Politico

Orrin Hatch’s Finest Hour


Capitol Hill, July 11, 1990 — The greatest civil rights law since the 1960s was about to die on the floor of the U.S. Senate.

There was only one person who could save it — Republican Senator Orrin Hatch of Utah.

But he didn’t know how to do it.

A Senate staff lawyer named Bobby Silverstein spotted Hatch stepping into an elevator in a basement of the U.S. Capitol building and raced over to plead with him to stage a last-minute, seemingly impossible rescue.

As Hatch stepped out to confer with Silverstein, the hopes of America’s 43,000,000 citizens with disabilities hung in the balance.

Hatch had worked with Silverstein for a solid year on this landmark piece of legislation. In a bipartisan alliance with Democrats like Senators Tom Harkin of Iowa, lead sponsor of the bill, and Edward “Ted” Kennedy of Massachusetts, the two men and their colleagues ran the 22,000-word ADA through a maze of congressional committees and subcommittees. The bill took shape as a model of bipartisan negotiation and compromise.

Hatch was the lead Republican sponsor of the bill, and Silverstein was chief counsel for the Senate Subcommittee on Disability Policy and staff director for Tom Harkin, the ADA’s lead Democratic sponsor in the Senate.

The ADA would prohibit discrimination against Americans with disabilities and require employers to reasonably accommodate them. It would also require that a wide range of public and private buildings, services, transportation and telecommunications be made more accessible to people with disabilities. The ADA was designed to do nothing less than legally and physically “re-engineer” major portions of American society.

In 2020, Hatch recalled, “Although hard to imagine now, in the summer of 1990, the doors of opportunity were quite literally closed to millions of people with disabilities. There were few laws on the books requiring reasonable accommodations in the workplace and almost nothing to protect these individuals from discrimination.”

The bill was scheduled for a debate in the Senate in a matter of hours. If the ADA passed, citizens with disabilities would be given broad federal civil rights protections for the first time.

But it looked like the ADA was about to be torpedoed by one of the most controversial personalities in the federal government — former archsegregationist Senator Jesse Helms, Republican from North Carolina. He was preparing to deliver the coup de grâce.

The instrument of the ADA’s execution would be an item known as the Chapman Amendment, named for its author, Democratic Representative James Chapman of Texas. It would allow restaurant managers to reassign employees who handled food to other jobs if they had the HIV/AIDS virus. If customers heard that a food handler had the condition, the theory went, the public might boycott the business and shut it down. But both Hatch and Silverstein knew that this was an unfounded fear, and had been publicly known as such since as early as September 9, 1983, when the Centers for Disease Control and Prevention publicly confirmed that “AIDS is not known to be transmitted through food, water, air, or environmental surfaces.”

Earlier that day, with civil rights icon Coretta Scott King at their side, disability rights activists announced they were going to withdraw their support for the ADA over the Chapman Amendment because it would codify discrimination against people with HIV/AIDS. This would kill the legislation for an indefinite period of time. According to his AIDS adviser, Michael Iskowitz, Senator Kennedy “believed strongly that the people most impacted by legislation ought to make the call on what’s acceptable.” If the leaders of the disability community turned against the ADA, Iskowitz thought, Kennedy would too. And many other senators would likely join him, as it made no political sense to infuriate a national group of tens of millions of voters. The ADA’s lead sponsor, Senator Harkin, was ready to “pull” the bill before a final floor vote over the Chapman Amendment.

As Pat Wright, head of the Disability Rights Education and Defense Fund, remembered years later, “the ADA was about to go down the tubes.”

Even before Silverstein intercepted him, Senator Hatch was having doubts about his previous support for the Chapman Amendment, and he was now ready to modify or oppose it since it was becoming an eleventh-hour deal-breaker for the ADA.

But Senator Helms, a conservative ideological compatriot with Hatch, was adamant that the Chapman Amendment stay attached to the ADA, and it had already been approved by both Democrats and Republicans in the House of Representatives in their version of the bill.

