Florida State University Law Review Volume 30 Issue 2 Article 8 2003 The Ideological Context of the Disability Rights Critique: Where Modernity and Tradition Meet Janet Dolgin [email protected] Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation Janet Dolgin, The Ideological Context of the Disability Rights Critique: Where Modernity and Tradition Meet, 30 Fla. St. U. L. Rev. (2003) . https://ir.law.fsu.edu/lr/vol30/iss2/8 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW DISABILITY EQUALITY AND PRENATAL TESTING: CONTRADICTORY OR COMPATIBLE? Adrienne Asch VOLUME 30 WINTER 2003 NUMBER 2 Recommended citation: Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 FLA. ST. U. L. REV. 315 (2003). FLORIDA STATE UNIVERSITY LAW REVIEW THE IDEOLOGICAL CONTEXT OF THE DISABILITY RIGHTS CRITIQUE: WHERE MODERNITY AND TRADITION MEET Janet Dolgin VOLUME 30 WINTER 2003 NUMBER 2 Recommended citation: Janet Dolgin, The Ideological Context of the Disability Rights Critique: Where Modernity and Tradition Meet, 30 FLA. ST. U. L. REV. 343 (2003). THE IDEOLOGICAL CONTEXT OF THE DISABILITY RIGHTS CRITIQUE: WHERE MODERNITY AND TRADITION MEET JANET DOLGIN* I. BEYOND THE LAW: THE ABORTION DEBATE AND DISABILITY RIGHTS................ 346 II. MATTERS OF MORALS / MATTERS OF LAW ........................................................... 348 A. The Ideological Context of Debate................................................................ 348 B. The Ideological Context: The Debate About Family.................................... 349 C. The Erosion of Institutional Arbiters........................................................... 351 D. A Discourse About Abortion Alongside the “Debate About Abortion”......... 353 III. THE DISABILITY RIGHTS CRITIQUE, THE DEBATE ABOUT ABORTION, AND THE MEANING OF FAMILY ........................................................................................... 356 A. The Disability Rights Critique and the Law ............................................... 357 B. The Disability Rights Critique and American Ideology.............................. 359 IV. CONCLUSION ........................................................................................................ 361 Erik Parens and Adrienne Asch have summarized the disability rights critique of prenatal testing in two broad claims:1 “that prena- tal genetic testing followed by selective abortion is morally problem- atic, and that it is driven by misinformation.”2 These claims, though consonant with assertions of many pro-life groups, are intended to serve different ends. Parens and Asch explain that most authors as- sociated with the disability rights critique are feminists who support a woman’s right to abortion.3 In contrast, pro-life adherents predicate differences between women and men on inexorable natural truths and define their position about abortion as an inevitable correlate of * Maurice A. Deane Distinguished Professor of Law, Hofstra University School of Law. 1. The term “critique” as used in this Article refers to the disability rights critique of prenatal testing, embryo selection and selective abortion. This Article discusses the work of Professor Adrienne Asch and others who have contributed to the development of the dis- ability rights critique of prenatal genetic testing, embryo selection and selective abortion. The Article focuses on the work of Adrienne Asch because she participated in the Sympo- sium from which this issue of the Law Review developed. See Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 FLA. ST. U. L. REV. 315 (2003). Often, the Article speaks broadly about the work of the disability rights critique. Limitations of space preclude detailed discussion of differences among those associated with the work of the critique. Such differences do exist. 2. Erik Parens & Adrienne Asch, The Disability Rights Critique of Prenatal Genetic Testing: Reflections and Recommendations, in PRENATAL TESTING AND DISABILITY RIGHTS 3, 13 (Erik Parens & Adrienne Asch eds., 2000). Parens and Asch further describe the cri- tique through three broad assertions: first, that discrimination is the central problem for disabled people and for their families; second, that those who abort a “desired child” be- cause of a disability diagnosed through prenatal testing “suggest that they are unwilling to accept any significant departure from the parental dreams that a child’s characteristics might occasion”; and third, that selective abortion constitutes an “unfortunate, often misin- formed decision that a disabled child will not fulfill what most people seek in child rear- ing.” Id. at 12-13. 