1 For an overview of these two models, see Crossley, Mary, The Disability Kaleidoscope, 74 NOTRE DAME L. REV. 621, 649-59 (1999).Google Scholar While there are many adherents of the social model, few if any scholars have actively affiliated themselves with the medical model. Disability advocates devised the social model to describe the views espoused by much of the public and the academy. See TOM SHAKESPEARE, DISABILITY RIGHTS AND WRONGS 15-16 (2006).

2 For a recent statement to this effect, see generally Samaha, Adam M., What Good is the Social Model of Disability?, 74 U. CHI. L. REV. 1251 (2007).CrossRefGoogle Scholar

3 Phrased differently, adherents of the social model seek to eliminate disability by restructuring society so that a “disabling” trait is recognized as a valued difference, whereas adherents of the medical model seek to eliminate disability by eliminating the trait itself. For a discussion of this contrast, see, for example, Crossley, supra note 1, at 649-59. Adherents of the social model, however, do not only speak of the value of disability with reference to social reconstruction. See, e.g., Gary L. Albrecht, Katherine D. Seelman & Michael Bury, Introduction, Formation of Disability Studies, in HANDBOOK OF DISABILITY STUDIES 1, 2 (Gary L. Albrecht, Katherine D. Seelman & Michael Bury, eds., 2001) (“Disability as difference enriches society and creates new sets of powerful social bonds, responsibilities, and opportunities for individuals, families, and society.”).

4 For a discussion of these efforts, see, for example, SHAKESPEARE, supra note 1, at 55-67.

5 See, e.g., SAMUEL R. BAGENSTOS, LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT 16-18 (2009).

6 This argument draws its inspiration from ROBERT A. BURT, DEATH IS THAT MAN TAKING NAMES: INTERSECTIONS OF AMERICAN MEDICINE, LAW, AND CULTURE (2002).

7 The terms “valued,” “devalued,” and “neutral” require some elaboration. When I use the first two terms, I mean to describe the imposition of meaning on the notion of disability, as either a valued or a devalued social category. When I use the term “neutral,” I mean to describe the view that disability is not a meaningful social category. If disability is neutral, the argument goes, it is not worth our attention and, accordingly, distinctions made on the basis of disability are neither appropriate nor inappropriate; while the traits we label as disabilities may be relevant in a given calculus, their labeling does not render them relevant or irrelevant.

8 In this Article, “selective non-treatment” refers to decisions concerning neonates, and “selective abortion” refers to decisions concerning fetuses.

9 The disability community is not a monolithic entity. Throughout this Article, descriptions that express a single viewpoint of the community seek to capture majority viewpoints articulated by advocacy groups and academics that identify as disability advocates. Use of the terms “we” and “our,” moreover, are not intended to refer only to individuals with or without disabilities, but to all individuals.

10 For a careful history of the Baby Doe case, see JEFF LYON, PLAYING GOD IN THE NURSERY 21- 58 (1985).

11 The discussions are recounted in id. at 21-29.

12 Baker, John G., Declaratory Judgment in the Infant Doe Case, 2 ISSUES L. & MED. 77, 79 (1986)Google Scholar (discussing In re Infant Doe, No. GU8204-004A (Monroe County Cir. Ct. Ind. Apr. 12, 1982)).

13 Robertson, John A., Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 STAN. L. REV. 213, 217-35 (1975).CrossRefGoogle ScholarPubMed

14 LYON, supra note 10, at 30.

15 Baker, supra note 12, at 80.

16 June 8, 1982, Letter of Judge John Baker to Anonymous Person, 2 ISSUES L. & MED. 81, 82 (1986).

17 Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 617 n.5 (1986).

18 See LYON, supra note 10, at 36-37. The writ was denied. Infant Doe v. Bloomington Hosp., 464 U.S. 961 (1983).

19 See Paige, Constance & Karnofsky, Elisa B., The Antiabortion Movement and Baby Jane Doe, 11 J. HEALTH POL. POL’Y & L. 255, 258 (1986).Google ScholarPubMed

20 See Brown, Lawrence D., Civil Rights and Regulatory Wrongs: The Reagan Administration and the Medical Treatment of Handicapped Infants, 11 J. HEALTH POL. POL’Y & L. 231, 233-34 (1986).Google ScholarPubMed

21 See Paige & Karnofsky, supra note 19, at 258.

22 Id. at 261.

23 For a summary of the rise and fall of the Baby Doe regulations, see Leading Cases, “Baby Doe” Regulations, 100 HARV. L. REV. 285, 285-295 (1986).Google Scholar

24 Treatment of Infants Born with Handicapping Conditions: Hearing on H.R. 6492 Before the Subcomm. on Select Educ. of the H. Comm. on Educ. and Labor, 97th Cong. 53 (1983) (statement of the Association for Retarded Citizens).

25 Id. at 51-52.

26 Biklen, Douglas P. & Ferguson, Philip M., In the Matter of Baby Jane Doe: Does Reagan Really Agree with Us?, 15 SOC. POL’Y 5, 8 (1984)Google ScholarPubMed (quoting the position statement of the Association for People with Severe Handicaps).

27 Johnson, Mary, Killing Babies: Left and Right, 6 THE DISABILITY RAG 22, 22 (1985).Google Scholar

28 Johnson, Mary, Who is Responsible for Baby Doe, 42 PUB. WELFARE 7, 7 (1984).Google Scholar

29 Hahn, Harlan, Public Policy and Disabled Infants: A Sociopolitical Perspective, 3 ISSUES L. & MED. 3, 5 (1987).Google ScholarPubMed

30 Id. at 24.

31 Paige & Karnofsky, supra note 19, at 260-61.

32 See, e.g., Brief for Ass’n for Disability Rights Educ. & Def. Fund, Inc. et al. as Amici Curiae Supporting Respondents at 11-59, Heckler v. Am. Hosp. Ass’n, 476 U.S. 610 (1986) (No. 84-1529).

33 See id. at 34-51.

34 Am. Acad. of Pediatrics v. Heckler, 561 F. Supp. 395, 398-401 (D.D.C. 1983).

35 Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 610 (1986).