At the Senate elevator, Silverstein came face to face with Hatch. “Senator, if this Chapman Amendment is included, it will kill the bill,” Silverstein said. “We’re not going to pass a civil rights statute that has built-in discrimination against people who are HIV-positive, and your advisory committee [of disability advocates and experts] in Utah agrees. This could potentially undo years of our work together for the disabled.”

Bobby Silverstein was a methodical, idealistic 41-year-old attorney and a proud liberal who grew up in a Jewish family in New York City. The biblical exhortation to “do justice and pursue acts of love and kindness” inspired him to devote much of his life to advocating for people with disabilities. In his work with Hatch, he had come to admire the Utah senator’s skill as a lawmaker and his dedication to the cause of helping America’s disabled citizens through bipartisan action.

Silverstein implored Hatch, “Can’t we try to reach an agreement to have an amendment that will clarify the law, by saying let science decide? You’ve got to do something, because the rights and lives of people with disabilities are going to fall to the side if this [Chapman Amendment] isn’t taken down.”

“Yes, Bobby, I’ll look at this issue,” Hatch said. “Let’s get the staffs together and see if we can reach an agreement.”

This conversation had a crucial impact on Hatch, who later called it “the key to my own evolution on the Chapman Amendment.”

But Hatch had no idea how to solve the predicament. Neither Helms nor the disability activists looked like they would give an inch.

Two years earlier, as the two top party leaders of the Senate Labor and Human Resources Committee, Hatch and Kennedy had teamed up to sponsor and pass the first major federal attempt to address the HIV/AIDS crisis, a bill that authorized $665 million for state and federal HIV/AIDS programs. Hatch was the only Republican sponsor of the bill. “I’m not sure that homosexuals chose to be the way they are or that anybody else fully chooses to be who or what they are,” Hatch said during an emotional debate on the Senate floor. “And I am not sure that I should stand here on the floor of the U.S. Senate and pass judgment on anybody!” Hatch asked, “Who are we to judge anyway? Let him who is without sin cast the first stone.”

“I swear to God,” remembered witness Thomas Rollins, then chief of staff and chief counsel of the Senate Labor and Human Resources Committee, “I think it was the first gay rights oration given in the Senate, and it was done by Orrin Hatch of Utah.”

Hatch’s plea worked. On April 28, 1988, Hatch persuaded many Republicans to support the bill and enable the Senate to pass the Acquired Immunodeficiency Syndrome (AIDS) Research and Information Act by an overwhelming vote of 87 to 4. President Ronald Reagan signed it into law.

Then, in February 1990, Hatch, Kennedy and 26 other initial Senate co-sponsors introduced S.2240, the Comprehensive AIDS Resources Emergency (CARE) Act of 1990, soon named after Ryan White, the young HIV/AIDS patient who became a national hero. Passed later that year, the bill launched a major expansion of the federal government’s commitment to HIV/AIDS research, education and treatment that continues to this day.

In 2021, Iskowitz, Kennedy’s AIDS advisor, hailed Hatch’s impact on the issue. “The Ryan White Act would never have happened without him, there’s no doubt about that. As someone who has worked on AIDS for over 30 years, there is no doubt in my mind that the U.S. response to AIDS would have been significantly more delayed if it wouldn’t have been for Hatch.”

He concluded, “We will be forever indebted to him for that — forever.”

On the afternoon of July 11, 1990, with the ADA about to unravel over the issue of HIV/AIDS, Hatch headed for the Republican cloakroom just off the Senate chamber, but disability rights leader Pat Wright and a group of her allies intercepted him in the hallway.

They would not ordinarily have had access to this restricted area, but senators were allowed to bring in guests, and this enabled Iskowitz to escort a large group of disability advocates into a nearby conference room.

