Is Alcoholism a Disease?

Is Alcoholism a Disease?Author(s): ANDREA NEALSource: ABA Journal, Vol. 74, No. 2 (FEBRUARY 1, 1988), pp. 58-62Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759745 .

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IN THE SUPREME COURT

Is Alcoholism a

Disease?

BY ANDREA NEAL

Eugene Traynor, a supervisor at a New York City photo lab, began drinking when he was 8 years

old. He drank heavily while in the military and was hospitalized five times between 1970 and 1974 for treatment of "saturated alcoholic dis orders." During that time, he held a series of minimum wage jobs but couldn't keep them, and borrowed money from his family to survive. After his last hospitalization, Tray nor joined Alcoholics Anonymous and has not had a drink since Feb ruary 1974.

James McKelvey used to drink up to a half gallon of bourbon a day in the years following his honorable dis charge from the Army. He was down on his luck, short of cash and out of a job. After being hospitalized 33 times, McKelvey joined a self-help group and began putting the pieces of his life back together. He took his last drink of alcohol in May 1975 and is now an alcoholism counselor for an outpatient treatment center in Rock ville, Md.

They are still alcoholics, but to day, Traynor, 46, and McKelvey, 42, proudly say they have recovered. Both have good jobs, are happily married, and both are trying to com plete college?something they could not do during their days of heavy drinking.

They also are the focus of a Su preme Court battle that pits the med ical world against the Veterans

Administration and has revived the debate over the nature of alcoholism. Traynor v. Tumage, No. 86-622.

Andrea Neal is a reporter for UPI in Washington, D.C.

ABAJ/Wide World

Eugene Traynor

At issue is a VA regulation that defines alcoholism 21s "willful misconduct." The regulation

was used to deny the two former servicemen?and dozens of other al

coholic veterans each year?exten sions of the 10-year deadline for using educational benefits provided to vet erans in the GI Bill.

Traynor had enrolled in night school to study electrical engineering in 1978. When his benefits ran out the following year, he applied for more, assuming he would automatically qualify under the GI Bill, which grants extensions of the 10-year limit to veterans unable to use their ben efits within the required period due to "a physical or mental disability

which was not the result of ... their own willful misconduct."

"I was astonished when I was turned down for my benefits," recalls McKelvey. "When they told me about the willful misconduct rule, I thought somebody was pulling my leg. But they were sincere. They felt alcohol ism was misconduct."

The VA accepts "secondary al coholism," in which drinking is a symptom of an underlying psychiat ric problem, 21s an involuntary illness eligible for extension of benefits, but not the more common "primary al coholism," in which drinking is the root disorder.

Traynor says he also was sur prised when he received a form letter denying benefits on the grounds that he had engaged in willful miscon duct. "I didn't will to be an alcoholic or choose to be one," he says. "It's not a pleasant life at all. Over the years I didn't want to drink at all, but I had to. It wasn't a matter of choice."

After the Board of Veterans Ap peals denied Traynor's request for an extension in 1979, he filed a lawsuit in U.S. District Court for the South ern District of New York. The suit al leged that the VA decision violated the 1973 Rehabilitation Act forbid ding discrimination on the basis of handicap. The court agreed, ruling that the denial of benefits amounted to discrimination against alcoholics. 606 F. Supp. 391 (1985).

On appeal, the U.S. Court of Ap peals for the Second Circuit reversed, citing 38 U.S.C. ?211(a), which bars judicial review of final Veterans Administration decisions. The court found that although "many veterans have in the service of our country suffered injuries that qualify them as 'handicapped individuals' ... Con

58 ABA JOURNAL / FEBRUARY 1, 1988



gress did not delineate any exception to section 211(a) for handicapped veterans." 791 F.2d 226 (1986).

McKelvey's bid for an extension of his benefits deadline was denied in 1978. He sued the VA in the U.S. Dis trict Court for the District of Colum bia. 596 F.Supp. 1317 (1984). The district court found in his favor, but was reversed by the U.S. Court of Ap peals for the D.C. Circuit, which said the VA could reasonably distinguish between those who were responsible for their handicap and those who were not. 792 F. 2d 194 (1986).

The cases of the two men were

joined at the Supreme Court, which heard arguments Dec. 7.

The ruling, expected this spring, could have broad implications, both for the legal rights of veterans and the rights of alcoholics.