36 For a summary of the medical profession's legal challenges, see Haddon, Phoebe A., Baby Doe Cases: Compromise and Moral Dilemma, 34 EMORY L.J. 545, 572-79 (1985).Google ScholarPubMed

37 Am. Acad. of Pediatrics, Principles of Treatment of Disabled Infants, 73 PEDIATRICS 559, 599 (1984).Google Scholar

38 Id.

39 For a summary of the legislative outcome, see generally James Bopp, Jr. & Thomas J. Balch, The Child Abuse Amendments of 1984 and Their Implementing Regulations: A Summary, 1 ISSUES L. & MED. 91 (1985).

40 Child Abuse Amendments of 1984, 42 U.S.C. § 5106g (2006).

41 See Cynthia M. Powell, The Current State of Prenatal Genetic Testing in the United States, in PRENATAL TESTING AND DISABILITY RIGHTS 44, 44-46 (Erik Parens & Adrienne Asch eds., 2000).

42 See Suter, Sonia M., The Routinization of Prenatal Testing, 28 AM. J.L. & MED. 233, 236 (2002).Google ScholarPubMed

43 Powell, supra note 41, at 45.

44 ACOG Practice Bulletin No. 88: Invasive Prenatal Testing for Aneuploidy, 110 OBSTETRICS & GYNECOLOGY 1459, 1462 (2007).Google Scholar

45 See Chachkin, Carolyn Jacobs, What Potent Blood: Non-Invasive Prenatal Genetic Diagnosis and the Transformation of Modern Prenatal Care, 33 AM. J.L. & MED. 9, 9 (2007).CrossRefGoogle ScholarPubMed

46 See, e.g., Kramer, Ralph L. et al., Determinants of Parental Decisions After the Prenatal Diagnosis of Down Syndrome, 79 AM. J. MED. GENETICS 172, 172-73 (1998)3.0.CO;2-P>CrossRefGoogle ScholarPubMed (finding an elective termination rate of 86.9%). Some scholars have argued that these studies inadequately account for reporting problems and geographic variation, and place the abortion rate as low as fifty or sixty percent. See Dixon, Darrin P., Informed Consent or Institutionalized Eugenics? How the Medical Profession Encourages Abortion of Fetuses with Down Syndrome, 24 ISSUES L. & MED. 3, 5-7 (2008).Google ScholarPubMed

47 Paige & Karnofsky, supra note 19, at 267 n. 12 (emphases omitted).

48 Id.

49 The Association for Retarded Citizens and the American Association on Mental Deficiency were renamed as the Arc and the American Association on Intellectual and Developmental Disabilities, respectively.

50 Erik Parens & Adrienne Asch, The Disability Rights Critique of Prenatal Genetic Testing: Reflections and Recommendations, in PRENATAL TESTING AND DISABILITY RIGHTS, supra note 41, at 3, 20.

51 Id. at 13. For an additional overview of this objection, see Kaplan, Deborah, Prenatal Screening and Its Impact on Persons with Disabilities, 36 CLINICAL OBSTETRICS & GYNECOLOGY 605, 609-10 (1993).CrossRefGoogle ScholarPubMed

52 Parens & Asch, supra note 50, at 28-29.

53 Marsha Saxton, Why Members of the Disability Community Oppose Prenatal Diagnosis and Selective Abortion, in PRENATAL TESTING AND DISABILITY RIGHTS, supra note 41, at 147, 150.

54 Adrienne Asch, Reproductive Technology and Disability, in REPRODUCTIVE LAWS FOR THE 1990S 69, 73 (Sherrill Cohen & Nadine Taub eds., 1989).

55 For a discussion of the dynamic quality of this phenomenon, see generally Abby Lippman, Prenatal Genetic Testing and Screening: Constructing Needs and Reinforcing Inequities, 17 AM. J.L. & MED. 15 (1991).

56 See, e.g., Patricia E. Bauer, What's Lost in Prenatal Testing, WASH. POST, Jan. 14, 2007, at B7; George F. Will, Golly, What Did Jon Do?, NEWSWEEK, Jan. 29, 2007, at 72.

57 Nat’l Down Syndrome Soc’y, Position Papers—Prenatal Testing, available at http://www.ndss.org/ (follow “affiliates” hyperlink, then follow “Public Relations” hyperlink, then follow “Position Papers” hyperlink, then follow “prenatal testing” hyperlink) (last visited Sept. 21, 2011).

58 Press Release, Nat’l Down Syndrome Soc’y, National Down Syndrome Society Responds to American College of Obstetricians and Gynecologists’ New Recommendations for Prenatal Testing (Feb. 14, 2007), available at http://www.ndss.org/ (follow “affiliates” hyperlink, then follow “Public Relations” hyperlink, then follow “Position Papers” hyperlink, then follow “American College of Obstetricians and Gynecologists” hyperlink).

59 Prenatal Screening and Diagnosis, NAT’L DOWN SYNDROME CONG., http://www.ndsccenter.org/resources/position1.php (last visited Sept. 21, 2011).

60 Making Decisions After a Prenatal Diagnosis, TRISOMY 18 FOUND., http://trisomy18.org/site/ PageServer?pagename=whatis_decisions (last visited June 26, 2011).

61 Press Release, Nat’l Down Syndrome Cong., The Down Syndrome Community Celebrates an Important Victory Congress Passes the Kennedy-Brownback Prenatally and Postnatally Diagnosed Conditions Awareness Act (Sept. 26, 2008), available at http://www.ndsccenter.org/gov/ archives/092608.php.

62 Prenatally and Postnatally Diagnosed Conditions Awareness Act of 2008, Pub. L. No. 110- 374, 122 Stat 4051 (codified as amended at 42 U.S.C. § 280g-8 (2008)).

63 Id.

64 Id.

65 For a discussion of the estimated budgetary impact of the bill, see CONG. BUDGET OFFICE, CONGRESSIONAL BUDGET OFFICE COST ESTIMATE: S. 1810 PRENATALLY AND POSTNATALLY DIAGNOSED CONDITIONS AWARENESS ACT 2 (2008), available at http://www.govtrack.us/data/us/ 110/bills.cbo/s1810.pdf.

66 See Lynn Harris, More “Common Ground” on Abortion?, SALON (Mar. 12, 2008, 1:50 PM), http://www.salon.com/mwt/broadsheet/2008/03/12/kennedy_brownback/.

