Disability-Selective Abortion and the Americans with Disabilities Act

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We explore the collateral impact that law can have on conduct it does not regulate: a concept that we called expressive externalities. We examine this phenomenon through the relationship between the Americans with Disabilities Act and the incidence of abortion after a diagnosis of Down syndrome. Applying regression analysis to natality data to control for fetal testing rates, prenatal care history, and demographic data, we find a statistically significant decline in Down syndrome birthrates by approximately 15 children per 100,000 after the ADA was passed. Our findings suggest that the ADA may have prevented the existence of the very people it was designed to protect. We explain this paradox by showing how media coverage of people with disabilities surrounding the ADA’s enactment reinforced negative expectations about raising a child with Down syndrome. Our study reveals the unintended effects that civil rights law can have on ostensibly unrelated conduct.

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Utah Law Review, p. 845, 2009