Mental Disability, Exceptional Abortion, and the Pain-Capable Unborn Child Protection Act

Introduction

In his first interview after the November 8, 2016 presidential election, Donald Trump expressed his intention to nominate U.S. Supreme Court justices who would prioritize overturning Roe v. Wade.1  A year later, the U.S. House of Representatives passed the Pain-Capable Unborn Child Protection Act by a majority of 237 to 189, with primary sponsorship from Trent Franks (Republican, Arizona District 8) and 182 Republican co-sponsors.2  The bill was then introduced in the U.S. Senate on January 16, 2018, sponsored by Lindsay Graham (Republican, South Carolina).3  The bill was positioned as a primary threat to Roe v. Wade, and was acknowledged as such in public discourse and by both parties.  The legislative text proclaimed a “compelling government interest” in restricting almost all access to abortion at and after twenty weeks of pregnancy.4  The bill’s Republican supporters attempted to end debate using the Senate’s procedure for cloture, but were unable to secure the required three-fifths majority needed to bring it to an immediate vote, with a vote count of 51 yea, 46 nay on January 29, 2018.5  Although the U.S. Congress listed the bill as active legislation in the Senate until its last day in session, it was widely understood to be defeated as a result of the failure to achieve cloture.

Despite its failure, the content of the bill should nevertheless occasion legal analysis on multiple grounds, including, but not limited to, the prospective tensions between varying conceptions of constitutional rights and government interests, the gendered implications of contemporary conservative framing of anti-abortion legislation as protective of women, and the explicit inclusion of girls under the age of 18 in the statutory definition of “woman.”6  With the confirmation of Neil Gorsuch and Brett Kavanaugh to the Supreme Court of the United States, Trump has delivered on his promise to infuse the contemporary Supreme Court with justices receptive to overruling Roe v. Wade.7  The internal logics of the Pain-Capable Unborn Child Protection Act (hereinafter Act) remain a strong indicator of Republican agendas regarding abortion.  Therefore, the Act should occasion attention from analysts, advocates, and scholars concerned with the juridical future of reproduction as an area of constitutional concern.  The loss of Republican control of the House in the 2018 midterm congressional elections will shift the federal legislative landscape in the 116th session of Congress, ensuring—at least for the time being—that an analog of the Act will not be viable in Congress.  However, challenges to Roe v. Wade are still anticipated through state legislation, and they will likely implicate similar frameworks as those present in the Act when they are tested in the federal courts.  They will also almost assuredly help answer whether the Senate’s confirmation of Kavanaugh to the Supreme Court was worth the cost in public support and approval of Republican legislators, particularly from women and youth voters.

While there was substantial public attention to the Act’s import as an effort by the Republican Party to erode reproductive rights currently preserved by the primacy of Roe v. Wade, there was minimal public recognition or commentary addressing one particular provision of the Act.  In section 1532(b)(2)(B), the Act provides exceptions to its otherwise wholesale ban on abortions at twenty weeks under three categories.8  One exception addresses pregnancy resulting from rape and provides for requirements which a pregnant woman or girl must fulfill in order to qualify for this exception.  Another applies a similar exception to pregnancies resulting from incest.  The remaining exception, and the primary subject of this discussion, provides for an exception to save the life of the pregnant woman or girl.  It indicates that the prohibition of abortions may be waived, if:

in reasonable medical judgment, the abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, but not including psychological or emotional conditions . . . .9

The explicit exclusion of pregnant women and girls whose lives are endangered by “psychological or emotional conditions” is not otherwise explained, justified, or cast within any context.  It is therefore left to the reader to unpack the potential messaging, implications, and import of indicating that “life-endangering” “psychological or emotional condition” will not be a basis for an allowable abortion, as compared to a “physical” condition.10  In the ensuing discussion, I review three frames through which this provision can be interpreted.