67 Most coverage has simply sought to expose the issue. See, e.g., Gautam Naik, The Toughest Test, WALL ST. J., Oct. 25-26, 2008, at A1. Although the ACOG recommendations, blood test advances, and Palin's candidacy have increased public discussion, it has not approached the pitch of the Baby Doe controversy.

68 See Patricia E. Bauer, Congress OKs Kennedy-Brownback Disability Diagnosis Bill, PATRICIA E BAUER: NEWS & COMMENTARY ON DISABILITY ISSUES (Sept. 25, 2008), http://www.patriciaebauer.com/2008/09/25/kennedy-brownback-3/.

69 See 154 Cong. Rec. S1267 (daily ed. Feb. 27, 2008) (statement of Rep. Brownback); 154 Cong. Rec. S9341-43 (daily ed. Sept. 23, 2008); 154 Cong. Rec. H9918-20 (daily ed. Sept. 25, 2008).

70 See Paige & Karnofsky, supra note 19, at 259-60.

71 See HELGA KUHSE & PETER SINGER, SHOULD THE BABY LIVE?: THE PROBLEM OF HANDICAPPED INFANTS 194-97 (1985).

72 Bagenstos, Samuel R., Disability, Life, Death, and Choice, 29 HARV. J.L. & GENDER 425, 461 (2006).Google Scholar

73 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869-79 (1992).

74 See Paige & Karnofsky, supra note 19, at 259. For many disability advocates, abortion rights represent an independently important cause. See Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 FLA. ST. U. L. REV. 315, 317 n.6 (2003).

75 For a calculus along these lines, see Lisa Blumberg, Eugenics and Reproductive Choice, in THE RAGGED EDGE: THE DISABILITY EXPERIENCE FROM THE PAGES OF THE FIRST FIFTEEN YEARS OF THE DISABILITY RAG 218, 222-23 (Barrett Shaw ed., 1994).

76 See Bagenstos, supra note 72, at 458-59.

77 See Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (upholding the Federal Partial-Birth Abortion Act). But see Siegel, Reva B., Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart, 117 YALE L.J. 1694, 1769-73 (2008)CrossRefGoogle Scholar (arguing that the Court's focus on the woman's dignity interests does not presage an assault on abortion rights). At least one scholar has argued for antidiscrimination requirements with respect to fetal disability. See Field, Martha A., Killing “The Handicapped”—Before and After Birth, 16 HARV. WOMEN's L.J. 79, 102-04 (1993).Google ScholarPubMed

78 See, e.g., Cherry, April L., A Feminist Understanding of Sex-Selective Abortion: Solely a Matter of Choice?, 10 WIS. WOMEN's L.J. 161, 223 (1995)Google ScholarPubMed; Danis, Jodi, Recent Development, Sexism and “The Superfluous Female”: Arguments for Regulating Pre-Implanation Sex Selection, 18 HARV. WOMEN's L.J. 219 (1995).Google Scholar

79 Significant gender disparities have arisen in a few countries, most notably China and India, but the sex-selective abortion rate in those countries still pales in comparison to the abortion rates for some disability groups. See Amartya Sen, More Than 100 Million Women Are Missing, N.Y. REV. BOOKS, Dec. 20, 1990, at 61, 65.

80 See infra notes 116-20 and accompanying text.

81 Zielyk, Ihor V., On Ambiguity and Ambivalence, 9 PAC. SOC. REV. 57, 61 (1966).Google Scholar

82 For a discussion of different classifications of ambivalence, see id. at 61-62

83 SIGMUND FREUD, TOTEM AND TABOO: RESEMBLANCES BETWEEN THE PSYCHIC LIVES OF SAVAGES AND NEUROTICS 50 (A. A. Brill trans., 1918).

84 It is also possible that both sentiments may be suppressed through a denial of the existence of the entity producing those sentiments. This possibility becomes important below.

85 That is, the same ambivalent feelings may lead to diametrically opposed views in the presence of different social stimuli. See Ajzen, Icek, Nature and Operation of Attitudes, 52 ANN. REV. PSYCHOL. 27, 39-40 (2001)CrossRefGoogle ScholarPubMed (reviewing research that priming subjects had a significant effect on the consequences of their ambivalence about a given object).

86 For an overview of these practices, see generally Moseley, Kathryn L., The History of Infanticide in Western Society, 1 ISSUES L. & MED. 345 (1986).Google ScholarPubMed

87 See ARISTOTLE, POLITICS 443 (Trevor J. Saunders ed., T.A. Sinclair trans., Penguin Books, rev. ed. 1981) (“With regard to the choice between abandoning an infant or rearing it, let there be a law that no cripple child be reared.”); PLATO, REPUBLIC 186 (Albert A. Anderson ed., Benjamin Jowett trans., 2001) (“The offspring of the inferior—especially any that are deformed—will be concealed in some secret and unnamed place.”).

88 Table #4: Fathers, WARRING STATES PROJECT, UNIV. OF MASS. AMHERST, 4:01, http://www.umass.edu/wsp/comparative/law/rome/twelve/table04.html (last visited Sept. 25, 2011).

89 Quoted in ROBERT F. WEIR, SELECTIVE NONTREATMENT OF HANDICAPPED NEWBORNS: MORAL DILEMMAS IN NEONATAL MEDICINE 9 (1984).

90 See id. at 5-6.

91 See id. at 10.

92 See id. at 10-11.

93 LYON, supra note 10, at 62-63.

94 For a discussion of this phenomenon in England, see Tony Ward, Legislating for Human Nature: Legal Responses to Infanticide, 1860-1938, in INFANTICIDE: HISTORICAL PERSPECTIVES ON CHILD MURDER AND CONCEALMENT, 1550-2000 249, 249-69 (Mark Jackson ed., 2002).

95 For an overview of the prosecution of infanticide in the United States, see Oberman, Michelle, Mothers Who Kill: Coming to Terms with Modern American Infanticide, 8 DEPAUL J. HEALTH CARE L. 3, 24-58 (2004).Google Scholar

96 WEIR, supra note 89, at 21.

97 Id.

98 Id. at 11.

99 2 WILLIAM BLACKSTONE, COMMENTARIES *246-47.