Iskowitz, Wright and the activists pleaded with Hatch, just as Silverstein had done moments earlier. Wright recalled, “As fast as we could, we threw out every fact and argument we could think of. We encouraged him to champion an alternative to the Chapman Amendment.”

“Only you can bring the Republicans around on this issue,” Wright implored Hatch. “You’ve done so much work on AIDS. We all know there’s no way you can get AIDS from food handling.”

Thirty years later, Wright recalled of Hatch, “We knew him to have a really personal, heartfelt commitment to enhance opportunities for people with disabilities, based on his work with Senator Kennedy on other issues. He understood that public policy needed to address the systemic discrimination, isolation and segregation, and denial of opportunity that disabled Americans faced.”

Senator Hatch reached for a telephone and called his aide on health affairs, 32-year-old Nancy Taylor. She was lying down on a sofa in her office in the nearby Hart Senate Office Building, managing the 38th week of her pregnancy with twins. She felt like she was going to give birth at any second.

“Are you good enough to come over?” Hatch asked. “I need you.”

“Of course I can,” Taylor said.

When she entered the cloakroom, the two fell into an intense discussion of legislative and legal options, synthesizing a year of work into a 15-minute burst of thinking.

Hatch and Taylor realized that there was a way to address the concerns raised by the Chapman Amendment while at the same time guaranteeing that people with HIV/AIDS would not be discriminated against. It was an idea that could gain the support of the disability community, and an idea that Hatch might be able to persuade enough senators to accept as a replacement for the Chapman Amendment — if Hatch could beat Helms in a Senate floor debate.
The answer lay in a simple phrase that had been floating around in many ADA discussions in these last intense hours: “Follow the science,” just as Silverstein had suggested minutes earlier.

Taylor sat down in the most comfortable chair she could find, grabbed a pencil and began sketching out their idea on a piece of paper, periodically joined by Wright, Iskowitz and Chai Feldblum, legislative counsel to the American Civil Liberties Union AIDS Project and a key ADA advocate who provided crucial input on the document.

With Hatch towering over her, Taylor scribbled away, pausing to sip from a carton of milk that Kennedy staffers had brought her.

“That’s it,” Hatch said when she finished. “That could work.”

Hatch ordered scores of photocopies of the handwritten draft amendment to be rushed to each member of the Senate and their staffs. There was no time for it to be typed — the debate was already starting a few feet away on the Senate floor.

The notes represented the “Hatch Amendment” to the ADA, and it was designed to reflect and replace the Chapman Amendment in a way that would not discriminate against people with HIV/AIDS.

The proposed amendment authorized the U.S. secretary of Health and Human Services to prepare a list of communicable and contagious diseases that were scientifically known to be transmitted through food handling. The amendment would allow restaurant operators to remove anyone with a disease on the list from food-handling positions. But Hatch and Taylor knew that, given the latest medical and scientific knowledge, there was little to no chance that HIV/AIDS would appear on that list.

 It now came down to a showdown on the Senate floor over two sheets of paper — the Chapman Amendment backed by Helms and the new handwritten Hatch Amendment — and a battle between two Senate titans, Jesse Helms and Orrin Hatch.

At 3:39 p.m., Hatch took the floor with Nancy Taylor sitting directly behind him. The Senate chamber was packed. Scores of senators looked on, including those who had led the fight to bring the ADA to this point: Senators Kennedy, Harkin, Bob Dole, John McCain and David Durenberger, Republican of Minnesota. A future vice president was in the room, Democratic Senator Al Gore of Tennessee, as was a future president, Democratic Senator Joe Biden of Delaware.

“I am proud to have played a part in crafting this legislation,” Hatch began, then read out the key points of his amendment from his handwritten sheet, stressing that his amendment “places a premium on science” as the guiding foundation.

It was Jesse Helms’s turn to speak, his voice growling in a thick baritone. “I was very interested in listening to my dear friend from Utah — and he is my friend, Senator Hatch — when he identified three things which he said his amendment would do. But he neglected to mention a fourth thing his amendment will do. It will gut the Chapman Amendment! For the purpose of emphasis let me repeat it. It will gut the Chapman Amendment and render it totally nugatory.”

