has been a product of the relationship between Congress and advocacy groups with policy entrepreneurs as catalysts.”). This bureaucratic progression of social movements into social movement organizations (SMOs) is a well-known phenomenon. See Eduardo Canel, New Social Movement Theory and Resource Mobilization Theory: The Need for Integration, in Community Power and Grassroots Democracy: The Transformation of Social Life 189, 198 (Michael Kaufman & Haroldo Dilla Alfonso eds., 1997).

60 See Vanda Marie Khadem, Esq., Autism Higher Education Foundation, http://www.autismhighereducationfoundation.org/board-of-directors/vanda-marie-khadem-esq/ (explaining that “[t]he lack of lifelong learning opportunities for individuals with autism is a civil rights issue and the next frontier in human rights which demands immediate redress”).

61 See Minow, Martha, Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860, 1891 (1987)CrossRefGoogle Scholar; Laura Schreibman, The Science and Fiction of Autism 258-59 (2005) (noting that “there is no rational ‘con’ argument against the civil rights of [autistic] children”).

62 Canel, supra note 59, at 214. More than social movement theory, resource mobilization theory emphasizes groups’ strategic and instrumental alliances with political forces, and is therefore better suited to deciphering the dynamics of autism activism. See Douglas McAdam et al., Introduction: Opportunities, Mobilizing Structures, and Framing Processes – Toward a Synthetic, Comparative Perspective on Social Movements, in Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings 1 (Doug McAdam et al. eds., 1996).

63 Children's Health Act of 2000, Pub. L. No. 106-310 § 1004, 114 Stat. 1101, 1130 (2000).

64 Id. at 1105.

65 See Steuernagel & Barnett, supra note 27, at 12.

66 Combating Autism Act of 2006, Pub. L. No. 109-416, 120 Stat. 2821 (2006).

67 President Signs CAA Funding, Autism Speaks, http://www.autismspeaks.org/government_affairs/president_signs_caa_funding.php (last visited Oct. 2, 2010). Signed by President Bush in December 2007, the Fiscal 2008 Omnibus Appropriations Act provided for an annual spending of approximately $162 million, of which approximately $108.5 million was to be devoted to NIH-funded autism research. Id.

68 See Edward W. Lempinen, Obama Budget Proposal Details Range of New R&D Priorities, AAAS Analyst Says, Am. Ass’n for the Advancement of Sci. (March 18, 2010), http://www.aaas.org/news/releases/2010/0318rd_clemins_briefing.shtml. HHS Secretary Kathleen Sebelius's press release of February 1st, 2010 on the President's Fiscal Year 2011 Budget included the following statement:

Press Release, U.S. Dep't of Health and Human Servs., HHS Budget Makes Smart Investments, Protects the Health and Safety of America's Families (Feb. 1, 2010), available at http://www.hhs.gov/news/press/2010pres/02/20100201a.html.

69 Press Release, Dep't of Defense, Dep't of Defense Autism Research Program (ARP) Funding Opportunities for Fiscal Year 2009 (FY09) (Jan. 28, 2009), available at http://cdmrp.army.mil/pubs/press/2009/09arppreann.htm (noting that the Fiscal Year 2009 Defense Appropriations Act provides $8 million to ARP). Funding was renewed for another $8 million for FY 2010. See Autism, Congressionally Directed Medical Research Programs, http://cdmrp.army.mil/arp/default.htm (last updated Aug. 16, 2010).

70 See Interagency Autism Coordinating Committee, 2010 Strategic Plan for Autism Spectrum Disorder Research 5 (Jan. 19, 2010), available at http://iacc.hhs.gov/strategic-plan/2010/index.shtml (“[Autism] research has become a national priority, receiving a massive surge in funding through the American Recovery and Reinvestment Act (ARRA) of 2009.”)

71 Janet Halley, “Like Race” Arguments, in What's Left of Theory? New Work on the Politics of Literary Theory 40, 50 (2000).

72 See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978) (discussing the legal treatment of immutable characteristics). Autism is deemed treatable but non-curable. The minority group model of disability policy is conceptually opposite to a “universal” understanding of disability, which by contrast posits that disability-specific policies are undesirable, and rather puts forth “general rule[s] of flexibility to recognize that all people are different.” Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement 21 (2009).

73 See Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 31 (1990) (remarking that “making differences matter singles out the disabled child.”).

74 The expression “discrete and insular minority” famously originated in footnote four of the opinion in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) and was later referred to in the Americans with Disabilities Act of 1990, 42 USC § 12101(a)(7) (2006). The 2008 amendments of the ADA eliminated such a reference.

75 See Minow, supra note 73, at 108. “Special rights, justified by difference, undermine claims of equal treatment predicated on sameness.” Id.

76 Bagenstos, supra note 72, at 20-33 (discussing internal tensions among disability rights activists).

77 See Mark Osteen, Autism and Representation: A Comprehensive Introduction, in Autism and Representation 1, 6 (Mark Osteen ed., 2008) “Certain high-functioning autists and those diagnosed with Asperger's Syndrome (self-described ‘Aspies’) … [proclaim] that they are not sick and don't need to be ‘cured.’”. The origin of the neurodiversity strand within the autism movement is usually traced to Judy Singer, Why Can't You be Normal for Once in Your Life? From a ‘Problem with no Name’ to the Emergence of a New Category of Difference, in Disability Discourse 59, 64 (Mairian Corker & Sally French eds., 1999).

78 Sinclair, supra note 9.

79 Factum of the Intervener Michelle Dawson, An Autistic at the Supreme Court, Auton v. B.C., 3 S.C.R. 657 (2004), available at http://www.sentex.net/~nexus23/naa_fac.html (reminding readers that Dr. Lovaas, a pioneer of behavioral autism treatment, advocated behavior modification therapy for homosexual persons) (quoting Rekers, G.A. et al., Child Gender Disturbances: A Clinical Rationale for Intervention, 14 Psychotherapy: Theory, Research & Practice 2, 9 (1977)).CrossRefGoogle Scholar See also Yoshino, Kenji, Covering, 111 Yale L.J. 769, 788 (2002).CrossRefGoogle Scholar

80 Osteen, supra note 77, at 6 (referring to “a flourishing online community devoted to disseminating information about autistic people and their lives”). See, e.g., The Autistic Self Advocacy Network, http://www.autisticadvocacy.org (last visited Oct. 1, 2010); Aspies for Freedom, http://www.aspiesforfreedom.com (last visited Oct. 1, 2010); Autistics.org: The Real Voice of Autism, http://www.autistics.org (last visited Oct. 1, 2010); see also Andrew Solomon, The Autism Rights Movement, N.Y. Magazine, May 25, 2008, available at http://nymag.com/news/features/47225/.

81 David Wolman, The Advantages of Autism, New Scientist, May 4, 2010.

82 IACC members include Stephen Shore, Executive Director of Autism Spectrum Consulting, and most recently Ari Ne’eman, Founding President of Autistic Self Advocacy Network. HHS Secretary Sebelius Appoints Five New Membersto the Interagency Autism Coordinating Committee (IACC), Interagency Autism Coordinating Committee (Apr. 30, 2010), http://www.iacc.hhs.gov/news/news_updates/2010/news_2010_iacc_new_members.shtml.

83 President Obama nominated Mr. Ne’eman to the National Council on Disabilities. This nomination proved controversial within the autism movement and was placed on hold. See Amy Harmon, Nominee to Disability Council Is Lightning Rod for Dispute on Views of Autism, N.Y. Times, Mar. 28, 2010, at A16. The nomination was confirmed on June 22, 2010.

84 See, e.g., Defeat Autism Now (DAN), Autism Research Institute, http://www.defeatautismnow.com (last visited Oct. 1, 2010).

85 Age of Autism, http://www.ageofautism.com (last visited Oct. 1, 2010).

86 Generation Rescue, http://www.generationrescue.org (last visited Oct. 1, 2010).

87 See Dan Olmstead, Roy Grinker's Unright Facts, Age of Autism (July 29, 2009), http://www.ageofautism.com/2008/07/olmsted-on-au-2.html.

88 See Landrigan, Philip J., What Causes Autism? Exploring the Environmental Contribution, 22 Current Opinion in Pediatrics 219, 219 (2010)CrossRefGoogle ScholarPubMed (encouraging further study of environmental triggers for autism). See also David Kirby, Evidence of Harm: Mercury in Vaccines and the Autism Epidemic: A Medical Controversy xiii (2005). Cf. Paul A. Offit, Autism's False Prophets: Bad Science, Risky Medicine, and the Search for a Cure 126-27 (2008).

89 Representatives of associations like TACA (talkaboutcuringautism.org), National Autism Association (NAA), Generation Rescue, and SafeMinds (Sensible Action For Ending Mercury-Induced Neurological Disorders) have so far been kept outside of the Inter-Agency Autism Coordination Committee.

90 See, e.g., Blaylock, Russell L., The Truth Behind the Vaccine Cover-up, 5 Med. Veritas 1714, 1724 (2008).Google Scholar

91 See, e.g., Action Plan, Generation Rescue, http://www.generationrescue.org/recovery/get-started (last visited Oct. 1, 2010). See also Jill Neimark, Autism: It's Not Just in the Head, Discover, Apr. 2007, available at http://discovermagazine.com/2007/apr/autism-it2019s-not-just-in-the-head.

92 See, e.g., Chelation: The Story Behind the Headlines, 19 Autism Research Review International 3, 3 (2005)Google Scholar (asserting that psychiatric drugs “only suppress symptoms, while causing a host of horrific and sometimes lethal side effects.”).

93 For a glimpse of such disputes, see Kim Stagliano, Suzanne Wright Speaks. Does Autism Speaks Listen?, Huffington Post (Aug. 20, 2007), http://www.huffingtonpost.com/kim-stagliano/suzanne-wright-speaks-do_b_61202.html.

94 See Shelley Tremain, On the Government of Disability. Foucault, Power, and the Subject of Impairment, in The Disability Studies Reader 185 (Lennard J. Davis ed., 2d ed. 2006).

95 See Lennard J. Davis, Bending Over Backwards: Disability, Dismodernism, and Other difficult Positions 12, 41 (2002).

96 Crossley, Mary, The Disability Kaleidoscope, 74 Notre Dame L. Rev. 621, 654 (1999).Google Scholar

97 See Vlad Perju, Impairment, Discrimination, and the Legal Construction of Disability in the United States and Europe, 44 Cornell Int’l L.J. (forthcoming 2010).

98 “[T]he social model of disability tends to have somewhat less purchase in the realm of psychiatric disabilities.” Elizabeth F. Emens, Against Nature, Nomos, (forthcoming 2010) (manuscript on file with the author).

99 See Osteen, supra note 77, at 3 (arguing that “[d]isability studies’ adherence to the social-constructionist model, with its heavy debt to Foucault, has helped to foster a set of biases and misrepresentations … thereby excluding the intellectually disabled just as mainstream society has done.”)

100 Chamak, Brigitte, Autism and Social Movements: French Parents’ Associations and International Autistic Individuals’ Organizations, 30 Sociology of Health & Illness 76, 76 (2007).CrossRefGoogle Scholar “If the disability movement is considered as the latest generation of social movements, the action of autistic persons can be viewed as the latest generation of the disability movements.” Id. Some put much less emphasis on the exceptionalism of autism. See Gil Ayal et al., The Autism Matrix 3-4 (2010) (pointing at the blending of all “atypical” children, from severely disabled to semi-geniuses, that resulted from the deinstitutionalization of mental retardation in the 1960, and connecting the social construction of the current “autism spectrum” to that fluid blend).

