“Deeply Rooted”: Abortion Federalism, Divided Citizenship, and Disability Reproductive (In)justice

ABSTRACT

Laws structure people’s “lived citizenships.” This article considers the ways in which Dobbs v. Jackson Women’s Health Organization gave states the power to regulate reproduction in ways that have disproportionate consequences for pregnant people with disabilities. Specifically, Dobbs did not eliminate the right to bodily integrity, but rather put conditions on who can claim a right to bodily integrity in federal courts. Moreover, uneven changes to Medicaid financing of abortions have created a “postcode lottery.” People’s ability to receive care is determined by a politics of place – or even individual providers. These policies create structural inequalities.

KEYWORDS:

• Disability
• reproductive justice
• abortion
• citizenship
• federalism

Acknowledgments

The authors would like to thank the editors of this issue for their feedback and tireless work to put together a wonderful selection of papers. They would also like to thank the participants at the Oklahoma Law Review symposium on disability, ableism, and reproductive justice for their feedback.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. 489 F.3d 376 (D.C. App. 2007).

2. Generally, substantive due process claims are brought under the Fourteenth Amendment, but the women here sued the District of Columbia, which is not a state. Therefore, they grounded their due process claims in the Fifth Amendment, which grants plaintiffs substantive due process rights against the federal government through a process called “reverse incorporation” that was established by Bolling v. Sharpe, which applied integration requirements to D.C. schools via the Fifth Amendment. U.S. 497 (1954).

3. Doe, 489 F.3d at 383.

4. Dobbs v. Jackson Women’s Health Organization, 527 U.S. __ (2022) (slip op.).

5. This article uses both “identity-first” language, such as “disabled people,” as well as “person-first language” both interchangeably and contextually for political reasons. Language is a contentious topic among and between disabled people, and some communities think that person-first language implies that disability makes one less of a person, such as the Autistic Self Advocacy Network (ASAN). However, many in the intellectual/developmental disability community find person-first language empowering, as self-advocacy groups developed person-first language. As explained by Andrews, Powell, and Ayers (2022), these decisions are often difficult. This article endeavors to use these terms appropriately, acknowledging the diverse preferences of the disability community, while ultimately recognizing that language is a personal decision.

6. 587 U.S. ___, 139 S. Ct. 1780 (2019) (Thomas, J. Concurring).

7. Box v. Planned Parenthood of Indiana and Kentucky, Inc., 587 U.S. ___, 139 S. Ct. 1780 (2019) (Thomas, J. Concurring).

8. Stern (2005) notes that the central concern of eugenics is “better breeding,” and policies enacted under the auspices of eugenics either attempted to induce “fit” persons to reproduce or deter “unfit” persons from reproducing.

9. It is worth noting that even disability organizations who are staunchly against disability-selective abortions typically do not advocate for abortion bans. For example, the National Down Syndrome Congress’ statement in response to Ohio’s Down Syndrome Non-Discrimination Act in 2017 stated that although disability-selective abortion “borders on eugenics,” the organization believes that “provid[ing] patients with accurate, up-to-date information, about the realities of having Down syndrome in contemporary America,” as well as “promot[ing] full, meaningful inclusion of all people – with and without disabilities – in every aspect of society” is a “better approach” than trait selective abortion bans. The statement moreover emphasizes the personal nature of abortion decisions.

10. Brief of the Autistic Self Advocacy Network and the Disability Rights Education and Defense Fund as Amicus Curiae in Support of Respondents, Dobbs v. Jackson Women’s Health Organization, 527 U.S. __ (2022) (slip op.).

11. Murray (2020) details a similar demonization of Black women who choose to end pregnancies, who are often accused of “race genocide,” a concept largely developed without the input of Black women.

