By the time you read this, Ohio may be the second state to outlaw abortion of a fetus with a prenatal diagnosis of Down syndrome. The bill is expected to pass. Anti-choice Republicans dominate the legislature. Gov. John Kasich — the "moderate" GOP presidential hopeful — has signed 16 abortion restrictions since taking office in 2011. Thanks to these laws, half the state's abortion clinics have closed.
Other states have tried and failed to pass similar bans. Indiana introduced one for the second time this session that would make it a felony to perform an abortion on the basis of fetal sex or a genetic diagnosis of "Down syndrome or any other disability." So far, North Dakota has the only disability-related abortion restriction on the books; eight states ban sex-selective abortions. None of these laws has been enforced.
In fact, they are probably unenforceable. How would prosecutors know what was in a woman's head when she went to the clinic? Would every abortion patient be compelled to undergo prenatal genetic screening? (That's not so far-fetched, considering that 10 states mandate ultrasound, and three more also require that the doctor show the woman the images.)
If the mother has had the test and decided to terminate the pregnancy, would she have to swear on a Bible that she was doing so for a different reason? In fact, parents seek genetic screening only when they want the baby. Perversely, legislators are loading stress and shame onto already heart-wrenching decisions.
But the supporters of these bills know they aren't making sound policy. That isn't the point. The point is to gain strategic — and emotional — advantage. By portraying themselves as friends of the disabled unborn, they're vying for the sympathies of the already born disabled.
From The Silent Scream — the 1984 film that narrates the blurry ultrasound images of a vacuum-aspiration abortion as a "violent" assault on a panicked "child" — to the recent videos claiming to expose Planned Parenthood as a ghoulish merchant of fetal body parts, the antis have portrayed fetuses as innocent, powerless victims.
This new move ups the poignancy of that powerlessness. And singling out Down syndrome completes the picture: a poster fetus of defenseless innocence. As David Perry, the father of a child with Down, wrote on the website RH Reality Check, society places such children high on the "disability hierarchy" of pity-worthiness, describing them as "cute" and "angelic" — a "blessing." Those "other disabilities," listed on page 10 of Indiana's 13-page bill, include "retardation," "physical disfigurement" and "dwarfism" — not nearly as attractive.
These laws are also meant to drive a wedge between reproductive-rights and disability-rights activists. Some have described that wedge as already firmly in place. "Proponents of reproductive rights portray disability as a tragic state that justifies abortion — even for wanted pregnancies," commented an Economist blogger. "On the other side, anti-abortion campaigners proclaim the value of all life, including the lives of those with disabilities. That makes disability-rights advocates, who are generally in the progressive camp, bedfellows with the anti-abortion lot."
In reality, the picture is murkier. Many people straddle the two communities — pro-choice feminists who also fight for respect and rights for the disabled, and disability-rights activists who believe in unqualified reproductive freedom.
But that doesn't mean there's no tension between the ideals of the two movements, or ambivalence in the hearts of any of the people who hold those ideals.
Over the years, reproductive-rights advocates have also fought for the right to have children, and against uninformed or coercive sterilization of women considered "unfit" to mother (including California prisoners as late as 2010). But for people with disabilities, the eugenic deployment of prenatal testing is not just an injustice; it's an existential threat.
These people argue that doctors and genetic counselors terrify the prospective parents whose fetus' genes suggest blindness or cystic fibrosis by portraying life for the disabled and their families as unremittingly awful. The message: For everyone involved, some kids are better off not being born.
Rarely do the parents get a full and realistic picture: Yes, there are challenges, but, for the most part, parenting a disabled child isn't entirely different from parenting any other child. As for scant personal resources and inadequate social supports, those are legitimate reasons to terminate any pregnancy.
"A woman who makes this decision is best suited to assess her own resources," wrote the late disability-rights scholar, bioethicist and feminist Adrienne Asch. "But it is important for her to realize [that] our society profoundly limits the 'choice' to love and care for a baby with a disability. This failure of society should not be projected onto the disabled fetus or child."