101 Martha Nussbaum identifies the root of the lesser status of people with mental disabilities in the “Kantian conception of the person, which makes possession of the mental and moral powers central both to equality and to the key idea of reciprocity.” Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership 130 (2006).

102 David Gauthier, Justice as Mutual Advantage, in Contemporary Political Theory: A Reader 89, 97-98 n.20 (Colin Farrelly ed., 2004). Even in the writings of authors who espouse a more strongly redistributive approach, persons with very low IQs remain somehow beyond philosophical reach. Rawls expressly leaves disabilities out of his theory of justice, leaving others with the task of elaborating “Rawlsian” approaches to disability and distribution. For Martha Nussbaum, severely mentally impaired persons lead an unfortunate existence that a just society should, if scientifically possible, genetically re-engineer. Nussbaum, supra note 101, at 193. The limits of Nussbaum's theory of justice when it comes to persons with severe mental impairments are highlighted in Stein, Michael Ashley, Disability Human Rights, 95 Cal. L. Rev. 75, 110 (2007)Google Scholar (noting critically that “Nussbaum's approach continues to use functional ability as a metric to justify distribution.”). See also Stein, Mark S., Nussbaum: A Utilitarian Critique, 50 B.C. L. Rev. 489, 501-02 (2009).Google Scholar

103 See Eva Feder Kittay, Equality, Dignity and Disability, in Perspectives on Equality: The Second Seamus Heaney Lectures 93 (Mary Ann Lyons & Fionnuala Waldron eds., 2005) (discussing dignity as an entitlement for persons with severe mental disabilities).

104 See Michael Ashley Stein, supra note 102.

105 See, e.g., Kaplow, Louis & Shavell, Steven, Fairness Versus Welfare, 114 Harv. L. Rev. 961, 967-69 (2001)CrossRefGoogle Scholar (positing that “notions of fairness like corrective justice[, rights, and cognate concepts] should receive no independent weight in the assessment of legal rules”).

106 Michael L. Ganz, The Costs of Autism, in Understanding Autism: From Basic Neuroscience to Treatment 475, 493-96 (Steven O. Moldin & John L. R. Rubenstein eds., 2006). A comprehensive 2006 study reports that the total annual societal per capita cost of caring for and treating a person with autism in the U.S. amounts to $3.2 million. Id. at 496. The distribution of these costs over time was further detailed in Ganz, Michael L., The Lifetime Distribution of Incremental Societal Costs of Autism, 161 Archives Pediatrics & Adolescent Med. 343, 343-49 (2007).CrossRefGoogle ScholarPubMed Autism appears to be more expensive than other forms of childhood special needs. Croen, Lisa A. et al., A Comparison of Health Care Utilization and Costs of Children With and Without Autism Spectrum Disorders in a Large Group-Model Health Plan, 118 Pediatrics e1203, e1203-11 (2006).CrossRefGoogle Scholar Children with autism reportedly need more medication, more doctors’ visits, and in general more care than children with other emotional, developmental, or behavioral problems. See Kogan, Michael D. et al., A National Profile of the Health Care Experiences and Family Impact of Autism Spectrum Disorder Among Children in the United States, 2005–2006, 122 Pediatrics e1149, e1149-58 (2008).CrossRefGoogle ScholarPubMed

107 See Genius Locus, supra note 25.

108 In the words of Temple Grandin, a prominent example of autism self-advocacy, “[i]f the genetic factors that cause autism were eliminated from the human race, we would pay a terrible price. The way I see it, it is likely that the genetics that produce autism are the same genetics that create an Einstein or a Mozart … .” Temple Grandin, The Way I See It: A Personal Look at Autism and Asperger's 241 (2009). As is well known, utilitarianism has often been the driving engine of disability law reforms. See Mark S. Stein, Distributive Justice and Disability. Utilitarianism against Egalitarianism 37-39 (2006). What is peculiar to autism, however, is its ability to give a utilitarian spin even to profound intellectual disabilities, which have traditionally scored poorly in coarse cost/benefit analyses.

109 See Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 481 (1995) (“There is thus a powerful insurance feature that leads everyone to think that some assistance for the disabled may not be solely an act of disinterested benevolence but one of prudent self-interest as well.”). The idea that the level of compensation for disabilities should be based on what individuals themselves would have wanted to insure for is articulated in Ronald Dworkin, Sovereign Virtue 76-83 (2000).

110 See, e.g., Mark S. Blumberg, Freaks of Nature: What Anomalies Tell Us About Development and Evolution 6-7 (2008).

111 See Simon Baron-Cohen, The Essential Difference: Male and Female Brains and the Truth About Autism (2004). Autism occurs about four times more often in boys than in girls. Lord & Bishop, supra note 39, at 4.

112 John Gray, Men Are from Mars, Women Are from Venus: A Practical Guide for Improving Communication and Getting What You Want in Your Relationships 9 (1993).

113 Josh Hafenbrack, Florida Legislature Passes Plan for Autism Insurance Coverage, South Florida Sun-Sentinel, May 3, 2008, at 10B.

114 See McAdams, Richard H., The Expressive Power of Adjudication, 2005 U. Ill. L. Rev. 1043, 1062 (2005).Google Scholar

115 Claudia Wallis, Autism Linked to Genes That Govern How the Brain Is Wired, Time (Apr. 28, 2009), http://www.time.com/time/health/article/0,8599,1894409,00.html (last visited Oct. 23, 2010).

116 See, e.g., Lauritsen, Marlene Briciet et al., Effects of Familial Risk Factors and Place of Birth on the Risk of Autism: A Nationwide Register-Based Study, 46 J. Child Psych. & Psychiatry 963, 963-71 (2005).CrossRefGoogle ScholarPubMed

117 See Sugarman, Stephen, Cases in Vaccine Court – Legal Battles over Vaccines and Autism, 357 New Eng. J. Med. 1275, 1275 (2007)CrossRefGoogle ScholarPubMed; Moreno, Joëlle Anne, Toxic Torts, Autism, and Bad Science: Why the Courts May Be Our Best Defense Against Scientific Relativism, 40 New Eng. L. Rev. 409, 409-12 (2006).Google Scholar

118 See Young, Heather A. et al., Thimerosal Exposure in Infants and Neurodevelopmental Disorders: An Assessment of Computerized Medical Records in the Vaccine Safety Datalink, 271 J. Neurol. Sci. 110, 110-17 (2008).CrossRefGoogle ScholarPubMed The hypothesis of a connection between vaccines and autism was first raised in Wakefield, Andrew, Ileal-Lymphoid-Nodular Hyperplasia, Non-Specific Colitis, and Pervasive Developmental Disorder in Children, 351 Lancet 637, 637-41 (1998)CrossRefGoogle ScholarPubMed. This article was later found to be lacking in integrity and scientific rigor. See Retraction – Ileal-Lymphoid-Nodular Hyperplasia, Non-Specific Colitis, and Pervasive Developmental Disorder in Children, Lancet (Feb. 2, 2010), http://press.thelancet.com/wakefieldretraction.pdf. See also Frontline: The Vaccine War (PBS television broadcast April 27, 2010) (exploring the controversy and generating more of it).

119 Thimerosal was banned from all over-the-counter drugs in 1998. In July 2007 President Bush vetoed a bill that would have banned Thimerosal from flu vaccines.

120 H.R. Rep. No. 99-908, at 18 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6359.

121 Cantor, Daniel A., Striking a Balance Between Product Liability and Product Safety: Lessons from the Vaccine Act, 44 Am. U. L. Rev. 1853, 1861 (1995).Google Scholar

122 The Vaccine Act contains a “Vaccine Injury Table” that lists several vaccines manufactured in the United States and a number of related injuries. 42 U.S.C. § 300aa-14 (2006). Controversies falling clearly within the four corners of the table are easily handled. Causation is presumed if the symptoms occurred within the time period identified in the Table. 42 U.S.C. § 300aa-13(a)(1)(A) (2006). Autism is not among the injuries listed in the table.

123 See Berger, Margaret A. & Twerski, Aaron D., Uncertainty and Informed Choice: Unmasking Daubert, 104 Mich. L. Rev. 257, 259 (2005)Google Scholar (remarking that “significant changes in the doctrine are not in the offing”).

124 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 580 (1993) (establishing such high evidentiary standards).

125 National Vaccine Injury Compensation Program: About the Omnibus Autism Proceeding, U.S. Dept. Health and Human Services, Health Resources and Services Admin., http://www.hrsa.gov/vaccinecompensation/omnibusproceeding.htm (last updated Aug. 19, 2010) (discussing the establishment of the Proceeding and Office of Special Masters’ Autism General Order #1, which started the Proceeding).

126 The system is designed to test three different theories of general causation, each on the basis of three test cases. The three theories assume, respectively: 1) that the MMR vaccine can combine with Thimerosal-containing vaccines (TCV) to cause autism; 2) that TCVs alone cause autism; 3) that the MMR vaccine alone causes autism. Id.

127 Institute of Medicine, Immunization Safety Review: Thimerosal-Containing Vaccines and Neurodevelopmental Disorders 5 (2001) (finding the evidence “inadequate to accept or reject a causal relationship” and recommending further research).

128 See Moreno, supra note 117, at 414-15 (blaming the vaccine scare on “conspiracy theorists”).

129 Institute of Medicine, Immunization Safety review: Vaccines and Autism 8 (2004).

130 Vaccine Case Draws New Attention to Autism Debate, CNN (Mar. 7, 2008, 10:57 AM), http://www.cnn.com/2008/HEALTH/conditions/03/06/vaccines.autism/index.html. See also Moreno, supra note 117, at 411-12 (criticizing politicians who pandered to anti-vaccine constituencies).

131 Some parents of children with autism have chosen to sue manufacturers of Thimerosal-containing drugs along the lines of typical toxic tort litigation, but they have regularly been unable to meet the threshold of causation by preponderance of the evidence. See Sill, Beverly Jones, Note, Toussaint v. Merck & Co.: Opening the Door to Thimerosal Vaccine Litigation in Civil Court?, 21 Ga. St. U. L. Rev. 773, 784 (2005).Google Scholar Other types of Thimerosal litigation also ended with plaintiffs’ defeat. See, e.g., Redfoot v. B.F. Ascher & Co., No. C-05-2045(PJH) 2007 U.S. Dist. LEXIS 40002 (N.D. Cal. June 1, 2007) (nasal spray, products liability); Doe v. Ortho-Clinical Diagnostics, Inc., 440 F. Supp. 2d 465 (M.D.N.C. 2006) (Thimerosal in Rhogam given to mother before birth). See also Shemin, Gordon, Mercury Rising: The Omnibus Autism Proceeding and What Families Should Know Before Rushing Out of the Vaccine Court, 58 Am. U. L. Rev. 459, 491-508 (2008)Google Scholar (discussing the procedural difficulties of switching from the vaccine court to general tort litigation).

132 Editorial, Vaccines Exonerated on Autism, N.Y. Times, Feb. 12, 2009, at A30. See Cedillo v. Sec’y of Health & Human Servs., No. 98-916V, 2009 WL 331968 (Fed. Cl. 2009); Hazlehurst v. Sec’y of Health & Human Servs., No. 03-654V, 2009 WL 332306 (Fed. Cl. Feb. 12 2009); Snyder v. Sec’y of Health & Human Servs., No. 01-162V, 2009 WL 332044 (Fed. Cl. Feb. 12 2009). The Special Master assigned to the Cedillo case concluded: “[T]he petitioners have failed to demonstrate that thimerosal-containing vaccines can contribute to causing immune dysfunction, or that the MMR vaccine can contribute to causing either autism or gastrointestinal dysfunction.” Cedillo, 2009 WL 331968, at *1.

