Are Abortion Bans on the Basis of Disability Really in the Interest of Disability Rights?

The abortion debate in the United States has been forever compromised by the clash of politics and personal medical decisions — abortion is no longer a value-neutral, private choice. One regrettable consequence of that shift has been the creation of the “justified” abortion — one that takes place early in pregnancy or for the “right” reasons, such as in cases of rape or incest. Or, in the eyes of some, fetal disability. Unspoken in this framework, of course, is that some abortions happen for the ”wrong” reasons, and the anti-choicers exploit this with restrictive abortion legislation.

As a disabled person, talking about laws that restrict abortion is intensely challenging, because often, these conversations can feel like a referendum on whether the lives of disabled people are worth living. However, we should not shy away from these complicated and sometimes heartbreaking conversations.

The latest example of legislation tapping into the “justified abortion” narrative came in December, when Ohio Governor John Kasich signed a bill banning abortion on the basis of Down syndrome into law: Physicians who perform abortions in these settings could lose their licenses and face felony charges, though patients won’t be charged.

Ohio isn’t the first state to attempt this. Indiana’s similar law was struck down, while North Dakota’s was almost superfluous — the state already bans abortions past 20 weeks. This makes it highly unlikely pregnant people could obtain and act upon prenatal diagnoses — whether to seek abortion or services to help them prepare for the birth of a disabled child — in time, given that reliable base testing isn’t available until at least 16 weeks of pregnancy. These bans are part of a legislative strategy advanced by groups like Americans United for Life, which includes model bills packaged and ready to go for anti-choice legislators.

Much of the conversation about these laws comes either from the anti-choice contingent; nondisabled parents, particularly those of people with Down syndrome; or nondisabled pro-choice advocates, erasing the voices of the disability community. It is important to stress that the opinions of the disability community on this issue are not uniform, as the disability community is extremely large and diverse. Some are opposed to abortion, period; others have concerns about the potential for genetic eliminationism on the basis of Down syndrome or other disabilities; others may unilaterally support abortion on demand and without apology.

Though it may seem counterintuitive, legislation preventing abortion on the basis of disability is not designed to protect the lives or wellbeing of disabled people.

Rather, it’s part of “slippery slope” legislation used by the anti-choice movement to slowly but steadily move the goalposts on abortion. It’s a highly effective tool for gradually working to the point of banning abortion entirely, by a group that knows outright bans will never fly legally or socially.

Bans on abortions in response to general or specific fetal diagnoses, a growing trend, play on something people opposed to abortion cynically cast as a nightmare vision of a future world in which parents abort “imperfect” fetuses, eliminating congenital disabilities from the world and placing a value judgment on disabled lives. This appeal to emotion targets the disability community, which is already acutely aware of the discrimination it faces. The idea that people might try to engineer disability out of existence doesn’t seem so far-fetched, and laws to prevent this kind of discrimination may be pitched as a way to protect disability diversity. Given that it’s common to hear sentiments like “if the prenatal screening shows Down syndrome or any serious disability, we’re aborting,” it’s understandable that disabled people might be worried about the potential for abuse of genetic testing.

Legislation that establishes term limits or bans abortion on the basis of sex or disability is designed to make it challenging for abortion supporters to fight back, because they’re placed in a reactive position. Anti-choicers hope few public figures are willing to say it should be okay to terminate a pregnancy on the basis of a fetal diagnosis, because such a position seems indefensible. At the same time, they advocate for funding cuts that terminate support for low-income pregnant people and children who need health care; sexual education to help people avoid unintended pregnancy; home and community-based services for disabled people; inclusive education and employment initiatives for disabled people; and other elements of the social safety net that allow people to live full and active lives.

It is possible to explore the motivations of such decisions without questioning individual autonomy. Are people seeking abortion after a fetal diagnosis out of fear? Rhetoric about disabled children as “burdens,” the lack of social and economic support, not actually knowing anyone disabled, inadequate counseling and information from care providers, and deep-seated disablism may all be factors at work. These are factors that could, and should, be mitigated.

The disability rights movement believes disabled people have intrinsic value, and dedicates tremendous energy and effort to access and inclusion for all. A movement that proclaims the rights of the “unborn” and then neglects actual children is one that the disability rights movement should view with suspicion. The anti-choice use of disability as a pawn isn’t about the belief that disabled people are devalued. Instead, it plays on the cold, calculating knowledge that people in the midground of the abortion debate are uncomfortable at the thought of aborting disabled fetuses.

Sacred in the womb, worthless in the delivery room.

The fight over abortion is fundamentally about the pregnant person’s autonomy. When it comes to abortion on the basis of disability, it’s also about something else: A fight over the value of disabled lives. But it shouldn’t be about the lives of fetuses, who carry only the potential for life, and are not morally, biologically, or socially equivalent to humans living on their own outside the womb.

So how do disabled supporters of abortion rights talk about these bills? In a number of ways, but perhaps the most primary should involve separating a disabled fetus from a disabled person, and noting the political and cultural context of this legislation. Pushing back on the claim that it’s about “protecting the disability community” allows us to have a conversation about how anti-choicers have hijacked the abortion debate, hoping to put supporters of abortion on the defensive. It also allows advocates to introduce an authentic conversation about how abortion foes abandon disabled people once they’re born — or once they acquire disability later in life.

If you don’t unilaterally support abortion in all circumstances, you may want to consider how legislation like this erodes abortion rights overall — and if you know abortion is not for you personally, I hope you can see the value in defending access to health care for others. If you don’t support abortion, period, I encourage you to take some in-person time with someone to chat about this issue — you might both benefit from a mutual and openhearted exchange, even about such a contentious cultural, social, and, for some, moral issue.

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