This podcast accompanies the article The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans.

Transcript

00:00

In Louisiana, low-income communities and communities of color disproportionately bear the harmful health effects that result from living near the state's countless oil refineries, petrochemical plants, and natural gas facilities. Many of the environmental toxins that flow from these industrial sites produce fetal impairments. At the same time, the Louisiana legislature recently passed a disability selective abortion ban, which would prohibit abortions that are sought because the child will be born with a disability. Read together, these two efforts, which are replicated in states across the US raise important and complex questions at the intersection of reproductive and environmental justice.

00:43

Welcome to the California Law Review podcast. Our goal is to provide an accessible and thought-provoking overview of the scholarship we publish. Today, we will be discussing The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans, a piece by Berkeley Law Professor Khiara Bridges, published in Issue 2 of Volume 110 in April of 2022. Professor Bridges, thank you so much for taking the time to talk with us today about your article.

01:08

Oh, thanks for the invitation. It's a pleasure.

01:11

So to begin with, can you summarize your main argument in this piece?

01:14

Yeah, so the argument is just about being attentive to the combination of environmental injustices and these new kinds of restrictions on abortion access, disability-selective abortion, and the article puts those two phenomenon, phenomena, in conversation and notes that it is likely that it will result in a landscape in which people of color have more impairments, health impairments, and disabilities. And I'm worried about the naturalization of that state of affairs. The possible perception that it's just the way things are that people of color, have more health impairments have more disabilities than their white counterparts.

02:04

And before we get to these important interventions, your article makes, I'm hoping you could provide us a bit of background. So, could you describe some of the ways in which environmental toxins cause fatal impairments?

02:14

Yes, so it's kind of one of those things where we have observed it, but there's no, you know, experiments that prove as much and as much as you know, to do what is the, you know, gold standard of scientific proof to show causation, you know, to show that a particular chemical causes fetal impairment, you would need to expose a control group to no toxins and another group to toxins and then see what happens with their fetuses that they gestate. And of course, that's wildly unethical. But there is good evidence that a range of chemicals, a range of toxins, impair fetal health, and you know, things ranging from the chemicals in air pollution, the chemicals produced as a result of fracking, lead, of course, mercury, of course, all of these chemicals. There's good evidence out there that shows that they produce a range of fetal impairments, you know, ranging from neurological injuries, physical injuries, and, you know, heart defects, things of that nature. So, there's, there's, we should we should feel safe. And knowing that exposing people with a capacity for pregnancy as well as people without the capacity for pregnancy to these toxins, is just bad for for fetal health. And I, you know, actually want to pause and just underscore that point, that it's not just that being exposed to these toxins when someone it's gestating a fetus, that's when the harm happens. There's evidence that these these toxins damage, eggs as well as sperm, before a fetus is even, you know, before conception even happens before a fetus even exists. So being exposed to toxins at any point during the lifecycle when one is of reproductive age, it's just that, you know, bad for fetal health.

04:24

Great. And could you describe to us how these environmental injustices and their resulting reproductive harms fall disproportionately on people of color and poor people?

04:32

Right, absolutely. So, you know, that's one of the interventions of the environmental justice, movement, environmental justice as a framework. Environmental Justice, you know, as a framework is is a response to traditional environmentalism. And as much as traditional environmentalism and the traditional environmental protection movement tended to be concerned with wildlife and tended to be concerned with flora, you know, protecting, you know, plants and water systems and so on. And of course, that's incredibly important. But what fell outside of their sort of ambit of concern was like, people, and especially built environments. And so environmental justice, the intervention of that movement was to say, well, you know, let's let's not only be concerned about wildlife and unbuilt environments, but also the places where people live. So, what did our communities look like? Do we have any green spaces in there? Do, are we exposed to pollution, as a result of not just you know, whether we live from it close to a highway or not, but also in the course of our jobs? Is it in our paint, is it in our soil, in our communities? So environmental justice kind of centers, that the people right, and also specifically people of color, for people of color, tend to not to be of concern to traditional environmental protection. And one of the sort of primary concerns of environmental justice is an interrogation into how some communities just disproportionately bear the burdens of industrialization and industrial processes, while other communities disproportionately, you know, enjoy the benefits of it. And it has been historically true that people of color disproportionately bear the burdens. And it's important for me to explain that this is true, even when one controls for class, a host of studies have shown, starting from the 1980s, have shown that even people of color with some degree of class privilege, their air quality, the communities that they live in, have poorer air quality, than the communities have their white counterparts. They have poor, you know, access to food, soil quality, and so on and so forth. So, this is not just a problem of class, you know, we should very much be concerned about the violence of poverty. But it's not just a function of class. This is a race problem. This is something that is, that people of color, even when they enjoy some degree of class privilege can expect to live in unhealthier environments and unhealthier communities.

