North Dakota's Ban Is a Bad Way to Stop Selective Abortion

The governor of North Dakota signed into law three bills related to restricting abortion services last week. These laws include a prohibition on "selective abortion." Women in North Dakota, therefore, can no longer choose abortion based upon a prenatal diagnosis of anything from Down syndrome (the most common chromosomal condition, which now comes with a life expectancy of 60) to anencephaly, in which a fetus' cerebral cortex does not develop and an early death is certain. Some disability advocates have hailed the bill as a step towards a more just and open society. Mark Leach, a lawyer and father of a child with Down syndrome, writes, "public policy starts with the statement that discrimination is prohibited and then states enact policies to create a society where discrimination is no longer a barrier." Leach also backs legislative action that provides information and support for women with prenatal diagnoses, as recent laws in Kentucky and Massachusetts have done.

Other parents of children with Down syndrome have expressed concern over the North Dakota law. Alison Piepmeier, director of women's and gender studies at the College of Charleston, wrote in an essay for Motherlode this week:

If North Dakota really does want it to be "a great day for babies in North Dakota" and wants to prove that "a civil society does not discriminate against people ... for their sex or for disability," it should make the state a welcoming place for people with disabilities. The state could take the cash reserves it has put aside for legal challenges to its laws and use those funds to train public schools to be meaningfully inclusive (as all the best research shows is the way to go). It could provide easily accessible medical care and early intervention. The state could develop independent -- but supported -- housing for adults with intellectual disabilities so that there are not waiting lists years long.

Piepmeier's essay has received nearly 400 comments that offer further arguments both in support of her position and in support of selective abortion based upon prenatal diagnoses. On both sides, however, the governing question circles back to the abilities of individuals with Down syndrome and other genetic conditions. Piepmeier's daughter, at age four, reads and sings and chats with her mom. Other readers offer stories of older people with Down syndrome who can't bathe themselves. Both examples are intended to argue for and against the merits of having people with Down syndrome in our families and communities based upon their individual abilities.

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As the mother of a child with Down syndrome, it is tempting to join this conversation by touting my daughter's merits. At age seven, Penny is included in her first grade classroom, with the support of a special education teacher. Penny's most recent report card demonstrates both her abilities--she reads and writes ahead of her grade level--and her challenges--she will need summer school to help with her math skills and her impulsivity. Penny's experience is not the same as every child with Down syndrome, and yet plenty of other parents could write similar sentences to try to demonstrate their child's value based upon the things they can do, the assumptions that their lives overturn.

But to argue for my daughter's value based upon her abilities is to buy into an impoverished idea of humanity. Until we learn how to value every human being based upon their identity as children, neighbors, friends, and siblings, as ones who exist in reciprocal relationships of love and care with others, we will continue to devalue every human being. A liberal democratic society is based upon an ideal of community and civic responsibility in which we care for the most vulnerable among us, in which we go out of our way to support individuals and their families not because of their potential economic productivity but because of their intrinsic worth. The reason to support individuals with disabilities and their families is not because those individuals may offer another heartwarming story of overcoming expectations and reaching Mt. Everest's base camp, swimming Lake Tahoe, becoming a model or actor or hitting a 3-pointer in a basketball game (all things that people with Down syndrome have done). The reason to support them is to demonstrate that what sets us apart as human beings is the capacity for reciprocal relationships of love, no matter our age, intellect, or economic worth.

When it comes to abortion, there are always at least two vulnerable lives at stake--the pregnant woman and the fetus. The vulnerability of both becomes even more pronounced when facing a prenatal diagnosis of Down syndrome or other condition. North Dakota's law (and the pro-life cause) falls on the side of protecting the vulnerable fetus from termination. Advocates for abortion rights fall on the side of protecting the vulnerable mother from the economic, emotional, and social responsibilities that come with bringing a child into the world. But the fact that we cannot extricate the rights of the fetus from those of the mother demonstrates the problem of talking about abortion in terms of individual rights. Our whole culture is implicated in the selective abortion of fetuses with disabilities, not only—perhaps not even primarily—the women who choose to terminate their pregnancies on the heels of a prenatal diagnosis.

I do not support the North Dakota law banning selective abortion because it places the burden of the problem of selective abortion solely upon the shoulders of the pregnant woman, and because it outlaws abortion even in the case of prenatal diagnoses that point to significant physical suffering for the baby in question. Rather, I support legislative efforts to educate physicians about the current realities of life with various chromosomal conditions, including Down syndrome, and I support legislation that provides social support for families with children with disabilities. I hope that women facing prenatal diagnoses of Down syndrome and other chromosomal conditions will receive the support they need in order to continue their pregnancies. Moreover, I hope that our entire culture will stop seeing children, with or without disabilities, as commodities who must be valued based upon what they can produce and instead see them as gifts to be received with gratitude. And I hope that North Dakota will take the lead in offering economic and social resources to welcome these children into the world.