Social Norms, Law, and Disability

Chapter in Opposing Viewpoints: Birth Defects (Noël Merino ed. 2014).

2 Pages Posted: 1 Mar 2017

See all articles by Dov Fox

Dov Fox

University of San Diego: School of Law

Christopher L. Griffin

University of Arizona - James E. Rogers College of Law

Date Written: February 23, 2017


Doctors and advocates have recently argued that parents are increasingly willing to bring a pregnancy to term after a positive test for Down syndrome. They explain this change, in part, as the result of the landmark Americans with Disabilities Act (ADA), which Congress enacted to fight employment discrimination and enhance access to public accommodations. What they fail to appreciate is that these legal protections have not always brought with them the anticipated acceptance of having a child with disabilities.

Yet our analysis of birth data reveals a staggering 25 percent decline in Down syndrome birthrates nationwide after the first President Bush signed the ADA into law. Controlling for medical, demographic, and technological variables from maternal age and marital status to abortion access and prenatal care, we found that about 15 fewer children per 100,000 were born with Down syndrome in the years after the law was passed, even as prenatal testing rates remained constant. It is true that newer methods like the “quad screen” are less intrusive than amniocentesis and more accurate than chorionic villa sampling in identifying fetal abnormalities. Yet our analysis shows the absence of any clear correlation between the quality or availability of prenatal screening and the incidence of Down syndrome births. The question remains: Why would fewer children be brought into the world just as they are being afforded greater opportunities in life?

Part of the explanation lies in the unexpected messages that civil rights legislation can convey — through salient media and popular culture — to people vaguely familiar with the law or unaware it even exists. These “expressive externalities” arise from public reaction to the unforeseen costs of implementing laws like the ADA. Negative newspaper and television reports seeking to justify new disability protections, or bemoaning the cost of their implementation, can reinforce the anxiety that parents describe as they await genetic test results during pregnancy. They read over breakfast the recent report of local efforts to bar a boy with Down syndrome from playing on a high school basketball team. Or they watch on the evening news this story about another teen with Down syndrome who was kicked off a plane. Accounts like these underscore the power of expressive externalities to shore up ascriptions of blame for having a child with known disabilities.

Keywords: Americans with Disabilities Act, expressive law theory, genetic testing, disability birthrates

Suggested Citation

Fox, Dov and Griffin, Christopher L., Social Norms, Law, and Disability (February 23, 2017). Chapter in Opposing Viewpoints: Birth Defects (Noël Merino ed. 2014).. Available at SSRN:

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)

HOME PAGE: http://

Christopher L. Griffin

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
(520) 626-8265 (Phone)

HOME PAGE: http://

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