Friday, April 16, 2021

Knowingly Performing Down Syndrome Abortions Is Not "Eugenics"

By Sherry F. Colb

Earlier this week, in Preterm Cleveland v. McCloud, the U.S. Court of Appeals for the Sixth Circuit, in an en banc opinion by Judge Batchelder, upheld an Ohio law prohibiting doctors from knowingly performing abortions for women choosing the procedure because of their belief that the fetus has Down Syndrome (DS). Though the majority opinion contains no references to “eugenics,” several of the concurrences do. This post will suggest that the eugenics claim is not only unconvincing but profoundly offensive. It may be that invoking the specter of eugenics is easier than acknowledging that with Trump’s three Supreme Court appointments, laws prohibiting one or another kind of abortion will survive no matter what the precedents say. To quote Justice Marshall, “Power, not reason, is the new currency of this Court's decisionmaking.”

The Ohio statute that came before the court prohibits doctors from performing abortions when the doctor knows that the woman’s reason for terminating her pregnancy is her belief that her fetus has DS. She might believe this because she has had the fetus tested (through CVS or amniocentesis) or she may have some other reason for the belief (e.g., her advanced age). The majority upholds the law because it allegedly serves various purposes (e.g., guarding against the stigma attaching to DS people) distinct from those rejected in the past, and it does not actually prevent a woman from obtaining an abortion, even if she is doing so because of a belief that her fetus has DS. All a woman has to do is find out from one provider that her fetus has DS and then go to a different provider to have an abortion.

Three of the concurring opinions in Preterm-Cleveland describe the Ohio statute as a protection against eugenics. Judge Sutton matter-of-factly asserts that this is a case of first impression because “[t]he United States Supreme Court has never considered an anti-eugenics statute before.” Elaborating on what he means by “anti-eugenics,” he explains that the ban is on “knowingly performing an abortion premised on the undesirability of the disability, sex, or race of the fetus.” This characterization sounds like something from the “ivory tower” that we hear so much about.

People who decide to terminate a pregnancy because they are carrying a fetus with DS are not thereby expressing the view that individuals with this condition are undesirable. Many of the people who make the decision experience great agony in deciding what to do. If they had more resources, a different sort of relationship with a partner, or fewer other children, they might well make a different decision. Or they might not. They might know themselves well enough to know that raising a child with DS, given all of the health and other challenges that the child will face, would be too difficult emotionally. None of these reasons amounts to a “rating” of the fetus as “undesirable.”

Judge Sutton admits that such “eugenic” abortions will continue to take place, but the law will prevent women from revealing their motive to their doctors. In Judge Sutton’s words, “[t]he Ohio law makes the decision a private one—and leaves it there, perhaps just where it should be left.” To my mind, and perhaps ironically, a law that makes women keep the reason for their abortion to themselves aims to stigmatize the women who have this very common reason for seeking an abortion. As though women did not feel enough shame about the reproductive choices that they make for a variety of reasons, Ohio comes along and tells them that they cannot talk to the doctor performing their abortion about why they are there. And doctors will necessarily have to tell patients to keep their reason for the abortion to themselves. This might even mean that a woman aborting the fetus of a sexual abuser will not be able to confide in their doctor. In the name of avoiding stigma, Ohio law and the Sixth Circuit protect a different stigma.

Why is the use of the word “eugenics” offensive? Eugenics, according to the dictionary (an oft-cited source in some quarters) is “a movement that is aimed at improving the genetic composition of the human race. Historically, eugenicists advocated selective breeding to achieve these goals.” The dictionary additionally includes the use of the word to refer to the study of the above practices.

Consider now what individuals are doing when they decide to terminate a pregnancy after learning that their fetus has DS. Are they trying to “improve the genetic composition of the human race”? Almost certainly not. After all, if one person wishes to alter the genetic composition of the human race, she will likely be pressuring others with DS pregnancies to terminate as well. We can assume that a single individual who has an abortion understands that she is thereby doing virtually nothing to alter the human genome. If she starts giving speeches pressuring people to sterilize their DS children or to have an abortion for the same reason she did, we can then figure out how to handle her attempt at moving the masses toward eugenics.