I. Eugenic and Neo-Eugenic Logics: Historical and Contemporary Devaluation of the Lives and Repro-Genetics of Persons with Mental Illness

One way to interpret the statutory prohibition on access to a life-saving exception for pregnant women and girls who have “psychological and emotional conditions” is to do so by the most straightforward terms: Namely, women and girls with such conditions should be denied life-saving medical treatment and thereby may be allowed to die under the color of federal law.  Some might argue with this interpretation either in defense of the legislation generally or because this reading appears too outrageously cruel to be true.  In contemplating this question, particularly relative to a legislation that was purportedly intended to help overturn Roe v. Wade, it is useful to recall a key facet of the relationships between the state, reproduction, and mental illness in U.S. legislative and judicial history.

Of its many consequences, Roe v. Wade was partially responsible for overturning Buck v. Bell, 11 directly implicating the legal conception of persons with mental disabilities.  The Buck v. Bell Court was unapologetic in utilizing a hierarchy of social value accorded to U.S. citizens, consistent with the ideological tenets of the eugenics movement, which enjoyed significant social, moral, and scientific legitimacy at the time.12  In this schema, people with mental disabilities were regarded as “those who . . . sap the strength of the [s]tate”13 in comparison to the “best citizens”—which in the Court’s conception likely included those asked to give their lives in military service.14  Forced sterilization, in service to state-sponsored eugenics programs, was therefore purportedly justifiable as a comparatively “lesser sacrifice” than death through military conscription.15

There are several valid distinctions between Buck v. Bell and the 2018 Act when considering the surrounding socio-historical context, the distinctions between abortion and sterilization as areas of reproductive policy, and the comparative frankness and detail with which the 1927 Supreme Court framed its devaluation of people with disabilities, utilizing unabashedly contemptuous terms like “imbeciles” and “feeble-minded” to delineate persons like the plaintiff, Carrie Buck.16  There is also potentially less than perfect synchrony between the Buck v. Bell Court’s emphasis on conditions that would likely now be termed cognitive impairments and the vague term “psychological and emotional conditions” utilized in the Act, although it should be noted that psychiatric disabilities would generally have been treated under similarly disparaging frames in the eugenics-era federal courts or understood as synonymous with cognitive impairments.

The resonance between the two legal texts also bears acknowledgement.  Like the Act, Buck v. Bell asserted a compelling government interest in exerting direct medical and legal control over reproduction, and the Court framed this intervention as ultimately in the interests of both the general welfare and the women who are the targets of this intervention.17  Further, like Buck v. Bell, the Act explicitly differentiates persons with mental disabilities from those without mental disabilities and validates corresponding differential treatment in reproductive policy.  While Buck v. Bell was more severe in its explicit framing of people with mental disabilities as socially burdensome and contemptible, the Act extends beyond the extremes of Buck v. Bell in a key respect.  Specifically, the Buck v. Bell Court was careful to qualify that forced sterilization procedures were medically safe and would not claim the lives of their recipients—a point that they foregrounded by terming forced sterilization as a “lesser sacrifice” than dying in military service.18  In contrast, the Act does not hesitate to explicitly indicate that people with “psychological and emotional conditions” will not qualify for access to “life-saving” treatment.

In this discussion I acknowledge, but will mostly leave unexplored, the glaring analytical and juridical questions the singling out of a broad category of persons with disabilities for such differential medical treatment should raise for those concerned with disability civil rights and with protecting individuals with disabilities under the equal protection doctrine.  The essential point here is that the exclusion of pregnant women and girls with “psychological and emotional conditions” from a critical area of medical rights and protection begs reflection on the history of reproduction in the United States during the eugenics era. When the construct of “psychological and emotional conditions” is subject to critical scrutiny, one might infer that the move to overturn Roe v. Wade embodied in the Act is not solely an attempt to reassert state control over reproduction at large: The exclusion of people with mental illness from life-saving treatment would—by inducing death and thereby ensuring no future reproduction—result in a similar outcome to that promoted by the twentieth century U.S. eugenics movement, which primarily aimed to completely eliminate mental disabilities and other supposed genetic defects.19

Again, such a neo-eugenic interpretation might be understood as extreme, importing too sinister an intention to the Act’s sponsors and advocates.  In contemplating the degree to which this historical context provides a compelling frame for interpreting contemporary legislation, we can also consider certain elements of the socio-political context then and now.  The eugenics movement was fundamentally an expression of white supremacy, grounding its project in the presumption of white genetic superiority.  Eugenicists targeted disability and social deviance in order to more thoroughly purify and separate whiteness from the supposed genetic deficiencies they associated with communities of color.20  So in evaluating whether the Act embodies a neo-eugenic agenda, we could ask certain questions about the contemporary context in which it is situated.

