Reproductive justice, public policy, and abortion on the basis of fetal impairment: lessons from international human rights law and the potential impact of the Convention on the Rights of Persons with Disabilities.

• Author: Petersen, Carole J.
• Position: Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy

1. INTRODUCTION II. INTRODUCING NORTH DAKOTA'S H.B. 1305: WHY THE BAN ON DISABILITY-SELECTIVE ABORTION IS MORE SIGNIFICANT THAN PREVIOUS BANS ON SEX-SELECTIVE ABORTION III. THE HISTORY OF EUGENICS AND ITS RELATIONSHIP TO THE MODERN LAW AND PRACTICE OF ABORTION IV. INTERNATIONAL HUMAN RIGHTS LAW AND ACCESS TO ABORTION: EMERGING NORMS AND THE POTENTIAL IMPACT OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES A. The Emerging "Right" to Abortion in International Law B. The Convention on the Rights of Persons with Disabilities C. The Approach of the Committee on the Rights of Persons with Disabilities to Abortion on the Ground of Fetal Impairment V. CONCLUSION I. INTRODUCTION

   In 2013 North Dakota enacted House Bill 1305, which purports to prohibit doctors from performing abortions when they are aware that the abortion is sought solely for purposes of sex selection or because the fetus has been diagnosed with a "genetic abnormality or a potential for a genetic abnormality." (1) At the time that H.B. 1305 was enacted, several other states had already enacted laws banning sexselective abortions as part of a larger trend of legislation banning abortion based on the motive of the pregnant woman. (2) North Dakota, however, is the first state to single out women who seek to terminate a pregnancy because of a genetic anomaly, (3) which has sparked a debate within the disability rights movement. (4)

   This provision in North Dakota's statute deserves special attention and analysis, partly because it may become a model for other states, but also because it departs from the traditional legislative approach to abortion. In the past, if the law has made any distinction on the basis of fetal health it has made it easier, not harder, for a woman to obtain an abortion in situations where there is evidence of fetal impairment. (5) This was true in the United States before Roe v. Wade was decided, (6) and it continues to be true in certain countries around the world that do not recognize a general right to abortion but allow it in certain circumstances. (7) Health professionals also routinely counsel pregnant women to undergo prenatal diagnostic testing, with the tacit understanding that she will likely elect to terminate the pregnancy if testing reveals a fetal impairment. (8) The underlying assumption--that it is good public policy to permit, and perhaps even encourage, prospective parents to prevent the birth of babies with disabilities--may seem self-evident to many people. Yet it is a deeply painful subject within the disability rights movement. (9) Thus, it is not surprising that disability rights discourse is increasingly relied upon in campaigns to restrict access to abortion in the United States, both in state legislative debates (10) and constitutional litigation. (11)

   This article argues that we should consider not only American constitutional law (12) but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR) (13) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). (14) It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), (15) the Convention on the Rights of the Child (CRC), (16) and the Convention on the Rights of Persons with Disabilities (CRPD). (17) The CRPD is particularly relevant because it rejects the medical model of disability and embraces the social model, defining disability as a form of social oppression. (18) The CRPD also has numerous provisions that are relevant to reproductive justice and the right to life. The U.S. Senate came close to ratifying the CRPD in December 2012, (19) falling just a few votes short of the two-thirds majority that is required to ratify a treaty under the U.S. Constitution. (20) In August 2014, the U.S. Senate Foreign Relations Committee approved the CRPD again, (21) and the disability rights movement is hopeful that the full Senate will eventually ratify the treaty. (22) In any event, as a signatory to the treaty, the United States is already obligated to "refrain from acts that would defeat the object and purpose" of the treaty while preparing for ratification. (23) This is a principle of customary international law, codified in the Vienna Convention on the Law of Treaties. (24)

   Part II of the article introduces North Dakota's H.B. 1305 and explains why its prohibition of abortion based upon a "genetic abnormality" is potentially more significant than previous legislation purporting to prohibit only sex-selective abortions. Part III considers the relationship between the history of eugenics and the modern law of abortion, demonstrating why this is such a sensitive issue for people who either live with disabilities themselves or have reared children with disabilities.