133 Golub v. Sec’y of Health & Human Servs., No. 99-5161, 2000 U.S. App. LEXIS 24858, at *3-5 (Fed. Cir. Oct. 3, 2000); Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007).

134 Kent Heckenlively, Full Text: Autism Vaccine Case, Age of Autism (Feb. 26, 2008), http://www.ageofautism.com/2008/02/full-text-autis.html.

135 Id.

136 See Claudia Wallis, Case Study: Autism and Vaccines, Time (Mar. 10, 2008), http://www.time.com/time/health/article/0,8599,1721109,00.html.

137 Gardiner Harris, Deal in an Autism Case Fuels Debate on Vaccine, N.Y. Times, Mar. 8, 2008, at A9.

138 See, e.g., Poling Case Intensifies Debate: Vaccine-Autism Link Worth Investigating, Says Former NIH Director, Ass’n of Am. Physicians and Surgeons (May 24, 2008), www.aapsonline.org/newsoftheday/0027; Gardiner Harris, Experts to Discuss One Puzzling Autism Case, as a Second Case Has Arisen, N.Y. Times, June 28, 2008, at A15. See also David Kirby, The Next Vaccine-Autism Newsmaker: Not Isolated, Not Unusual, Huffington Post (Apr. 27, 2008, 1:04 AM), http://www.huffingtonpost.com/david-kirby/the-next-vaccine-autism-n_b_98807.html.

139 Calandrillo, Steve P., Vanishing Vaccinations: Why Are So Many Americans Opting out of Vaccinating Their Children?, 37 U. Mich. J.L. Reform 353, 398-99 (2003).Google Scholar

140 See Steven Novella, Autism Court Ruling – Vaccines Didn't Cause Autism, NeurologicaBlog (Feb. 12, 2009), http://www.theness.com/neurologicablog/?p=478 (noting that “the standard of evidence for the compensation program has been significantly lowered recently”).

141 Banks v. Sec’y of Dep't of Health and Human Servs., No. 02-0738V, 2007 WL 2296047 (Fed. Cl. July 20, 2007). The case received notoriety because the group Generation Rescue publicized it, purchasing a full-page advertisement in USA Today's February 25, 2009 issue that read: “Court Again Concedes Vaccines Cause Autism.” See David Gorski, The Incredible Shrinking Vaccine-Autism Hypothesis Shrinks Some More, Science-Based Med. (Mar. 2, 2009), http://www.sciencebasedmedicine.org/?p=393.

142 See Sharon Begley, Vaccines and Autism: The Unending Story, Newsweek, Feb. 25, 2009, at 2 (describing the settlement terms).

143 Banks, 2007 WL 2296047, at *15.

144 Id. at *16.

145 See, e.g., Autism Spectrum Disorders, supra note 38. The CDC includes PDD criteria on its website in the Autism Spectrum Disorder section.

146 See Drye-Durden v. Stripling, No. 04-2817, 2006 U.S. Dist. LEXIS 39817, at *13 (S.D. Tex. June 14, 2006).

147 Id.

148 Id.

149 Mass. Advocates for Children, Bullying of Children with Autism Spectrum Disorder (2009), available at http://www.massadvocates.org/uploads/44/a0/44a075940bd061eef73d72ec643c2762/Bullying-Report-final-s.pdf.

150 See Frédérique de Vignemont and Uta Frith, Autism, Morality, and Empathy, in Moral Psychology: The Neuroscience of Morality: Emotion, Brain Disorders, and Development 273, 275 (Walter Sinnott-Armstrong ed. 2007) (noting that emotional empathy can coexist with autistic traits.)

151 See Barnbaum, supra note 8, at 6 (noting that “the fact that autism challenges a person's ability to make intentional ascriptions presents startling ethical implications”). Id. at 113 (positing that autism presents a novel challenge to Hume's and Kant's ethical theories).

152 See Channon, Shelley et al., Punishment and Sympathy Judgments: Is the Quality of Mercy Strained in Asperger's Syndrome?, 40 J. Autism Dev. Disord. 1219, 1220 (2010), available at http://www.springerlink.com/content/d8683778812814n0/fulltext.pdf.CrossRefGoogle ScholarPubMed

153 See Stephen J. Morse, From Sikora to Hendricks: Mental Disorders and Criminal Responsibility, in The Evolution of Mental Health Law 129, 134 (L.E. Frost & R.J. Bonnie eds., 2002) (reporting, critically, that the law considers those who lack empathy and guilt “particularly immoral and deserving of special condemnation”).

154 See Barnbaum, supra note 8, at 65.

155 See Farahany, Nita A., Cruel and Unequal Punishments, 86 Wash. U. L. Rev. 859, 897 (2009)Google Scholar (observing that roughly 30% of people with autism do not have mental retardation). Farahany laments the injustice of depriving these persons of the mitigating effect of mental retardation in death penalty cases. Id. at 898.

156 For a recent exploration of these questions, see Simons, Kenneth W., Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment, 109 Colum. L. Rev. Sidebar 1 (2009).Google Scholar

157 Morse, supra note 153, at 133 (positing that “normative competence in the context of responsibility for wrongdoing should include the ability to empathize and feel guilt or some other reflexive reactive emotion”).

158 See Kennett, Jeanette, Autism, Empathy, and Moral Agency, 52 Phil. Q. 340, 353-55 (2002)CrossRefGoogle Scholar (positing that persons with high functioning autism possess a concern to act in accordance with reasons and may therefore exhibit deep moral concern).

159 See Cohen, Meir Dan, Responsibility and the Boundaries of the Self, 105 Harv. L. Rev. 959 (1992).CrossRefGoogle Scholar

160 See Erickson, Steven K., The Myth of Mental Disorder: Transsubstantive Behavior and Taxometric Psychiatry, 41 Akron L. Rev. 67, 71-72 (2008)Google Scholar (discussing the difficulty of matching the metaphysical construct of free will, which takes center stage in criminal law, with psychiatric science, which relies on biomedical criteria). See also Litton, Paul, Psychopathy and Responsibility Theory, 5 Phil. Compass 676 (2010).CrossRefGoogle Scholar

161 See Commonwealth v. Odgren, 915 N.E.2d 215 (Mass. 2009).

162 Patricia Wen & Milton J. Valencia, Jury Convicts Odgren of 1st-Degree Murder; Rejects Insanity Defense; Life Term Mandatory, Boston Globe, Apr. 30, 2010, at 1.

163 See Farahany, supra note 155, at 897. In Massachusetts, courts do not recognize the diminished capacity defense that is allowed in other states, but they permit defendants to submit “psychiatric evidence that would allow a jury to consider whether the defendant lacked the mental capacity to premeditate a killing.” Commonwealth v. Gaboriault, 785 N.E.2d 691, 699 (Mass. 2003).

164 Andrew Ryan, Odgren Hearing Focuses on Asperger's Disorder's Relevance to Slaying, Boston Globe, Mar. 7, 2008, at B1.

165 Jonathan Saltzman, Psychologist Says Teen Competent for Trial but Ruling Put Off in School Slaying, Boston Globe, Mar. 27, 2007, at 1A.

166 Judge Botsford, in Odgren, 915 N.E.2d at 218, reports: “In January, 2008, the defendant notified the Commonwealth of his intent to rely on a defense of lack of criminal responsibility because of mental disease or defect.”

167 Comment to Psychologist says Teen Competent for Trial but Ruling Put Off in School Slaying, Aspies for Freedom (Mar. 27, 2007, 10:58 P.M.), http://www.aspiesforfreedom.com/showthread.php?tid=7330www.aspiesforfreedom.com/showthread.php?tid=7330. The idea that something quite different from Asperger's Syndrome may be related to aggression finds support in Newman, Stewart S. et al., Violent Crime in Asperger Syndrome: The Role of Psychiatric Comorbidity, 38 J. Autism Dev. Disord. 1848 (2008).CrossRefGoogle ScholarPubMed

168 Michael Goldberg, Asberger's Association Responds to Tragedy at Boston Area High School, Autism Bulletin (Jan. 22, 2007, 10:22 PM), http://autismbulletin.blogspot.com/2007/01/aspergers-association-responds-to.html. The website of the Autism Society of America explains:

The Criminal Justice System and Autism, in Autism Society of America, Living With Autism: Criminal Justice Issues, http://www.autism-society.org/site/PageServer?pagename=about_lwa_justice.

169 Susan Senator, The Autism Blame Game, Susan's Blog (Jan. 23, 2007, 2:52 PM), http://susansenator.com/blog/2007/01/autism-blame-game.html.

170 Id.

171 Id.

172 The diagnosis of autism is so amorphous that it is hard to establish a correlation between autism and aggression. A study published in 2007 found “little evidence to support the notion that offending was a significant problem in people with Asperger.” Allen, David et al., Offending Behaviour in Adults with Asperger Syndrome, 38 J. Autism Dev. Disord. 748, 757 (2008).CrossRefGoogle ScholarPubMed However, one often reads statements to the contrary. See, e.g., Haskins, Barbara G. & Silva, Arturo, Asperger's Disorder and Criminal Behavior: Forensic-Psychiatric Considerations, 34 J. Am. Acad. Psychiatry L. 374, 377 (2006)Google ScholarPubMed (suggesting that individuals with Asperger's Syndrome appear more frequently in forensic populations than in the general public); see also Farahany, supra note 155, at 897 (“Individuals with autism are easily manipulated, and therefore easily enticed into criminal behavior.”).

173 Milton J. Valencia & Patricia Wen, Odgren Convicted of First-Degree Murder; Faces Life Imprisonment, Boston Globe (Apr. 29, 2010, 4:53 PM). On April 10, 2010 the defense had moved (in vain) to have the sentence of life without parole for a crime committed by a juvenile declared unconstitutional, and to have Odgren sentenced to life with the possibility of parole.

174 See, e.g., June Schwartz, Justice Served in Odgren Case, Boston Globe, May 8, 2010, at 10.

175 “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” Model Penal Code § 4.01.1 (1962).

176 Model Penal Code § 4.01.1 explanatory note (1962).

177 Model Penal Code § 4.01.1 explanatory note (1962).

Id. (emphasis added).

178 Mayes, Thomas A., Persons with Autism and Criminal Justice: Core Concepts and Leading Cases, 5 J. Positive Behav. Interventions 92, 94 (2003).CrossRefGoogle Scholar

179 According to criminal law theorist Stephen Morse,

Morse, Stephen J., New Neuroscience, Old Problems: Legal Implications of Brain Science, 6 Cerebrum 81, 85-86 (2004).Google ScholarPubMed See also Morse, supra note 153, at 131 (addressing volitional or compulsion problems, and concluding that they should be treated, just like cognitive problems, as rationality deficiencies).

180 Greene, Joshua & Cohen, Jonathan, For the Law, Neuroscience Changes Nothing and Everything, 359 Phil. Transactions R. Soc’y Lond. B 1775, 1784 (2004).Google ScholarPubMed

181 A recent CDC study shows that close to 60% of children with ASD have IQs over 70. Prevalence of Autism Spectrum Disorders, Centers for Disease Control and Prevention 1, 9 (Dec. 18, 2009), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5810a1.htm.