For instance, we might ask whether white nationalism, white supremacy, or contemporary Nazism have escalating or continuing traction in our current body politic.  We might consider whether the United States is attempting to exclude mentally ill persons from access to prospective citizenship through immigration policies that echo the Buck v. Bell Court’s view of mental illness as socially burdensome.  We might consider the popular resurgence of genetic explanations for behavior and the marketing of dating and reproductive resources focused on genetic compatibility and design.  We might also contemplate the degree to which racially charged explanations for immorality, gendered vulnerability, crime, poverty, and deprivation surface in contemporary political discourse.  We might consider whether the intersecting categories of race and disability are particularly salient in determining educational and economic access.  These reflections, if engaged robustly, would assuredly indicate that the historical context that spawned Buck v. Bell continues to echo in contemporary institutional structures and political rhetoric, and it has chilling resonance with the Act’s exceptions.

However, I am not bent on advancing a definitive claim about the legislative intention behind the Act.  Given the lack of consciousness policymakers often have about mental illness and disability, I find it readily plausible that it never occurred to the Act’s proponents that the “psychological and emotional conditions” provision might be read as a declaration that people with mental disabilities do not qualify for “life-saving.”  It is also plausible that the devaluation of the lives of people with mental disabilities embedded in the Act could have been an expression of an unconscious bias, rather than an overt intention to mandate that pregnant women and girls with life-threatening forms of mental illness should die.  While such carelessness or thoughtlessness would constitute a gross and disturbing error in attempted policymaking, it would hardly be the first time that such flaws or sloppy framing occurred in legislative construction generally, or in the areas of reproductive policy, health law, disability law, and in the assertion of “compelling government interests.”  The debate and coverage of the Act would also not constitute the first time that major human rights considerations affecting people with mental disabilities were largely ignored by both major political parties (including the Act’s proponents and opponents) and by the press.  It would be fair to say, regardless, that the Act has neo-eugenic implications, whether intentional or indicative of under-considered policymaking.  But, if we do not simply interpret the Act as calling for the “sacrifice”—in the sense invoked in Buck v. Bell—of pregnant women and girls with life-threatening mental disabilities, there are alternative frames that bear exploration.

II. “Fakery”: The Presumption That People Commonly Make False Claims to Have Disabilities

One way to comprehend the exclusion of “psychological and emotional conditions” as a valid basis for providing a life-saving exception to the Act’s prohibition of abortion involves the notion that no life-saving exception is actually needed because people fabricate having psychiatric disabilities. The stereotype of “fakery”—in which people claiming to have disabilities are supposedly falsifying an illness or injury in order to illicitly collect benefits and charity, qualify for resources, or otherwise cheat institutions or con community members—has entrenched historical roots in the United States and has repeatedly manifested across time periods and regions.21  “Fakery” has commonly been invoked to harass, stigmatize, or interrogate people with disabilities in the name of rooting out those cheating the public.  Donald Trump has been among the more recent proponents of a variation of this ideology, which he terms the “disability racket.”  In this imagining of disability politics, many Americans are falsely claiming to have disabilities to access programs such as Medicare.22  As Trump puts it, “On and on, scam after scam it goes; as always, taxpayers are the ones getting stiffed.”23

