ABC’s award-winning television show Life Goes On, which ran from 1989 to 1993, was built around a family whose eldest son, Corky, had Down syndrome. The show, set in the Chicago suburb of Glenbrook, won accolades for giving many Americans their first real insight into the humanity of people with Down syndrome. Twenty-five years later, however, Corky might never have been born. And many in the intellectual class would applaud that, perhaps secretly wondering how Libby Thatcher, Corky’s mother, could have been such a dolt as to bring her “tragically” impaired son into the world.
The issue of eugenic abortion is center stage today in part because of efforts in several states, most prominently Ohio, to enact laws prohibiting abortion of unborn children diagnosed with Down syndrome. Ohio’s law is currently before the federal courts, enjoined March 14 by U.S. District Judge Timothy S. Black, an Obama appointee. Ohio has promised to appeal (www.courthousenews.com/wp-content/uploads/2018/03/preterm-cleveland.pdf ).
The era of Life Goes On was a time when Americans were beginning to recognize an obligation to accommodate fellow citizens with special needs. Congress adopted the Americans with Disabilities Act (ADA) in 1990 to ensure handicapped people had access to services that would give them a chance to lead reasonably normal lives. Those services included things most of us take for granted, like being able to get onto a sidewalk or into a building or hold down a job. ADA has been criticized by some economic conservatives for imposing on private parties the cost of providing accommodations (usually in the form of construction easements to make entrances and bathrooms accessible to wheelchair-bound persons). But, overall, the legislation has been largely acknowledged as an expansion of civil rights and equal opportunities for all Americans.
A decade before ADA, Americans wrestled with the status of the handicapped in the (in)famous “Baby Doe” case (embryo.asu.edu/pages/baby-doe-rules-1984 and rtl.org/prolife_issues/BabyDoeCase.html ). A baby born at Indiana University Hospital in 1982 had Down syndrome and was suffering complications. He required routine but immediate surgery to correct a tracheal-esophageal defect that would otherwise prevent him from eating, but his parents and attending physician decided not to do the operation, abandoning the child to certain death. Their decision was based not on medical contraindications but on quality-of-life criteria—the baby, they judged, was better off dead.
C. Everett Koop, Ronald Reagan’s pro-life surgeon general, was a pediatric surgeon who had done many such operations. Speaking out about the Indiana baby—and others like him who had died for lack of treatment—Koop argued that the child was being discriminatorily deprived of essential life-saving care, not for medical reasons but because some people had decided that his life simply was not worth saving. Although Indiana courts refused to order the surgery and the child died, Koop’s efforts to get lawmakers to pay attention were rewarded when Congress passed the Baby Doe Amendment in 1984, stipulating that hospital personnel could not deny basic medical treatment to disabled babies.
In the ensuing thirty-four years, prenatal diagnosis has advanced to such a degree that disabilities can be routinely identified before birth. Down syndrome is being eliminated today not because we have a cure but because we are eliminating those who have Down syndrome.
And we do this with impunity. Roe v. Wade has fostered that process because of its de fide definata teaching—adhered to with greater rigidity than any papal decree—that we do not know when life begins. The Court’s bone to prolifers—that states may sometimes have an interest in “potential” intrauterine life and act to protect it—continues both to tempt states to find that magic moment where their “interest” might find legal expression and to pervert the separation of powers by making federal courts the ultimate legislators of permissible abortion limits—as is happening now with the Ohio law.
Meanwhile, abortion proponents push the envelope by insisting that the real meaning of Roe is abortion on demand, no questions asked, no justification needed. Abortion is self-justifying; the “choice” represents (to quote Nancy Pelosi) “sacred ground.” It is sacrilege to ask for any “why” behind the choice.
Judge Black of the federal court for the southern district of Ohio says as much, opening his preliminary injunction order with a paean to Roe: “the fundamental right to privacy guaranteed by the Fourteenth Amendment includes a woman’s right to decide whether or not to terminate her pregnancy pre-viability, free from any governmental involvement” (emphasis his).
