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Excerpted From: Khiara M. Bridges, The Dysgenic State: Environmental Injustice and Disability-selective Abortion Bans, 110 California Law Review 297 (April, 2022) (382 Footnotes) (Full Document)


KhiaraBridges02North Dakota is the home of a sizeable portion of the country's oil and gas industry. Indeed, if oil companies doing business in the state maximized use of their equipment, the state could produce more than 12 percent of the nation's oil. As a direct consequence of North Dakota's oil and gas industry, the state's residents have had to contend with some significant air pollution. “According to EPA's data for 2011, over 2,200 tons of hazardous toxic air pollution--benzene, formaldehyde, and acetaldehyde--were emitted by oil and gas companies in North Dakota.” More than eleven thousand residents live within a half-mile of these operations distance that puts them at an increased risk of health impairments. While formaldehyde and acetaldehyde are certainly toxic, studies have shown a relationship between solvents like benzene, specifically, and fetal impairments. The fetal harms that have been linked to benzene and other solvents include neural tube impairments (like spina bifida and anencephaly), eye and ear impairments, and chromosomal anomalies, namely Down syndrome.

North Dakota has also welcomed hydraulic fracturing, or fracking--an unconventional method of drilling for oil and gas that involves injecting large quantities of pressurized liquid into the ground. Indeed, because of fracking, North Dakota has become the second-largest producer of crude oil in the United States. Fracking produces an incredible amount of wastewater. One research group “calculate[d] that in 2018 alone, the fracking boom [in North Dakota] generated 460 million barrels of waste water-- one barrel for each barrel of oil crude produced. That totals 19 billion gallons, or enough waste water to fill the bathtub in every household of North Dakota 623 times.” Significantly, this wastewater contains an alphabet soup of toxic chemicals--including radioactive materials, heavy metals, and hydrocarbons--as well as chemicals that are unknown because companies fail to identify them.

Because North Dakota has taken a permissive approach to regulating fracking-- “allow[ing] the spreading of wastewater on roads, on-site burial, and ... storage in often-leaky pits rather than more secure holding tanks” wastewater has contaminated the communities that are proximate to fracking sites. Many indigenous people live in these communities. One watchdog organization interviewed an indigenous woman, who reported:

“Living on the front lines of oil and gas in the Bakken, we live the impacts from spills, flaring and venting every day,” said Lisa DeVille, a resident of Mandaree on the Fort Berthold Reservation and Board Member of the Dakota Resource Council. “We don't know if our water is safe to drink. We have had many oil and gas production waste spills, including one of the largest in North Dakota, five miles north of Mandaree--one million gallons of wastewater brine spilled by Crestwood.”

Notably, studies have shown a correlation between the chemicals used and produced in fracking processes and impairments in fetuses. These chemicals include benzene and other solvents--which, as noted above, have been linked to a number of impairments in fetuses--as well as endocrine-disrupting chemicals, which have been associated with congenital heart defects.

At the same time that North Dakota has welcomed, and refused to competently regulate, an industry that inundates its residents with chemicals known to injure fetuses, the state has seen fit to pass HB 1305. Signed into law by Governor Jack Dalrymple, HB 1305 provides:

Notwithstanding any other provision of law, a physician may not intentionally perform or attempt to perform an abortion with knowledge that the pregnant woman is seeking the abortion solely ... [b]ecause the unborn child has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality.

The regulation makes it a crime for a physician to perform an abortion under these circumstances.

In one moment, the government of North Dakota fails to protect its citizens from toxins that impair fetal health. In another moment, that same government compels its citizens to give birth to health-impaired fetuses. This Article identifies these two moments--which are present not just in North Dakota, but rather can be found across the country more broadly--as the dysgenic state. Whereas the eugenic state of the early twentieth century sought to remove impairments from the population, the dysgenic state of the early twenty-first century seems committed to producing an impaired citizenry.