182 Julie Berry, Safety Doesn't Come From Stereotyping or Overreacting, MetroWest Daily News, Feb. 2, 2007. See also Susan Spencer-Wendel, Autism Defenses, Rare but Gaining Notoriety, Palm Beach Post, Apr. 18, 2009, at 1B (wondering whether “autism-made-me-do-it” is the “new defense du jour”).

183 State v. Burr, 948 A.2d 627, 634 (N.J. 2008). By contrast, defense attorney Alan Margoles failed to persuade the court of the relevance of his client Michael John Anderson's Asperger's Syndrome. Abby Simons, Asperger's Diagnosis Is Rejected in Craigslist Trial, Star Trib. (Minneapolis, MN) Mar. 14, 2009, at 2B.

184 See Jeff Truesdell, Should an Autistic Child be Charged with Murder?, People, Apr. 20, 2009, at 87-88 (commenting on the murder of Gertrude “Trudy” Steuernagel allegedly committed by her severely autistic son, Sky Walker).

185 See Letter from Michelle Dawson to Hon. Jane Stewart, Minister of Human Res. Dev., Can. (Oct. 23, 2003), Autism Society Canada Speaks for Itself, No Autistics Allowed, http://www.sentex.net/~nexus23/naa_js.html (denouncing the Autism Society of Canada's “denigration of autistics through sensationalism, condescension, and misrepresentation … [aimed at] fulfill[ing] the emotional and perceived financial needs of non-consumers”).

186 Herman Melville, Bartleby, the Scrivener: A Story of Wall Street, 2 Putnam's Monthly: A Mag. of Am. Literature, Sci. & Art 546, 609-13 (Dec. 1853).

187 See, e.g., Steve Silberman, The Geek Syndrome, Wired, December 2001, available at http://www.wired.com/wired/archive/9.12/aspergers.html (last visited Oct. 21, 2010) (discussing the prevalence of autistic characteristics amongst Silicon Valley programmers and their children).

188 For the Danish company Specialisterne, hiring persons with autism is no less than a business plan, and other entrepreneurs around the world are following their example. Specialist People Foundation, Specialisterne, http://www.specialistpeople.com/index.php?id=47 (last visited Oct. 21, 2010). See Brave Thinkers, Atlantic, Nov. 2009, at 68. Autelligent Laboratories is an example of one American company trying to expand the Danish model. Autelligent Laboratories, http://www.autlabs.com (last visited Oct. 7, 2010).

189 Wolman, supra note 81 (reporting that “Michelle Dawson, an autistic cognition researcher at the University of Montreal, Canada, cautions against pigeonholing people: ‘[a]sking what kind of job is good for an autistic is like asking what kind of job is good for a woman,’ she says”).

190 42 U.S.C. § 12102(1)(A) (2006).

191 McAlindin v. County of San Diego, 192 F.3d 1226, 1232-35 (9th Cir. 1999) (finding that “interacting with others” is a major life activity under the ADA). See also Francis v. Chem. Banking Corp., 2000 WL 687715, at *1 (2d Cir. May 24, 2000) (assuming without deciding that “interacting with others constitute[s] [a] major life activity”); Doyal v. Okla. Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (same). Cf. Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997) (expressing doubt that “the ability to get along with others” is a major life activity under the ADA).

192 Morgenthal v. AT&T, No. 97 Civ. 6443 (DAB), 1999 U.S. Dist. LEXIS 4294, at *8 (S.D.N.Y. Apr. 5, 1999) (“[Autism] is recognized as a disability under the ADA. See 24 C.F.R. § 9.103 (1998).”); Jakubowski v. Christ Hosp., No. 1:08-CV-00141, 2009 U.S. Dist. LEXIS 66847, at *23 (S.D. Ohio Aug. 3, 2009) (“Plaintiff's Asperger's Syndrome amounts to a ‘mental impairment.’”)

193 Taylor v. Food World, Inc., 133 F.3d 1419, 1425 (11th Cir. 1998) (denying summary judgment for employer where there existed a genuine issue of material fact as to whether autistic grocery store clerk terminated for loud constant repetitive speech and inappropriate comments could nevertheless perform the essential functions of his clerk position with accommodation).

194 Mostafa, Magda, An Architecture for Autism: Concepts of Design Intervention for the Autistic User, 2 Int’l J. Architectural Res. 189, 193 (2008).Google Scholar

195 Comber v. Prologue, Inc., No. JFM-99-2637, 2000 U.S. Dist. LEXIS 16331, at *3 (D. Md. Sept. 28, 2000).

196 Id. at *4.

197 Id.

198 Id. at *2.

199 Id. at *33.

200 Davidson, Joyce, It Cuts Both Ways: A Relational Approach to Access and Accommodation for Autism, 70 Soc. Sci. & Med. 305, 307-08 (2010).CrossRefGoogle ScholarPubMed

201 Comber, 2000 U.S. Dist. LEXIS 16331, at *4.

202 Id. at *13-15.

203 See, e.g., Burriola v. Greater Toledo YMCA, 133 F. Supp. 2d 1034, 1034 (N.D. Ohio 2001) (concerning ADA Title III accommodations in an afternoon program for a child with autism).

204 Jakubowski, 2009 U.S. Dist. LEXIS 66847, at *25. The court was “sympathetic … to Plaintiff's clearly-established disability” but found him not “otherwise qualified” for this job. Id.

205 See Balkin, Jack M. & Siegel, Reva B., Principles, Practices, and Social Movements, 154 U. Pa. L. Rev. 927 (2006).CrossRefGoogle Scholar

206 Id. at 950.

207 Lobel, Orly, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 Harv. L. Rev. 937, 948-58 (2007).Google Scholar

208 Caring about autism “is something from which all manner of people can and must benefit.” Murray, supra note 4, at 212.

209 See Lawrence A. Cremin, The Transformation of the School: Progressivism in American Education, 1876-1957 8-9 (1961). In the 1840s, Horace Mann launched the idea of free education as social equalizer. Id.

210 See Ryan, James E. & Heise, Michael, The Political Economy of School Choice, 111 Yale L.J. 2043, 2087 (2002)CrossRefGoogle Scholar (discussing the resilience of suburban interest in local control).

211 See Michael J. Kaufman & Sherelyn R. Kaufman, Education Law, Policy, and Practice 119-22 (2005) (discussing the degree of funding inequality among and within the States).

212 IDEA is the current name of the original Education for Handicapped Children Act of 1975. See Hensel, Wendy F., Sharing the Short Bus: Eligibility and Identity under the IDEA, 58 Hastings L.J. 1147, 1153 (2007)Google Scholar (narrating the legislative history of this statute).

213 See Chang, Glen, Note, Caring for New Jersey's Children with Autism: A Multifaceted Struggle for Parity, 60 Rutgers L. Rev. 997, 999 (2008).Google Scholar The IDEA authorizes appropriations up to 40% of the costs. The stimulus bill enacted in February of 2009 contains specific additional funding for special education. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 182-83 (2009). Its effectiveness remains to be seen.

214 The distributive effect of IDEA in the context of school equity has been subject to debate. Opening the school doors to previously excluded children was undoubtedly a progressive move, but some posited that the federal mandate would disproportionately aide students with minor handicaps (such as newly labeled learning disabilities) at the expense of low-income or minority students. See Mark Kelman & Gillian Lester, Jumping the Queue: An Inquiry Into the Legal Treatment of Students with Learning Disabilities 159 (1998) (positing that IDEA mandates, when applied in poor school districts, have “squeez[e]d the nondisabled students,” with the result of “further compromising inadequate educational systems,” rather than increasing political pressure for additional funding). Since their writing, newer mechanisms for the targeted allocation of federal funds to low-income and minority students have been introduced, and may have somewhat changed the distributive scenario envisaged by the authors. See No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301-6578 (2006).

215 Minow, Martha, Accommodating Integration, 157 U. Pa. L. Rev. PENNumbra 1, 6 (2008)Google Scholar, http://www.pennumbra.com/responses/10-2008/Minow.pdf (discussing the “resilience of the individualized focus,” and explaining that, while “[a]chieving recognition as rights-bearers is indeed an historic accomplishment for persons with disabilities,” the focus on individual rights makes it difficult to perceive and discuss “interactions, mutual benefits, relational gains, and interdependence”).

216 Schreibman, supra note 61, at 254. See also Karl Taro Greenfeld, Boy Alone: A Brother's Memoir of Growing Up with an Autistic Sibling 57 (2009) (referring to the late 1960s as to an “Era of Despair” for parents of children with autism).

217 Following the Education of the Handicapped Act of 1970, Pub. L. No. 91-230, 84 Stat. 121, Congress specifically addressed the rights of students with disabilities in the Education for All Handicapped Children Act (EAHCA) of 1975, 20 U.S.C. § 1400 (2006). In a 1990 reauthorization, EAHCA was renamed as the Individuals with Disabilities Education Act (IDEA). Education of the Handicapped Act Amendments of 1990, Pub. L. No. 101-476, 104 Stat. 1103). In the aftermath of the No Child Left Behind Act, which applies to both disabled and non-disabled students, the IDEA was reauthorized by the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §§ 1400-1482, which emphasizes accountability. See Gordon, Stacey, Making Sense of the Inclusion Debate under IDEA, 2006 BYU Educ. & L.J. 189, 189-91 (2006).Google Scholar

218 Individuals with Disabilities Education Act, 20 U.S.C. § 1401(3)(A)(i) (2006).

219 See Pa. Ass’n for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (E.D. Pa. 1971).

220 A group of parents’ attempt to file a class action against a school district, based on the district's inability to provide for students with autism in general, was recently rejected by the court: “[T]here are no factual issues common to all the plaintiffs. Though all of the plaintiffs fall along the autism spectrum, the severity of their disabilities varies widely.” Nelson v. Bd. of Educ., No. 07-1027, 2009 U.S. Dist. LEXIS 123892, at *28 (D.N.M. Jan. 7, 2009).

221 For IDEA litigation in matters of autism, see Seligmann, Terry Jean, Rowley Comes Home to Roost: Judicial Review of Autism Special Education Disputes, 9 U.C. Davis J. Juv. L. & Pol’y 217 (2005).Google Scholar

222 Id. at 221 (referring to these acronyms as IDEA's “alphabet soup”).

223 Id. at 218 (positing that “these cases present a particularly timely and dramatic prism through which to examine [certain] aspects of IDEA”). See also Mothers From Hell, http://www.mothersfromhell2.org (last visited Oct. 8. 2010) (providing a sense of how acrimonious the conflict can be).

224 See, e.g., O’Dell v. Special Sch. Dist. of St. Louis County, 503 F. Supp. 2d 1206, 1211 (E.D. Mo. 2007). (“[T]here is a substantial difference between a medical diagnosis of autism and an educational diagnosis of autism. The latter involves considering the child's specific abilities and limitations in areas of educational concern.”)

225 See Dupre, Anne Proffitt, Disability and the Public Schools: The Case Against “Inclusion,” 72 Wash. L. Rev. 775 (1997)Google Scholar; McDonough, Conor B., The Mainstreaming Requirement of the Individuals with Disabilities Education Act in the Context of Autistic Spectrum Disorders, 35 Fordham Urb. L.J. 1225, 1227 (2008)Google Scholar (arguing that “Congress and the Department of Education should relax the mainstreaming requirement in the context of autistic spectrum disorders”).

