In 2016, the anti-choice lobbying group Americans United for Life is launching the Infants’ Protection Project, a chillingly comprehensive package of cut-and-paste legislation and plans for litigation with the aim of further eroding reproductive freedoms in the United States. Folded into AUL’s plan is a distressingly common anti-choice tactic: using disabled people as pawns in an attempt to close off options to patients in need. Although individual states have attempted to ban abortions that are supposedly motivated by diagnoses of fetal disabilities, this move by the AUL represents a push to expand that strategy to legislatures nationwide.
Like many other anti-choice groups, AUL uses numerous tactics to accomplish its aims of chipping away at abortion access, but one of the most damaging is the development of generic legislation packages designed for anti-choice lawmakers to use in capitals across the country. The Infants’ Protection Project includes a variety of suggested legislative templates, with examples like the “Prenatal Nondiscrimination Act” and “Perinatal Hospice Information Act,” both explicitly designed to limit abortion on the basis of disability—something that is a virtual non-issue in the United States.
The AUL template for the “Prenatal Nondiscrimination Act,” which also includes a ban on sex-selective abortion, includes a section stating that: “No person may intentionally perform or attempt to perform an abortion with knowledge that the pregnant woman is seeking the abortion solely because the unborn child has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality.” This would have the effect of criminalizing any abortion based on concerns about viability, potentially including a fetal death that was threatening the life of the mother.
Meanwhile, the “Perinatal Hospice Information Act” requires that “at least twenty-four (24) hours before the abortion,” in the case of a fetus diagnosed with a lethal abnormality, “the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, that perinatal hospice services are available and offered this care as an alternative to abortion.” This kind of legislation is calculated to shame patients, much like mandatory ultrasound and counseling laws.
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Every time a law restricts abortion—by limiting the procedures available, banning abortions after a certain period or for specific reasons, or requiring that clinics meet tough standards—it interferes with the relationship between patient and provider. Every pregnancy is different, and doctors need to be able to communicate openly with patients and make decisions that are best for a given pregnancy. If a law states that a patient may not receive an abortion on the basis of a prenatal diagnosis of disability, it may discourage the use of valuable screenings, make providers afraid of performing the procedure, further stigmatize abortion, and reinforce the popular anti-choice myth that abortion providers are engaging in “eugenics.”
These laws also perpetuate stereotypes about disability: Namely, that disabled people are not themselves autonomous and need to be “protected” by anti-choice groups, and that parents would choose to abort a fetus with a diagnosis of a disability without contemplation. Such commentary positions disability as inherently lesser, but also doesn’t speak terribly well of expecting parents, who can presumably make the best choices for themselves and their families.
Such stereotypes also tend to center on Down syndrome, regarding those with Down syndrome as “angels” placed on Earth as inspirational objects rather than real people. People with Down syndrome are often used by anti-choicers to present the image of someone sweet, non-threatening, innocent, and especially “worthy” of protection. Activists and public figures who have Down syndrome and push back on Down syndrome stereotypes, like Jamie Brewer, tend to be ignored in the rush to present Down syndrome as a symbol of cute, harmless innocence.
For that matter, most studies on the subject of disability-related abortion also focus specifically on prenatal diagnosis of Down syndrome. Trends in neonatal medicine certainly play a role, as diagnoses for other genetic impairments weren’t available until relatively recently, making it difficult to conduct longitudinal studies. As commentator David Perry noted to me via email, “Down syndrome is the most common genetic condition and it’s relatively easy to detect. So lots of people know someone with Down syndrome, perceive them as significantly disabled, but likely also regard them with affection or sympathy.”
Many anti-choice advocates rely on a literature review that examined 24 studies between 1995 and 2011 for their arguments. Those researchers concluded that 67 percent of pregnancies involving Down syndrome were terminated, and that in eight studies looking at genetic anomalies in general, the termination rate varied from zero to 100 percent. That 100 percent isn’t evidence of ruthless heartlessness, but of anomalies so severe that the fetus wouldn’t, or didn’t, survive the pregnancy. What anti-choicers leave out is the fact that this study reflects a small sample size and the data is five years old. It’s highly deceptive to use the study to claim that 67 percent of disabled, or potentially disabled, fetuses are aborted overall, as the review refers to just one impairment. But anti-choicers often do just that.