Much of the furor over supposed “fakery” exemplified in the sort of rhetoric Trump propounds is associated with disability-based access to economic and healthcare benefits.  It is a small step, however, to reapply it in this context. That is, pregnant women and girls who want to avoid being forced to carry to term are presumed to be faking a psychological or emotional condition, in order to qualify for a life-saving exception.  Again, because the Act does not explain the legislative intent regarding the exclusion of “psychological and emotional conditions” (and public discourse about this provision has been so minimal), we must speculate, for instance, how the Act’s proponents envision the fabrication of a health condition.  But if we embrace, as a thought experiment, the notion that masses of mentally healthy pregnant women would engage in “fakery” in order to access abortion, then it would be conceivable as well that mental health professionals on a large scale would be willing to collude in creating false documentation of relevant conditions to enable this scam.  The emphasis on excluding “psychological and emotional conditions” as opposed to those that are “physical” could also be rationalized under this framework, based on the presumption that physical illnesses and injuries are more “real” or valid (and therefore more difficult to fabricate).  This stereotype resonates with a broader social phenomenon: the underestimation of the prevalence, severity, and health impact of mental illness.24

I do not intend to suggest that it would be outlandish for individual pregnant women and girls to ever be willing to circumvent the Act, if it had passed, by making an inaccurate claim.  Just as individual women and girls traveled across state lines or paid for illegal or “back alley” abortions before Roe v. Wade, in the presence of a federal ban on abortion at twenty weeks and beyond, it would certainly be predictable that some women and girls would defy the restrictions imposed by such a law.  And it would be plausible that at least a few mental health professionals would be willing to risk their licenses to enable such defiance or would be successfully deceived, despite their training, by a patient seeking medical documentation.  However, if concern over “fakery” were the governing frame present in the exclusion of “psychological and emotional conditions,” it would essentially have to follow that all claims involving life-endangering psychiatric conditions or disabilities would be encompassed within this frame, as the Act provides for no means, thresholds, or requirements to distinguish between legitimate and supposedly fabricated claims.

Of course, this thought experiment breaks down rapidly in the face of the wealth of data establishing high rates of mental illness and psychiatric disabilities in the U.S. population at large, among women and girls, and accompanying unwanted (or even desired, but still stressful) pregnancies.25  The United States is not a nation characterized by commonplace mental health. Therefore few of the affected women and girls targeted by the Act would ever be in a position to actually have an incentive to create a fake mental illness.  That is, falsifying a mental illness is likely to be superfluous.  There are simply too many real ones to choose from, and their presence can be verified by multiple means, including but not limited to standard clinical evaluation.

This does not mean the notion of “fakery” is not still salient and compelling, regardless of its many logical flaws, problematic assumptions, and misalignment with existing empirical knowledge.  Stereotypes are such in part because they can drive belief or powerful associations, notwithstanding their unreliability and the poor decision-making they often validate.  It is therefore not such a stretch to imagine that in the world envisioned by at least some proponents of the Act, the emotional charge associated with pregnant women and girls supposedly faking disability, lying or cheating could readily become its own source of justification, basis for righteous and outraged opposition, and imperative to generate reactive policy.

III. “It’s Not So Bad”: The Presumption That Mental Illness Will Not Be Genuinely Life-Threatening

One other related explanation for the exclusion of pregnant women and girls with “psychological and emotional conditions” from access to a medical exception deserves at least brief acknowledgment.  A companion rhetoric to the concept of “fakery” involves the stereotype that while mental illnesses and disabilities can be “real” their severity is exaggerated, their victims are culpable or in control of how they are affected by illness, and mental illness can be readily overcome.  In this conception, while “psychological and emotional conditions” are not presumptively falsified, the relevant assumption is that they are not genuinely or legitimately life-threatening.  A common misunderstanding associated with mental illness and disability involves the belief, notwithstanding the origin of mental illness in biochemistry and genetics, trauma, or other life circumstances (or any combination of factors), that people with mental illness are deliberately being “weak” or could—by mere exertion of will—simply choose to become healthier.  The relationship between mental illness and vulnerability to suicide is very well-established and supported by clinical evidence and devastating experience, and the compound damaging effects of severe mental illness on physical health and longevity are also fairly documented.26  Unwanted pregnancy is also a potential trigger for suicidal acts.