   Part IV of the article analyzes the relationship between abortion and international human rights law. This section begins by briefly summarizing the emerging jurisprudence on access to abortion under human rights treaties other than the CRPD. It then introduces the CRPD and its relevant provisions, summarizing the drafting history of the articles that are particularly relevant to the rights to life, to create a family, and to reproductive health services. This section then uses Spain and Hungary as case studies to investigate the approach that the United Nations Committee on the Rights of Persons with Disabilities (the treaty-monitoring body for the CRPD) has taken to the issue of abortion on the basis of fetal impairment, an approach that has alarmed some advocates for women's reproductive rights. Part V concludes the article by suggesting public policy responses that would continue to respect reproductive freedom while also addressing the history of eugenics and discrimination against persons with disabilities.

2. INTRODUCING NORTH DAKOTA'S H.B. 1305: WHY THE BAN ON DISABILITY-SELECTIVE ABORTION IS MORE SIGNIFICANT THAN PREVIOUS BANS ON SEX-SELECTIVE ABORTION

   H.B. 1305 is part of a package of legislation enacted in 2013 that made North Dakota's Abortion Control Act one of the most restrictive state laws in the United States,25 and also set up a major challenge to Roe v. Wade. (26) The North Dakota bill that attracted the most public attention in 2013 was H.B. 1456, widely known as the "heartbeat bill" because it purports to prohibit abortion as soon as a heartbeat is detectable, (27) which can be as early at six weeks. (28) However, in the same year, the North Dakota legislature also enacted S.B. 2305, which required physicians performing abortions in the state to have admitting privileges at a hospital within 30 miles, (29) and H.B. 1297, which prohibited doctors from administering certain drugs in a protocol that many consider to be the standard of care for non-surgical abortions. (30) While supporters characterized these two bills as protecting women's health, the underlying goal was not to make abortion safer, but rather to make it more difficult to obtain. (31) Like the heartbeat bill, these two bills were drafted with the intention of reducing the incidence of abortion generally in North Dakota, regardless of the pregnant woman's motivations for seeking to terminate the pregnancy.

   All three of the bills mentioned above--H.B. 1297, S.B. 2305, and H.B. 1456 have been successfully challenged in the U.S. District Court for the District of North Dakota. (32) North Dakota appealed a permanent injunction of H.B. 1297 and a temporary injunction of S.B. 2305. (33) The state also appealed a judgment that H.B. 1456 (the heartbeat bill) is unconstitutional because it imposes an undue burden on a woman seeking an abortion. (34) As of July 2014, the state's appeals were pending in the Eighth Circuit Court of Appeals. The Governor of North Dakota has made it clear that he is prepared to allocate a significant amount of public money to defend these three laws in court. (35)

   Interestingly, although it was initially named in a test case, H.B. 1305 has not yet been the subject of substantive judicial scrutiny. (36) H.B. 1305 is different from the other three bills that North Dakota enacted in 2013 because it does not seek to restrict abortion generally. Rather, H.B. 1305 targets abortions requested for what the legislature deemed to be particularly bad motivations--the desire to practice sex selection or to prevent the birth of a child with a genetic disorder. (37) H.B. 1305 made amendments to the definitions in North Dakota's Abortion Control Act (38) and added a new section prohibiting abortion--at any time during the pregnancy--if the doctor knows that the pregnant woman is terminating the pregnancy solely because of the sex of the fetus or because the fetus "has been diagnosed with either a genetic abnormality, or a potential for a genetic abnormality." (39) Supporters of H.B. 1305 argued that this provision serves an essential public interest by affirming North Dakota's policy of prohibiting gender and disability discrimination. (40) Although grouped together in the same section of H.B. 1305, the two prohibitions must be analyzed separately in order to understand their potential impact on pregnant women and the doctors who serve them.

   H.B. 1305's prohibition on abortion for the purpose of sex selection is not ground-breaking, but rather is similar to laws that have been adopted in seven other states: Illinois, Pennsylvania, Arizona, Kansas, North Carolina, South Dakota, and Oklahoma. (41) Arizona further prohibits abortion on the ground of the race of the fetus, (42) something that has also been attempted at the federal level by members of the U.S. Congress. (43) Supporters of this type of legislation have invariably...