DISABILITY REPRODUCTIVE JUSTICE.

• Author: Powell, Robyn M.

INTRODUCTION 1852 I. THE ORIGINS OF REPRODUCTIVE OPPRESSION 1856 II. CONTEMPORARY REPRODUCTIVE OPPRESSION 1860 A. Sexual and Reproductive Health Disparities 1861 B. Scarcity of Comprehensive and Accessible Sexual Education 1865 C. Denial of Reproductive Decisionmaking 1867 D. Barriers to Contraception and Abortion 1872 E. Restrictions on Sexuality 1875 F. Threats to Parenthood 1878 III. Guiding Tenets to a Framework for Achieving Reproductive Freedom 1881 A. Disability Justice 1881 B. Reproductive Justice 1884 IV. A WAY FORWARD: DISABILITY REPRODUCTIVE JUSTICE 1887 A. Disrupt Intersecting Oppressions 1888 B. Center People with Disabilities as Leaders 1889 C. Protect Autonomy and Self-Determination 1801 D. Ensure Sexual and Reproductive Health Services and Information are Accessible and Available to People with Disabilities 1894 E. Guarantee Rights, Justice, and Wellness for People with Disabilities and Their Families 1898 Conclusion 1903 INTRODUCTION

The future of reproductive rights in the United States is bleak. From the Supreme Court's recent Dobbs v. Jackson Women's Health Organization decision, (1) which overturned Roe v. Wade and the nearly fifty years of legal precedent that the watershed decision established, (2) to a precipitously growing number of states enacting draconian state laws that significantly limit--and in some states, ban--access to safe and legal abortion, (3) reproductive freedom is under siege at every turn. (4) This harsh truth has elevated the importance of reproductive rights to the forefront of many people's consciousness. (5) At the same time, the discourse concerning reproductive rights has been narrowly focused and has failed to recognize the scope of reproductive decisionmaking beyond abortion. (6) Further, it has overlooked the myriad other ways in which marginalized populations, including people with disabilities, (7) experience reproductive oppression.

Recent revelations about Britney Spears's battle to end her conservatorship illustrate a common way that reproductive autonomy is legally denied to many people with disabilities and reinforces why we must take a more comprehensive approach to fighting for reproductive freedom moving forward. Britney Spears was initially placed under conservatorship in 2008 after experiencing a mental health crisis. (8) For the next thirteen years, Britney Spears's conservators exercised complete dominion over her life, such as deciding who she could see and how she could spend her money. (9) In June 2021, Britney Spears stunned the world when she delivered a heartbreaking statement pleading for an end to her thirteen-year conservatorship and presenting a lengthy list of abuses she had allegedly suffered, including forced medication, surveillance, confinement, and grueling labor demands. (10) Among the countless injustices that she endured, one was especially egregious: Britney Spears wanted to get married and have more children but was unable to do so because her conservators would not authorize the removal of her intrauterine device (IUD). (11) Specifically, she stated,

I want to be able to get married and have a baby.... I wanted to take the (IUD) out so I could start trying to have another baby. But this so-called team won't let me go to the doctor to take it out because they don't want me to have children--any more children. (12) Fortunately, because of her tenacity and significant public outcry, Britney Spears's conservatorship was terminated in November 2021. (13) Yet, this positive outcome does not negate the fact that for over a decade, Britney Spears was denied her reproductive autonomy because of her disability. Moreover, most people subjected to conservatorships lack Britney Spears's platform and resources, making overcoming these incredibly restrictive legal arrangements often insurmountable. (14)

Although Britney Spears's deplorable experiences with conservatorship may not, at first glance, seem like a reproductive rights issue, what happened to her is neither unique nor uncommon. Indeed, that people with actual or perceived disabilities--including physical, intellectual, sensory, and psychiatric disabilities--should be denied reproductive autonomy remains a persistent, unrelenting belief plaguing our nation. Each day, sexuality and reproduction is weaponized to subjugate disabled people through forced sterilization, coerced abortion, inadequate access to sexual and reproductive health services and information, surveillance and regulation of disabled parents, and loss of child custody. (15) For people of color with disabilities and LGBTQ+ people with disabilities, these reproductive injustices are even more pronounced. (16) The reproductive oppression experienced by people with disabilities is woven into our laws, policies, and collective conscience. Accordingly, to transform our society into one that respects and supports reproductive freedom for disabled people, systems that propagate these injustices must be wholly dismantled and we must create a society where all people are afforded their fundamental right to decide "whether to bear or beget a child." (17)