Further, one way to comprehend the exclusion of “psychological and emotional conditions” as a basis for access to life-saving medical treatment can again be found in the realm of mental disability stigma.  If we imagine that mentally ill pregnant women and girls are exaggerating or wallowing in their symptoms, then life-endangering illness and disability can similarly be reimagined as relatively benign; and when death does occur, victims can be blamed for their supposed weakness or choices in lieu of recognizing that mental illness has generated a fatality.  It should be noted that skepticism about the validity of specific psychiatric diagnoses and reluctance to allow such diagnoses to be the basis for rights or resources is not an artifact of the Act.  The U.S. Congress has a history of exhibiting skepticism about the legitimacy and worthiness of certain psychiatric diagnoses.  For example, as indicated in the congressional record and statutory content, some legislators were invested, and succeeded, in creating exclusions for psychiatric diagnoses applied to transgender persons (termed “transvestites”), and in some instances, to persons struggling with addiction in the Americans with Disabilities Act of 1990.  As a result, some psychological conditions were excluded from disability civil rights protection and remain unprotected in contemporary civil rights doctrine.27  The Act then, can potentially be understood as an extension of a preexisting congressional affinity for exempting purportedly blameworthy or unworthy medical conditions from positive legal recognition.

Conclusion

All three frames—neo-eugenics, “fakery”, and the delegitimization of mental illness—likely had at least some traction in the promotion of the Act as it was constructed.  I make this assertion in part because it had support from 183 different co-sponsors in the House, 47 in the Senate, and a host of lobbying entities.  Therefore, it is predictable that a variety of motivations, perceptions, and agendas attenuated the Act’s advancement, intentionally or unconsciously.  One core insight from this analysis implicates the urgency of incorporating a more robust and far more thoughtful consideration of mental health and disability into contemporary gender and reproductive discourse and politics.  As noted, it is not solely the fact that an alarming number of legislators were willing to advance this legislation that should generate concern.  It is deeply troubling that this provision targeting people with mental disabilities went, for the most part, unnoticed, even by many critics of the Act and advocates for abortion rights.

The Act also begs for consideration of the politics of exceptionalism, and the effects of designating certain abortions as essentially exceptional, and others as implicitly unexceptional.  While it has not been my focus in this discussion, further analysis is certainly needed to interrogate the relationship between “psychological and emotional conditions” and the other bases for exceptions in the Act (and for common exceptions included in anti-abortion legislation)—specifically rape and incest.  It is important to state, however briefly, that the trauma associated with sexual violence, whether it generated a specific pregnancy or occurred before conception, has at least two relevant implications.  First, sexual trauma is an extraordinarily common basis for “psychological and emotional conditions” among women and girls in the United States.  Second, regardless of whether a specific pregnancy was caused by sexual violence, for any survivor of past sexual violence, the loss of physical and emotional autonomy involved in being forced to continue an unwanted pregnancy can become tremendously retraumatizing.  In the worst instances, such emotional pain and stress may progress to the point that it can in itself become life-endangering, whether due to the physiological effects of severe trauma or the risks of addiction, self-harm, and suicide associated with severe trauma and mental illness.[28]

The exclusion of “psychological and emotional conditions” from legal recognition and access to life-saving medical care should be recognized and named as profoundly threatening to the survival, the prospects for healing, and the life chances of survivors of sexual and gender violence.  Like mental illness and disability, sexual and gender violence are commonplace, or unexceptional.  In fulfilling their restrictive purpose, exception-based approaches to reproductive policy will necessarily and inevitably leave most victims of rape, incest, and related forms of abuse outside the sphere of those allowed to exercise medical decision making.  In the most dangerous instances, the loss of medical rights and care can—for traumatized and pregnant women and girls—eradicate life.


[1] 410 U.S. 113 (1973); Tania Kohut, Donald Trump Stands by Campaign Promise to Overturn Roe v. Wade, [small-caps]Global News[end-small-caps] (Nov. 14, 2016, 12:48 PM), https://globalnews.ca/news/3065226/donald-trump-stands-by-campaign-promise-to-overturn-roe-v-wade/; President-Elect Trump Speaks to a Divided Country, [small-caps]60 minutes[end-small-caps] (Nov. 13, 2016), https://www.cbsnews.com/news/60-minutes-donald-trump-family-melania-ivanka-lesley-stahl/.