"The case goes to the heart of how society views alcoholism," says Elizabeth Symonds, an attorney for the American Civil Liberties Union, which entered the case on Mc

Kelvey's behalf. "Are we going to view this as something someone has control over and should be punished for, or are we going to look at it from a rehabilitation framework?"

The question is of grave impor tance to the estimated 10.5 million

adult alcoholics in the United States, many of whom turn to government programs, employee assistance plans and medical insurance for treatment.

Through the 1940s, alcoholics were viewed as outcasts, often jailed as criminals or committed to mental hospitals as social deviants. But that view has gradually changed. Accord

ing to an April 1987 Gallup Poll, 85

percent of physicians and 87 percent of the public think alcoholism is a disease that can be treated and over come.

But while the American Medical Association has considered alcohol ism a disease since 1956, its legal sta tus has never been clear.

The question first reached the

Supreme Court in 1968 in Powell v.

Texas, 392 U.S. 514 (1968). Leroy Powell was convicted under a Texas statute that made it a crime to be drunk in a public place. He argued that criminal punishment of him for

public drunkenness would be "cruel and unusual," in violation of the Eighth Amendment, because he was afflicted with chronic alcoholism and his appearance in public was not of his own volition. Five members of the Court voted to uphold Powell's con

viction, but they failed to agree on a rationale. Four of the justices noted, however, that there were differences

ABAJ/lisa Berg

in medical opinion over whether al coholism is a disease.

The issue arose in the perjury trial of former presidential aide Mi chael Deaver, whose lawyers cited al coholism as a possible line of defense.

Charged with lying to a grand jury and a congressional subcommittee, Deaver blamed alcoholism for his failure to remember some of his ac tivities. The trial judge later ruled that he couldn't argue that issue to the

jury because he had offered only hearsay evidence that he was an al coholic.

Legal scholars believe there are distinctions between alcoholism that

Michael Deaver

results in criminal conduct and al coholism as a condition. While alco holics should be held responsible for their conduct, most agree, they should not be penalized for their condition.

The Supreme Court seemed to

adopt that view in 1962 when it ad dressed the subject of drug addiction in Robinson v. California, 370 U.S. 660 (1962). In that case, the Court re versed the conviction of Lawrence Robinson of Los Angeles, who had been found guilty of drug addiction.

To punish Robinson for his ad diction, a five-justice majority said, was cruel and unusual punishment. The Court found that the law making drug addiction a crime "is not one which punishes a person for the use of narcotics ... or disorderly behavior

resulting from their administration. It is not a law which even purports to provide or require medical treat James McKelvey

I_-1

ABA JOURNAL / FEBRUARY 1, 1988 59



IN THE SUPREME COURT

ABAJ/Liso Berg

Keith Teel

ment. Rather we deal with a statute which makes the 'status' of narcotic addiction a criminal offense."

Noting that prosecutors had con ceded that drug addiction was an ill ness, the Court said that the statute was no different from one making it a crime for a person to be mentally ill or a leper.

It is a view with which Mc Kelvey agrees. "I am in no way say ing alcoholism should be offered as an excuse under which people may hide," he says. "If you do something while under the influence of alcohol, you've got to make restitution. But to say that alcoholism is an act of will ful misconduct is ludicrous."

In this case, it is unnecessary for the Court to deal with the disease question unless it wishes to settle

the controversy for once and for all. The lawyers involved think that is unlikely.

"Medical issues are something courts don't like to decide," says Keith Teel of Washington, D.C., who rep resents McKelvey. "And they don't have to decide that for us to prevail."

The real issue, Teel says, is whether the regulation violates Sec tion 504 of the Rehabilitation Act, which states that "no otherwise qual ified handicapped individual" may be denied benefits under programs re

ceiving federal money or adminis tered by federal agencies.

"It is not disputed at all that al coholism, for purposes of the Reha bilitation Act, is a handicap," says Teel. "The VA regulation defines al coholism as willful misconduct. That term is then used to deny veterans who have been disabled an extension of the time to use their educational benefits."

Thomas Seessel, executive direc tor of the National Council on Alco holism, which has filed an amicus brief in the case, believes Traynor and McKelvey "are clearly qualified" un der the Act. "They've been sober for some time. They meet the standards, but they're being discriminated against because of their alcoholism," he says.