226 “Mainstreaming and full inclusion are positive words. They sound much better than saying that the school district can save money by partly or fully depriving a child of the special help he or she needs… .” Bryna Siegel, The World of the Autistic Child 226 (1996). See also Wong, Tamera, Note, Falling Into Full Inclusion: Placing Socialization Over Individualized Education, 5 U.C. Davis J. Juv. L. & Pol’y 275, 275-76 (2001)Google Scholar; Rimland, Bernard, Inclusive Education: Right for Some, 7 Autism Res. Rev. Int’l 3 (1993).Google Scholar The merits of a presumptive integration of students with disabilities (of all kinds) are discussed in Colker, Ruth, The Disability Integration Presumption: Thirty Years Later, 154 U. Pa. L. Rev. 789 (2006)CrossRefGoogle Scholar; Bagenstos, Samuel R., Abolish the Integration Presumption? Not Yet, 156 U. Pa. L. Rev. PENNumbra 157 (2007)Google Scholar, http://www.pennumbra.com/responses/10-2007/Bagenstos.pdf; and Weber, Mark C., A Nuanced Approach to the Disability Integration Presumption, 156 U. Pa. L. Rev. PENNumbra 174 (2007)Google Scholar, http://www.pennumbra.com/responses/10-2007/Weber.pdf.

227 Mandell et al., supra note 41.

228 See, e.g., Mr. I. ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1 (1st Cir. 2007). For an in-depth discussion of such issues see Sullivan, Melissa J., Brilliantly Disabled, 29 Child. Legal Rts. J. 49 (2009).Google Scholar

229 The “floor of opportunity” standard was established in Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).

230 Applied Behavior Analysis (ABA), the most established of many known modes of intervention, relies on one-to-one therapy. Children are rewarded each time they perform a given task – such as stacking two blocks or assembling puzzle pieces. Quantitative assessments measure in detail children's ability to respond to prompts and develop basic skills, with goals becoming increasingly ambitious. Pioneering ABA work was conducted by O. I. Lovaas. See Lovaas, O. I., Behavioral Treatment and Normal Educational and Intellectual Functioning in Young Autistic Children, 55 J. Consulting & Clinical Psychol. 3 (1987)CrossRefGoogle ScholarPubMed. At the opposite end one finds looser and warmer methods, such as Floor Time, that ‘take the lead from the child’ and build upon the child's own initiative, without a pre-determined agenda. Stanley Greenspan & Serena Wieder, Engaging Autism: Using the Floortime Approach to Help Children Relate, Communicate, and Think (2006).

231 See Phillips, Erin, When Parents Aren't Enough: External Advocacy in Special Education, 117 Yale L.J. 1802, 1821-22 (2008)CrossRefGoogle Scholar (referring to “a list of treatments, including applied behavior analysis (ABA), floortime therapy, occupational therapy, speech therapy, or the school-based method Treatment and Education of Autistic and Related Communication-Handicapped Children (TEACCH)). “[T]he vague descriptions of a FAPE in the text of the legislation fail to provide useful direction as to what services students are entitled to receive. One helpful benchmark would be an educational ‘menu’ of sorts for each child, or even for each type of disability … . [N]o such menu exists, and … this omission often creates an insurmountable obstacle to advocacy for parents.” Id. (footnotes omitted).

232 See Diana Jean Schemo & Jennifer Medina, Disabilities Fight Grows as Taxes Pay for Tuition, N.Y. Times, Oct. 27, 2007, at A1.

233 See, e.g., J.P. ex rel. Peterson v. County Sch. Bd. of Hanover County, Va., 516 F.3d 254 (4th Cir. 2008).

234 See Caruso, Daniela, Bargaining and Distribution in Special Education, 14 Cornell J.L. & Pub. Pol’y 171, 171-90 (2005).Google Scholar

235 Courts “may award reasonable attorneys’ fees as part of the costs” to parents who prevail in an action brought under the IDEA. Individuals with Disabilities Education Act, 20 U.S.C. §1415(i)(3)(B)(i) (2006).

236 Buckhannon Bd. & Care Home v. West Virginia Dep't of Health, 532 U.S. 598, 610 (2001). See Marlett, Christy, The Effects of the IDEA Reauthorization of 2004 and the No Child Left Behind Act on Families with Autistic Children: Allocation of Burden of Proof, Recovery of Witness Fees, and Attainment of Proven Educational Methods for Autism, 18 Kan. J.L. & Pub. Pol’y 53, 69 (2008)Google Scholar (discussing the application of Buckhannon to IDEA disputes).

237 Schaffer v. Weast, 546 U.S. 49, 62 (2005) (holding that “the burden of proof in an administrative hearing challenging an [individualized education program] is properly placed upon the party seeking relief”). See Saba, Jennifer M., Undue Deference: Toward a Dual System of Burdens Under the Individuals with Disabilities Education Act, 57 DePaul L. Rev. 133 (2007)Google Scholar (criticizing Schaffer).

238 See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 301 (2006) (finding that the fees paid to experts in the course of legal disputes are not the kind of costs whose recovery the IDEA allows and that only “explicit statutory authority” would authorize payment of expert witness fees). Arlington is generally considered a major obstacle to equity in the allocation of special education services. In November of 2007, a bill was introduced in Congress to amend the Individuals with Disabilities Education Act, so as to permit a prevailing party in an action or proceeding brought to enforce the Act to be awarded expert witness fees and certain other expenses. IDEA Fairness Restoration Act, H.R. 4188, 110th Cong. (2007).

239 Jessica Butler & Robert Berlow, IDEA Fairness Restoration Act Introduced: Restoring Parents’ Rights to Expert Witness Fees, Counsel of Parent Attorneys and Advocates (COPAA), http://www.copaa.org/news/IDEA_fairness.html (last visited Oct. 6, 2010) (stating that approximately 36% of children with disabilities live in families earning less than $25,000 a year; over 2/3 earn less than $50,000).

240 Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 535 (2007) (holding that parents may file these suits themselves, without legal representation, in order to enforce rights guaranteed by the Individuals with Disabilities Education Act (IDEA)). See Barbara E. Etkind & Prashant K. Khetan, Post-Winkelman v. Parma: Ensuring Good Education for Special Needs Children, Autism Asperger's Digest Mag., Nov.-Dec. 2007, at 50.

241 Winkelman v. Parma, 294 Fed. Appx. 997 (6th Cir. 2008).

242 See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 526 (2007). Justice Anthony Kennedy, writing for the majority, concluded that “parents have enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert those rights in federal court at the adjudication stage.” Id. at 517.

243 ASA's Ohio chapter, the Autism Society of Ohio, filed an amicus brief in support of the petitioner. Brief of the Ohio Coalition for the Education of Children with Disabilities & the Autism Society of Ohio as Amici Curiae Supporting Petitioners, Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007) (No. 05-983), 2006 WL 4643858.

244 Brief for the United States as Amicus Curiae, Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007) (No. 05-983), 2006 WL 3740370.

245 “Autism is more familiar and visible than ever before.” Grinker, supra note 6, at 19.

246 “[P]arents whose children have rare chromosomal disorders that involve social and language deficits or mental retardation … want them to be diagnosed with autism.” Id. at 6. That autism is an increasingly common label of choice for children with moderate developmental disorders can be inferred from available data. Among children receiving special education services outside the regular education classroom for less than 21% of the time (i.e., children substantially included in the general education classroom), the percentage of children identified as autistic went from 24 in 2001 to 31 in 2005. Office of Special Education Programs, U.S. Dep't of Educ., Children with Disabilities Receiving Special Education Under Part B of the Individuals with Disabilities Education Act: 2001-2005 (July 17, 2006).

247 See Fran Smith, Overcoming Autism: Educators Deal with the Growing Problem of Autism, Edutopia, (Mar. 19, 2008), http://www.edutopia.org/autism-school-special-needs?page=1 (reporting that “school administrators realize that it may be cheaper to beef up autism programs than continue to fight lawsuits”).

248 The historic over-representation of black children in special education classes has led ethnic minorities to resent testing and special education placement in public schools. See, e.g., Larry P. ex rel. Lucille P. v. Riles, 793 F.2d 969, 979 (9th Cir. 1984). By contrast, middle-class white families have made large use of testing. See Kelman & Lester, supra note 214, at 4. “[T]he movement to secure rights for children with learning disabilities had its genesis in the grass-roots mobilization of largely white, middle-class parents in the late 1950s and early 1960s to gain resources for what they perceived as their ‘underachieving’ children.” Id.

249 See Bd. of Educ. Of City Sch. Dist. of N.Y. v. Tom F., No. 01 Civ. 6845, 2005 WL 22866, at *1 (S.D.N.Y. Jan. 4, 2005).

250 Some parents of children with autism, who start attending special private schools years before kindergarten, do not want to shift to the less intensive programs offered by local school districts when the children turn five. See, e.g., County Sch. Bd. of Henrico v. Z.P. ex rel. R.P., 399 F.3d 298, 301-02 (4th Cir. 2005).

251 The statute allows tuition reimbursement when the child “previously received special education and related services under the authority of a public agency.” Individuals with Disabilities Education Act, 20 U.S.C. § 1412 (a)(10)(C)(ii) (2006). The statute does not explicitly rule out reimbursement when the child never attended public schools.

252 See Joseph Berger, Private Schooling for the Disabled, and the Fight Over Who Pays, N.Y. Times, Mar. 21, 2007, at B7 (noting that “Tom Freston [is] the former chief executive of Viacom, the company that runs MTV and Comedy Central … [and] left with a golden parachute worth $85 million.”).

253 Autism Speaks's amicus brief focuses on the critical nature of early intervention and explains that parents of children with autism should not be forced to “try out” ineffective IEP programs during what may well be a relatively narrow window of opportunity. Brief for Autism Speaks as Amicus Curiae Supporting Respondent, Bd. of Educ. of City Sch. Dist. of N.Y. v. Tom F., 552 U.S. 1 (2007) (No. 06-637), 2007 WL 2088642, at *21.

254 See Schemo & Medina, supra note 232, at A1.

255 Brief for the United States as Amicus Curiae Supporting Respondent, Bd. of Educ. of City Sch. Dist. of N.Y. v. Tom F., 552 U.S. 1 (2007) (No. 06-637), 2007 WL 2115429, at *6.

256 See Alexander, Klint, The Road to Vouchers: The Supreme Court's Compliance and the Crumbling of the Wall of Separation Between Church and State in American Education, 92 Ky. L.J. 439, 482 (2004)Google Scholar (“The Bush Administration's support for [voucher] plans coupled with the movement for greater accountability in public schools are indicative of the continuing push to ensure that public aid is redirected away from public education toward private and religious education.”).

257 See Robert Barnes & Daniel de Vise, Court Weighs Funding For Special Education, Wash. Post, Apr. 27, 2009, at A4.

258 Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2488 (2009).

259 The statutory interpretation endorsed by the majority is grounded on established canons (conformity with the purpose of the statute and with its explicit mandate to grant parents “appropriate relief;” avoidance of interpretation ad absurdum; presumption against implied repeal; and compliance with clear notice requirements in the application of spending clause legislation). Nonetheless, the opinion has been deemed “very creative” and somewhat surprising. See Seligmann, Terry Jean, Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation, 84 Tul. L. Rev. 1067, 1110 (2010)Google Scholar (footnotes omitted) (“That Forest Grove is a result that prioritizes the provision of a FAPE to children at the time they need it makes it a decision clearly consistent with the overall purposes of the IDEA. That it avoids absurd results — here, allowing the district's own failure to recognize and properly evaluate a child as disabled to relieve the district of financial responsibility — is also true. What is somewhat remarkable is the willingness of the Court in Forest Grove to engage in some very creative statutory interpretation in order to sustain this result, interpretation that after [Arlington v. Murphy] might have been thought to be highly unlikely to draw a majority.”).

