A Jurisprudence of Doubt: Disability-Based Abortions, Eugenics, and the Undue Burden Test Post-Dobbs

Abstract

In 1973, in Roe v. Wade, the Supreme Court found, and immediately limited, a right to abortion. Since this landmark decision, state statutes have repeatedly challenged its scope. After the 1992 Planned Parenthood of South-eastern Pennsylvania v. Casey decision and until the 2022 Dobbs v. Jackson Women’s Health Organization decision, the accepted standard for evaluating such statutes has been the undue burden test, which requires that courts assess whether state laws place a substantial obstacle in the path of women seeking abortion. But reason-based abortions, or abortions sought on the basis of race, sex, and disability, did not fit neatly within the undue burden test and the Court in Dobbs failed to provide an alternative solution. Since 2013, eleven states have enacted restrictions limiting reason-based abortions. In April 2021, prior to the Court’s ruling in Dobbs, the U.S. Court of Appeals for the Sixth Circuit created a circuit split when it held in Preterm-Cleveland v. McCloud that disability-based abortion restrictions are constitutional as a measure of preventing eugenics. Perhaps even more surprising was the Preterm-Cleveland concurrence, which suggested not only that such restrictions are permissible, but that reason-based abortions themselves are a form of eugenics and thus impermissibly discriminatory under the Fourteenth Amendment. This Note examines the argument posited by the Pre-term-Cleveland concurrence and reviews the pattern of inconsistent decisions under the undue burden framework prior to Dobbs to demonstrate the test’s inability to settle the debate over disability-based abortion restrictions. The Note then argues that courts should begin their analysis of disability-based abortions with the Equal Protection Clause because such abortions represent a return to the discriminatory practices of early eugenics movements.