Disability, Life, Death, and Choice
Samuel R. Bagenstos
University of Michigan Law School
Harvard Journal of Law & Gender, 2006
Washington U. School of Law Working Paper No. 05-10-04
The dominant narrative of the Schiavo case ignores an important point: That case is the latest of several instances in which disability rights activists - many of whom consider themselves to be neither conservative nor opponents of abortion rights - entered into a conflict between pro-life and pro-choice forces and sided with the pro-lifers. This disability rights/right to life connection deserves close attention, for there is good reason to believe that it represents a model that anti-abortion advocacy will increasingly follow outside of the disability context in the coming years. Beginning with the Baby Doe cases in the 1980s, and extending through the Schiavo case, many disability rights activists have made common cause with anti-abortion activists on a number of significant right-to-life/right-to-die issues. Those disability rights advocates embrace the notion of choice, but they contend that societal stigmas and other social pressures effectively coerce people into making decisions that reflect biases against people with disabilities. It follows that regulation of a decision like abortion is not inconsistent with a commitment to free choice; such regulation in fact might be necessary to promote free choice. In the case of assisted suicide, disability rights advocates have taken this point to an extreme and urged that the social and professional pressures are so great that no regulation will be sufficient to protect free choice; a flat ban on the practice is necessary. Disability rights advocates have identified similar pressures on abortion decisions in cases where prenatal testing reveals fetal disability, but many have pointedly refused to endorse a regulatory solution.
Even if most disability rights advocates do not seek regulation of abortion, however, anti-abortion activists clearly will favor it. As I show in this Essay, current Supreme Court abortion doctrine practically invites anti-abortion activists to justify regulation on the pro-choice ground that it overcomes private and social obstacles to truly free choice. That doctrine is rooted in a principle of autonomy - that the woman gets to choose - but it embraces the Legal Realist point that private as well as public actions may impinge on individual freedom. It thus permits regulations that are calculated to remove (private or societal) obstacles to a woman's free choice. But the Supreme Court's Legal Realist move faces a classic Legal Realist problem: Once we recognize that private as well as public pressures may interfere with autonomy, we cannot know which pressures are coercive (and thus can justify regulation) unless we can judge them against some normative standard independent of free choice itself.
Although disability rights activists have deployed their arguments only in settings where the choice relates in some way to disability, those arguments, when read in the light of the Court's recent abortion decisions, suggest a more general line of attack for opponents of abortion rights: Restrictions on abortion even outside the disability context might be justified based on the argument that the regulation counteracts social pressures that would otherwise coerce a choice to abort. These prospects present a dilemma for the many disability rights advocates who are firm supporters of abortion rights. Although the logic of their critique of selective abortion might seem naturally to justify regulation of that practice - just as they believe that the same critique justifies a ban on assisted suicide - disability rights advocates cannot endorse regulation in the abortion context without setting a precedent that may be applied to scale back abortion rights in areas that go far beyond disability.
Number of Pages in PDF File: 40
Date posted: October 11, 2005
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