260 See Brief for the United States as Amicus Curiae in Support of Respondent, Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484 (2009) (No. 08-305).

261 On remand, parents lost on the merits. See Forest Grove Sch. Dist. v. T.A., 675 F. Supp. 2d 1063, 1065 (D. Or. 2009).

262 Brief for Autism Speaks as Amicus Curiae in Support of Respondent, Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484 (2009) (No. 08-305), 2009 WL 906570, at *2-4.

263 See Press Release, Autism Speaks, Autism Speaks Applauds U.S. Supreme Court Ruling Reaffirming Parents’ Rights to Due Process in Securing Appropriate Education for Children with Disabilities (June 23, 2009), http://www.autismspeaks.org/press/supreme_court_forest_grove.php.

264 See 2009 State Autism Profiles, Easter Seals (Feb. 2009), http://www.easterseals.com/site/PageServer?pagename=ntlc8_autism_state_profiles (referencing proposed or enacted state legislation that provides autism scholarships in Alabama, Colorado, Kansas, Kentucky, Ohio, Oregon, Virginia and Wisconsin). Scholarship programs are also available to students with various kinds of special need, not only for autism, in Arizona and Missouri, id., and also in Florida, Georgia, and Utah. See Marcus A. Winters & Jay P. Greene, How Special Ed Vouchers Keep Kids From Being Mislabeled as Disabled, Ctr. for Civic Innovation at the Manhattan Institute, Aug. 2009, at 4, available at http://www.manhattan-institute.org/pdf/cr_58.pdf.

265 But see the discussion generated in Wisconsin after Rep. Kitty Rhoades (R-Hudson) introduced A.B. 700 in the 2005-2006 legislation. Easter Seals reports that:

2009 State Autism Profiles, supra note 264.

266 John Hildebrand, Gaps Seen in Communities’ Student Autism Services, Newsday.com (Jan. 10, 2008), http://www.newsday.com/news/local/ny-liauti0111,0,5100120.story.

267 Kalaei, Shima, Students with Autism Left Behind: No Child Left Behind and the Individuals with Disabilities Education Act, 30 T. Jefferson L. Rev. 723, 725, 736-43 (2008)Google Scholar (positing that “the interplay between IDEA and NCLB has resulted in the insufficient education of students with autism”).

268 There is of course a wide divergence in quality among such programs. See Brief for Autism Speaks, supra note 262, at *11-12 (“While some district's school systems do have adequately-staffed programs, many do not … .”).

269 See, e.g., JG v. Douglas County Sch. Dist., 552 F.3d 786, 801-02 (9th Cir. 2008) (Parents complained that teacher was not competent to perform functional analysis and implement a discrete trial training program. District, however, had contracted with two private behavior analysts for support and supervision, and this was deemed sufficient.); Huffman ex rel. C.H. v. N. Lyon County Sch. Dist., No. 08-2083-KGS, 2009 WL 3185239, at *1 (D. Kan. Sept. 30, 2009) (while a private school might have offered greater benefits, district's IEP allowed for progress and met FAPE standards); In re Wilson County Bd. of Educ., 54 I.D.E.L.R. (LRP) No. 268, at 1285 (full-time ABA therapy requested by parents was not required; district's offer to incorporate ABA in a combination of methodologies was found adequate). See also A.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 173 (2d Cir. 2009); MW ex rel. Wang v. Clarke County Sch. Dist., No. 3:06-CV-49 (CDL), 2008 WL 4449591, at *1 (M.D. Ga. Sept. 29, 2008); Wagner v. Bd. of Educ. of Montgomery County, 340 F. Supp. 2d 603, 611 (D. Md. 2004). But see Joshua A. ex rel. Jorge A. v. Rocklin Unified Sch. Dist., 559 F. Supp. 3d 1036, 1036 (9th Cir. 2009).

270 See A.C. ex rel. M.C., 553 F.3d at 173 (deferring to “the SRO's finding that the IEP adequately addressed the need for M.C. to develop independence, and thus was not substantively deficient under the IDEA”); K.S. v. Fremont Unified Sch. Dist., 679 F. Supp. 2d 1046, (N.D. Cal. 2009).

271 See, e.g., Marc V. v. Ne. Indep. Sch. Dist., 455 F. Supp. 2d 577, 580 (W.D. Tex. 2006); Schoenbach v. Dist. of Columbia, 309 F. Supp. 2d 71, 73 (D.D.C. 2004); Smith v. James C. Hormel Sch. of Va. Inst. of Autism, No. 3:08-CV-00030, 2010 U.S. Dist. LEXIS 29026, at *65 (W.D. Va., Mar. 26, 2010).

272 See O’Dell v. Special Sch. Dist. of St. Louis County, 503 F. Supp. 2d 1206, 1215 (E.D. Mo. 2007) (“[D]iagnosis alone does not drive the services to be provided to a student.”).

273 See, e.g., Brian Libby, Psychologically Accessible, ArchitectureWeek, Jan. 19, 2005, at D1.1.

274 Seligmann, supra note 221, at 220 (stating that “[c]redible expertise … goes a long way” in autism litigation).

275 Enrollment of Students with Disabilities, Mass. Dep't of Elementary & Secondary Educ. Infor. Servs., http://www.doe.mass.edu/infoservices/reports/enroll/default.html (last visited Sept. 29, 2010). The numbers are as follows: 2008-2009: students with autism enrolled in public education: 9,793; students with autism from low-income families: 2,145; sum of white, black and Hispanic students in private day or residential setting: 1,014; students from low-income families in private day or residential setting: 69. Id. 2009-2010: Students with autism enrolled in public education: 10,781; students with autism from low-income families: 2,563; sum of white, black and Hispanic students in private day or residential placement: 1,077; students from low-income families in private day or residential setting: 85. Id.

276 See Jane Margolies, Bypassing the Roadblocks of Autism, N.Y. Times, Sept. 14, 2008, at TR3.

277 In 1997 the State Children's Health Insurance Program (SCHIP) was added as Title XXI of the Social Security Act. See 42 U.S.C. §§ 1397aa-1397jj (2006). SCHIP works as a supplemental measure when Medicaid or waivers would not apply. Id.

278 See, e.g., Catastrophic Illness in Children Relief Fund, Mass.gov, http://www.mass.gov/cicrf/ (last visited May 24, 2010). The employees of the Department of Defense whose children have autism also benefit from a relatively generous package of benefits. See Health & Special Education Services for Military Children with Autism, Wrightslaw.Com, http://www.wrightslaw.com/info/autism.mil.benefits.htm (last visited May 24, 2010).

279 A multi-state investigation of racial and ethnic disparities among new SCHIP enrollees reported, six years into the program, that it yielded systemically lower advantages for children of racial and ethnic minorities. See Shone, Laura P. et al., The Role of Race and Ethnicity in the State Children's Health Insurance Program (SCHIP) in Four States: Are There Baseline Disparities, and What Do They Mean for SCHIP?, 112 Pediatrics e521, e529 (2003), available at http://www.pediatrics.org/cgi/content/full/112/6/SE1/e521.Google ScholarPubMed

280 See Mandell, David S. et al., Race Differences in the Age at Diagnosis Among Medicaid-Eligible Children with Autism, 41 J. Am. Acad. Child & Adolescent Psychiatry 1447, 1447-53 (2002).CrossRefGoogle ScholarPubMed In the clearly racialized context of under-diagnosed autism, mental retardation qualifies as an “emergent disability,” i.e., a disability “which would not exist, or would not be substantial, but for a context of social inequity.” Ribet, Beth, Naming Prison Rape as Disablement: A Critical Analysis of the Prison Litigation Reform Act, the Americans with Disabilities Act, and the Imperatives of Survivor-Oriented Advocacy, 17 Va. J. Soc. Pol’y & L. 281, 285 (2010).Google Scholar

281 See Individuals with Disabilities Education Improvement Act (IDEA) of 2004, 20 U.S.C. § 1419 (2006) (provides preschool grants for ages three to five).

282 See Thomas, Kathleen C. et al., Access to Care for Autism-Related Services, 37 J. Autism Dev. Disorder 1902, 1902, 1906 (2007)CrossRefGoogle ScholarPubMed (citations omitted) (discussing available services in North Carolina from 2003 to 2005).

283 Kathleen Hebbeler et al., Early Intervention for Infants & Toddlers with Disabilities and Their Families: Participats, Services, and Outcomes (Jan. 2007), available at http://www.sri.com/neils/pdfs/NEILS_Report_02_07_Final2.pdf.

284 See Mandell, supra note 41, at 496 tbl. 3.

285 See McEachin, John et al., Long-term Outcome for Children with Autism Who Received Early Intensive Behavioral Treatment, 97 Am. J. on Mental Retardation 359, 360 (1993).Google ScholarPubMed

286 See, e.g., French v. Concannon, No. 97-CV-24-B-C (D. Me. July 16, 1998) (children with autism and other disabilities); Chisholm v. Hood, 133 F. Supp. 2d 894, 901 (E.D. La. 2001) (finding Louisiana's Department of Health and Hospitals in breach of its Medicaid obligations, because “the availability of behavioral and psychological services, to class members diagnosed with autism, [was] more theoretical than actual”).

287 Social Security Act § 1905(a)(4)(B), 42 U.S.C. § 1396d(a)(4)(B).

288 See Christie Provost Peters, EPSDT: Medicaid's Critical but Controversial Benefits Program for Children, Nat’l Health Pol’y Forum, Nov. 20, 2006, at 10. See also Sarah Knipper, EPSDT: Supporting Children with Disabilities 11 (2004). EPSDT is available not only to children who are eligible for SSI, but also (in roughly one third of the states) for those who qualify under the TEFRA or “Katie Beckett” option. Id. at 29-30.

289 Helping Families with Needed Care: Medicaid's Critical Role for Americans with Disabilities, Hearing Before the Subcomm. on Health of the H. Comm. on Energy and Commerce, 110th Cong. 164-66 (2008) (statement of Autism Speaks) [hereinafter Testimony of Autism Speaks]. Exact data on Medicaid spending for individuals with autism, by distinct clinical grouping, are difficult to track. See, e.g., Master, Robert J. and Taniguchi, Carol, Medicare, Medicaid, and People With Disability, 18 Health Care Financing Rev. 91, 92 (1996).Google ScholarPubMed

290 See Thomas Reinke, Filling in the Gaps: Medicaid Waivers Add to the Continuum of Resources for People with Autism, Exceptional Parent Mag., Apr. 1, 2009, at 68 (“There is wide variation in [Medicaid] coverage for autism from state to state.”).

291 Chad Livengood, Bill To Mandate Coverage for Autism Therapy, Springfield News-Leader (Springfield, MO), Feb. 25, 2009, at 6A. See generally Peters, supra note 288, at 4 (“EPSDT benefits for Medicaid children are more generous than most private health insurance benefit packages.”).

292 See Parents’ League for Effective Autism Servs. v. Jones-Kelley, 565 F. Supp. 2d 905, 910 (S.D. Ohio 2008), aff’d, 339 Fed. Appx. 542 (6th Cir. 2009).