Why does it matter whether eugenics refers to an individual or to a movement and its advocates? It matters because the primary reference that people will imagine when they hear the word “eugenics” is World War II and the Holocaust. The Nazi regime, among other things, consigned the “feebleminded” to sterilization, and the systematic extermination of European Jews was part and parcel of efforts to “improve” the human race. For obvious reasons, then, the practice of eugenics has properly fallen into disrepute, and calling someone’s conduct “eugenics” effectively associates that conduct with the Third Reich.

In his concurring opinion, Judge Griffin comes right out and says that “[t]he philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today.” To paraphrase Senator Lloyd Bentsen at the 1988 vice presidential debate against Dan Quayle, I have some familiarity with the pure evil that motivated Hitler, and a pregnant individual’s abortion due to DS is not that pure evil. As some readers know, my parents were Holocaust survivors, and my mom’s four brothers as well as my father’s only brother and one of his sisters, and all four of my grandparents were murdered as part of the Final Solution. Terminating one’s own pregnancy due to DS (or due to one of many other reasons) is nothing like the Holocaust, nothing. The suggestion otherwise is little short of disgusting, particularly in light of the actual discrimination against immigrants and others that the man who appointed so many of these judges indulged.

In keeping with Godwin’s Law, the pro-life side of the argument over abortion has referenced the Holocaust before, referring to clinics as death camps, for example. Here again, turning from providers to patients, the movement invokes the shadow of the Holocaust to suggest that an individual making a painful and difficult decision is similar to the Nazis.

The truth is very different. When people find out that they are carrying a DS fetus, they are typically (though not always) unhappy with the news. People with DS are often amazing, warm, and happy individuals. But it is difficult and burdensome to raise a child with special needs of the sort that people with DS have, especially when libertarians have shrunk the government so that it cannot fund health care for everyone. And many parents of children with DS worry that their kids will not be able to fend for themselves once their parents have passed away. These and other worries frequently motivate an individual or a couple to terminate the pregnancy before a stage at which the fetus has become a baby. Under a definition of personhood that Michael Dorf and I offer in our book, Beating Hearts, the proper point is sentience. As soon as someone is sentient, we need to take their interests (including the interest in continuing to live) into account. Until that point, we suggest, there is genetic material forming into a child but there is not yet a child.

What if everyone pregnant with a DS fetus terminates? What then? Do we want to live in a world in which DS people are extinct? No. There is no question but that people with DS, like people with all sorts of other challenges, enrich our world and teach us to welcome those who differ from ourselves. It would indeed be sad if the world contained no one with DS. But just because we want a group of people in the world does not entitle us to conscript individuals to create such people in their wombs. This compulsion, moreover, appears to serve the desires of the group rather than the interests of the particular DS individuals themselves. And the idea of promoting a group interest in genetic diversity by forcing individuals to remain pregnant is perilously close to the very eugenics programs to which Judges Sutton and Griffin and other defenders of the Ohio legislation compare these abortions. The group should never exercise that kind of power over the individual, no matter how laudable the group’s aims. That is a first step toward tyranny. As is telling a “big lie” about what the government is really doing.


Joe said...

This general subject leads me to be if anything more verbose than usual, so I offer perhaps my "five cents" on the matter.

Justice Thomas' "Box concurrence" is discussed here:

It is a basic focus of a timely article recently released (if a bit too late to be cited in the dissents of this case, including one that "vigorously" dissented; Mary Ziegler and Corinna B. Lain were; Prof. Ziegler has written multiple books on the history of abortion) by Professor Melissa Murray.

The earlier entry on this blog in part referenced Sital Kalantry's work on sex specific abortion regulations; I appreciated the book citation and found the work interesting. I actually found Judge Sutton's book on state constitutions interesting as well. However, as noted here, his efforts in the promotion of federalism at times are dubious.


A "reason" ban -- including one that selectively "protects" one specific group (as noted here and by the dissenters, there is a counterproductive quality) in this fashion -- hits to the core of the right to choose. This includes interfering with the discussion of such a sensitive subject, be it with a doctor, minister or whatever.

As usual, I appreciate the perspective of the author here, including her personal history. And, as usual, this subject leads to dubious use of language. I wonder about a couple who decides not to have a child because the husband has a genetic condition, discussing the matter with a doctor. No abortion. The husband obtains a vasectomy. The couple perhaps instead fosters or adopts. Is this an act of eugenicist too?