07:32

And then as a final follow up, could you describe just what the reproductive justice movement is?

07:37

Yes, reproductive justice is a response in some ways to the reproductive rights movement. Reproductive rights movement, it's so funny because I just had a conversation about this, or just the other day, where I said that I write and teach reproductive rights. And the person who I was talking to said, well, in the Supreme Court, they're going to hand down jobs this summer. And the abortion right is going to be you know, eliminated or eviscerated. And so that is just kind of a testament to what reproductive rights has come to mean, and the popular mind reproductive rights has come to mean abortion rights. And this is in part true because the mainstream reproductive rights organizations concern themselves kind of exclusively with fighting for access to abortion and fighting for protection of the abortion right. So, the reproductive justice framework is a response to that myopic kind of focus on abortion rights. And reproductive justice says, you know, when we when we broaden our focus beyond the concerns of you know, affluent white people with a capacity for pregnancy, affluent white cis women, who have tended to be concerned about abortion rights, to the exclusion of everything else, because abortion restrictions were the reproductive injustice that they experienced, because society was very interested in making sure that they reproduce, you know, often, produce, you know, white babies for a white future. When we broaden our focus beyond the reproductive oppression experienced by affluent white cis women, we saw that there were a range of things that were limiting people's capacities when it comes to their reproductive lives. And so yes, like people need to have access to abortion. But we need more than rights because rights kind of in our, you know, constitutional structure, rights tend to mean like, freedom from governmental intervention. So, when true access means that, you know, for those who are marginalized for those who are poor, for those with disabilities, those who are young, those who are undocumented, we need some sort of help in accessing abortion. We need in transportation, we need childcare, we need the money to actually pay for the procedure. And then even broader than that, we need access to contraception. Right, to prevent pregnancy in the first instance, we need sex education, so that we can control, so that we have knowledge about how to avoid pregnancy if that's what we want. So, reproductive justice says, okay, so the right not to become a parent is incredibly important. But then what about also the right to become a parent? So, we will be concerned about, you know, infertility, and especially, you know, state sanctioned infertility is what I've talked about in the Dysgenic State, how the state is kind of not protecting its citizens from the toxins that might result, you know, the effects of what of exposure would be to render somebody incapable of either becoming pregnant in the first instance, or sustaining a pregnancy. So, okay, so the right not to become pregnant is incredibly important in the reproductive justice framework, the right to become pregnant. Okay. So, infertility, we're concerned about that, incarceration, we're concerned about that. And then what about the right to parent the children that one has as well. When we see, when we broaden our focus to look at, you know, are people capable of parenting their children with dignity, we'll see a lot of systems that denied them that. The family regulation system also known as the Child Protection System, for example, you know, that system rips kids away from their parents every single day. And the fault of their parent is not because the parent doesn't love them, or a parent is abusive, but rather, the parent is poor, or has a, you know, substance use disorder, or has a mental illness. So, they need support, and care, as opposed to coercion. So, again, reproductive justice framework is much broader than just a narrow focus on the legal right to an abortion, which is what the reproductive rights framework tends to be focused on. So, that's why this article, Dysgenic State, is inspired by or is operating within the reproductive justice framework, because I'm looking at how environmental injustices kind of narrow our worlds when it comes to reproduction; how it denies us the ability to become pregnant in the first instance. And then also to raise, you know, children in healthy environments.