The federal government, while conceding that some alcoholics may be protected under the Act, argues

that Congress never intended for benefits to be extended to people who are responsible for their disabilities. Under the VA rule, Justice Depart ment lawyers point out, those veter ans whose alcoholism is the second ary product of a psychiatric disorder or whose alcoholism has caused an

organic disorder such as cirrhosis of the liver, are eligible for an extension of the benefit deadline.

In briefs filed at the Court, the Justice Department defends the will ful misconduct rule as "a reasonable and workable accommodation of modern medico-psychological evi dence and Congress' instructions in the veterans' benefits statute."

One thing is certain: Alcoholism is a handicap under the Act. The only question is whether

distinctions may be made between alcoholism itself, which the govern ment contends is voluntary, and the psychological and physical disorders that may accompany it.

In 1977, the attorney general is sued an official opinion concluding that "Section 504 does in general pro

ABA JOURNAL / FEBRUARY 1, 1988



ABAJ/Wide World

Thomas Seessel

because of the millions of dollars it would cost taxpayers.

"Since the same willful miscon duct standard applies also to the grant of veterans' disability pensions, ac

ceptance of petitioners' argument would lend credence to the quite sur

prising notion that the government is obligated to pay disability pensions to all persons claiming to suffer from alcoholism," the government brief says.

The justices' ruling in this case in fact could determine the disability pension issue. A case is pending in the U.S. Court of Appeals for the 3rd Cir cuit in which an alcoholic veteran is challenging the VA willful miscon duct regulation as applied to claims for disability pensions on the basis of al coholism. (Buck v. Veterans Admin istration, No. 86-1656). The 3rd Circuit has stayed proceedings in that case while awaiting the high court ruling.

But in amicus briefs, lawyers for the AMA and the American Psychi atric Association argue that a victory for Traynor and McKelvey would not

necessarily entitle alcoholic veterans to disability payments. If, for exam

ple, the VA found that an alcoholic had been informed about his illness but refused to seek treatment, it could reasonably find him guilty of willful

misconduct, the brief says. Washington, D.C., lawyer Carter

Phillips, who helped prepare the AMA and APA brief, says the VA could continue to consider willful miscon duct in granting benefits, as long as it does so on a case-by-case basis. He

says the medical profession opposes the current regulation because it "broadly condemns a certain class of alcoholics. Both groups have a gen eral interest against having patients be classified generically for condi tions that require individualized treatment," he says.

The phrase "willful misconduct" has its genesis in the days of Prohibition, when the desire to

drink was viewed as a moral weak ness. In its earliest form, the rule was old Veterans Regulation No. 10, pro mulgated by President Franklin D. Roosevelt. It stated that a disability would be considered the result of misconduct when it was "incurred by an act contrary to the principles of good morals; or as a result of gross

hibit discrimination against alcohol ics and drug addicts in federally assisted programs solely because of their status as such, just as it pro hibits discrimination solely on the basis of other diseases or conditions." The Department of Health, Educa tion and Welfare (now the Depart

ment of Health and Human Services) then issued regulations that prohib ited federally funded hospitals and outpatient facilities from discrimi nating against alcoholics in admis sion or treatment.

The following year, Congress

amended the Rehabilitation Act's definition of "handicapped individ ual" explicitly to include alcoholics. But the legislative history does not make clear whether Congress specif ically rejected the VA's willful mis conduct standard.

Justice Department lawyer Jer rold Ganzfried, who argued the case for the government, notes that recent efforts to pass legislation repealing the definition have failed. In addi tion, he points to the fact that Con gress has refused to grant disability pensions to alcoholics or drug addicts

ABA JOURNAL / FEBRUARY 1, 1988 61



negligence, gross carelessness, alco

holism, drug addiction, self-infliction of wounds, etc."

Seessel says the modern version of the rule is outdated and should be struck down: "This really is an old fashioned view that I am shocked the federal government would still cling to when medical authorities all over the world have moved beyond that. It's a legal anachronism." He adds that "to say alcoholism is voluntary is to stand the definition on its head, because alcoholism is an addiction, a loss of control."

While Seessel's views appear to represent the consensus of medical opinion, a minority of experts chal lenge the classification of alcoholism as a disease. One of them is Herbert Fingarette, whose book, Heavy Drinking?The Myth of Alcoholism as a Disease, will be published in February.