This is undeniably an austere time for reproductive freedom in the United States. It is also one of immense possibility. Now is the time to shift attention away from the courts and onto policymaking, organizing, and the electorate. (18) More importantly, we must reframe the fight for reproductive freedom from one that only focuses on abortion to one that centers reproductive justice. (19) To that end, we must incorporate not only the right to not have a child but also the right to have a child and the right to parent that child safely and with dignity. (20) Above all, future fights for reproductive freedom must be fully inclusive of all people, (21) with an intentional focus on marginalized populations, such as people with disabilities, whom have the most to lose and whom have been traditionally disregarded from these efforts.

This Article responds to the contemporary besiege on reproductive freedom and the persistent reproductive oppression experienced by people with disabilities by proposing a vision to help activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the disability justice and reproductive justice movements. Part I examines the origins of weaponizing sexuality and reproduction to subjugate disabled people in the United States. Part II further considers the social context and institutions that propagate the sexual and reproductive oppression of people with disabilities by exploring contemporary examples of such injustices. Part III introduces and explores the tenets of two complementary frameworks for analyzing and confronting the reproductive oppression of people with disabilities: disability justice and reproductive justice. Finally, guided by the tenets of disability justice and reproductive justice, Part IV further develops a jurisprudential and legislative framework for achieving and delivering reproductive justice for people with disabilities. (22)

1. THE ORIGINS OF REPRODUCTIVE OPPRESSION

   People with disabilities endure a complex web of oppression that connects history to contemporary treatment in American culture, medicine, and law. Indeed, the United States has a dreadful history of preventing disabled people from controlling their destinies, including implementing laws, policies, and practices that constrained their reproductive decisionmaking. Therefore, any examination of current reproductive injustices experienced by disabled people must be rooted in an understanding of the unique history and cultural stereotypes that have shaped their experiences. This Part lays the foundation for this examination by describing eugenics-era laws, policies, and practices that restricted reproduction by disabled people and other marginalized populations.

   Prior to the late nineteenth and early twentieth centuries, most people with disabilities resided at home, where their families were responsible for their care. (23) At that time, disabled people typically did not marry or have children and instead "were often hidden from the public eye and kept in social isolation, fostering and reflecting a common understanding of disabled people as dependent and incapable of filling adult roles of intimacy, sexuality and parenthood." (24)

   However, the late nineteenth and twentieth centuries brought the establishment (and later, proliferation) of institutions for disabled people, where they were isolated from their communities. (25) Institutions functioned as an apparatus of "social control and coercion." (26) During this time, eugenicists endorsed policies that encouraged procreation among favored groups of people while restricting procreation, including compulsory sterilization, segregation of institutionalized individuals by sex, and prohibition of marriage of those deemed to have "hereditary defects." (27) According to Adam Cohen, eugenicists' "greatest target was the 'feebleminded,' a loose designation that included people who were mentally [disabled], women considered to be excessively interested in sex, and various other categories of individuals who offended the middle-class sensibilities of judges and social workers." (28) Hence, the eugenics movement focused on stopping people whom society believed unfit for parenthood from reproducing, (29) grounded in the belief that their offspring would be dangerous and burdensome to society. (30)

   The Supreme Court adopted this line of reasoning in the 1927 Buck v. Bell decision. (31) At seventeen years old, Carrie Buck, who was deemed "feeble minded," (32) became pregnant after apparently being sexually assaulted by her foster parents' relative. (33) To presumably conceal the sexual violence, Carrie was committed to the Virginia State Colony for Epileptics and Feebleminded, where her mother was also institutionalized...