12:35

Thank you so much for that background. And you alluded to this a bit in your previous answer, but turning to kind of a central argument of your paper, you describe a situation where low income communities and communities of color are disproportionately affected by environmental harms that impair fetal health. And then at the same time, states are seeking to prevent individuals from having abortions because the fetus has been diagnosed with one of these health impairments. So, can you begin by describing to us what a reasons-based abortion ban is, and then specifically what a disability-selective abortion ban is?

13:04

Sure. So, it's sad that this article might become anachronistic fairly soon. But ever since Roe v. Wade was passed, and you know, or came down, ever since the court decided Roe v. Wade in 1973, anti-abortion advocates have been looking to narrow the right, leading ultimately to its, you know, elimination. And so, we call this incrementalism. Right. So, they've been passing laws that incrementally chip away at the abortion right. And the reason why I say that this article might become anachronistic, because you know, in we're recording right now, the Supreme Court is probably as we speak, writing the opinion and Dobbs v. Jackson Women's Health Organization, in which petitioners have asked the court to overturn Roe v. Wade, altogether. And so, if Roe v. Wade falls, then anti-abortion advocates will no longer need to seek up you know, Roe's evisceration incrementally; rather, they have what they've been fighting for since 1973, which is the overturning of Roe altogether. But today, let's say March 2022, it has been the tactic the strategy of anti-abortion folks to just incrementally just make abortion less accessible, incrementally make it harder for people to access abortion, so on and so forth. And so, these reasons-based abortion bans are kind of, are definitely like the new, it's cutting edge, in a sense, let me drop an asterix next to that. It's like a cutting edge, it's kind of a new approach to narrowing the abortion right and making abortion less accessible. And so, reasons-based abortion bans attempt to prevent abortions that are pursued for certain reasons. And so, we have three iterations of them now: sex-based abortion bans, race-based abortion bans, and disability-selective abortion bans. Sex based or sex-selective abortion bans, those purport to respond to the fact that in some places, in some countries, there's a son preference. And so, some people are, would terminate a pregnancy when they find out that the fetus that they carry would be identified female at birth. And so these sex-selective abortion bans seek to prevent people from terminating pregnancies because the fetus would be identified female at birth. Race-selective abortion bans (it's so hard for me to say that without rolling my eyes, it doesn't make sense), but they purport to respond to the phenomenon that black people with a capacity for pregnancy just have a higher abortion rates than their white counterparts. And that is true because of institutional racism. It's true because black folks don't have access to contraception, they go to schools where they're not, you know, given sex education. They don't have just health care period, let alone you know, reproductive health care. They live in poverty, right, disproportionate rates of poverty. And so higher abortion rates, it's simply a function of that marginalization. So, race-selective abortion bans purport to respond to this phenomenon by preventing people from terminating a pregnancy because the fetus is black. It's just ridiculous. If one is, so if one is interested in lowering black people's abortion rates, one wouldn't do it coercively; one would do it by expanding opportunities and making it so that people are living, humane, in humane conditions. And then finally, disability-selective abortion bans purport to prevent abortions when people are terminating the pregnancy because the fetus has a disability of some sort, has an impairment. And I, you know, in the article, I'd say like that these are kind of different from race-selective abortions, and sex-selective abortions, insofar as sex-selective abortions do happen, right? Whether it's a problem, or whether it even occurs with some, any degree, of frequency in the US, now that's a different question, but it certainly happens. Race-selective abortion bans are a figment of the conservative imagination, or rather, let me just say, race-selective abortions, are a figment of the conservative imagination, but disability-selective abortions actually happen. There's good evidence that people do terminate pregnancies when they discover that the fetus has an impairment, that the fetus will have Down Syndrome, that the fetus will have you know, spinal bifida, you know, a range of conditions. And so, these bands purport to respond to that, that truth by preventing people from terminating their pregnancy for those reasons.

18:51

I guess regarding these disability-selective abortion bans, it seems that at least at first glance, and your piece notes this, one might argue that these bans are anti-eugenic because they prevent abortions of children who may have been targeted by the eugenics movement. But your article, of course, argues that this perspective constitutes a gross misreading of history. And in fact, in the context of the environmental injustices that we talked about earlier, these bans actually function to produce the goals of the eugenics movement. So, could you walk us through how you reach this conclusion? And I guess describe for us what the dysgenic state is?