Fingarette, a professor of philos ophy at the University of California at Santa Barbara, believes the VA definition of alcoholism as willful misconduct is "unfortunate" but le gally correct. "The evidence is clearly against the concept of alcoholism as a disease in the way it's usually understood?the implication that al coholics cannot control their drink ing," he says.

"Given the idea that it's false that alcoholic drinking is uncontrollable, then the regulation of the VA that it's willful misconduct is the appropriate legalistic way to cast the issue."

Fingarette says the volitional as pect of alcoholism is obvious in the cases of Traynor and McKelvey. "There are strong odds they went into a program and what they were told is, 'You must stop drinking.' No one forced them. When these people go into one of these programs, the first thing they are told is, 'you must fol low the rules,' and they do it."

It is unlikely the Court will use the case to end the debate over whether alcoholism is a disease or simply the result of a person's lack of willpower. But, the Court's accept ance of the VA's willful misconduct definition could send a message to other agencies, insurance companies and society in general that it is OK to discriminate against alcoholics.

Seessel fears that a victory for the Veterans Administration would en courage insurers to curtail coverage

Alcoholism a

disease, lawyers say More than three-fourths of

American lawyers?76.3 percent believe that alcoholism is a disease and not a moral failing, according to a recent Journal survey of the profession.

Of the remainder, 12.9 percent think alcoholism is purely a matter of individual choice, while 2.8 percent think that the problem is both a disease and a moral choice. Eight percent aren't sure.

The survey was conducted for the Journal by Research USA of Chicago. The firm polled 503 lawyers by telephone from Nov. 17-25,1987.

and make it easier for other govern ment agencies, including those that administer Medicare and Medicaid, to deny benefits to alcoholics in an ef fort to save money.

A victory for Traynor and Mc Kelvey, on the other hand, "will help thousands of recovered alcoholics who possibly have been denied ben efits," Seessel says. "I would hope the precedent would be spread iil.rough out the government and recovered alcoholics would have new hope."

Catherine O'Neill, Traynor's lawyer, says, "If the Court does artic ulate standards, its implications will be across the board."

The Court could dispose of the case without even tackling the question of whether the VA reg

ulation violates the Rehabilitation Act. The justices could simply rule that federal courts lack jurisdiction to review the validity of the VA rule.

Under Section 211 (a), decisions by the VA "on any question of law or fact under any law administered by the Veterans Administration provid ing benefits for veterans ... shall be final and conclusive."

If judicial review is allowed, the Justice Department contends, dozens of lawsuits will be filed by veterans and courts will be forced to interfere in day-to-day decisions of the agen cy?"the very result Section 211(a)

was intended to preclude." Teel says it is possible that the

jurisdictional question will have even wider repercussions than the alco holism issue, noting that "Section 211 has been a bar to veterans trying to get cases through the courts. Any loosening up by the Supreme Court

will have a benefit to veterans." In deciding that issue, the Court

may follow the reasoning of its deci sion in Johnson v. Robison, 415 U.S. 361 (1974), which held that Section 211 did not bar a serviceman from fil ing a suit that challenged the consti tutionality of a law restricting GI benefits to veterans who had served on active duty. That case was brought by a conscientious objector, who, aft er completing two years of alterna tive civilian service, was denied educational benefits.

O'Neill, a lawyer with the Legal Action Center of the City of New York, is confident that Johnson v. Robison applies to this case, saying, "I don't think a distinction should be

made between constitutional and sta tutory challenges. Such a distinction is not tenable when dealing with civil rights laws."

Teel says Section 211 "was in tended to reach cases where the VA has a question that arises purely un der its own statute. There's no reason particularly to defer to the VA when someone is challenging their action under a statute the VA is obligated to follow but does not have managerial authority over."

Teel disagrees with the govern ment's claim that allowing suits like Traynor's and McKelvey's will swamp the courts with suits challenging hundreds of pages of VA regulations.

"It doesn't seem to me you're going to find yourself getting every VA regulation challenged in court," he says. "By and large, the VA system works very well for veterans. I think most veterans think they get very good service from the VA."

Traynor and McKelvey hope the Court will go beyond the jurisdiction al issue and clear up the confusion surrounding the legal status of alco holics so they can get on with their lives.

"If we win, I will be able to smile and think finally I was able to do something to help fellow veterans and maybe kick this disease out of the closet," McKelvey says.

62 ABA JOURNAL / FEBRUARY 1, 1988



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Is Alcoholism a Disease?