Selective abortion after prenatal screening -- two perspectives

I have been looking recently at the arguments being made by disability rights activists firmly committed to protecting a woman's legal right to abortion, who nonetheless feel that selective abortions based on a prenatal diagnosis of a disability are morally problematic.  Some of them have been articulating what is coming to be called the "expressivist argument" against such selective abortions.  Adrienne Asch, for example, argues that "What differentiates abortion after prenatal diagnosis (and abortions for sex selection) from all other abortions is that abortion is a response to characteristics of the fetus and would-be child and not to the situation of the woman."  Selective abortion, she argues, "expresses negative or discriminatory attitudes not merely about a disabling trait, but about those who carry it."  This message, she explains, is that "a single trait stands in for the whole, the trait obliterates the whole . . . The tests send the message that there's no need to find out about the rest."  She makes an "any/particular distinction," arguing that it is not morally problematic for a woman to abort because she does not want any child at this time;  however, it is morally problematic for a woman to abort because she does not want this particular child, based on one trait identified in a prenatal test.  The latter decision, she argues, "disparages the lives of existing and future disabled people", hinders the wider social acceptance of people with disabilities, and thus concretely affects society's willingness to support the lives of those with disabilities.

Dov Fox and Christopher L. Griffin, Jr., both students at Yale Law School, I believe, have been trying to test some of the components of that argument empirically.  They just posted on SSRN a fascinating article reporting some of their conclusions: "The Collateral Impact of the ADA on Disability-Selective Abortion." Here's the abstract:

This Article examines the unexpected impact that law can have on social behavior that the law was not intended to regulate. We explore this phenomenon by considering the relation between a federal antidiscrimination statute, the Americans with Disabilities Act (ADA), and the practice of abortion following fetal diagnosis for Down syndrome. Our empirical study of U.S. natality data suggests that the ADA served to prevent the existence of people among the very class the Act was designed to protect. Using regression analysis, we control for social, economic, demographic, and technological confounds and find that the birthrate of children with Down syndrome significantly decreased after the ADA's passage. We explain this paradox by showing how media coverage of the ADA and Down syndrome reinforced negative understandings and expectations among prospective parents about what it means to give birth to a child with a genetic disability. We discuss the implications of these findings for reproduction and antidiscrimination law.

Fox and Griffin analyze two possible hypotheses about the "expressive externalities that the ADA could have generated with respect to the practice of disability-selective abortion."  The "uplifting" message of the ADA could be that "the ADA's affirmation of social equality and disability rights discourages disability-selective abortion by tempering negative attitudes toward people with disabilities.  According to this hypothesis, the ADA, by barring employment discrimination and assuring access to public serivces and accommodations, conveyed to parents the promise that prospective children with disabilities could lead happy and productive lives."  In contrast, the "disappointing" message of the ADA could be that "the ADA, by requiring sometimes onerous workplace adjustments for persons with disabilities, led to a media backlash driven by commercial employers.  On this account, disapproving stories about people with disabilities, covered widely by print and television sources, combined with detailed news reports on selective abortion procedures, to convince parents that children with disabilities would not be accepted into the world as social equals."

When they subjected both hypotheses to econometric analysis, they found support for the latter hypothesis.  The data is too rich and complex, and my understanding of statistical analysis is so rudimentary, that I think the best I can do in this post is to quote from their conclusion:

The econometric analysis . . . showed that Down syndrome birthrates decreased significantly and steadily from 1993 to 1998.  The decline of 13 to 18 Down syndrome births per 100,000 was robust to inclusion of demographic and health-related control variables and against the backdrop of highly stable prenatal screening rates.  We did not find supportive evidence for a similar effect among infants with spina bifida and cleft palate.   [Note from Lisa Schiltz:  This is significant for their argument because these are "two well-known disabilities for which prospective parents do not routinely screen." ] Part V [of the Article] confirmed our argument about the expressivist effects of the ADA on Down-selective abortion by explaining away other immeasurable confounding variables related to technology, law, and medicine." 

It seems to me that Asch and Fox & Griffen are attacking (from two entirely opposite directions) the same basic insight about our contemporary society:  there is a fundamental dissonance between, on the one hand, our assertions that persons with disabilities possess the same full measure of human dignity as those without disabilities, and, on the other hand, our actions when faced with the concrete reality of assuming the responsibility of caring for those with disabilities.