On March 24, Indiana became the second state after North Dakota to pass and sign into law a bill that would prohibit abortions of a child prenatally diagnosed with Down syndrome or another disability. The law also prevents abortions due to the race, color, national origin, ancestry, or sex of the child.
On April 7, as anticipated, the American Civil Liberties Union and Planned Parenthood joined together to sue the state claiming that the law is unconstitutional in that it places an “undue burden” on women in seeking an abortion, and invades a woman’s “right to privacy”. Indiana already bans abortions after 20 weeks for any reason.
Often overlooked in the controversies around abortion is the fact that while the abortion jurisprudence of the U.S. Supreme Court has permitted it since Roe v Wade, the Court has never claimed that the woman’s “right” to an abortion is absolute. In fact, in both Roe v Wade and Planned Parenthood v Casey, the court explicitly states that, “The woman's liberty is not so unlimited… that from the outset the State cannot show its concern for the life of the unborn.” [Casey, 869.IV] Casey also affirmed in quoting Webster v Reproductive Health Services that “the Constitution does not forbid a state or city, pursuant to democratic processes, from expressing a preference for normal childbirth.” [492 U.S. 490 at 511]
Adding strength and a challenge to this latter point, the opinion states that this “portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases.” In other words, the court acknowledges that while emphasis has been given to a woman’s so-called “right to privacy” in the abortion decision, the limitations of that right with regard to the state’s own interests, have not been sufficiently explored.
The question, then, is whether or not the state’s interest is sufficient in the case of sex or disability selective abortion to override the choice to abort. Clearly, the Indiana legislature believes that it is.
Some would argue that even more fundamental to this question is whether the Court in either Roe or Casey intended to support the selective abortion of children after the identification of sex or diagnosis of disability. To target a specific child for abortion is a different act than seeking an abortion after contraception has failed.
In a Friend of the Court Brief prepared on behalf of the Jerome Lejeune Foundation and two other disability advocacy organizations by the Bioethics Defense Fund, the authors argue that the Court “repeatedly premised its reaffirmation of abortion rights in terms of the right to terminate an unintended pregnancy” and never “endorsed a right to abort children only because they have been detected to have a disability”. The authors quote from the opinion that states,
“[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
In fact, there is precedent to the contrary. The brief presents another case decided in the U.S. Court of Appeals for the Federal Circuit regarding the use Department of Defense funds for abortion of a child that had been diagnosed with a lethal fetal anomaly. In Britell v. United States, the Federal Circuit court rejected the notion that a lesser value could be applied to the child because of its anomaly and stated that doing so would require the court to “engage in line-drawing of a most non-judicial and daunting nature”. They stated that “it is not the role of the courts to draw lines as to which fetal abnormalities or birth defects are so severe as to negate the state’s otherwise legitimate interest in the fetus’s potential life”.
So, what might the state’s legitimate interest be in proscribing the abortion decision when it is based on knowledge of a child’s disability or sex? Most obvious would be the state’s obligation to not sanction any form of eugenic abortion or abortion because of sex.
Authors Adam Cohen and Thomas Leonard have recently pricked the American conscience by reminding us of our dark eugenic past. Their scholarship has painfully reminded us of how far notable Americans, courts, and politicians have been willing to go to rid society of what they determined to be undesirable elements within our population, including those with intellectual disabilities and immigrants.
Quoting from a book by Marsha Saxon called Disability Rights and Selective Abortion the authors of our Friend of the Court Brief state that, picking and choosing among particular children raises the specter of abortion as a “wedge into the ‘quality control’ of all humans.”
Also, U.S. law has been very clear in its protection of persons with disabilities.
On July 26, 1990 the Americans with Disabilities Act (ADA) was signed into law by President George H. W. Bush. It was the first legislation of its kind focused solely on prohibiting discrimination against persons with disabilities and mandating that all Americans be accorded equality in pursuing jobs, goods, services and other opportunities.
The ADA called for the federal government to play a central role in enforcing the standards it established on behalf of individuals with disabilities. The Supreme Court acknowledged state’s interests in protecting life, so might states have a legitimate interest in consistency in the law to the point of protecting those with disabilities or an undesired sex from selective abortion? If the most fundamental right is not protected, what of the others?
These are unpopular questions to ask in a culture that has come to assume that the decision to abort cannot be challenged up to the point of viability. It will be interesting to observe how these legal challenges to Indiana’s new law evolve. Similar laws have been considered or are pending in other states as well, so this will be a revealing test of how far a state is allowed to go in exercising its legitimate rights given by the U.S. Supreme Court with regard to the protection of prenatal human life. Will we be consistent in our defense of the disabled, or will the so-called “right to privacy” continue to protect a woman’s “right” to abortion prior to viability exclusive of any state's interest in protecting human life.
 The Bioethics Defense Fund prepared an Amici Curiae on behalf of the Jerome Lejeune Foundation, Saving Downs, and the International Down Syndrome Coalition on petition for a Writ of Certiorari to the U.S. Court of Appeals for the Ninth Circuit in response to challenges to an Arizona law, House Bill 2036 (2012) that limited abortion after twenty weeks gestation claiming that most abortions done at this point in pregnancy are disability selective abortions. The brief may be read at http://www.bdfund.org/reply-blog?p=937.
 See Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck, Penguin Press (March 1, 2016) and Thomas C. Leonard, Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era, Princeton University Press (January 12, 2016)