As we head into the 2015 legislative session, we need to be prepared for anti-choice individuals and groups to use the issue of disability-selection abortions to try and widen the divide between disability rights activists and those working for reproductive rights. It’s already begun in Indiana, where state Sen. Travis Holdman (R-Markle) filed a bill last week to prohibit abortions based on fetal determinations of sex or potential disability. The proposed Indiana bill is very similar to legislation that failed to pass in last year’s session and mirrors a North Dakota bill that did pass in 2013. Regardless of this bill’s progress, it should serve as a warning to pro-choice disability rights activists of the legislative maneuvers sure to take place in the coming months.
Sen. Holdman’s bill is a prime example of the way anti-choicers shape their message to appeal to those who might otherwise be opposed to anti-abortion efforts—particularly those in the Down syndrome community. The bill, SB 334, “prohibits a person from performing an abortion if the person knows that the pregnant woman is seeking the abortion because of: (1) the sex of the fetus; or (2) a diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.” It does not define “other disability” until toward the end of the bill, when it explains that could mean “a physical disability, a mental disability or retardation, a physical disfigurement, scoliosis, dwarfism, Down syndrome, albinism, amelia, a physical or mental abnormality or disease.”
The decision to single out Down syndrome at the top of the bill matters. This emphasis not only reflects the intensifying debates over prenatal testing, but also the relatively favored position of Down syndrome in American culture as compared to other disabilities.
Scholars of disability frequently discuss “disability hierarchies”: a way of describing how society places certain kinds of disabled people above others in terms of desirability, social acceptability, degree of perceived shared humanity, or “deserved” pity. Down syndrome, according to both studies and my own observations, has a relatively positive profile—language and images depicting people with the condition as “cute” or “angelic” emerge regularly in awareness campaigns, the broader media, and in conversations both in person and online. As the father of a boy with Down syndrome, I have regularly critiqued this one-dimensional perception. That said, the relentlessly positive messaging may have worked to improve perceptions. For example, a 2010 survey published in the American Journal of Medical Genetics revealed that a majority of young people are positive about people with Down syndrome. It’s a fact that has made our lives and integration into our broader community easier.
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Now, the authors of SB 334 are exploiting those good feelings, using faux advocacy for disability rights—and, with regard to the sex-selection aspect of the bill, gender equality—to try to restrict access to abortion. This reflects a broader trend among anti-choice groups, who frequently use the idea of people with Down syndrome being blessings, angels, and cute as reasons not to terminate. These are powerful, persuasive tools and an effective way to craft legislation designed to drive a wedge between communities.
Such bills seem even more underhanded when contrasted with those actually advocating for disability rights. Abortions based on prenatal diagnoses of Down syndrome are relatively common, at least as a subset of total pregnancies involving such a diagnosis; the most recent data suggests about 75 percent of all people who receive a prenatal diagnosis of Down syndrome choose to terminate the pregnancy. This high rate can be attributed to many factors—but, as disability rights activists have found, too many health-care providers do offer women incorrect or out-of-date information about Down syndrome following a positive fetal diagnosis.
In response, a loose coalition of medical providers and activists formed the “pro-information” movement in an attempt to ensure women receive accurate information about Down syndrome after a diagnosis. Such information normally entails up-to-date details about health and education services, common medical concerns, and all pregnancy options—including termination, which advocates neither encourage nor discourage. What the women do with that information, of course, is up to them. Pro-information, done right, is an example of what good prenatal disability rights legislation looks like.
Unfortunately, even this balanced approach is available to co-optation by anti-choicers who are willing to use the work done by these advocates to try to restrict abortion, again ostensibly in the name of disability rights. Enter Louisiana. While six other states have passed pro-information legislation that includes termination as one option among others, lawmakers in Louisiana decided to play abortion politics. Legislators passed HB 1058 last May; though it uses similar overall language to other pro-information bills, it also includes the stipulation that the health-care provider may not “engage in discrimination based on disability or genetic variation by explicitly or implicitly presenting pregnancy termination as a neutral or acceptable option when a prenatal test indicates a probability or diagnosis that the unborn child has Down syndrome or any other health condition.”
Usually, anti-choice laws try to force doctors to lie by mandating the inclusion of untrue information via mandatory consent, counseling, and related acts in any counseling with a woman considering abortion, in order to frighten them. Here, though, Louisiana has demanded that health-care providers lie by omission instead. This clause, unique so far to the Louisiana bill, runs directly counter to the mission of the pro-information movement, which is dedicated to transparency, disclosure, and accuracy. Still, I suspect we’ll see more of these types of clause in pro-information legislation in the next few years.
In addition, note the use of the word “discrimination” in Louisiana’s pseudo-pro-information law. Proponents of the North Dakota law that was the first to ban disability-selection abortion also used the word “discrimination,” though it didn’t appear in the legislation itself. This itself could be a stepping-stone to more severe anti-choice laws. If a fetus can be “discriminated” against, is that fetus a person? This could function as a way to sneak the concept of “personhood” into law.
The tension between reproductive and disability rights that these kinds of bills seek to worsen is not a new problem; in fact, there has been a false choice between the two movements since the development of amniocentesis made disability-selection abortion possible. In 1991, for example, the New York Times ran a piece headlined “Abortion Issue Divides Advocates for the Disabled.” What’s changed, though, is the intensifying emphasis on Down syndrome in the anti-choice legal maneuvering. As prenatal tests become cheaper and available earlier, they are being used in more and more pregnancies. As a result, anti-choicers are using their alleged concerns for disability rights as a way to erode choice.
So what does a pro-choice individual concerned about the accelerating world of prenatal testing do in the face of these coming wedge issues?
I believe the solution lies in an intersectional approach based on each community acknowledging the genuine concerns of the other. Disability activists 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. Pro-choice activists must similarly acknowledge that expressing concern about prenatal testing—such as arguing against the ableist and eugenic ideologies frequently associated with the procedure—does not inherently yield ground to those fighting against reproductive rights. I have spoken to many disability advocates who believe that any discussion of their trepidations will be met with anger from pro-choice activists. That’s the divide that anti-choice lawmakers intend to exploit. Don’t let them.
Intersectionality takes work. It’s also the only way to respond to the persistent attempts of reactionary politicians and their allies to divide and conquer. We fight back with accurate information and coalition building. We say: A woman’s right to choose is inviolate. Then we say: But before that choice, let’s make sure that it’s based on reality, not fear-mongering or misinformation.
This Indiana bill hopefully won’t pass, but it’s a sign of what’s to come in the next phase of the battle over reproductive justice. We need to be ready and united.