This Article makes two important interventions into the existing literature. First, the Article intervenes simply to identify the dysgenic state--to call out the processes that harm the health of fetuses and then compel pregnant people to carry these pregnancies to term. Second, the Article intervenes to analyze the racial stakes of the dysgenic state. What is the significance of the empirically documented fact that people of color are disproportionately exposed to environmental toxins? What does it mean that because people of color also disproportionately bear the burdens of poverty, they are the least able to avoid the constraints of abortion regulations like HB 1305? What does it mean, then, that the state produces impairments not in its citizenry generally, but in its nonwhite citizenry specifically? This is the puzzle that this Article sets out to describe and then analyze.

The analysis proceeds in five parts. Part I provides the context, historical and contemporary, for an investigation of the dysgenic state. It begins with a short history of the eugenics movement in the United States, which enlisted the state in its efforts to protect and ensure white racial purity in the early 1900s. It then pivots to the present day, describing studies that have documented that low-income people and people of color are exposed to environmental toxins in their homes, schools, communities, and workplaces more than their affluent and white counterparts. These studies show that race matters, as race is more important than class in predicting whether a community will bear the burdens of pollution.

Part II offers a clear articulation of the dysgenic state. It begins by establishing that many environmental toxins--to which low-income people and people of color disproportionately are exposed--are known to cause impairments in fetuses. This Part argues that in failing to protect its citizens from impairment-causing environmental hazards, the state is complicit in creating disability. But then, through disability-selective abortion bans, the state compels pregnant individuals to give birth to health-impaired fetuses. The state's dual role in injuring fetuses, and then forcing individuals to give birth to injured children, is what makes the state dysgenic.

Part III then introduces reasons-based abortion bans--regulations that prohibit abortion when a person seeks to terminate a pregnancy for reasons that the legislature has proscribed. After briefly discussing race- and sex-selective abortion bans, it introduces disability-selective abortion bans. Part IV then engages in a deeper examination of disability-selective abortion bans. At least part of the reason abortion opponents favor these bans is that they estrange two groups on the political left: disability rights activists and abortion rights activists. Disability rights activists and abortion rights activists have a long and troubled history, which this Part sets out. The Part then goes on to discuss the legality of disability-selective abortion bans, laying out the arguments for and against the laws' constitutionality. The Part next describes how supporters of disability-selective abortion bans have styled them as “anti-eugenic”--a styling that got its most thorough treatment in Justice Clarence Thomas's concurrence in Box v. Planned Parenthood, in which the Court decided to wait until a later day to evaluate the constitutionality of reasons-based abortion bans.

Part V concludes the analysis by comparing the racial politics of the eugenic state of the early twentieth century with the racial politics of the dysgenic state of the early twenty-first century. This Part observes that while the eugenic state (which sought to eliminate disability) and the dysgenic state (which manufactures disability) appear to be polar opposites, they are actually closely aligned. Whereas in the time of eugenics, the state attempted to manufacture white racial purity by removing impairments from the white race, in the time of dysgenics, the state manufactures a “purity” among affluent and white people by producing nonwhite and poor communities as the site for impairments. This Part ends by observing another parallel between the eugenic state and the dysgenic state: both contexts affirm the myth of biological race. The myth of biological race proposes that not only are races biologically distinct from one another, but, by virtue of this biological distinction, deficiencies and dysfunctions can be found in some races (i.e., the nonwhite ones) and not others (i.e., the white race). While the myth of biological race provided the foundational assumption of the eugenics movement, the racial politics of the dysgenic state operate in such a way that they make the myth appear true, functioning to locate deficiencies and dysfunctions--that is, impairments--in nonwhite people at birth. A brief conclusion follows.

Before beginning, it is valuable to identify three theoretical frameworks that animate the ensuing analysis: critical disability studies, reproductive justice, and environmental justice.

