In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written uphelding government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion. This Article argues that any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion. Disabled people are frequently denied their own rights to conceive, bear, and parent children. Indeed, the practices that continue to prevent people with disabilities from having and raising children are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried. Consideration of insights drawn from the disability rights movement and the reproductive justice movement suggests that both Justice Thomas and then-Judge Kavanaugh gave the wrong answers on the questions before them.
Bagenstos, Samuel. "Disability and Reproductive Justice." Harv. L. & Pol'y Rev. 14, no. 2 (2020): 273-92.