At some point, language loses useful meaning.

kotodama said...

Joe is right about verbosity in this case, and so I may offer a slightly bigger denomination than he did. So big that it’s going to need two installments. None of this will be news to anyone I think, but it's good to repeat it now and then.

[First Installment]

Instead of turtles, here it's bad faith all the way down. Any stigma against people with DS would only be created by the law itself. That's because it cynically invokes their condition, not to help them in any tangible or concrete way, but only to further legislators' selfish interest in depriving women of their reproductive rights. As the OP noted, it's not as if the legislators have any genuine concern for DS. That would require them to actually dedicate funds to programs and services—especially when the law would increase the number of people with DS competing for the existing pool of funds! But we all know the legislators don't go in for that "wasteful big gov't spending" because it just "creates dependency". Admittedly I haven't checked, but I'd reckon that none of these legislators ever lifted a finger before to do anything to "help" people with DS—or any other condition—or ever will in the future.

The crux of the matter though is that eugenics is only bad when it has the coercion of gov't behind it. Buck v. Bell wasn't horrific just because a woman got sterilized. The evil of it was the *gov't* coercing that procedure. As Joe points out, women have been known to get their tubes tied for various reasons, but if you accused them (or their doctors) of being eugenicists, people would think you lost your marbles. What the legislators pretend not to understand is that forcing someone to carry a DS pregnancy to term is just as grotesque as Buck et al. because it also involves gov't coercion of a reproductive decision. The law *itself* is the actual eugenics here, as Prof. S. notes. Ohio legislators have decided that the human race is better off with more DS individuals and they have legally required that. In fact, it's exactly the sort of "unfunded mandate" that reactionaries always claim to despise. Referencing the Holocaust is the pinnacle of cynical though, considering it's the reactionaries who sympathize with the neo-Nazis. See, e.g., Charlottesville and Tucker "Swanson fortune" Carlson.

Next, there are so many absurdities you can tease out of this law. Obviously, that's because no actual thought went into it; like the current TRAP laws and others before them, the legislators just mindlessly implemented a template handed to them by anti-choice front groups. For example, the law singles out a fetus with DS for special "protection", so is it thus saying a fetus with any other birth defect is inferior? If so, then the law is discriminatory against people with any other non-DS disability—at least by the reactionaries' own logic, because it's the dreaded affirmative action for DS fetuses! Also, it's well known that children conceived from rape are stigmatized, so I guess it's totally ok to ban abortion for rape victims. Sucks to be them! In fact, I would assume the whole point is to create a slippery slope like that because the "stigma" rationale has absolutely no limiting principle. It gets even better too. If terminating a fetus with DS is illegal discrimination against the disabled, then I guess refusing to marry a close relative out of fear of a birth defect is just as bad. Mandatory inbreeding everyone! And imagine how awful it would be if someone ever came up with a *cure* for DS (or any other genetic defect). That would be the height of eugenics I guess. So instead of being handed a Nobel Prize, that person would get severe prison time.

kotodama said...

[Second Installment]

But the best part of it all is that the whole "eugenics" thing with DS is premised on an *obvious and egregious factual mistake*. That's because DS is *not* an inherited condition (except in extremely rare cases). In fact, Ohio's own *state gov't* has recognized that as recently as 6 months ago. See ("Down syndrome does not typically run in families[.]"). So you can terminate DS fetuses until the cows come home to Ohio and DS people will never actually go "extinct" absent the magical cure I posited above. That of course runs counter to the "ivory tower" definition of eugenics asserted by the smug, smarmy, and—even for a federal appellate judge—hopelessly enamored of his own intellect Judge Sutton. By the real definition, eugenics has to involve a *hereditary* trait, so DS just doesn't cut it. Sorry and thanks for playing!

As a final aside, and while I'm still piling on Judge Sutton, the comment about "private decisions" is just laughable. Does he really think anything a woman says to her doctor automatically becomes fit for public consumption? That the strictures of medical confidentiality can be violated on a whim or are actually just suggestions? If so, I hope he never has an embarrassing or stigmatizing condition that requires him to see a doctor.

kotodama said...

["Bonus" Third Installment]

Just curious, has anyone tried to argue the law is preempted by the ADA? It seems a little aggressive, but maybe worth a shot.