In general, it is notoriously difficult to access statistics about how many people do seek abortions after obtaining a diagnosis of fetal disability. We do know, however, about the demographics of abortion in general. Ninety percent of abortions are performed in the first 12 weeks of pregnancy, with prenatal screening for genetic impairments not even being an option until after week ten at the earliest. That primary screening only assesses the risk of such impairments and doesn’t offer a definitive diagnosis. Fewer than 5 percent of abortions are performed after about 16 weeks, when more accurate diagnoses are possible. These include cases in which a fetus is nonviable, has such severe impairments that it likely won’t survive after birth, or is endangering the pregnant person. Thus, it’s likely that disability is the sole determining factor in less than 5 percent of abortions, and probably even fewer—many variables can go into reproductive health decisions, including the fact that limited clinic access forces patients to get abortions later in pregnancy.
Regardless of the actual numbers, though, there are some hard truths about abortion and disability that many on both sides glance over instead of addressing head-on. Ableism—discrimination on the basis of disability—is an acknowledged problem in the United States, and it’s one reason why parents have limited resources and may not understand the opportunities available to their children. In addition, it is extremely expensive to live with disability, and to raise a disabled child. It can cost around $250,000 to raise a nondisabled child from birth to 18. For autism alone, for example, the costs for disability services, accommodations, and other needs can cause that to balloon to $2.4 million. Raising disabled children, regardless of the impairment, tends to be more expensive, and many of those expenses are not covered with social services—in part thanks to vicious funding cuts from politicians who identify themselves as “pro-life.”
With abortion rights in particular under attack, some mainstream reproductive rights organizations have tended to focus on abortion specifically, rather than comprehensive health-care needs, including realistic concerns about the cost of raising disabled children and how to address them to ensure that money never has to be a factor in making termination decisions. Disability is not a burden and parents of disabled children are not heroic martyrs for taking on the cause, but disability is expensive, and that’s because of ableist social structures that make it so.
In an ideal world, finances wouldn’t be a contributing factor in abortion decisions—parents who want to have children would be able to have them, and could rely on social supports, fair wages, family backup, and a welcoming community to raise their children. However, that’s not the real-world truth, and finances are a repeating theme in interviews with patients who choose to terminate pregnancies. Patients interested in giving children a good chance at life may recognize that they are incapable of providing sufficient economic support, and that’s a factor in a personal medical choice that should be respected—and addressed, if the anti-choice movement truly cares about pregnancy termination. For parents looking at a prenatal diagnosis, the choice is even more acute, thanks to an awareness that from birth, a disabled child will be more expensive to raise, and few social supports will be available.
For some parents, these abortion decisions are extremely difficult and wrenching to make—whether they’re terminating a wanted pregnancy because the fetus will die, or because they understand that they don’t have the financial resources to adequately care for a child, or because they’ve seen the grim statistics on disability and sexual assault and physical abuse. However, making a termination solely because parents fear or are repulsed by a prenatal diagnosis is relatively rare, though the anti-choice movement wants to make people think otherwise with laws like these.
Unfortunately, that shift is having an effect. Disability discrimination laws don’t just turn disabled people into pawns and objects that need to be “protected.” They also raise fears in the disability community itself, with some disabled people supporting anti-choice legislation because the anti-choice movement has constructed the idea of an artificial eugenics spree.
Disabled people could be a valuable ally in the fight against assaults on reproductive freedoms. However, nondisabled people often overlook their fears, as well as the use of disability as a blunt instrument in anti-choice abortion policy. In an era where disability advocates are growing both more vocal and more frustrated with being ignored, this drives some to the side of the anti-choice camp, where at least they feel as though someone is looking out for their interests. This is driven home when nondisabled people argue passionately that abortion for disability is justified without exploring any of the nuances of such reproductive rights decisions, or without exploring their own biases.
Abortion should be available on demand and without apology, period. The pro-choice movement needs to hold its ground: Abortion is a private medical procedure that should be available to all patients who need it, regardless of the reason, and patients should not have to justify their abortions to anyone. Moreover, the left should be pushing back against cynically targeted bills like these, recognizing them for what they are: another stealthy tactic to reduce abortion access. At the same time, mainstream reproductive rights organizations must not ignore the fact that living disabled people are being sexually assaulted, forcibly sterilized, denied the right to be parents, and refused even the dignity of being able to marry their partner—and work to address those injustices even as they hold fast against assaults on rights from conservatives.