Tuesday, November 5, 2019
Since at least the 1960s, public debate over abortion rights has frequently turned to issues of disability. Those who argue for liberalization of abortion laws have often been successful by raising the specter of fetal disability — whether caused by Thalidomide, or rubella, or otherwise. Those who agitate for restricting or banning abortion, by contrast, have often argued that pro-choice advocates devalue the lives of people with disabilities.
In the spring of 2019, disability and abortion rights collided at the Supreme Court. Indiana had adopted a law “barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers.” The Seventh Circuit invalidated that law. In Box v. Planned Parenthood of Indiana & Kentucky, the Supreme Court denied certiorari (though it summarily reversed the Seventh Circuit’s invalidation of a separate Indiana law regulating the disposal of fetal remains). Justice Thomas concurred in the denial of certiorari, but he filed a lengthy separate opinion arguing that the ban on selective abortions was constitutional. He argued that “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written in a case in which individuals with developmental disabilities challenged a District of Columbia policy that denied them the right to make decisions about their medical care. The case was Doe ex rel. Tarlow v. District of Columbia. The D.C. Circuit reversed a district court decision enjoining that policy. Judge Kavanaugh’s opinion did not say anything specifically about reproductive rights. He treated the case entirely as one about the (lack of a) right of incompetent persons to consent to medical treatment. But the case itself was very much a reproductive rights case. Two of the three plaintiffs had been forced to have abortions without their consent; they sued precisely to challenge the policy that had taken away their power to choose. Although Kavanaugh had a reputation as a strong “pro-life” judge, here he voted to uphold government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion in Box — whether fetal disability is an acceptable reason for terminating a pregnancy, and what the law should do about it. Those are important questions. But any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion in Doe. Disabled people are frequently denied their own rights to conceive, bear, and parent children, whether through forced sterilization or abortion, the denial of assisted reproduction, or the denial of parental rights once their children are born. Some of these practices — notably forced sterilization — are emblematic of the Eugenics Era. But they are not at all confined to the past. Indeed, the practices that prevent people with disabilities from having and raising children — practices like the law Kavanaugh upheld in Doe — are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried in his Box opinion.
This essay offers a fuller consideration of the intersection of disability and reproductive rights. It does so by considering the legal and societal treatment of fetuses and children with disabilities alongside the legal and societal treatment of parents with disabilities. And it does so by bringing to bear insights drawn from two distinct social movements: the disability rights movement, and the reproductive justice movement. The piece argues that, taken together, the disability rights and reproductive justice perspectives offer substantial purchase on the questions raised by Justice Thomas in his Box concurrence. Those perspectives suggest that the questions are serious indeed but that Thomas gave the wrong answer to them. They also suggest that any effort to address the intersection of disability and reproductive rights needs to address the questions raised by then-Judge Kavanaugh’s Doe opinion — and that Kavanaugh, too, gave the wrong answer.