Since Plaintiff has used fictional relatives, Plaintiff cannot allege, that any “otherwise qualified individual with a disability” has been “excluded from the participation in,… denied the benefits of, or… subjected to discrimination” by Movants “solely by reason of” such individual’s disability. 29 U.S.C. § 794. Plaintiff has failed to allege the existence of even a single “otherwise qualified” individual that has sought, needs, or has been denied ASL services by Movants.

The RA provides that each executive agency “shall promulgate such regulations as may be necessary to carry out” its objectives. 29 U.S.C. § 794(a) (entitled “Promulgation of Rules and Regulations”). The regulations applicable to the VA establish clear, nondiscretionary duties with respect to its interactions with disabled individuals,7 as follows: “The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.”

The comprehensive reach of the General Provisions regulations reflects the broad prohibition of discrimination in “all of the operations” of colleges and universities. 29 U.S.C. § 794(b) (emphases added). See supra at 2, 17-18.

Case: 2:16-cv-00282-EAS-EPD Doc #: 34 Filed: 07/27/16 Page: 84 of 101 PAGEID #: 357 64 entity) to which the assistance is extended, in the case of assistance to a State or local government . . . any part of which is extended Federal financial assistance. 29 U.S.C. § 794(b). There is no dispute that “States waive their Eleventh Amendment immunity with regard to Rehabilitation Act claims when they accept federal funds.”

There is no question that Defendants are subject to the ADA, the RA, and parallel state and city laws. See 42 U.S.C. § 12131(1) (defining “public entity” as a state or local government department, agency, or instrumentalities); 29 U.S.C. § 794(b)(1) (noting that defendants are “recipient[s]” of “federal financial assistance”); New York City Human Rights Law, Ch. 1, § 8- 4 Each plaintiff, clearly disabled under the ADA, also has a disability within the meaning of state and city laws barring disability discrimination, which define “disability” more broadly. Lovely H., 235 F.R.D. at 259.

In other words, that every life- and 1 The same logic applies to the RA, which requires federally funded programs to provide reasonable accommodations for people with disabilities, and to provide disabled individuals with full access to the program recipient’s services, without any plausible ground for inferring an abortion exception. See 29 U.S.C. § 794. 2:15-cv-12611-GAD-RSW Doc # 43 Filed 04/04/16 Pg 18 of 30 Pg ID 718 12 health-saving abortion currently provided at non-Catholic hospitals throughout the country is illegal.

Rather, Plaintiffs’ claim is that two later statutes impose an obligation as a condition of receipt of different federal funding streams to provide emergency abortion services in certain circumstances. See 42 U.S.C. § 1395dd(e)(2) (defining “participating hospitals” for the purpose of EMTALA as those that have entered into Medicare agreements pursuant to 42 U.S.C. § 1395cc); 29 U.S.C. § 794(a) (prohibiting discrimination in any “program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service”).15 Moreover, Defendants’ argument that Michigan state law exempts them from compliance with two federal laws is barred by basic Supremacy Clause principles.

NAD’S SECTION 504 CLAIM SHOULD BE DISMISSED. NAD first alleges a violation of Section 504 of the Rehabilitation Act of 1973, which provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). The Supreme Court has held that “neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds.”

NAD’S SECTION 504 CLAIM SHOULD BE DISMISSED. NAD first alleges a violation of Section 504 of the Rehabilitation Act of 1973, which provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). The Supreme Court has held that “neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds.”

ARGUMENT I. No Duty to Accommodate Plaintiff Plaintiff’s Rehabilitation Act disability “rights are defined by reference to the ADA, as well as the Equal Employment Opportunity Commission's (“EEOC”) regulations and enforcement guidance that implement the ADA.” Schmidt v. Solis, 891 F. Supp. 2d at 86-87 (D.D.C. 2012) (citing 29 U.S.C. § 794(d) and “EEOC Enforcement Guidance on Reasonable Accommodation (hereinafter “EEOC Guidance”), available at http:// www. eeoc.