100 See Joseph F. Kett, Science and Controversy in the History of Infancy in America, in WHICH BABIES SHALL LIVE?: HUMANISTIC DIMENSIONS OF THE CARE OF IMPERILED NEWBORNS 23, 26-27 (Thomas H. Murray & Arthur L. Caplan eds., 1985).

101 For a discussion of the medical profession's evolving treatment of death and abortion in the mid-19th century, see BURT, supra note 6, at 47-58.

102 See MARTIN S. PERNICK, THE BLACK STORK: EUGENICS AND THE DEATH OF “DEFECTIVE” BABIES IN AMERICAN MEDICINE AND MOTION PICTURES SINCE 1915, at 3-17 (1996).

103 Id. at 143-58.

104 Id. at 160-61.

105 Id. at 159-67.

106 For an extensive discussion of the film, see Armand Matheny Antommaria, “Who Should Survive?: One of the Choices on Our Conscience”: Mental Retardation and the History of Contemporary Bioethics, 16 KENNEDY INST. ETHICS J. 205 (2006).

107 Id. at 214-17.

108 See, e.g., David Todres, I. et al., Pediatricians’ Attitudes Affecting Decision-Making in Defective Newborns, 60 PEDIATRICS 197 (1977)Google Scholar; Shaw, Anthony, Randolph, Judson G. & Manard, Barbara, Pediatric Surgery: A National Survey of Pediatricians and Pediatric Surgeons, 60 PEDIATRICS 588 (1977).Google ScholarPubMed

109 Duff, Raymond S. & Campbell, A.G.M., Moral and Ethical Dilemmas in the Special-Care Nursery, 289 NEW ENG. J. MED. 890, 890 (1973).CrossRefGoogle ScholarPubMed The study reported that of 299 consecutive deaths in the special-care nursery, 43 were related to withholding of treatment. Id.

110 See supra notes 24-38 and accompanying text. For similar views from within the academy, see, for example, PAUL RAMSEY, ETHICS AT THE EDGES OF LIFE: MEDICAL AND LEGAL INTERSECTIONS 192 (1978).

111 See, e.g., George P. Smith, II, Murder, She Wrote or Was It Merely Selective Nontreatment? 8 J. CONTEMP. HEALTH L. & POL’Y 49, 49-71 (1992) (casting selective non-treatment as an act of “humane and enlightened kindness, or even love”).

112 For a criticism of this denial, see Arthur L. Caplan, Hard Cases Make Bad Law: The Legacy of the Baby Doe Controversy, in COMPELLED COMPASSION: GOVERNMENT INTERVENTION IN THE TREATMENT OF CRITICALLY ILL NEWBORNS 105, 111-18 (Arthur L. Caplan, Robert H. Blank & Janna C. Merrick eds., 1992).

113 See, e.g., Richard A. McCormick, The Quality of Life, the Sanctity of Life, 8 HASTINGS CENTER REP. 30, 35 (1978) (“[T]here are times when preserving the life of one with no capacity for those aspects of life that we regard as human, is a violation of the sanctity of life itself.”); MICHAEL TOOLEY, ABORTION AND INFANTICIDE 407-12 (1983) (concluding that infants under three months of age are quasi-persons subject to lesser moral concern than persons).

114 For an expression of this understanding, see Joan E. Hodgman, Withholding Treatment from Seriously Ill Newborns: A Neonatalogist's View, in LEGAL AND ETHICAL ASPECTS OF TREATING CRITICALLY AND TERMINALLY ILL PATIENTS 242, 243-44 (A. Edward Doudera & J. Douglas Peters eds., 1982).

115 See, e.g., Caplan, supra note 112, at 119-21 (describing the case of a newborn for whom doctors aggressively recommended non-treatment who subsequently became “a vivacious, charming, and outgoing kid”). Caplan describes the reaction of the child's doctors: “[t]he prospect that she might have been allowed to die filled them with nothing but dread.” Id. at 120.

116 H. Rutherford Turnbull, III, Incidence of Infanticide in America: Public and Professional Attitudes, 1 ISSUES L. & MED. 363, 370-71 (1986) (describing the statements issued by the American Association on Mental Deficiency and the Association for Retarded Citizens).

117 Paige & Karnofsky, supra note 19, at 260 (quoting Evan Kemp, director of the Disability Rights Center).

118 Id.

119 Treatment of Infants Born with Handicapping Conditions: Hearing on H.R. 6492 Before the Subcomm. on Select Educ. of the H. Comm. on Educ. and Labor, 97th Cong. 52-53 (1983) (statement of the Association for Retarded Citizens).

120 See id. at 52 (“Although the ARC recognizes the many difficulties encountered by parents and physicians … we know of a great many situations where parents facing dilemmas similar to Baby Doe have made the decision to proceed with medical treatment and the child has thrived, living a life full of ups and down [sic] as we all have.”).

121 LYON, supra note 10, at 27-33.

122 Id. at 36-38.

123 Id.

124 See Duff & Campbell, supra note 109, at 891.

125 See Albert J. Solnit & Mary H. Stark, Mourning and the Birth of a Defective Child, in PHYSICAL ILLNESS AND HANDICAP IN CHILDHOOD: AN ANTHOLOGY OF THE PSYCHOANALYTIC STUDY OF THE CHILD 181, 185 (Ruth Eissler et al. eds., 1977).

126 Philip Roos, Parents of Mentally Retarded Children—Misunderstood and Mistreated, in PARENTS SPEAK OUT: VIEWS FROM THE OTHER SIDE OF THE TWO-WAY MIRROR 13, 19 (Ann. P. Turnbull & H. Rutherford Turnbull, III, eds., 1978).

127 This was predicted at the time of passage. See, e.g., Murray, Thomas H., The Final, Anticlimactic Rule on Baby Doe, 15 HASTINGS CENTER REP. 5, 7 (1985)CrossRefGoogle ScholarPubMed (“[T]he impact of this legislation will be minimal.”).