19:22

Yeah, sure. So, in the litigation surrounding disability-selective abortion and disability-selective abortion bans, and not just in the litigation surrounding it, but just in conversation, you know, around it. Conservatives have described disability-selective abortions as eugenic, and disability-selective abortion bans as anti-eugenic, so we're preventing you know, eugenics from happening. And then, you know, this position got its most, I wouldn't say articulate, but extensive platform in Justice Thomas's concurrence in Box v. Planned Parenthood, where he just says "eugenic" a million times, and he describes seeking to terminate a pregnancy because the fetus has an impairment as eugenic, and so therefore, these abortion bans would be anti-eugenic. So, to describe these abortions as eugenic is to misunderstand history. It's to kind of just ignore what the eugenics movement was actually about. But I think probably the most important point to note is that eugenics was a state sponsored program. And it was the state making decisions about who should and should not reproduce. And so, one of the most famous, I guess, the most famous cases about eugenics was Buck v. Bell, in which Carrie Buck was forced to endure a nonconsensual sterilization because she was identified as a quote on quote, "imbecile." And so, it wasn't Carrie Buck, like, you know, I don't, if I have a child, my child might have a disability, rather, it was the state that decided that Carrie Buck was not going to be an adequate parent and was not an adequate person who should reproduce. And so, when families, when individuals are making decisions about whether or not to carry to term a pregnancy, that in which the fetus has a disability, the state is not involved at all, these are, I think it's accurate to say like, these are difficult decisions, right, that people that people wrestle with. And if they ultimately decide that they are incapable of parenting a child with a disability, that is a, that is an individual kind of assessment, it has nothing to do with state coercion. I want to just elaborate a bit on that point, which is, there is an incredible cruelty involved with the state saying, "You must bear a child with a disability," when we live in a neo liberal present, where the state is advocating responsibility for the care of its citizens. We have a terrible arrangement when it comes to supporting families. We don't support families with, you know, children without disabilities, and we certainly don't adequately support families when children have disabilities. And we don't support people with disabilities. You know, we have a number of decisions that have rolled back the protections of the Americans with Disability Act. The, you know, Right is adamant about eliminating health care; health care that people with disabilities need in order to, you know, be independent and go out into society and, you know, be, you know, contribute to society in the way that you know, most the right values. And so, there's an incredible irony, you know, and a cruelty involved in a state that would compel people to bear children with disabilities and then not help them care for the children with disabilities. So, that's what we're facing when we're talking about these disability-selective abortion bans. You asked me how that arrives at the dysgenic state. And I, you know, I, the analysis that I conduct in the article is to say, you know, first we have a state that produces impairment in its citizenry, and not just in its citizenry at large, but disproportionately its citizenry of color. And the state produces that disability by not regulating industry, by not prohibiting the production of these chemicals or the use of these chemicals in industrial processes. So first, the state refuses to protect its citizens from toxins. And insofar as it refuses to protect its citizens from toxins, it produces, the impairments that these, that we know these toxins produce, and then the state turns around and says, "And then you must bear the child that has been injured by these toxins." And I call that the dysgenic state. It's a state that is, you know, like actively producing an impaired citizenry and again an impaired citizenry of color. And this is diametrically opposite to the eugenic state, which purported to be interested in and producing citizenry that was free of, of impairment.

25:30

Yeah, as a final point, your paper describes how the dysgenic state functions to reaffirm the concept of biological race. Could you tell us a bit about that argument?

