Abortion, the Disabilities of Pregnancy, and the Dignity of Risk

Abstract

When abortion is discussed in the context of destigmatizing disability, it is usually in connection with the potential disabilities of the fetus. Disability rights activists increasingly encourage both lawmakers setting abortion policy and women contemplating abortion not to think that a life with disabilities is not worth living. In particular, they argue that a fetus diagnosed with Down syndrome, let alone one with a cleft palate, should not for that reason be aborted. While taking this line of argument into account, this chapter will shift the frame of reference to various ways in which the law and bioethics of abortion treat the pregnant woman as disabled. The examples presented come from the abortion jurisprudence of the United States and the Federal Republic of Germany. In the U.S. Supreme Court decision of Gonzalez v. Carhart, a decision about so-called late-term partial birth abortions often undertaken after a diagnosis of fetal disability, Justice Kennedy’s emphasis on the human dignity at stake infamously did not center on the dignity of either the disabled fetus or the pregnant woman, but on the abstract dignity of the human being, which he saw as imperiled by allowing physicians to elect a method of abortion that could be seen too closely to resemble childbirth. Even more infamously, Kennedy used the opinion to validate the claim that women might come to regret their abortion and should therefore perhaps be legally disabled from obtaining it. Using concepts developed by disability rights advocates, I shall argue that what Kennedy is denying to women is the dignity of risk: even assuming arguendo that women are indeed likely to regret their abortion, treating them as incompetent to make this potentially regrettable decision denies them their full human dignity. German abortion law, which also centers on human dignity, treats the pregnant woman contemplating a late-term abortion because of diagnosed fetal disabilities as disabled in a somewhat different way—it presumes women carrying fetuses with disabilities are under sufficient mental strain (or will be once their disabled child is born) that they qualify for a legal abortion because of the pregnancy’s effect on the mental health of the mother. Although more of a legal workaround than a well-thought out jurisprudential or bioethical position, this approach, like Kennedy’s, works to disable (pun intended) the pregnant woman albeit in service of facilitating rather than preventing her access to a legal abortion. Kennedy’s retirement from the Supreme Court might call the continuing viability of his approach into question. But, in cases heading toward the Court and in the approach of his successor, there are worrisome echoes of Kennedy in Carhart. For example, two now pending cert. petitions deal with statutory schemes potentially inspired by Kennedy’s Carhart opinion. And Kavanagh, Kennedy’s replacement, wrote, while a circuit court judge, opinions in two cases whose fact patterns centered on particular disabilities faced by pregnant persons in government custody—pregnant minor immigrants in detention for unlawful entry into the United States and intellectually disabled pregnant women in the care of the District of Columbia Mental Retardation and Developmental Disabilities Administration (“DCMRDDA”). Like Kennedy in Carhart, Kavanaugh was disturbingly comfortable allowing government paternalistically to restrict the choices of those who are pregnant. Conceding that all pregnant women are vulnerable, and those carrying fetuses diagnosed with disabilities perhaps especially so, this chapter will argue that translating those vulnerabilities into the sort of legal disability that women labored under historically is not a productive way forward. Acknowledging that pregnant women should have the dignity of risk is one of several preferable approaches.