[2] Pain-Capable Unborn Child Protection Act, H.R. 36, 115th Cong. (2017).

[3] Pain-Capable Unborn Child Protection Act, S. 2311, 115th Cong. (2018).

[4] H.R. 36 § 2(12)–(13).

[5] S. 2311.

[6] Id.

[7] For related press coverage, see, for example, Adam Liptak et al., How a Supreme Court Shaped by Trump Could Restrict Access to Abortion, [small-caps]N.Y. Times[end-small-caps] (Aug. 14, 2018), https://www.nytimes.com/interactive/2018/08/14/us/roe-v-wade-explainer.html.

[8] For a partial exception to my claim that the psychological and emotional conditions exclusion was largely ignored, see Fact Sheet: H.R. 36, the So-Called “Pain-Capable Unborn Child Protection Act”, [small-caps]U.S. House Committee on Judiciary[end-small-caps] (Oct. 3, 2017), https://democrats-judiciary.house.gov/letters/fact-sheets/fact-sheet-hr-36-so-called-pain-capable-unborn-child-protection-act.

[9] H.R. 36 § 1532(b)(2)(B)(i).

[10] It is significant to note that there is no general health exception to the ban on abortion: Negative medical consequences, whether physical or psychological, are not acknowledged unless they are “life-endangering.”  Id.

[11] 274 U.S. 200 (1927).

[12] See generally [small-caps]Sharon L. Snyder & David T. Mitchell, Cultural Locations of Disability[end-small-caps] (2006).

[13] Buck, 274 U.S. at 207.

[14] Id.

[15] Id.

[16] Id. at 205, 207.

[17] Id. at 207; Pain-Capable Unborn Child Protection Act, H.R. 36, 115th Cong. § 1532(b)(2)(B)(i) (2017).

[18] Buck, 274 U.S. at 207.

[19] [small-caps]Snyder & Mitchell[end-small-caps], supra note 12.

[20] See generally [small-caps]Marcel Rychlak, Institutionalized Racism and the Eugenics Movement in the USA During the Early 20th Century[end-small-caps] (2017).

[21] See generally [small-caps]Ellen Samuels, Fantasies of Identification: Disability, Gender, Race[end-small-caps] (2014).  The term “fakery” is, among other things, a useful colloquialism in critical disability theory.  It illuminates the relationship between a set of different stereotypes, practices, and policies predicated on the notion that disability is often fabricated in order to secure supposed illicit gains or benefits.

[22] [small-caps]Donald J. Trump, Time to Get Tough: Make America Great Again![end-small-caps] 77 (2015).

[23] Id.

[24] For related discussion, see Daniel Vigo et al., Estimating the True Global Burden of Mental Illness, 3 [small-caps]Lancet Psychiatry[end-small-caps] 171 (2016).

[25] See, e.g., Alan A. Baumeister et al., Prevalence and Incidence of Severe Mental Illness in the United States: An Historical Overview, 20 [small-caps]Harv. R. Psychiatry[end-small-caps] 247 (2012).

[26] Ellen M. Janssen et al., Review of the Evidence: Prevalence of Medical Conditions in the United States Populations With Serious Mental Illness, 37 [small-caps]Gen. Hosp. Psychiatry[end-small-caps] 199 (2015).

[27] Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12208, 12210 (2012).  For instance, some expressions of addiction, and “transvestitism” are explicitly excluded from the definition of disability qualifying for protection.

[28] See, e.g., Matthew J. Friedman & Paula P. Schnurr, The Relationship Between Trauma, Post-Traumatic Stress Disorder, and Physical Health, in [small-caps]Neurobiological and Clinical Consequences of Stress: From Normal Adaptation to Post-Traumatic Stress Disorder[end-small-caps] 507 (Matthew J. Friedman, Dennis S. Charney, & Ariel Y. Deutch eds., 1995).

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