12. We initially identified disability advocacy groups via a list of disability organizations compiled by Wikipedia, supplemented by the authors’ understandings and experiences working in disability organizations. We excluded international organizations from our analysis. We also excluded groups that advocate for “curing” disability, like Autism Speaks. Autism Speaks generates significant controversy among autistic people for endorsing practices like “curing” disability instead of than supporting disabled people, and advocating for “therapies” many people find traumatic, such as Applied Behavioral Analysis (ABA) (ASAN 2021). We also conducted additional internet searches to identify state-level organizations’, such as Protection & Advocacy groups’, statements and searched for additional statements on disability and Dobbs made by organizations that might not have been captured by the initial list. We attempted to find statements by local Arc chapters but did not find any matching our criteria or time frame.

13. See Complaint, Disability Rights California v. County of Alameda and Alameda County Behavioral Health Care Services, Case 3:20-cv −05,256-CRB (N.D. Cal. Feb. 22, 2021), https://secureservercdn.net/198.71.233.254/d25.2ac.myftpupload.com/wp-content/uploads/2021/04/Amended-complaint-as-filed.pdf.

14. It is also worth noting that there are several features of federalism that have remained the same. For instance, the guardianship system routinely denies people of their rights without adequate process, as discussed by Swadley (2022). Moreover, family law often deprives disabled people of the right to parent, meaning that Dobbs may “force people to bear” but deny them the “right to rear” (Powell 2019, 2021a, 2021b, 2024).

15. A disconcerting and perplexing legal consequence is that many states now grant fetuses legal status independent of pregnant people, which opens a complex range of legal possibilities and contradictions. However, such arguments are beyond the scope of the present study.

16. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).

17. The case is often referred to as implicating a “fundamental right.” For example, Obergefell v. Hodges grounds the fundamental right to marry in Skinner’s fundamental right to procreate. Moreover, the Dobbs majority includes Skinner in a list of cases that concern fundamental rights.

18. Skinner, 316 U.S. at 535.

19. 274 U.S. 200 (1927).

20. Skinner, 316 U.S. at 535.

21. The idea that Carrie Buck was given chance to refute the claims against her is ironic, given the procedural deficiencies identified by Lombardo (2022). Evidence suggests that Carrie Buck’s attorney did not mount a defense on her behalf, and the state orchestrated her sterilization, in part, to earn the Supreme Court’s approval for its eugenic policies.

22. Skinner, 316 U.S. at 544 (Jackson, J., Concurring).

23. We hesitate to imply these statistics are all-encompassing, as they are based on Current Population Survey (CPS) data that measure functional limitations for the purposes of Social Security Administration (SSA) policy, which requires that a functional limitation be so severe that someone be unable to work to qualify. As political scientist Hahn (1993) indicated, definitions of disability and the data sources that inform them matter. Unfortunately, federal data collection has not significantly improved since Hahn wrote this cautionary note.

24. This, of course, is subject to exception. Some groups, like local chapters of the Arc, are often parent-led. Additionally, opinions within the disability community are heterogenous, and it may be disingenuous to even speak of a singular disability “community”

25. I use the phrase body-mind to reject a form of Cartesian dualism between bodies and minds. I also use this phrase to avoid imposing anachronistic and potentially inaccurate disability labels on people who were victimized by eugenic policies. Although many identify with the term “disability” and even express a sense of disability pride today, it is important not to naturalize the category of disability and pretend that it exists outside of contingent socio-historical circumstances. It is moreover important, as Whatcott (2021) notes, to “aid and abet” people subjected to state control, rather than reifying the categories used to control them.

26. While the NDSC did not issue a statement about Dobbs, their statement about a disability-selective abortion ban is likely reflective of the organization’s general position.

27. Dobbs, 597 U.S. at 32 (slip op.).

28. Dobbs, 597 U.S. at 3 (Thomas, J. concurring, slip op.)

29. 497 U.S. 261 (1990).

30. 494 U.S. 210, 221–222 (1989).

Additional information

Notes on contributors

Heather A. Swadley

Heather A. Swadley is an Assistant Professor of Political Science at Lehigh University. Her research focuses on the political development of citizenship, with a particular focus on the relationship between disability rights and citizenship from the 1950s–Present.

Maeve Keeley-Mehrad

Maeve Keeley-Mehrad is a student and Research Assistant at Swarthmore College, studying History, Art History, and Religion.