The foundational insight of critical disability studies is that disability is socially constructed. People with disabilities may have physical, mental, or cognitive characteristics that make it difficult--and, in many cases, impossible--for them to live full, productive, independent lives; however, critical disability studies observes that the difficulties and impossibilities that people with disabilities face are not products of their physical, mental, or cognitive characteristics, but rather a result of the way that we have organized society. Critical disability studies proposes a “social model of disability,” a paradigm that posits that societal choices are the actual font of the limitations that people with disabilities encounter. According to the social model of disability, if the person with paraplegia cannot traverse her physical environment, it is because we have decided to build an environment with stairs, as opposed to ramps that people can navigate with wheelchairs. If the person with clinical depression cannot hold down a job, it is because we have created norms around “productivity” and what it means to be a “good” employee that render people with mental illnesses unemployable. If we believe the person with an intellectual disability cannot enjoy a meaningful life, it is due to our constrained definitions of what makes a life “meaningful.” Framed in the way the social model of disability proposes, the solution to disability does not involve “fixing” the physical, mental, or cognitive characteristics of individuals that place them at a disadvantage solution that relieves society of responsibility for the marginalization of people with disabilities. Rather, the solution involves reorganizing society so that people with disabilities can fully engage with it and contribute to it.

One point of contestation within the field of critical disability studies involves the role of medicine. Because the institution of medicine has conceptualized disability, or health impairments, as something to be avoided, fixed, and eliminated, it tends to think of health-impaired individuals as suffering as a matter of course--as living a diminished, tortured life. This understanding of disability, which conceptualizes people with health impairments as having something wrong with them, has worked to subjugate and oppress people with impairments. As a consequence, scholars, activists, and advocates have been wary of medicine as an institution. There has been a sense that people with health impairments ought to reject medicine outright. They ought not to want what medicine has to offer. They ought not to want a cure. However, the relationship that health-impaired people have with medicine can be, and often is, more nuanced. Some scholars have articulated a middle position that recognizes that impairments are things that can and should be celebrated--a fact that the institution of medicine has denied in its quest to eliminate them while, at the same time, acknowledging that impairments can be painful and life-shortening. Consequently, while impairments can create community and represent the marvelous range of human variation, the interventions that medicine offers to address some impairments--interventions that can sometimes alleviate pain and extend life--can be very much desired and, sometimes, needed.

This Article stages its intervention at this middle position. It recognizes disability as worthy of celebration inasmuch as it reflects awe-inspiring variations among humans. Simultaneously, it recognizes something brutal about a state that is complicit in producing disability in the citizenry that it is supposed to protect. Moreover, it recognizes something particularly vicious about a state that would produce disability such that it is concentrated among already vulnerable and marginalized people. The tension that this Article occupies, then, is its belief that disabilities have value and deserve respect, and its critique of the state for producing the same.

The second framework that animates this Article's analysis is reproductive justice (RJ), which emerged in the 1990s as a response to traditional approaches of conceptualizing and protecting reproductive freedom. The women of color whose intellectual energies generated the RJ framework observed that most mainstream organizations that were fighting for “reproductive rights” at the end of the twentieth century were singularly concerned with protecting the right to an abortion. While the founders of RJ understood that the right to terminate an unwanted pregnancy was absolutely essential and well worth fighting tooth and nail for, they also understood that the right to an abortion did not encompass the entire universe of reproductive concerns. They believed that the reason most mainstream reproductive rights organizations focused on the abortion right to the exclusion of all of the other constraints, challenges, and coercions that people with the capacity for pregnancy face was that compelled motherhood--the consequence of the failure to protect abortion rights--was the primary constraint, challenge, or coercion faced by the wealthier, white, cisgender women who helmed and funded such organizations. While poor people and people of color, like their affluent and white counterparts, faced the threat of compelled motherhood, they were also frequently denied the ability to become mothers. Additionally, marginalized people were also deprived of the ability to parent the children that they had in humane, dignity-respecting, life-affirming conditions. The RJ framework, then, proposes that in order to protect the reproductive freedom of all people with the capacity for pregnancy--and not just those who enjoy race and class privilege--we need to struggle for the realization of a three-part program: 1) the right not to become a parent; 2) the right to become a parent; and 3) the right to parent one's children with dignity.

The RJ framework informs this Article inasmuch as it recognizes that it is a manifest injustice to be obliged to give birth to a health-impaired child. Being forced to give birth to a child--health-impaired or not--is a clear violation of the RJ tenet that a competent, humane government respects the right not to become a parent. Nevertheless, there is something especially cruel about a government that forces people to give birth to children whose health has been impaired by toxic environments that the state is complicit in creating. This is precisely what the dysgenic state does.

