Outlawing abortion won’t help children with Down syndrome? History might suggest otherwise.

Earlier this week, the New York Times Motherlode blog featured a post by Alison Piepmeier with the headline: “Outlawing abortion won’t help children with Down syndrome?” Much of what she wrote echoed points I have made previously, but there is a distinction based on historical examples. Piepmeier is a mother of a four-year old with Down syndrome and is the director of women’s and gender studies at the College of Charleston. Her research led her to argue that North Dakota’s new law banning sex- and disability-selective abortion won’t help children with Down syndrome.

Her argument is informed by her interviews of women who have terminated following a prenatal diagnosis for Down syndrome. They share how they decided to terminate because: they did not think it fair to the child to bring it into the world where it will be more challenged than others because of having a disability; how caring for the child into adulthood is a greater challenge due to inadequate employment and community living opportunities; and, how, for one woman, terminating was the “protective choice” because her daughter would be at an increased risk for sexual assault. Piepmeier concludes that outlawing abortion is not going to stop women intent on terminating from traveling to clinics where they can do so because the reasons women choose to abort–lack of sufficient support–still persist, even with a ban on Down syndrome-selective abortions.

Piepmeier’s argument is one I made myself just last year. I noted then that other studies had found that mothers who terminate following a prenatal diagnosis for Down syndrome consider themselves in fact mothers, that their fetus is a child, that their child has moral status, and that they still proceed to terminate for all the reasons Piepmeier lists. Piepmeier’s interviews further validate these studies’ findings.

It was for the same reasons Piepmeier lists that I titled my March 2012 column, “When being pro-life isn’t enough.” I called on Down syndrome organizations to work towards the ends that Piepmeier details to make bringing a child with Down syndrome into the world a more supported decision through fully funding needed support services. Piepmeier argues for this funding in lieu of the money set aside to defend North Dakota’s new laws. Instead of those meager-by-comparison litigation budgets, I argued that the millions of public dollars that have gone towards–and continue to go towards–funding prenatal testing and even selective abortions should be accompanied by corresponding funds for support services and accurate prenatal counseling so that mothers may have a real choice when presented with a prenatal diagnosis.

So, similar arguments, but there is a point where I diverge with Piepmeier’s.

The argument is not an “either/or” situation: either fully fund support services or do not prohibit Down syndrome-selective abortions. The two are not mutually exclusive.

It does not follow that states should not ban discrimination against Down syndrome because they have not fully funded needed support services. That same logic would say that states should not recognize women as having equal rights unless and until the states provide for equal opportunity in the job force–something where there is still a gap. Another analogous situation: the logic would not hold that the Jim Crow laws of the south should not have been abolished through the Civil Rights Acts of the 1960’s unless and until there was equal pay and equal opportunity for African-Americans in the South provided for already by the Southern States. If history is to be a guide, the historical precedent demonstrates that 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.

Further, laws outlawing Down syndrome abortions may just create the advocates needed for the full funding of support services. The public policy actions that Piepmeier rightly champions in her column, notably inclusive education, have happened precisely because of parents of children with special needs demanding those services. Reading the quotes from Piepemeir’s interviewees, I wondered whether those mothers who terminated out of a concern for lack of support for their children have done anything since terminating to advocate for the needed public policies of early intervention services, inclusive education, community living, and job supports? I hope that some have, but I suspect that they have done what I would expect is the natural reaction: to put as much distance between them and any reminder of their decision. Therefore, I suspect they have not.

One effect of laws like the one passed in North Dakota may be to increase the number of advocates for the very social supports Piepmeier argues should be in place instead of bans on selective abortion. While studies find most women still travel to terminate following a prenatal diagnosis even where abortion is outlawed, the termination rate still is lower than in countries permitting selective abortion, meaning more pregnancies are carried to term. Quite possibly, because of the ban on Down syndrome abortions, those social support services will come about because of the mothers who continue their pregnancies where, otherwise, they may have aborted. Indeed, based on some of the comments to her column, there are many who would argue precisely the opposite for public policy: that Down syndrome-selective abortions should be encouraged so as to spare the public from paying for support services for individuals with Down syndrome. Without advocates to push back, history further shows that policies labeling others as “burdens” unfortunately have a track record of being enacted.

I agree wholeheartedly with Piepmeier’s critique of North Dakota needing to put its money where its mouth is and fully fund support services–indeed, I have argued this very same point just one year ago. However, the critique does not address the merits of the law itself, which is simply whether it is proper for a state to prohibit abortion on the basis of sex or disability. The historical precedent suggests that these sorts of laws are precisely what lead to the social supports advocated for by Piepmeier and myself.

This blog has not been re-titled “The North Dakota Law Blog,” though another post is already in the hopper on whether the law is constitutional. But, the new law has done what has been needed for some time, which is to spark a public conversation on the ethical administration of prenatal testing. As before, I welcome your comments, but ask that they address the merits of the post or another comment, not another commentator personally.