3. Id. at 12 (naming Adrienne Asch, Martha Saxton, Anne Finger, and Deborah Kap- lan). 343 344 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 30:343 a world in which women and men enjoy different statuses and per- form different roles.4 Yet, pro-life activists would seem further to echo adherents of the disability rights critique in categorizing abor- tion of “‘damaged’ embryos” as the “most offensive” of all abortions.5 Again, however, these concrete similarities are belied by each group’s encompassing goals. Adherents of the critique do not argue that se- lective abortion is problematic because abortion is problematic. Moreover, the “misinformation” to which Parens and Asch refer does not refer expressly to the ontological status of the fetus.6 Rather, they refer to misinformation about “what life with disability is like for children with disabilities and their families.”7 To adherents of the critique, its basic propositions are not concerned centrally with abor- tion. Rather these propositions concern attitudes toward disability and “toward children, parenthood, and ultimately ourselves.”8 The critique’s platform and analysis situate its adherents in the middle of a much wider discourse within American society about the scope and meaning of family. That discourse incorporates a series of related debates about reproduction (including abortion) and about the shifting contours of the relationship between parents and chil- dren. The work of those associated with the disability rights critique— which seems often to belie social expectations about visions of family from the “left” and visions of family from the “right”—provides an unusual context within which to explore the dimensions of a broad 4. See KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 201 (1984). Luker explains that “abortion has become a symbolic marker between those who wish to maintain this division of labor [based on gender] and those who wish to challenge it.” Id. This claim is representative, not comprehensive. It does not apply to all of those who op- pose abortion. See, e.g., Ruth Colker, Feminism, Theology, and Abortion: Toward Love, Compassion, and Wisdom, 77 CAL. L. REV. 1011, 1074 (1989) (suggesting that we “give more credence both to arguments about how women’s well-being is affected by abortion leg- islation and to arguments about how our valuation of life is affected by abortion policy” and attempting to “understand more fully the arguments of both the pro-choice and pro-life ad- vocates”). 5. LUKER, supra note 4, at 207. Luker reports that for pro-life activists to defend “‘damaged’ embryos” is particularly praiseworthy because it is to defend “the weakest of the weak, and most pro-life people we interviewed were least prepared to compromise on this category of abortion.” Id. at 207-08. 6. Marsha Saxton speaks about a disability activist who identified fetuses as “our people.” Marsha Saxton, Disability Rights and Selective Abortion, in ABORTION WARS: A HALF CENTURY OF STRUGGLE, 1950-2000, at 374, 383 (Rickie Solinger ed., 1998). Saxton comments: Are those in the disability rights movement who question or resist selective abortion trying to save the “endangered species” of disabled fetuses? When this metaphor first surfaced, I was shocked to think of disabled people as the target of intentional elimination, shocked to realize that I identified with the fetus as one of my “species” that I must try to protect. Id. 7. Parens & Asch, supra note 2, at 20. 8. Id. at 19. 2003] IDEOLOGICAL CONTEXT 345 ideology9 of personhood in terms of which Americans contemplate the shifting contours of family and of relationships between individuals and community more broadly. Those who have developed the critique oppose embryo selection and selective abortion while working to safeguard the right to abortion in general.10 They remain committed to autonomous individuality and choice, and they work to delineate the meaning of community. However, for those who favor a pro- choice position, these propositions present hard questions. Moreover, as Adrienne Asch has suggested, the questions are not easily enter- tained by law or the political process.11 This Article explores the ideological implications of sustaining a pro-choice position with regard to abortion generally alongside a po- sition that frowns on abortion for the specific purpose of selecting against an embryo or fetus identified as carrying disabling traits. The exploration aims to contextualize each position within a broader social debate about the parameters of family life. It begins by