25:40

Right. So, one of the moves that I make in the paper is to say, okay, so, the eugenic state was interested in producing like, you know, this citizenry that had awesome genes, and by awesome genes, they're just talking about wealthy white people. And in the minority- Sorry, wealthy, white people without disabilities. And then in, you know, in the minority, would be people of color, poor people, people with disabilities, like, you know, there's a very genetic determination, determinism in this right, as if, you know, genetics determines poverty; as if genetics, you know, as a matter of course, determines disability, and so on, and so forth. So, there's genetic determinism, but that was just the eugenic, you know, belief. But in my paper, I tried to underscore that this is kind of like the state of affairs that the dysgenic state would produce, right, the state that doesn't protect its citizenry from toxins, but then forces the citizenry to bear, you know, fetuses and children that have been harmed by those toxins. White people disproportionately live in the pristine environments, right? White people disproportionately live in those areas where air quality is awesome, water quality is great, soil quality is dope. Like, so, they're not being exposed, you know, this is an environmental justice framework and intervention; they're just not being exposed to these toxins that harm fetuses as frequently as their counterparts of color. And so, it means that their fetuses are not going to be impaired by these toxins as frequently as the fetuses of people of color. And then we also have to sort of layer in the reproductive justice intervention, which is to say, even if we have an abortion right, or even if we have a disability-selective abortion ban on the books, some people are going to be able to, you know, get around the ban, and other people will not, and the people who are able to get around the ban, the people who will be able to travel to places where there is no disability-selective abortion ban, the people who will be able to pay for the abortion, the people who will be able to know an obstetrician, who would you know, hook them up, you know, perform the termination, despite the prescription in the law; those people are going to be privileged; those people are disproportionately white. So, white people not only will avoid the toxins that impair fetal health in the first instance; they'll be able to get around the disability-selective abortion ban. On the other hand, people of color are disproportionately exposed to these toxins. We've already talked about that. But people of color disproportionately find these abortion restrictions unsurpassable. Right. So, they will be the ones who are actually prevented from terminating pregnancies because they, you know, might be doing it because of a diagnosis of an impairment in a fetus. So, the results, I argue in my paper is that white people are going to be able to give birth to fetuses that have not been impaired by environmental toxins. Meanwhile, people of color will be coerced to give birth to these fetuses that have been harmed by toxins. And they're more likely to have fetuses that have been harmed by toxins. And so, the state of affairs that I that I that I kind of paint in the picture is one where people of color will disproportionately have impairments. You know, we disproportionately will have spinal bifida; we disproportionately will have heart defects; we disproportionately will have, you know, and so on and so forth. I'm worried about how that will speak to these, the persistent myth of biological race. And the myth of biological race says white, Black, Asian, Native, like those are just true divisions of humanity because Asian folks have Asian genes, white folks have white genes, Black folks have Black genes, Native people have Native genes. And not only is it biological race satisfied to say, you know, that when we talk about a race, we're talking about a genetically homogenous grouping of individuals, biological race tends to say, well, then there's also different characteristics associated, you know, with those genes. So, the Asian gene tends to produce studiousness, and the Native gene tends to produce, you know, communing with nature. White gene is just awesome all around. And Black genes, well, there's criminality, there's laziness, there's sexual, you know, deviance, and then there's disability. And so, I'm very, very worried about how the dysgenic state will produce a state of affairs in which people of color, Black people, disproportionately have, you know, have impairments. And how that will speak to the truth of this notion that there's something in Black genes that just make us have spinal bifida and, you know, heart defects and so on. So, that is the punchline of the article, I suppose.

31:23

Well, Professor Bridges, thank you so much for joining us and discussing these really important arguments in your article.

31:28

Thank you. And, you know, actually, I wanted to use this as an opportunity to say, I tried really, really hard in the paper, not to be ableist. I think that, so, I think it's important for me to note that I am not arguing in the paper that disability is bad. I think disability is just, you know, it's just a part of the diversity of human forms. I also think there's a very true distinction between impairment and disability, in a sense that impairment is you know, is a characteristic of a body. And when that characteristic interacts with a hostile environment, that's how people become disabled. So, I take the, I take the lessons of critical disability studies to heart in this paper. At the same time, I do think that there is something incredibly cruel about a state that will produce impairments in the populations, while also doing nothing to render the environments in which those impairments will interact, to be less hostile, so that people are not disabled by it. So, again, I hope that I'm successful in the article. I'm open to critique around whether I actually succeed in making this critique about disability-selective abortion bans that is not in fact ableist. But that was one of the kind of tensions that I had to occupy when I was writing the paper.

33:09

Yeah, thank you for that important comment. Well, we hope you've enjoyed this episode of The California Law Review podcast. If you would like to read Professor Bridges' article. You can find it in Volume 110, Issue 2 of the California Law Review at californialawreview.org. For updates on new episodes and articles, please follow us on Twitter. You can find a list of the editors who work on this volume of the podcast in the show notes. We'll see you in the next episode.