The third theoretical framework animating this Article's analysis is environmental justice. The environmental justice movement is a response to the insufficiency of the mainstream environmental protection movement, which historically has ignored the concerns of people of color--in part because people of color have been largely absent from mainstream organizations due to the tendency of these organizations to hire white people exclusively. Tellingly, the demographics of the environmental protection movement have not changed significantly since those who incited the development of the environmental justice movement first made their critique. While traditional environmentalism has centered the preservation of wildlife and wilderness, environmental justice has expanded the list of pressing environmental issues to include phenomena that more directly affect marginalized people, including occupational hazards, lead in soil and older housing, and unprivileged people's lack of voice in decisions regarding land use in their communities, among a plethora of other concerns. Moreover, environmental justice problematizes an issue that traditional environmentalism wholly ignored: the distributional injustices surrounding the location of hazardous facilities, with unprivileged people's communities disproportionately bearing the burdens of these universally unwanted products of industry.

The environmental justice framework animates this Article because the framework is concerned about the disproportionate environmental harms inflicted upon marginalized people. This Article reads this concern in light of studies that show that toxins in the places where marginalized people live, work, and play cause health impairments in fetuses. Thus, the state not only fails to protect marginalized people from toxic environments, but it forces them to give birth to children that bear the marks of those toxic environments. This is the cruelty that motivates this Article's analysis.

One additional note before beginning: although this Article might be described as putting reproductive justice and environmental justice in conversation with one another, this description may misrepresent the two frameworks. That is, reproductive justice fits under its umbrella of concerns everything that impacts an individual's ability to become a parent, to avoid parenthood, and to parent the children that she has with dignity. Because environmental degradation impacts a person's ability to become a parent (inasmuch as toxins cause infertility, miscarriages, and stillbirths environmental justice is already included within the ambit of the reproductive justice framework. This is to say that environmental justice does not need to be put “in conversation with” reproductive justice: it is already a part of the framework. Similarly, because environmental justice is concerned not only with the fact that subordinated people disproportionately bear the burdens of environmental degradation, but also the range of harms that this environmental degradation inflicts on subordinated peoples--including reproductive harms--reproductive justice is already included within the ambit of the environmental justice framework.

[. . .]

The dysgenic state is what happens when the impulse to save fetuses coincides with a failure to protect citizens from environmental toxins. That is, the dysgenic state is a marriage between two distinct interest groups: while one interest group insists upon protecting fetuses from abortion, another interest group reminds that it is expensive to protect certain communities from environmental harms. Indeed, regulating toxic industries costs money: it threatens the profits of the corporations that would be forced to internalize the costs of the externalities that they impose on vulnerable people and communities. To protect coffers, the state has decided to let capitalism go unregulated--to let the free market operate freely. The intersection of free market enterprise with the struggle to ensure that every fetus that is conceived is carried to term has given us the dysgenic state.

As this Article makes clear, the dysgenic state functions as a successor of sorts to the eugenic state of a century ago: like its twentieth-century counterpart, dysgenics operates to generate a white racial purity against a backdrop of nonwhite impairment. The analysis in this Article, then, disproves the claim that disability-selective abortion bans are “anti-eugenic.” In fact, when such bans are set in a context of environmental injustice, they are profoundly eugenic, producing results that would make eugenicists of the early twentieth century smile. We might remind these bans' proponents that there is an irony--and cruelty--involved in compelling the births of fetuses with disabilities without simultaneously eliminating the processes that disable fetuses. Indeed, there is an inhumanity involved in struggling to save fetuses with impairments without also struggling against the industrially sponsored, state-supported production of fetal impairment.

We could interrupt the operation of the dysgenic state by battling disability-selective abortion bans, working to ensure that they are struck down in court or repealed by legislatures. But, as this Article makes clear, success on this front would do nothing to protect fetuses--and people--from the injury that degraded environments inflict. So, in order to make dysgenics--and eugenics--a phenomenon of the past, we need to fight for environmental justice as well. We must not settle for partial victories.

Professor of Law, UC Berkeley School of Law.

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