293 This distinction was at the heart of the dispute in Jones-Kelley. Id.

294 The line between educational and medical services is a fuzzy one. IDEA requires schools to provide free “related services” when they are needed to allow students with disabilities to learn. Individuals with Disabilities Education Act, 20 U.S.C. § 1415 (2006). Such related services commonly include speech and occupational therapy, which are regularly delivered in medical centers and in many circumstances covered by health insurance. See, e.g., Micheletti v. State Health Benefits Comm’n, 389 913 A.2d 842, 850 (N.J. Super. Ct. App. Div. 2007) (finding state employee's autistic child entitled to reimbursement of speech and occupational therapy costs that would have been covered by private insurance carriers). By the same token, ABA can equally be conceived of as strictly educational, as a “related service,” or as a rehabilitative practice of the type often covered by health insurance.

295 See Shattuck, Paul T. et al., Utilization of a Medicaid-Funded Intervention for Children with Autism, 60 Psychiatric Servs. 549, 549 (2009).CrossRefGoogle ScholarPubMed

296 See Testimony of Autism Speaks, supra note 289, at 167 (referring to CMS's proposed rules that “would deny federal financial participation for habilitation services, as well as for rehabilitation services furnished as ‘intrinsic elements’ of educational programs” and also referring to regulations that “would limit claims for federal financial participation for case management services”).

297 The Sixth Circuit reports that “[o]n August 13, 2007 CMS filed proposed rules that would limit Medicaid's coverage of rehabilitative services.” Parents’ League for Effective Autism Servs., 339 Fed. Appx. at 545. However, Congress placed a moratorium on these and other proposed restrictions on Medicaid spending, and therefore these rules were never adopted. See Pub. L. No. 110-28 § 7001(a), 121 Stat. 186 (2007); Pub. L. No. 110-252 § 7001(a), 122 Stat. 2387 (2008) (extending moratorium on regulations restricting coverage of rehabilitative services until April 1, 2009); Pub. L. No. 111-5 §§ 5003(a), (d)(3), 123 Stat. 503 (2009) (noting a “sense of Congress” that the proposed regulations relating to rehabilitative services should not be promulgated as final regulations).

298 In Parents’ League for Effective Autism Services., 565 F. Supp. 2d at 910, the court refers to a letter written by CMS in October of 2005 to the director of Ohio's Department of Job and Family Services, indicating that habilitation services should not be covered by Medicaid. In response, ODJFS proposed rules changing the definition of “rehabilitative services” and effectively excluding ABA coverage. Similar developments occurred in Wisconsin, which opted to discontinue ABA coverage under EPSDT. See Shattuck et al., supra note 295, at 549.

299 See, e.g., Pa. Ass’n for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (E.D. Pa. 1971). The law firm Mantese & Rossman, based in Troy, Michigan, is seeking people who have been denied coverage for ABA in the past six years. See Jay Greene, Blue Cross Plans Limited Coverage for Autism, Crain's Detroit Bus., May 13, 2009, available at http://www.crainsdetroit.com/article/20090510/SUB01/305109959#. A class action was filed in February of 2009 in the Superior Court of California, County of Alameda. Anderson v. Kaiser Found. Health Plan, Inc., No. RG09435560 (Cal. Super. Ct. filed Feb. 11, 2009), available at http://www.dralegal.org/downloads/cases/Autism/001_Complaint.pdf.

300 Parents’ League for Effective Autism Servs., 565 F. Supp. 2d at 905.

301 In 2008, the U.S. District Court for the District of Columbia endorsed a class action which aims at establishing that the Medicaid program in DC must cover ABA therapy for autistic children. Salazar v. Dist. of Columbia, 560 F. Supp. 2d 6 (D.D.C. 2008).

302 Bagenstos, supra note 72, at 139 (“If states respond to [Medicaid] litigation by amending their Medicaid plans to cut back on the services they promise to provide, there is nothing in the statute to stop them.”).

303 Shattuck, supra note 295, at 549.

304 The waiver program was named Children's Long-Term Support Waiver and came into effect in January of 2004. See Wis. Legislative Reference Bureau: Wis. Briefs, Autism Treatment 6 (2008), available at http://www.legis.state.wi.us/lrb/pubs/wb/08wb14.pdf.

305 Shattuck, supra note 295, at 549.

306 Id.

307 See Kaye, H. Stephen et al., Do Non-Institutional Long-Term Care Services Reduce Medicaid Spending?, 28 Health Aff. 262 (2009).CrossRefGoogle Scholar

308 See Robert L. Mollica et al., Taking the Long View: Investing in Medicaid Home and Community-Based Services is Cost-Effective, AARP Pub. Pol’y Inst., Mar. 2009, at 1, available at http://assets.aarp.org/rgcenter/il/i26_hcbs.pdf (reporting, critically, that in the present climate of deep budget cuts “many state policymakers are targeting Medicaid home and community-based services (HCBS) because they are optional Medicaid benefits”).

309 See Grinker, supra note 6, at 133 (“The waiver permits a child to receive intensive supports and medical care even if his or her family is not near the poverty line.”). Autism waivers are to be found in the legislation of Colorado (2008), Illinois (2007), Indiana (2008), Kansas (2007), Maryland (2001), Massachusetts (2007), Missouri (2009), Montana (2008), Pennsylvania (2008), and Wisconsin (2003). Ellen W. Blackwell, MSW, Disabled & Elderly Health Programs Group, Center for Medicaid and State Operations, A National View of Medicaid Home and Community-Based Waivers Serving People with Autism, available at www.nasddds.org/Meetings/2008_Mid-Year_Meeting/2008_MYM_Presentations/Blackwell.ppt; Reinke, supra note 290.

310 To be a waiver participant, an individual must be one “with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.” Social Security Act § 1915 (c)(1), 42 U.S.C. § 1396n(c)(1) (2006).

311 In Massachusetts, advocates’ efforts to double the number of autism waivers in 2008 (from just 80 to 160) was resisted by Governor Patrick, who brought the number of total eligible children only up to 100. See Massachusetts Advocates for Children, Children's Autism Medical Waiver Update, Mass. Advocates for Children, http://www.massadvocates.org/autism_project/childrens-autism-medicaid-waiver (follow “MAC Waiver Update” hyperlink) (last visited Oct. 5, 2010). The Massachusetts Chapter of Autism Speaks campaigned to override Patrick's veto. See David Yas, The Unlimited Dreams of a Child with Autism, Mass. Law. Wkly., July 28, 2008, at 2.

312 See, e.g., Wis. Legislative Reference Bureau: Wis. Briefs, supra note 304, at 6 (“At the end of 2007, 366 children were waiting for services under the CLTS waivers due to insufficient funding.”); Sebastian Montes, Bills Target Coverage of Autism Therapy Costs, But Health Care Providers Question Validity of Treatments, Gazette.net (Mar. 18, 2009), http://www.gazette.net/stories/03182009/poolnew180938_32470.shtml (commenting on Maryland's Autism Waiver Program, which “leaves 2,700 people on a waiting list for the 900 slots”). A petition addressed to Indiana's legislators by the Indiana Autism Coalition and entitled “Preserve Funding for Indiana's Medicaid Autism Waiver Services” states that “those who do currently receive Medicaid waiver services represent a fraction of the more than 15,000 who need and have qualified for such services but have been placed on years-long waiting lists necessitated by insufficient funding.” Indiana Autism Coalition, Inc., Preserve Funding for Indiana's Medicaid Autism Waiver Services Petition, http://www.petitiononline.com/inautism/petition.html (last visited Oct. 8, 2010).

313 Pioneering states are Connecticut and Pennsylvania. Connecticut (along with Alabama, Mississippi, and Virginia) is one of the states whose definition of Developmental Disabilities (for the purpose of DD waiver eligibility) excludes autism unless the individual also has mental retardation. See Saul Spiegel, Office of Legislative Research, Medicaid Autism Waivers and State Agencies Serving People with Autism (Apr. 10, 2007), available at http://www.cga.ct.gov/2007/rpt/2007-R-0319.htm. Hence the particular necessity of establishing a special source of service funding. See Linda H. Davis, Still Overlooking Autistic Adults, Wash. Post, Apr. 4, 2009, at A15 (decrying the paucity of such programs).

314 Olmstead v. L.C., 527 U.S. 581 (1999) (famously emphasizing the importance of creating opportunities for general community inclusion of persons with disabilities). See Burnim, Ira A. and Mathis, Jennifer, The Olmstead Decision at Ten: Directions for Future Advocacy, 43 Clearinghouse Rev. 386 (2009).Google Scholar

315 See, e.g., Commonwealth of Pa. Office of the Governor, 2010-11 Budget in Brief 16 (Feb. 9, 2010), available at http://www.portal.state.pa.us/portal/server.pt/community/current_and_proposed_commonwealth_budgets/4566 (expanding home and community-based services in general but budgeting specifically for 226 additional service recipients with autism). The number of budgeted slots has survived the recent crunch. See Pa. Dept. of Pub. Welfare, Budget Update (2010), available at http://www.dpw.state.pa.us/Resources/Documents/Pdf/BudgetUpdates/BudgetMessage0902 2010.pdf.

316 EPIAA was introduced in the House on April 17, 2007, H.R. 1881, 110th Cong. (2007), and in the Senate on March 20, 2007, S. 937, 110th Cong. (2007). The Act would dramatically expand federal funding for life-long services for people with autism and authorize approximately $350 million in new federal funding. See H.R. 1881, 110th Cong. (2007); S. 937, 110th Cong. (2007).

317 Another recent “bill to increase housing, awareness, and navigation demonstration services (HANDS) for individuals with autism spectrum disorders” was introduced on March 25, 2009, but has generated no further activity in Congress. S. 706, 111th Cong. (2007); H.R. 1707, 111th Cong. (2007).

318 Autism Treatment Acceleration Act of 2009, H.R. 2413, 111th Cong. (2009); S. 819,111th Cong. (2009).

319 See id. at § 12.

320 See Peele, Pamela B. et al., Exclusions and Limitations in Children's Behavioral Health Care Coverage, 53 Psychiatric Services 591, 591-94 (2002)CrossRefGoogle Scholar. For examples and anecdotes, see Parents Fight for Autism Insurance Coverage (Nat’l Pub. Radio broadcast Aug. 16, 2007), available at http://www.npr.org/templates/story/story.php?storyId=12829221; John & Jennifer Maloney, Is it Time for Autism Insurance? Yes, Richmond Times Dispatch (Virginia), Jan. 4, 2009, at E1 (explaining that “[i]n Virginia, 95 percent of health insurance plans deny parents’ claims because autism is excluded from coverage”). See also Lisa Girion, Autism Patients in California Are Dealt Insurance Setback, L.A. Times, Mar. 10, 2009, at A14 (“In 15 of 16 recent disputes over insurance denials of applied behavior analysis for individual children, state-impaneled physician-reviewers have declared the therapy to be medically necessary. Those decisions required the insurers to pay for the treatment. The 16th case is pending.”).

321 See Livengood, supra note 291 (reporting a recent dispute in Missouri where the insurer, United Behavioral Health, considered ABA “to be an experimental, investigational and/or unproven service”).

322 See Press Release, Autism Votes, Autism Speaks Joins Kansas Families to Answer Legislator Questions Raised About Kate's Law (Feb. 20, 2009), http://www.autismvotes.org/site/apps/nlnet/content2.aspx?c=frKNI3PCImE&b=3930723&ct=6778273 (“The Department of Defense's Tri-Care health insurance plan for military dependents is specifically prohibited by federal law from covering ‘unproven care or special education.’”). Nonetheless, Tri-Care provides coverage of behavioral treatments with its Extended Care Health Option, deeming such treatments “medically necessary.” Id.