In response to the possibility that medical progress and a deepened disability-rights consciousness could pose a legitimate challenge to Roe’s junk science and philosophy, Judge Black simply dons blinders. Ohio, he avers, had no basis to claim that abortions motivated solely by the disability of the fetus are discriminatory because there is no “person” to discriminate against: “the State repeats its argument that [the ban] . . . serves the public interest by preventing “unequal treatment for individuals who have Down syndrome . . . . This argument fails for the reasons . . . . [that the ban] . . . does not affect any ‘person,’ as that term is used in the Constitution, with Down syndrome and the State’s interest in potential life—whether couched as anti ‘discrimination’ or otherwise—does not become compelling until viability.”
Here Judge Black echos another Obama federal court appointee, Tanya Walton Pratt, who in September, 2017, dismissed Indiana’s effort to protect disabled preborns as heretical to Roe, precisely for committing the sacrilege of asking “why” about a “choice”: “a woman’s right to choose an abortion . . . leaves no room for the State to examine, let alone prohibit, the basis or bases upon which a woman makes her choice” (see humanlifereview.com/life-and-the-lefts-inconsistencies/).
I expect some States will continue to challenge these barriers, not out of contempt but to afford the federal courts every opportunity to recognize their error, just as opponents of slavery refused to go away even as federal law and, eventually, Constitutional jurisprudence progressively got into bed with the slavocracy.
That said, some warnings to the pro-life side.
While awareness of disability rights has grown, its depth is not necessarily coextensive with its breadth. Lip service about valuing the lives of the disabled does not necessarily assure consistency with those values. Some will declare respect for the lives of the disabled while declaring that the unborn are not alive. The fact is there are bioethicists writing in mainstream journals today who advocate a kind of “post-birth money-back guarantee”—if we discover a “defective” newborn not “caught” in utero, can we euthanize him after birth? Peter Singer, Alberto Giubilini, and Francesco Minerva all say, Yes. Prolifers should ask themselves: Would Reagan’s “Baby Doe” regulations, controversial even in the 1980s, be as readily adopted today? More important, are the regulations even enforced today?
Remember, too, that before Roe, when states regulated abortion, a few had legalized the procedure in cases of fetal disability. The thalidomide scare of the 1960s and (Romper Room star) Sherri Finkbine’s 1962 trip to Sweden to obtain an abortion after having taken the drug (en.wikipedia.org/wiki/Sherri_Finkbine), created sympathy for abortion “liberalization” in such cases. While Americans generally remain ambivalent, not comfortable with the absolutely permissive regime of Roe but shy about reining it in, the reasons many would allow abortion—threat to maternal life or health, rape, incest—include severe fetal deformity. And while the latter may not have as direct a physical relationship to a woman’s own interests as the others, there is still a large part of the population that would accept the “burden” such a child represents as reason for abortion.
I am not saying prolifers should not raise awareness of the discriminatory aspects of eugenic abortion: We need to expand consciousness of what our professed commitments to the disabled entail. But we should also be aware that the mushy middle of the public may be more indulgent of inconsistency on this subject than, say, on abortions procured because the sex of the unborn child is “wrong.”
In the end, the question is: How do we explain ourselves? Abortion means never having to look the “beneficiary” of our eugenic “concern” and self-centered “choice” in the eye, lest he trespass on “sacred ground” and demand we account for ourselves.
Jen Gann, who writes for New York magazine, wandered into that thicket last fall with her article on why she is suing for “wrongful life” for not having been told that her little boy Dudley suffered from cystic fibrosis in time to abort him (www.thecut.com/2017/11/raising-child-with-cystic-fibrosis.html and www.mercatornet.com/mobile/view/is-a-child-a-gift-or-an-entitlement). Now she frets about one day having to tell Dudley to his face that “I should have had an abortion.” She goes on: “And that is where my conviction crumples, because I don’t know how I’m supposed to tell Dudley that someday” (emphasis added). Even having drunk the rhetoric of choice hook, line, and sinker, she seems to suspect that Dudley may come back at her with the question: “Mommy, didn’t you love me enough that you wanted me anyway?” I don’t want to imagine Jen’s crumple then.