128 See Moss, Kathryn, The “Baby Doe” Legislation: Its Rise and Fall, 15 POL’Y STUD. J. 629, 641 (1987).Google ScholarPubMed

129 See U.S. COMM’N ON CIVIL RIGHTS, MEDICAL DISCRIMINATION AGAINST CHILDREN WITH DISABILITIES 7-9 (1989).

130 Id. at 10-11.

131 See RENEE R. ANSPACH, DECIDING WHO LIVES: FATEFUL CHOICES IN THE INTENSIVE-CARE NURSERY 93-99 (1993). A few scholars claim, however, that the Amendments have produced overtreatment. See, e.g., Joy Hinson Penticuff, The Impact of the Child Abuse Amendments on Nursing Staff and Their Care of Handicapped Newborns, in COMPELLED COMPASSION, supra note 112, at 267, 268.

132 For a global history of abortion practices, see generally JOHN M. RIDDLE, EVE's HERBS: A HISTORY OF CONTRACEPTION AND ABORTION IN THE WEST (1997).

133 See Powell, supra note 41, at 44-46.

134 See KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 76-91 (1984); see also id. at 33-35 (discussing the acknowledgment of “‘fetal’ indications” in late 19th century America).

135 See id. at 79-80. Individuals who generally disfavor abortion may make an exception for fetal disability. See Daar, Judith F., Selective Reduction of Multiple Pregnancy: Lifeboat Ethics in the Womb, 25 U.C. DAVIS L. REV. 773, 812-15 (1992).Google ScholarPubMed

136 LUKER, supra note 134, at 81-82.

137 Id. at 80 (“They had been willing to tolerate a situation where what they thought of as being the life of one person (an embryo) was sacrificed to save the life of another (a woman). But it posed enormous logical (as well as ethical) problems to argue that an individual must be sacrificed for its own good.”).

138 Id. at 88-91.

139 Id. at 89-90.

140 MODEL PENAL CODE § 230.3(2) (1962) (“[A] licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect.”).

141 CAL. HEALTH & SAFETY CODE § 123466 (West 2003) (“The state may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.”).

142 For a summary of the law's approach to prenatal testing, see Ellen Wright Clayton, What the Law Says about Reproductive Genetic Testing and What It Doesn’t, in WOMEN AND PRENATAL TESTING: FACING THE CHALLENGES OF GENETIC TECHNOLOGY 131, 131-78 (Karen H. Rothenberg & Elizabeth J. Thomson eds., 1994), and Pilar N. Ossorio, Prenatal Genetic Testing and the Courts, in PRENATAL TESTING AND DISABILITY RIGHTS, supra note 41, at 308, 308-33.

143 See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 170.002 (West 2008) (allowing third term abortions if “the fetus has a severe and irreversible abnormality, identified by reliable diagnostic procedures”); UTAH CODE ANN. § 76-7-301.1 (West 2008) (“[A] woman may terminate the pregnancy if the unborn child would be born with grave defects.”).

144 See Clayton, supra note 142, at 134-35.

145 Id. at 136-38.

146 Id. at 147-51.

147 For an account of this evolution, see Suter, supra note 42, at 241-54. According to Suter, testing is “[s]o accepted a part of pregnancy … that women who reject [it] must be prepared with explanations and justifications. People ask ‘why not?’ No one asks ‘why?’” Id. at 241.

148 For a classic discussion of this phenomenon, see BARBARA KATZ ROTHMAN, THE TENTATIVE PREGNANCY: PRENATAL DIAGNOSIS AND THE FUTURE OF MOTHERHOOD 86-115 (1986).

149 See Saxton, supra note 53, at 157 (“While the ostensible justification is ‘reassurance that the baby is fine,’ the underlying communication to the mother is clear: screening for fetuses with disability traits is the right thing, ‘the healthy thing,’ to do.”).

150 See, e.g., VICKI IOVINE, THE GIRLFRIENDS’ GUIDE TO PREGNANCY: OR EVERYTHING YOUR DOCTOR WON't TELL YOU 87 (1995) (“All amnio will do for you, in all likelihood, is relieve you of some of your phantom worries about your unborn baby.”).

151 See Ossorio, supra note 142, at 309-24.

152 These claims predate the routinization of prenatal testing. For early discussions, see Note, Right to Recover for Prenatal Injuries, 44 YALE L.J. 1468 (1935)CrossRefGoogle Scholar, and Note, The Impact of Medical Knowledge on the Law Relating to Prenatal Injuries, 110 U. PA. L. REV. 554 (1962).CrossRefGoogle Scholar

153 For a recent and critical summary of the current state of the law, see Hensel, Wendy F., The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 HARV. C.R.-C.L. L. REV. 141, 150- 62 (2005)Google Scholar; see also Park, Daniel, Recent Case Developments, Third Circuit Bars Wrongful Life Claims Involving Genetically Defective Sperm Donation, 36 AM. J.L. & MED. 682, 682-85 (2010).CrossRefGoogle Scholar

154 See Ossorio, supra note 142, at 309.

155 See, e.g., Suter, Sonia M., A Brave New World of Designer Babies?, 22 BERKELEY TECH. L.J. 897, 969 (2007).Google Scholar

156 See generally Malinowski, Michael J., Choosing the Genetic Makeup of Children: Our Eugenics Past—Present, and Future?, 36 CONN. L. REV. 125 (2003).Google ScholarPubMed 157 JÜRGEN HABERMAS, THE FUTURE OF HUMAN NATURE 58-60 (William Rehg et al. trans., 2003); see also MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING 85-92 (2007).

158 See ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 60 (2000); RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 452 (2000).

159 See, e.g., Green, Ronald M., Parental Autonomy and the Obligation Not to Harm One's Child Genetically, 25 J. L. MED. & ETHICS 5, 9-10 (1997)Google Scholar; Steinbock, Bonnie & McClamrock, Ron, When Is Birth Unfair to the Child?, 24 HASTINGS CENTER REP. 15, 20 (1994).CrossRefGoogle ScholarPubMed

160 See, e.g., Dixon, supra note 46, at 27.

161 See, e.g., Sheth, Darpana M., Better Off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims Under the Americans with Disabilities Act, 73 TENN. L. REV. 641 (2006)Google Scholar (arguing that wrongful birth and wrongful life claims violate the ADA).