Hatch would not give an inch to Helms’ arguments, and at 4:27 p.m., he made a final attempt to save the Americans with Disabilities Act.

In a cinematic performance worthy of Gregory Peck as Atticus Finch in To Kill a Mockingbird or Jimmy Stewart in Mr. Smith Goes to Washington, Hatch launched a volley of arguments, pacing around the lectern, speaking extemporaneously without notes, his arms chopping the air to make his points.

Hatch asked, “Why should people be discriminated against if they are not a health hazard?”

Hatch built his argument up to a final, emotional crescendo: “Should some teenager who got it because his mother got it (HIV/AIDS) through a blood transfusion be discriminated against? And yes, should a homosexual be discriminated against? And the answer to that is no!”

In that moment, at 4:34 p.m., Orrin Hatch symbolically won the moral high ground and saved the ADA by convincing more than enough senators to vote for his amendment, not Helms’. “At the eleventh hour,” wrote scholar Robert L. Burgdorf Jr., who authored one of the earliest drafts of the ADA, “conservative Senator Orrin Hatch stepped forward to become the surprise hero of ADA passage.”

When the amendments were put to a vote early that evening, Hatch won an overwhelming victory. The Senate rejected the Helms amendment by a vote of 61 to 39 — and passed the Hatch amendment by 99 to 1.

Only Jesse Helms opposed it.

The final deliberations on the Senate floor two days later brought Senators Hatch, Kennedy, Harkin and many others to tears. Harkin delivered part of his speech in sign language, the first time anyone remembered this happening on the Senate floor. On C-SPAN, the broadcast featured a simultaneous sign language translation of the proceedings, creating a moment of rich emotional impact for tens of millions of hearing-challenged Americans.

On July 13, 1990, the Senate passed the ADA by a vote of 91 to 6, with 3 members not voting. Applause broke out in the chamber, and delighted shrieks and commotion could be heard from disability advocates in nearby hallways and conference rooms.

Moments after the bill’s passage, Hatch stepped off the Senate floor with other lawmakers and entered a conference room packed with jubilant disability rights advocates, many of whom were weeping with joy. Soon, Hatch’s tears were flowing, too. He was thinking of his beloved late brother-in-law Raymond Hansen, a polio patient who slept every night in an iron lung machine and whom Hatch carried in his arms to services of The Church of Jesus Christ of Latter-day Saints.

The Americans with Disabilities Act became the law of the land on July 26, 1990, when it was signed by President George H. W. Bush at a White House ceremony for 3,000 people. For disability advocates, it was a day for rejoicing. “Having been told for so long how powerless we were,” recalled disability activist Judi Chamberlin, “here we were with the president of the United States signing this document that was our Emancipation Proclamation.”

Since the ADA’s passage, thousands of American buildings have been constructed or redesigned to be more accessible. Ramps and “curb cuts” on sidewalks are commonplace throughout the nation. Discriminatory practices against people with disabilities have been wiped out in the legal sense, and workplace and public accommodations have been sharply improved. The ADA has helped better provide for veterans with disabilities who served in Vietnam, Iraq, and Afghanistan. And it has directly inspired similar measures in many other nations around the world.

The ADA was the product of many years of work by a host of courageous, dedicated disability advocates and their allies. And at an absolutely critical moment, Senator Orrin Hatch stepped in and rescued the ADA in its cradle. In the words of Ruth Colker, constitutional law professor at Ohio State University, “Hatch was crucial in holding the line against AIDS hysteria.”

“If it wasn’t for Senator Hatch,” remembered disability rights leader Pat Wright 30 years later, “we would still be fighting [over] the ADA, and there probably wouldn’t be final passage of the ADA.”

It was one of the greatest moments in Senate history.

And it was Orrin Hatch’s finest hour.

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