Last week, the American Civil Liberties Union of Ohio announced a challenge to block the recently passed state law criminalizing providing an abortion in all cases where the fetus is diagnosed or suspected to be diagnosed with Down Syndrome. Imposing a felony conviction and revoking the provider’s license to practice in the state as a penalty, Ohio Governor John Kasich followed in the footsteps of Indiana and North Dakota when he signed H.B. 214 into law this past December. Although a U.S. district judge struck down the nearly identical Indiana law in September 2017, that did not stop a coalition led by Ohio Right to Life and their Republican allies from attempting this latest attack on access.
The law is an atrocious and unquestionably unconstitutional restriction on abortion. In all likelihood, the ACLU’s attempts to block the law will be successful and H.B. 214 will be ruled unconstitutional. The threat these laws pose do not end there. The anti-choice movement's increasing focus on Down Syndrome and fetal disability represents a cynical attempt to drive a wedge between the disability and reproductive rights movements. Tackling these anti-choice tactics will require more than lawsuits. It will require the pro-choice movement to acknowledge that it has created an opening for this kind of divisive politics when it has failed to respect the importance of disability justice.
The pro-choice movement has a long and troubled history when it comes to disability. Consider the movement’s response to the Zika crisis, for instance, when pro-choice activists in the U.S. and throughout the Americas immediately wielded the threat of Zika to argue for liberalizing abortion laws. What made the rhetoric surrounding Zika so dangerous was how closely it mirrored the ways in which many abortion advocates have discussed disability in general. With the ableist narrative that raising a child with disabilities is an impossibly difficult and burdensome feat, a diagnosis of fetal disability often predicts a termination of that fetus. Down Syndrome, the focus of H.B. 214, has become a sadly familiar part of this way of thinking. In Iceland, for example, only one to two babies are born with Down Syndrome each year because of attempts to “eradicate” Down Syndrome in the country, according to a CBS News report. Denmark has a termination rate of 98 percent for Down Syndrome, and in the United States, that rate is 67 percent, with two of every three diagnoses of Down Syndrome resulting in termination.
In this context, we have to admit that anti-choice activists do not lie when they point out the presence of eugenicist tendencies within the pro-choice movement. Just as we must acknowledge the pro-choice movement’s painful history of white supremacy and advocating for the sterilization of women of color, we must acknowledge our movement’s history of supporting the sterilization of women with disabilities and the immediate termination of any fetus diagnosed with a disability.
Reckoning with these histories and rejecting eugenicist ideologies does not translate to supporting abortion bans like Ohio’s. The decision to terminate a pregnancy should reside with the pregnant person alone. People choose abortion for deeply personal, private, and often very complicated reasons, and laws like H.B. 214 try to take those choices away from those who need them. We can fiercely support abortion rights while still naming the reality that we need to just as fiercely fight ableism and its ideological and structural consequences. Rather than criminalizing patients' and providers' individual decisions as H.B. 214 does, we should focus on combating the ableist and eugenicist approaches that would provoke someone to terminate a pregnancy for the sole reason of Down Syndrome.
Responding to H.B. 214’s passage, Wendy Lu, a disabled woman and Planned Parenthood employee, criticized the law and its champions in an op-ed on Bustle. Lu emphasized that the tendency to terminate any pregnancy with a diagnosis of disability has made abortion contentious in disability communities, because “people with disabilities need to be treated with equal respect and equally valued in society. This is not about something that would be ‘nice’ for us to have — this is a fundamental human right.” But, as Lu points out, addressing ableist discrimination is quite clearly not the bill’s intention, writing that “this bill angers me because by bringing disability into the conversation around abortion, Ohio's GOP leaders are trying to distract people from the fact that this is ultimately an unconstitutional abortion ban.” These lawmakers have supported every imaginable restriction on reproductive healthcare, with H.B. 214, according to Reuters, marking the twentieth piece of legislation targeting abortion access and reproductive health funding Governor Kasich has signed into law. And as Lu points out, simultaneous to passing H.B. 214, the same lawmakers were at work on a bill attacking disability rights in Ohio’s education system. Claiming yourself as a champion of disability rights in order to restrict abortion access while attacking disability rights in education reveals a despicable level of cynicism that tries to make people with disabilities pawns in conservative legislative crusades.
We should reject any narrative that implies reproductive justice, including safe, legal, and accessible abortion, is incompatible with a disability justice agenda. Reproductive justice includes fighting against eugenicist ideologies that would deny disabled people the right to have children. Reproductive justice includes ensuring that parents of children with disabilities receive the support they need by guaranteeing access to quality healthcare, housing, and education. Reproductive justice includes ending the disproportionately high rate of sexual violence against disability communities. As Alison Kafer, a scholar of feminist disability studies and herself a mother of a child with Down Syndrome, wrote in a 2013 New York Times op-ed, we should “let women have abortions for whatever reason they choose, but make it a world they would like to bring a child into — even a child with an intellectual disability.”
In an environment where the anti-choice movement has pushed through hundreds of legislative attacks on abortion access in the last few years, it is easy to ignore any individual one, especially one most likely to be ruled unconstitutional. We cannot afford to ignore Ohio’s H.B. 214, though, and should view it as an opportunity and a wake-up call for our movement to do and be better. If we fail to heed it, we fail to be truly intersectional in our work, and that failure is unacceptable.