162 See, e.g., Field, supra note 77, at 97-101 (arguing that such laws violate the Equal Protection Clause).

163 See Schuck, Peter H., Rethinking Informed Consent, 103 YALE L.J. 899, 959 (1994).CrossRefGoogle ScholarPubMed

164 RUTH SCHWARTZ COWAN, HEREDITY AND HOPE: THE CASE FOR GENETIC SCREENING 226-27 (2008).

165 Id. at 227.

166 Id. at 236 (“The reproductive goals of medical genetics are thus precisely the opposite of those of eugenics. Eugenicists wanted to ensure that the people they defined as genetically unfit did not reproduce; that is why they pushed for sterilization and segregation. Genetic screening was developed by medical geneticists to help the genetically ‘unfit,’ precisely the people the eugenicists would have sterilized, have as many children as they wanted.”).

167 For a particularly stark example of these views, see E.S. GOSNEY & PAUL POPENOE, STERILIZATION FOR HUMAN BETTERMENT: A SUMMARY OF RESULTS OF 6,000 OPERATIONS IN CALIFORNIA, 1909-1929, at 30-38 (1929). For an overview of the connections between modern genetics and the eugenics movement of the first part of the 20th century, see DANIEL J. KEVLES, IN THE NAME OF EUGENICS: GENETICS AND THE USES OF HUMAN HEREDITY 251-301 (1985).

168 For the most searching study into these sentiments, see ROTHMAN, supra note 148.

169 McCoyd, Judith L.M., “I’m Not a Saint”: Burden Assessment as an Unrecognized Factor in Prenatal Decision Making, 18 QUALITATIVE HEALTH RES. 1489, 1492 (2008).CrossRefGoogle Scholar

170 Nancy Press, Assessing the Expressive Character of Prenatal Testing: The Choices Made or the Choices Made Available?, in PRENATAL TESTING AND DISABILITY RIGHTS, supra note 41, at 214, 226.

171 Id. at 226-27.

172 Barbara Katz Rothman, Prenatal Diagnosis, in ETHICAL ISSUES IN MODERN MEDICINE 379, 384-85 (John D. Arras & Bonnie Steinbock eds., 4th ed. 1995).

173 For an overview of these arguments, see BURT, supra note 6, at 5.

174 Burt details these possibilities most notably in the contexts of abortion, physician assisted suicide, withdrawal of life-sustaining treatment, and the death penalty. He concludes that the “intentional, unambiguous infliction of death in any context should be rigorously avoided and socially disapproved,” and that “where death cannot be avoided, ambivalence about its moral status is also unavoidable and should, accordingly, be self-consciously and visibly honored through the design of practical techniques for highlighting and even amplifying its inevitable presence.” Id. at 158.

175 For example, see Burt's discussion of the Repouille case. Id. at 27-46.

176 Here I mean to describe the motivations behind classifications of disability rather than to characterize the absolute desirability or undesirability of those classifications.

177 See generally MARY DOUGLAS, PURITY AND DANGER: AN ANALYSIS OF CONCEPTS OF POLLUTION AND TABOO (1966); ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963).

178 For a somewhat jarring discussion to this effect, consider Dax Cowart's stated reasons for his desire to commit suicide rather than endure life with a disability. ROBERT A. BURT, TAKING CARE OF STRANGERS: THE RULE OF LAW IN DOCTOR-PATIENT RELATIONS 174-180 (1979) (Cowart was denominated “David G” in Burt's book but has since publicly revealed his identity).

179 That is, classifications of disability depend upon our conceptions of what is desirable, and these classifications both enshrine and reinforce those conceptions.

180 See Pellegrino, Edmund D., Toward a Reconstruction of Medical Morality: The Primacy of the Act of Profession and the Fact of Illness, 4 J. MED. & PHIL. 32, 44 (1979)CrossRefGoogle Scholar (describing illness as an “ontological assault” that renders the body “interposed between us and reality”).

181 See MICHEL FOUCAULT, MADNESS AND CIVILIZATION: A HISTORY OF INSANITY IN THE AGE OF REASON 16 (Richard Howard trans., 1965).

182 For an eloquent description of the reinvention that may accompany the acquisition of a disability later in life, see REYNOLDS PRICE, A WHOLE NEW LIFE 178-86 (1994).

183 Indeed, recent empirical work suggests that we overestimate the decreased perception of quality of life that accompanies disability. For a recent survey of these findings, see John Bronsteen, Buccafusco, Christopher & Masur, Jonathan S., Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516, 1526-35 (2008).Google Scholar

184 For a historical overview of these forces, see FOUCAULT, supra note 181, at 241-78.

185 This is not to say that caregiving responsibilities are always unwanted; they are often a source of satisfaction. It is to say that disability yields responsibilities we would often prefer to avoid.

186 See WAYLAND D. HAND, Deformity, Disease, and Physical Ailment as Divine Retribution, in MAGICAL MEDICINE: THE FOLKLORIC COMPONENT OF MEDICINE IN THE FOLK BELIEF, CUSTOM, AND RITUAL OF THE PEOPLES OF EUROPE AND AMERICA 57-64 (1980).

187 See Leonard Kriegel, The Cripple in Literature, in IMAGES OF THE DISABLED, DISABLING IMAGES 31, 31-38 (Alan Gartner & Tom Joe eds., 1987).

188 For an overview of these portrayals, see HERBERT C. COVEY, SOCIAL PERCEPTIONS OF PEOPLE WITH DISABILITIES IN HISTORY 6-8 (1998).

189 For an overview of such views in relation to the international eugenics movement, see KEVLES, supra note 167, at 70-84.

190 The perfect storm of these urges occurred in the Nazi T-4 programs. For a history of the programs, see ROBERT PROCTOR, RACIAL HYGIENE: MEDICINE UNDER THE NAZIS 131-222 (1985).

191 For an eloquent discussion of the consequences of such fears, see, for example, SANDER L. GILMAN, DIFFERENCE AND PATHOLOGY: STEREOTYPES OF SEXUALITY, RACE, AND MADNESS 20 (1985) (“We project [our] anxiety onto the Other, externalizing our loss of control … . The ‘bad’ self, with its repressed sadistic impulses, becomes the ‘bad’ Other; the ‘good’ self/object, with its infallible correctness, becomes the antithesis to the flawed image of the self, the self out of control.”).

192 This sentiment is well expressed in studies of the appeal of freak shows. See, e.g., LESLIE FIELDER, FREAKS: MYTHS AND IMAGES OF THE SECRET SELF 346-47 (1978).