323 Johns v. Blue Cross Blue Shield of Mich., No. 2:08-cv-12272, 2009 U.S. Dist. LEXIS 29030, at *2 (E.D. Mich. Mar. 31, 2009). BCBS agreed to pay for ABA treatment for all class members in a settlement approved on May 25, 2010. Order of Final Approval of Proposed Settlement, No. 2:08-cv-12272 (E.D. Mich. May 25, 2010).

324 See Insurance Help for California Families, Insurance Help for Autism: Step-by-Step Guide, Step 6, http://insurancehelpforautism.com/guide.html (last visited Oct. 9, 2010).

325 See, e.g., McHenry v. PacificSource Health Plans, 679 F. Supp. 2d 1226 (D. Or. 2009) (providing a detailed discussion of this issue and relaxing most accreditation and credentialing requirements, but concluding, in final analysis, that the particular ABA provider hired by plaintiffs for their child was not “authorized for reimbursement”).

326 See Council for Affordable Health Insurance, The Growing Trend Towards Mandating Autism Coverage, 152 Issues & Answers 1, 1-2 (2009)Google Scholar, available at http://www.cahi.org/cahi_contents/resources/pdf/n152AutismTrend.pdf (explaining that it is difficult to determine exactly how many states mandate autism benefits because mandates are phrased differently and cover different benefits).

327 California's Mental Health Parity Act of 1999, 1999 Cal. Legis. Serv. Ch. 534, at 4 (codified at Cal. Health & Safety Code § 1374.72) covers autism treatment. It is reported, however, that insurers have continued to avoid paying for one of the most expensive elements of autism care — ABA therapy — by denying requests on the grounds that it hadn't been proved effective. Lisa Girion, Autism Patients’ Treatment is Denied Illegally, Group Says, L.A. Times, July 1, 2009, at B4, available at http://articles.latimes.com/2009/jul/01/business/fi-autism1.

328 Milt Freudenheim, Battling Insurers over Autism Treatment, N.Y. Times, Dec. 21, 2004, at C1. (“Even in the 17 states where autism coverage is required by law, insurers often drag their feet on payment or avoid it in individual cases by questioning the qualifications of the therapist or even a doctor's affirmation that treatment is medically necessary.”). See, e.g., McHenry v. PacificSource Health Plans, 643 F. Supp. 2d 1236, 1241 (D. Or. 2009) (holding that de novo standard of review applies to insurer's denial of autism therapy coverage).

329 Such was the case, for instance, in the insurance plan litigated in Morgenthal, 1999 U.S. Dist. LEXIS 4294, at *2. Autismvotes.org reports that “[i]n many states, insurers explicitly exclude coverage of these therapies from policies … .” Autism Speaks Applauds Nevada Governor Jim Gibbons for Enacting Autism Insurance Reform Bill, Autism Votes, (May 29, 2009), http://www.autismvotes.org/site/c.frKNI3PCImE/b.4432467/k.BC88/Nevada.htm.

330 The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (signed by President Bush on October 3, 2008 as part of the Emergency Economic Stabilization Act) does not require health insurers to cover mental health care, but, if they do, they must treat psychological and addictive disorders just as other medical conditions. Pub. L. No. 110-343, §§ 511-12, 122 Stat. 3765, 3881 (2008). This Act and earlier equivalent statutes enacted at state level are not suited to answer the question of autism treatment coverage for many reasons, including the fact that, in the eyes of many, autism is not a mental illness but a biomedical condition. See Jill Rubolino, Autism Is Not Mental Illness: Get it Out of the DSM, Age of Autism (Apr. 20, 2009), http://www.ageofautism.com/2009/04/autism-is-not-mental-illness-get-it-out-of-the-dsm.html. The interpretation of California's Mental Health Parity Act is at the heart of an ongoing dispute involving California's Department of Managed Health Care and parents seeking ABA reimbursement. See Girion, supra note 320.

331 Class certification was denied for this reason in Johns, 2009 U.S. Dist. LEXIS 29030, at *8, and also in Graddy v. Blue Cross Blue Shield of Tenn., No. 4:09-cv-84, 2010 WL 670081, at *9 (E.D. Tenn. Feb. 19, 2010). For developments favoring plaintiffs, see Tresa Baldas, Michigan Class Action Settlement on Autism Treatment Hailed as Landmark Case, Nat’l L.J. (June 23, 2009) http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431667002&slreturn=1&hbxlogin=1.

332 An important judicial move aimed at facilitating class actions against private insurers is to be found in Arce v. Kaiser Found. Health Plan, Inc., 181 Cal. App. 4th 471 (Cal. Ct. App. 2d Dist. 2010) (finding that the challenged plan “had a uniform policy of categorically denying coverage for health care services to treat autism spectrum disorders without determining whether the services were medically necessary for individual plan members”). Kaiser tried to block the class action but the California Supreme Court recently denied review. Arce v. Kaiser Found. Health Plan, Inc., S180816, 2010 Cal. LEXIS 4014 (Cal. Apr. 28, 2010).

333 See Girion, supra note 327. See also Schwarzenegger Administration Sued for Allowing Health Insurance Companies to Deny Autism Care, PR Newswire (July 1, 2009), http://www.prnewswire.com/news-releases/schwarzenegger-administration-sued-for-allowing-health-insurance-companies-to-deny-autism-care-62095177.html. An interim victory for the plaintiffs was obtained in Consumer Watchdog v. Cal. Dep't of Managed Health Care, No. BS121397 (Cal. Super. Ct. Oct. 20, 2009), available at http://www.consumerwatchdog.org/resources/AutismOrderOnDemurrer.pdf.

334 Autism Speaks Announces Multi-State Insurance Legislation Campaign, Autism Speaks (Dec. 27, 2007), http://www.autismspeaks.org/government_affairs/state_issues.php.

335 See, e.g., Pennsylvania's Autism Insurance Act 2008, Act No. 2008-62, 2008, Pa. Legis. Serv. 885, 887 (amending The Insurance Company Law of 1921, Pub. L. No. 682-284) (mandating “Autism Spectrum Disorders Coverage”). The statute provides $36,000 a year for Applied Behavior Analysis and other necessary treatments up to age 21, with no lifetime cap. Id. Twenty-two other states have similar legislation. State Initiatives, Autism Speaks, http://www.autismvotes.org/site/c.frKNI3PCImE/b.3909861/k.B9DF/State_Initiatives. htm (last visited Oct. 9, 2010). See generally Janet L. Kaminski Leduc, Conn. Office Legis. Research Rep., Private Insurance Coverage for Treatment of Autism (July 31, 2008), available at http://www.cga.ct.gov/2008/rpt/2008-R-0427.htm (“[I]t appears that 22 other states [besides Connecticut] mandate some amount of coverage for the treatment of autism. Of these, eight require coverage for behavioral treatment services for the treatment of autism (Arizona, Florida, Indiana, Kentucky, Louisiana, Pennsylvania, South Carolina, and Texas) and five require other coverage related to autism (Colorado, Georgia, Maryland, New York, and Tennessee). Nine other states include autism in their laws mandating coverage for mental illness (California, Illinois, Iowa, Kansas, Maine, Montana, New Hampshire, New Jersey, and Virginia).”). Easter Seals, in 2009 State Autism Profiles, supra note 264, provides information on States’ legislative activities of this type.

336 Age-of-Autism activists would like insurance coverage to extend to biomedical treatments (including nutritional supplements and laboratory work) rather than being expressly confined to behavioral therapy. See, e.g., Wrangham, Theresa & Debold, Vicky, Are Federal Research Dollars Being Spent Wisely?, 32 Autism File 120, 121 (2009).Google Scholar

337 See Autism Treatment Acceleration Act, H.R. 2413, § 11; S. 816, § 12.

338 See Autism Speaks, Arguments in support of Private Insurance Coverage of Autism-Related Services 7-8, 20 (2009), available at http://www.autismvotes.org/atf/cf/%7B2A179B73-96E2-44C3-8816-1B1C0BE5334B%7D/Arguments_for_private_insurance_%20coverage.pdf.

339 See Rowland, Diane & Shartzer, Adele, America's Uninsured: The Statistics and Back Story, 36 J.L. Med. & Ethics 618, 620 (2008)CrossRefGoogle ScholarPubMed (remarking that “[p]ersons who are members of racial and ethnic minority groups are much more likely to be uninsured”).

340 See Conover, Christopher J., Distributional Considerations in the Overregulation of Health Professionals, Health Facilities, and Health Plans, 69 Law & Contemp. Probs. 181, 191 (2006).Google Scholar Autism mandates are currently estimated to increase the cost of health insurance by approximately 1%, and further increases (up to 3%) are possible in the near future. Council for Affordable Health Insurance, supra note 326, at 2. See generally Monahan, Amy B., Federalism, Federal Regulation, or Free Market? An Examination of Mandated Health Benefit Reform, 2007 U. Ill. L. Rev. 1361 (2007).Google Scholar

341 For a discussion of such loopholes, see Hoffman, Sharona, Unmanaged Care: Towards Moral Fairness in Health Care Coverage, 78 Ind. L.J. 659, 700 (2003).Google ScholarPubMed Self-funded employer-sponsored insurance plans are exempt from such mandates under the Employee Retirement Income Security Act of 1974. As a consequence, their employees (on average healthier and wealthier than others) do not necessarily contribute to subsidize the costs of autism treatment for the increasing plurality of privately-insured children. Furthermore, “[t]he laws most recently enacted (Arizona, Florida, Louisiana, Pennsylvania, and South Carolina) generally … do not apply to individual health insurance policies or policies issued to small employers (50 or fewer employees).” Kaminski Leduc, supra note 335.

342 Autism Speaks Launches TV Ad Campaign Calling on Congress to End Insurance Discrimination Against Children with Autism, Autism Votes (July 8, 2009), http://www.autismvotes.org/site/apps/nlnet/content2.aspx?c=frKNI3PCImE&b=3930723&ct=7180013.

343 Marlia Moore et al., Wisconsin's Medicaid Waiver Autism Services 10 (2004), available at http://www.lafollette.wisc.edu/publications/workshops/2003-2004/pa869/2004-Autism.pdf.

344 See Health Care Reform: What Does it Mean for the Autism Community?, Autism Speaks (Mar. 23, 2010), http://blog.autismspeaks.org/2010/03/23/health-care-reform/ (outlining the synergic effects of the Health Care Reform of 2010 and of proposed federal autism mandates).

345 See Bagenstos, supra note 72, at 18 (discussing the general shift from the medical to the social model among disability rights advocates).

346 Id. at 149 (positing that antidiscrimination “is simply too narrow a tool” and that the movement needs a renewed emphasis on universalism and social welfare programs).

347 See Nussbaum, supra note 101, at 188-90.

348 Panetti v. Quarterman, 551 U.S. 930 (2007).

349 Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, Pub. L. No. 110-343, § 511-12, 122 Stat. 3765, 3881 (2008).

350 See Annas, George J., Foreword: Imagining a New Era of Neuroimaging, Neuroethics, and Neurolaw, 33 Am. J. L. & Med. 163, 168-69 (2007).CrossRefGoogle ScholarPubMed

351 See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 352-53 (2004); Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431 (2005). See generally Backlash Against the ADA: Reinterpreting Disability Rights (Linda Hamilton Krieger ed., 2003).

352 See Temple Grandin, Thinking in Pictures (2005).

353 In neuro-psychological terms, this feature of autism spectrum disorders is termed “weak central coherence.” Barnbaum, supra note 8, at 27.