Asch made a useful distinction between not wanting to be pregnant with any baby and wanting to be pregnant but not with this particular baby. The latter troubled her profoundly. "My moral opposition to prenatal testing and selective abortion flows from the conviction that life with disability is worthwhile," said Asch, who was blind.
But she never expressed trouble reconciling that opposition with her equally deep commitment to the right to choose abortion for any reason.
Not everybody has it sorted out so neatly. "We're in such a bind," said Marsha Saxton, research director of the World Institute on Disability at the University of California, Berkeley, in a phone conversation. "As feminists, we are pro-choice, because women have to have control over our bodies. At the same time, we grapple with a ridiculous hypothetical: Had prenatal testing been available to my mother, I might not exist." Saxton has a congenital disorder. "We find ourselves confused by identifying with the fetus," she said.
As a student, Saxton attended some Right to Life events to understand the group's point of view. "They were defending the fetus as the supreme innocent victim," but their Christianity revoked that innocence at birth. "I see how that messes with people's minds," she said.
Saxton's personal misgivings were not resolved, but her pro-choice imperatives were clarified: "The challenge for reproductive-rights activists is not to identify with the fetus but to identify with women and with disabled people who are alive now — to fight for people living under this oppression, this idea that we would be better off being dead."
Still, Saxton, 64, said she could not choose abortion "under any circumstance." Fortunately, she never had to choose — she never faced an unintentional pregnancy, much less the prenatal diagnosis of a disease such as Tay-Sachs, which can augur great suffering and early death.
And, in some way, she continues to identify with the fetus, Saxton said, "because I grappled with that hypothetical and had to face my own mortality."
People with disabilities are not a political bloc. Some oppose abortion. But it can escape no one's notice that conservatives' compassion for the disabled tends to end at birth and sour to antagonism by adulthood. On the first day of the current session, U.S. House Republicans changed a rule that since 1968 has routinely transferred Social Security funds into the disability program. The rule change threatened to dry up the trust fund — which the GOP has, since Reagan, characterized as a trough for freeloaders — within a year.
Liberals have ways of beggaring the disabled, too. In Vermont, the American Civil Liberties Union is suing Montpelier over its plan to dock Reach Up payments to families with children by roughly the amount of an adult member's Social Security disability benefit.
As for anti-sex-selection legislation, the intention of the federal Prenatal Nondiscrimination Act is "to prohibit discrimination against the unborn on the basis of sex or race, and for other purposes." But support for the bill — versions of which have been introduced since 2012 — comes almost exclusively from the Congressional brigade of the war on women.
In another article, David Perry called for the unity of disability- and reproductive-rights activists. The former "must make explicit their support for the right of women to choose to terminate a pregnancy based on a prenatal diagnosis of a genetic disability," he said, and the latter must understand that talking about the darker implications of genetic testing "does not inherently yield ground to those fighting against reproductive rights."
But political solidarity is not the same as an undivided heart. I asked Saxton: "So you go on acting with conviction and feeling two contradictory things at once?" "Exactly," she said. We agreed that this is the case with most serious moral issues; there are compelling arguments on both sides.
The anti-choicers are not only trying to exploit that ambivalence. They're playing on Americans' belief that science can eliminate unknowns and, with them, ambivalence.
It cannot. The decision to parent is a crapshoot. Nobody knows how a child will turn out — a pacifist or a school shooter, healthy or ill. Genetics play only a part in what a person becomes.
The individual body is also only part of disability. The rest is social and environmental. "The reason I can't get around Wellesley isn't because I'm blind," Asch told me when she was living in the Massachusetts suburb. "It's because Wellesley has no public transportation."
We must not use technology to cull fetuses that might have differently abled bodies. We cannot allow abortion law to rescue them at the cost of their mothers' freedom. We can, however, use technology and law to remove impediments to living well in any body.
Wrote Asch: "A just society must appreciate and nurture the lives of all people, whatever the endowments they receive in the natural lottery."