193 Kristeva, Julia, POWERS OF HORROR: AN ESSAY ON ABJECTION 1 (Leon S. Roudiez trans.. 1982).Google Scholar

194 Once again, the appeal of freak shows proves illuminating. As Elizabeth Grosz argues, “[f]ascination with the monstrous is testimony to our tenuous hold on the image of perfection. The freak confirms the viewer as bounded, belonging to a ‘proper’ social category.” Elizabeth Grosz, Intolerable Ambiguity: Freaks as/at the Limit, in FREAKERY: CULTURAL SPECTACLES OF THE EXTRAORDINARY BODY 55, 65 (Rosemarie Garland Thomson ed., 1996).

195 KRISTEVA, supra note 193, at 2.

196 For a critique and reinterpretation, see JONATHAN LEAR, HAPPINESS, DEATH, AND THE REMAINDER OF LIFE 61-98 (2000).

197 José Barchilon, Introduction to FOUCAULT, supra note 181, at vi.

198 For an overview of these trends, see COVEY, supra note 188, at 8-9.

199 See, e.g., MICHAEL FITZGERALD & BRENDAN O’BRIEN, GENIUS GENES: HOW ASPERGER TALENTS CHANGED THE WORLD (2007) (profiling historical figures thought to have had Asperger's syndrome, including Thomas Jefferson, Charles Darwin, and Albert Einstein); KAY REDFIELD JAMISON, TOUCHED WITH FIRE: MANIC DEPRESSIVE ILLNESS AND THE ARTISTIC TEMPERAMENT 1-9 (1996) (chronicling the connection between depression and creativity).

200 FOUCAULT, supra note 181, at 21.

201 Id. at 22.

202 See Grosz, supra note 194, at 65 (“The viewer's horror lies in the recognition that this monstrous being is at the heart of his or her own identity, for it is all that must be ejected or abjected from self-image to make the bounded, category-obeying self possible.”).

203 See generally HENRI-JACQUES STIKER, A HISTORY OF DISABILITY (William Sayers trans., The University of Michigan Press rev. ed. 1999) (1982). For a statement to this effect, see David T. Mitchell, Foreword to id. at xi (“[I]ronically, a professed will to integration characterizes most epochs’ treatment of people with disabilities.”).

204 See Cook, Timothy M., The Americans with Disabilities Act: The Move to Integration, 64 TEMP. L. REV. 393, 445-54 (1991).Google Scholar This also applies to severely disabled individuals who exhibit few characteristics we typically associate with humanness. See Bogdan, Robert & Taylor, Steven J., Relationships with Severely Disabled People: The Social Construction of Humanness, 36 SOC. PROBS. 135 (1989).CrossRefGoogle Scholar

205 See JOSEPH P. SHAPIRO, NO PITY: PEOPLE WITH DISABILITIES FORGING A NEW CIVIL RIGHTS MOVEMENT 16-20 (1993).

206 Leslie Fiedler has noted the unsteady quality of this force. She writes that disability: [S]erves to remind, as the arts have long tried to do, of what we now find it difficult to confess except in troubled sleep: that those wretched caricatures of our idealized body image, which at first appear to represent what is most absolutely ‘Other’ (thus reassuring us who come to gape that we are ‘normal’) are a revelation of what in our deepest psyches we suspect we recognize as the Secret Self. After all, not only do we know that each of us is a Freak to someone else; but in the depths of our unconscious (where the insecurities of childhood and adolescence never die) we seem forever Freaks to ourselves. Fiedler, Leslie A., The Tyranny of the Normal, 14 HASTINGS CENTER REP. 40, 41-42 (1984).CrossRefGoogle ScholarPubMed

207 Elizabeth R. Schiltz, Confessions of a “Genetic Outlaw,” BUSINESSWEEK.COM (July 20, 2006), http://www.businessweek.com/technology/content/jul2006/tc20060720_148057.htm.

208 Id.

209 Id.

210 Id.

211 Id.

212 Id. Almond-shaped eyes are characteristic of individuals with Down syndrome.

213 Nancy Weinberg, Another Perspective: Attitudes of Persons with Disabilities, in ATTITUDES TOWARD PERSONS WITH DISABILITIES 141, 142 (Harold E. Yuker ed., 1988).

214 Id. at 149.

215 SUSAN WENDELL, THE REJECTED BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 83 (1996).

216 Id.

217 Id. at 84.

218 Irwin Katz, R. Glen Hass & Joan Bailey, Attitudinal Ambivalence and Behavior Toward People with Disabilities, in ATTITUDES TOWARD PERSONS WITH DISABILITIES, supra note 213, at 47, 47.

219 For a summary of these studies, see generally id.

220 Id. at 57. Other scholars echo this imprecise sentiment of sympathy rather than affirmative valuation. See, e.g., Soder, Marten, Prejudice or Ambivalence? Attitudes Toward Persons with Disabilities, 5 DISABILITY, HANDICAP & SOC’Y 227, 236 (1990)Google Scholar (“What these [studies] suggest is that there are at least two different valuations involved: the devaluation of disability as such on the one hand and a benevolent sympathy toward persons with disabilities on the other hand.”).

221 In this sense, it is no different from the social or medical models of disability. See Samaha, supra note 2 (arguing that neither model suggests normative prescriptions and outlining how various normative orientations might analyze disability).

222 See Bagenstos, Samuel R., The Future of Disability Law, 114 YALE L.J. 1, 10-23 (2004).CrossRefGoogle Scholar

223 See, e.g., Diller, Matthew, Dissonant Disability Policies: The Tensions Between the Americans with Disabilities Act and Federal Disability Benefit Programs, 76 TEX. L. REV. 1003, 1055-80 (1998).Google Scholar

224 See MARK S. STEIN, DISTRIBUTIVE JUSTICE AND DISABILITY: UTILITARIANISM AGAINST EGALITARIANISM (2006) (arguing for a Rawlsian preference for utilitarianism); Samuel R. Bagenstos, Subordination, Stigma, and “Disability,” 86 VA. L. REV. 397 (2000) (arguing for an understanding of disability as subordination); Michael Stein, Ashley, Disability Human Rights, 95 CALIF. L. REV. 75 (2007)Google Scholar (combining elements of the social model, the human right to development, and Martha Nussbaum's capabilities approach to generate a disability human rights framework).

