As the abortion debate reaches a fever pitch across the nation, disabled people are once again being used as a rhetorical device by left and right alike.
Selective abortion bans, bills introduced by anti-abortion lawmakers that forbid abortions on the basis of a fetal diagnosis of disability, and sometimes assigned sex as well, are in the news again this week. On Tuesday, the Supreme Court declined to take up an Indiana selective abortion case that would have banned abortion on the basis of sex, race, or a diagnosis of disability. The news, paired with the release of a lengthy statement from Justice Clarence Thomas describing the risk of “eugenics,” was an acute reminder to disabled people of their frequent role as objects, not people, in this debate.
Selective abortion bans, which are pulled from the playbooks of anti-abortion groups like Americans United for Life, are an old and constant source of frustration for disabled people. These bills employ a sinister disablism that exacerbates the idea of the “justified abortion,” exploiting the 50 percent of Americans who support restricting abortion “under certain circumstances,” even while 29 percent unequivocally support abortion access and 71 percent overall support Roe v. Wade. And these bans are on the rise — according to Rewire.News, 10 states have seen bills related to fetal anomalies introduced in 2019, a marked uptick over recent years.
But bills like these have little to do with protecting disabled people. They are crafted to restrict access to abortion and information about pregnancies, imperiling pregnant people (including, by the way, disabled pregnant people). Using disablism to sneak past an abortion ban or put abortion advocates in an uncomfortable position is a brilliant tactic, and one advocates must not fall for.
Selective abortion bans drive a wedge between doctors and patients
Such bills, which typically prohibit doctors from performing an abortion when they have reason to believe it has been requested because of a diagnosed fetal anomaly or the fetus’s assigned sex, put already vulnerable health care professionals in danger. They reduce the question of access to one of judgment that can interfere with frank discussion and decision-making, or force a delicate dance of plausible deniability so a health care provider can say they didn’t realize why the patient was requesting an abortion.
Some states are also introducing closely related “perinatal hospice” bills, which require physicians to tell patients dealing with a lethal fetal anomaly about the presence of “perinatal hospice” services. These services are not clearly clinically defined but may include medical care to keep the pregnant person as stable as possible, birth planning (whether a still or live birth is expected), and, in the event of a live birth, pain management and other palliative care to keep the infant comfortable prior to death. Such bills pressure and shame patients, and can actually endanger pregnant people by pushing them to carry a high-risk pregnancy to term, something Iowa Republican state Rep. Shannon Lundgren said she supported during a debate over a 20-week ban in 2017.
Like many incrementalist bans, these bills are designed to drive a wedge between patients and providers. Doctors may feel like they cannot recommend prenatal testing or discuss the results in case a patient asks for an abortion. Patients may feel like they can’t ask for testing or counseling. This deprives patients of information they need about their pregnancies, such as pregnancy risks or treatable medical issues in the fetus, and can be extremely dangerous.
These bills are not designed to protect disabled people
Proponents of these bills tend to claim that they are defending “the disabled,” in contrast to those who want to “kill disabled babies.” They may speak of abortion as a choice of convenience, suggesting that when parents face a diagnosis of lethal anomaly, they’ll opt to “get rid of it.”
Some rely on a frequently misinterpreted study from Iceland that purports to demonstrate that prenatal testing has led to a near-total elimination of Down syndrome. It has not. The study looked at pregnancy outcomes in patients who opted for prenatal testing and found a very high incidence (close to 100 percent) of patients decided to request abortions — but some families decline testing, and therefore infants with Down syndrome continue to be born in Iceland.
These bills are also cynically drawing directly on real concerns from the disability community, which has dealt with a long legacy of eugenics. The fear of being eliminated from society is very immediate for communities with congenital, testable disabilities; Down syndrome is a popular example, but it’s also possible to test for many forms of dwarfism, as well as a variety of congenital physical and developmental disabilities.
But there’s little evidence that disability is a driving reason for people to have abortions. While it’s possible to perform some tests as early as the 10th week of pregnancy, more extensive, accurate testing is often only available at closer to 15 or even 20 weeks. Eighty percent of pregnancy terminations take place before 10 weeks and a little more than 5 percent take place after 16 weeks, suggesting that most people make decisions about abortions for reasons other than disability. That’s supported by Guttmacher data that shows that not wanting more children, not being prepared for single parenthood, health concerns, and affordability were all big factors for choosing an abortion. Prenatal diagnoses were not.
The anti-abortion trap of the “justified abortion”
Even as they claim to be concerned about the welfare of the disability community, lawmakers are leveraging disablism to score political points. Their rhetoric is carefully calculated to put abortion proponents in the position of having to defend the seemingly indefensible: choosing to end a pregnancy because of a congenital anomaly. That defense can get particularly fraught with later abortions and arguments that such procedures should be legal, or at least a carve-out should be provided, precisely because something might be wrong with the fetus.
These bans also unwittingly create a dividing line between “justified” abortions and everything else. The use of justification also comes up in calls for exceptions in cases of rape or incest, or in cases where the life of the pregnant person is endangered. Rather than calling in no uncertain terms for abortion on demand and without apology, some are drawn into the traps created by anti-abortion forces; now they’re the people who want to kill disabled babies, instead of the people who believe a private and extremely safe medical procedure should remain personal.
Historically, selective abortion bans have often failed to pass. In at least three states, Kentucky, Indiana, and Ohio, such bills have been blocked in court — but laws in North Dakota (one of the oldest, dating to 2013) and Louisiana still stand, as does a variant on the blocked Ohio bill. As the climate in the United States becomes increasingly hostile to abortion, challenging such bans will be more difficult, which makes their increased incidence very concerning. Five have already been signed into law in 2019, though one was recently blocked.
While near-total bans pass statehouses left and right, we need to pay attention to this insidious “incrementalist” legislation too. Some states are using laws like these to slowly but steadily roll back abortion access, and to lay the groundwork for future legal maneuverings. They’re also counting on this legislation to exacerbate tensions around “justified” abortions. It’s critical to push back on selective abortion bans, and to do so without engaging in the same disablism that abortion opponents are trying to leverage to get them passed in the first place.
s.e. smith is a Northern California-based journalist and writer whose work has appeared in publications like the Guardian, Bitch Magazine, Esquire, Rolling Stone, and Rewire.News, in addition to anthologies including The Feminist Utopia Project and (Don’t) Call Me Crazy.