Mindy Roseman –
The public/private dichotomy—so fundamental to the liberal political and economic order—produces many (if not all) of our lived contradictions, especially our experiences of inequality along the multiple and intersecting lines of race, sex, gender, class, able-bodiedness, and so on. It should come as no surprise that where the private decision making of women is at issue, the privilege of freedom from state and third party interference has been hard-fought and never fully achieved. U.S. Constitutional and state level jurisprudence on abortion is predicated on the women “in consultation with their doctors,” choosing whether to carry their pregnancies to term. This provisional grant of autonomy has provided the logic for a continual legislative claw back of the abortion right: a right to decide but not to realize (Harris v. McCrae); a right to decide but only upon the due burden of state mandated reflection and guidance (Casey v. Planned Parenthood of Pennsylvania); a right to decide but not to elect the safest procedure (Gonzales v. Carhart). Women, this jurisprudence affirms, no matter their race or class, cannot be trusted.
Mistrust in women runs deep in current legislative efforts to wrest their private decision-making autonomy away. It hardly announces itself as such in the bills; rather, it comes to us through an appeal to humane and liberal values that impart to abortion-access restrictions an air of legitimacy. The latest obfuscation—restricting abortion in the name of combating “eugenics”—recently surfaced anew in the 6th Circuit’s decision in Preterm-Cleveland v. Himes, decided two weeks ago. The case concerns H.B. 214, an Ohio law that criminalizes abortions of Down syndrome affected pregnancies. Doctors who know (or have reason to know) that the woman wishes to terminate a pregnancy because of a Down syndrome diagnosis, and perform such an abortion risk a felony conviction, 18 months’ imprisonment, license revocation, and civil penalties. The U.S. District Court issued a preliminary injunction against its implementation and enforcement, which the US Court of Appeals for the 6th Circuit upheld, 2 to 1.
I will not review the reasoning behind the two-judge majority opinion. Instead, the dissent deserves unpacking, as it may well be echoed in any eventual Supreme Court review. This dissent is particularly noteworthy because of the way its adoption of language with a traditionally emancipatory valence is meant to misdirect. What appear to be individual, private decisions are in fact conditioned by state policy. Much turns on state action. This case highlights how abortion opponents intentionally confuse individual decision-making and state policy, with an aim to legitimate unwarranted interference in the exercise of women’s autonomy. Ohio H.B. 214 shifts our attention away from what the state is and is not doing for pregnant people and for the children they bear, and burden their individual decision making instead.
Judge Alice M. Batchelder, a George Bush père appointee dissented. Her dissent rests on the notion that Ohio’s criminal prohibition of Down syndrome abortions was compelled by its interest in preventing “modern –day eugenics.” Indeed, what is more abhorrent than eugenics—the official pseudo-scientific ideology of Nazi racial superiority? What seems more dehumanizing that the “three-generations of imbiciles is enough” pronouncement upholding Virginia’s forced sterilizations in Buck v. Bell? Would it not stand to reason that laws repudiating eugenical thinking–such as ending a pregnancy because the resulting child would have intellectual (or other) disabilities, or in the case cited by Judge Batchelder (Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S.Ct.1780, 1782-93 (2019), on issues of race or sex—be constitutional?
In a word, no.
It does not stand to reason for reasons related to why women might decide to end such or any pregnancies and by whom and what means can their decisions be influenced.
The international disability rights community is very alive to, and wary of, discriminatory attitudes and eugenic practices carried out by the state, often, under the guise of compassion. Ironically, states will often restrict access to abortion, except in cases of fetal anomalies, understood as disabilities running the gamut from cleft palette, Down syndrome, to microcephaly. Often such conditions cannot be detected until later in pregnancy. Yet, where the legality of abortion has turned on a disability distinction, the UN Committee on the Rights of Persons Living with Disabilities has admonished states for allowing longer gestational periods to for fetal impairment grounds. Such legal distinctions send a state approved message that life with a physical or mental disability is not worth living.
It must be noted, however, that where it is a matter of an individual’s decision to end a pregnancy, coalitions of disability and reproductive rights advocates have affirmed in the Nairobi Principles that no matter what their embodiment:
women and all people who can become pregnant have the right to decide whether to become pregnant and whether to continue a pregnancy, and must have the right to all scientific, evidence-based and unbiased information available to make their decisions, regardless of what that decision might be. Individual choices about one’s own pregnancy are not eugenics, and nobody exercises discrimination when making choices about their own pregnancies.
In other words, a woman’s decision to end a pregnancy because the resulting child may have Down syndrome is her decision. Could she have been motivated by prejudice, ignorance, or eugenics? Perhaps. But the question of what a woman ought to do is separate from what the state ought to forbid. Some pregnancies are terminated for fetal anomalies, but we do not know exactly why that is the case. What we actually do know is that most women end pregnancies because they do not have the financial or temporal resources to raise a, or another, child; work, education, caring for dependents, money are the most common reasons cited.
What could a state do if it wanted to ensure that no pregnancy was terminated for so-called eugenic reasons? It could attend to the structural factors and material conditions that constrain and enable our lives, and, shape in some measure decision making. A more just social order where the costs of child bearing and rearing –no matter what their needs—is borne equitably and equally through progressive taxation might go farther than a “eugenics” abortion ban.
What Judge Batchelder stirs with references to eugenics is our moral revulsion towards the notion that human beings, due to embodiment, are inherently inferior or superior, and therefore less or more deserving of life. How would they channel that revulsion and stop such discrimination? By allowing states to require physicians to peer into the hearts and minds of their patients and ensure that the abortion is not for such an abhorrent reason or risk their livelihood and liberty. There is nothing in US Constitutional jurisprudence that permits such an intrusion into the abortion right, at least pre-viability. And that precisely is the point.
There are many points that could be made in conclusion. I will just make one: mind the contradiction. There is something particularly rich about the current raft of legislation challenging women’s right to reproductive autonomy. Laws prohibiting abortions for reasons of fetal sex, race, and disability mobilize those very social categories in the name of inclusion to in fact subordinate women. While appealing to the notion of a diverse, multi-cultural, all embracing polity animated by the ideal of the inherent equality and dignity of all human beings, these laws enact the opposite.
Mindy Roseman is the Director of International Programs and Director of the Gruber Program for Global Justice and Women’s Rights at Yale Law School.