SJ Quinney College of Law, University of Utah
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Abstract

With Ohio considering passing the nation’s second ban on abortions motivated by Down Syndrome, the relationship between abortion and disability law has taken on new importance. Disability based bans raise unique legal, moral, and political difficulties for those supporting legal abortion. The core commitments supporting legal abortion—including sex equality—stand in some tension with justifying abortion in the case of a fetal defect or disability.

Given the problems with disability-based bans, it may seem that there is no urgent need to resolve these tensions. Disability-based statutes likely create an impermissible undue burden under Planned Parenthood of Southeastern v. Casey and seem impossible to enforce. However, historical analysis shows that the bans under consideration may transform the abortion debate even if they are never enforced.

First, this history explains the puzzling lack of discussion of disability in abortion politics, illuminating the political payoff of disability-based justifications used by activists otherwise committed to equal treatment. Second, this history makes clear the perils that a disability-based ban creates for supporters of legal abortion. Raising the salience of “selective” abortion may allow pro-lifers to win over ambivalent voters and legislators who are concerned about disability discrimination. Moreover, the arguments made prominent by such a law can easily justify other restrictions that might fare better in the courts, including limitations on access to noninvasive prenatal genetic diagnosis and prohibitions on abortion after the twentieth week of pregnancy.

To avoid the danger illuminated by the history studied here, prochoice attorneys and legislators should push for laws that actually reduce the odds of disability-based abortion. Ironically, parents who might not otherwise choose to terminate a pregnancy in the case of disability do so because they feel they have no choice, particularly given the bleak outcomes faced by many disabled adults confronting both poverty and unemployment. Reproductive justice should include a commitment to adequate funding for the programs on which disabled adults and children depend, as well as the removal of perverse legal incentives that discourage disabled Americans from taking steps that would make employment more realistic. Guaranteeing meaningful choices inevitably involves the removal of the discrimination and tangible obstacles that make abortion more common in cases of fetal defect or disability.

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