As scholars and the public consider the extensive consequences of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Professor Khiara Bridges’ article, The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans, published shortly before Dobbs was released, adds another important lens to that analysis. Her article identifies and explains the “dysgenic state.” While the eugenic state was motivated by a desire to eradicate what it classified as “disability,” the dysgenic state fails to protect its citizenry from environmental toxins and compels its citizens to give birth to children whose health is impaired by those toxins. Further, environmental toxins have disproportionate impacts on people of color and individuals of lower socioeconomic status, and after controlling for socioeconomic status or class, “people of color are more likely to be exposed to environmental harms in their communities.”
There is significant scholarship on the impacts of abortion restrictions, especially scholarship emphasizing its restrictions on low-income individuals and people of color. Professor Bridges discusses these hurdles and abortion restrictions more broadly, as well as adds an additional perspective on these matters. The Article focuses on the role of reason-based abortion bans specifically, namely race-selective, sex-selective, and disability-selective bans.
The first part of the article provides background on the eugenics movement and environmental injustice. The Article is animated by three frameworks: (1) critical disability studies, (2) reproductive justice, and (3) environmental justice. She explains the relationship that already exists between the environmental justice and reproductive justice frameworks: environmental justice is already part of the reproductive justice framework as the harms of environmental degradation can negatively impact one’s ability to reproduce. Bridges’ analysis also celebrates the role of disability in society as well as acknowledges the difficulties of disabilities for many who may be harmed by its medicalization or the lack of societal accommodation for a disability.
While acknowledging the uncertainty of science, Bridges provides extensive citations from multiple literatures. Another important point includes noting that many environmental toxins can cause fetal death, which could lead to an undercounting of the extent of fetal harm that may result from environmental degradation as some environmental toxins lead to pregnancy loss (miscarriage or stillbirth) instead of the birth of a child with “a structural or functional birth defect.”
Part III of the article focuses on “reasons-based abortion bans,” in general, including the “entire premise of the genetic counseling industry…[which] is that parents have a legitimate interest in avoiding the birth of a health-impaired child.” It additionally raises several other issues such as how reason-based abortion bans operate with specific legislative exceptions for abortions in the case of fetal impairment. It addresses reasons-based abortion laws and other restrictions on abortion access such as the Hyde Amendment. As the article considers legislative and public views on the acceptability of reason-based abortions, it also analyzes other restrictions on abortion access in the United States. For example, while most states follow the Hyde Amendment’s funding scheme, which generally prohibits the spending federal Medicaid funds on abortions with exceptions for abortions for the patient’s life or for terminating pregnancies due to rape or incest, some states affirmatively permit spending state Medicaid funds for abortions in case of fetal impairment. This exception is notable considering the many restrictions on state-funded abortions.
Part IV focuses on disability-selective abortion bans and explains why society may disfavor regulating disability-selective abortions. It investigates the motivations of those who support disability-selective abortion bans and those who oppose them. Part IV also discusses criticism of Justice Thomas’ concurrence in Box v. Planned Parenthood of Indiana and Kentucky, Inc. In his concurrence, Thomas wrote that Indiana’s sex-selective and disability abortion ban and similar laws “promote a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” There is growing attention to Thomas’ concurrence in Box, as well as significant push-back. For example, Bridges notes that some critics of Thomas’ concurrence have pointed out that those who terminate a pregnancy because of fetal impairment do not make that decision because they are concerned about the country’s gene pool, a concern that motivated eugenicists in the early 20th century (many of whom were also opposed to abortion). Others note that individuals interested in furthering disability-selective abortion bans seem to show no similar concern for existing people with disabilities or the individuals who gestate fetuses in general.
Ultimately, Part V of the article explains that the dysgenic and eugenic states produce societies with “virtually indistinguishable results,” as “impairments are concentrated among those who are nonwhite or poor, while wealthier white people remain comparatively free of impairments.” Thus, “[w]hile the dysgenic state appears to be the inverse of the eugenic state, it actually functions to produce results that are virtually indistinguishable from the goals of the eugenic state” by concentrating impairments in low income or nonwhite individuals.
Professor Bridges’ article, The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans, was important reading before the Supreme Court’s decision in Dobbs. In the aftermath of the Supreme Court’s decision in Dobbs and the many environmental injustices that persist and continue to arise, Professor Khiara Bridges’ article is even more necessary.