225 See, e.g., Jonathan C. Drimmer, Comment, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and Social Policy for People with Disabilities, 40 UCLA L. REV. 1341, 1409 (1993)Google Scholar (arguing that “[d]isabled culture should be encouraged, celebrated, and given room to flourish” because “[f]rom a diversity of culture and experience comes national strength, tolerance, and understanding”).

226 See, e.g., MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 50-78 (1990).

227 MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE: AN INQUIRY INTO THE LEGAL TREATMENT OF STUDENTS WITH LEARNING DISABILITES 213-226 (1997).

228 See, e.g., MINOW, supra note 226, at 148-59 (examining the philosophical underpinnings of contemporary rights discourse); MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 96-154 (2006) (critiquing social contractarian views of disability); Ball, Carlos A., Autonomy, Justice, and Disability, 47 UCLA L. REV. 599 (2000)Google ScholarPubMed (critiquing libertarian views of disability).

229 NUSSBAUM, supra note 228, at 69-81 (defining and defending the core capabilities of a life worthy of human dignity).

230 See, e.g., id. at 179-95. Though Nussbaum strives for clarity, she struggles to apply her core capabilities to hypothetical individuals with disabilities. She argues that for Sesha Kittay, an individual with severe retardation, a just society would engineer genetic aspects of the womb “so that she would not be born with impairments so severe.” Id. at 193. She argues, however, that “we do not say this about [individuals with Down syndrome or Asperger’s] because there is a realistic prospect that [these individuals] will attain the capabilities that we have evaluated as humanly central.” Id. A look at the core capabilities casts considerable doubt upon this statement. Id. at 76-78. Nussbaum hedges, stating that although the approach “does not entail engineering” these disabilities away, “it does not clearly speak against this either.” Id. at 193.

231 Studies have found that individuals with ambivalent attitudes engage in more systematic information processing than individuals with nonambivalent attitudes. See, e.g., Jonas, Klaus, Diehl, Michael & Philip Brömer, Effects of Attitudinal Ambivalence on Information Processing and Attitude- Intention Consistency, 33 J. EXPERIMENTAL SOC. PSYCHOL. 190, 205-08 (1997)CrossRefGoogle Scholar (finding that the uncertainty can produce heightened efforts to interrogate inconsistent information about consumer products).

232 For a summary of this phenomenon see, for example, Katz, Haas & Bailey, supra note 218, at 48-49.

233 For a discussion of this phenomenon, see FREUD, supra note 83, at 50-51.

234 See MINOW, supra note 226, at 19-48.

235 See id. Minow's dilemma of difference refers to the trouble of either fixating on difference or ignoring it. Singular views of disability fixate on the trait; they do not ignore it. Of course, these views fixate on different notions of disability. Each fixates on one aspect and ignores the other.

236 The analogue to Minow's dilemma is particularly apparent in her discussion of special education. See id. at 81-86. Minow also intricately develops its relevance in the concept of selective non-treatment. See id. at 312-49. In that discussion, she notes that feelings of ambivalence about newborns with disabilities may deepen the dilemma. Id. at 333-41.

237 See id. at 78-97.

238 This dynamic is comparable to that described by Burt with respect to death. See BURT, supra note 6, at 11-26.

239 Freud describes this dynamic well with respect to feelings of love and hate. See, e.g., 10 SIGMUND FREUD, A Case of Obsessional Neurosis, in THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 240 (James Strachey trans., 1955) (“We may suppose, then, that in the cases of unconscious hatred with which we are concerned the sadistic components of love have, from constitutional causes, been exceptionally strongly developed, and have consequently undergone a premature and all too thorough suppression, and that the neurotic phenomena we have observed arise on the one hand from conscious feelings of affection which have become exaggerated as a reaction, and on the other hand from sadism persisting in the unconscious in the form of hatred.”).

240 Melanie Klein deepens Freud's intuitions about ambivalence in her analysis of anxiety in children and melancholia. She identifies ambivalence in the child's relationship with the mother's breast, which provokes love in sustenance and hatred in deprivation. According to Klein, “in the earliest phase the persecuting and the good objects (breasts) are kept wide apart in the child's mind.” Melanie Klein, A Contribution to the Psychogenesis of Manic-Depressive States, in THE SELECTED MELANIE KLEIN 115, 143 (Juliet Mitchell ed., 1986). “As they come closer together,” it “all depends on how [the child] is able to find its way out of the conflict between love and uncontrollable hatred and sadism.” Id. Failures to resolve this conflict, she argues, result in depression and extreme reactions to the object. Id.

241 See generally Roos, supra note 126, at 19.

242 For a discussion of these forces, see, for example, DICK SOBSEY, VIOLENCE AND ABUSE IN THE LIVES OF PEOPLE WITH DISABILITIES: THE END OF SILENT ACCEPTANCE? 13-49 (1994).

243 This analysis assumes that the goal of treatment decisions centers on some notion of the best interests of the affected parties. Of course, some ethical approaches to selective abortion and selective non-treatment rely instead on concepts of right. I am not concerned here with these deeper ethical questions, which allow for the possibility of tolerating denials of ambivalence for the sake of acting according to a particular conception of principle.

244 See Robertson, supra note 13, at 217-35.

245 For a discussion of these difficulties, see Crossley, Mary, Infants with Anencephaly, the ADA, and the Child Abuse Amendments, 11 ISSUES L. & MED. 379, 399-406 (1996).Google ScholarPubMed

246 See Rhoden, Nancy K., Treatment Dilemmas for Imperiled Newborns: Why Quality of Life Counts, 58 S. CAL. L. REV. 1283, 1313-17 (1985)Google ScholarPubMed (arguing that the Child Abuse Amendments incorporate quality of life concerns).

247 See, e.g., JOSEPH GOLDSTEIN, ANNA FREUD & ALBERT J. SOLNIT, BEFORE THE BEST INTERESTS OF THE CHILD 91 (1979) (arguing for recognition of parental autonomy except in cases “when (1) medical experts agree that treatment is nonexperimental and appropriate for the child, and (2) denial of that treatment would result in death, and (3) the anticipated result of treatment is what society would want for every child—a chance for normal healthy growth or a life worth living”).

248 Such a standard is envisioned in KUHSE & SINGER, supra note 71, at 153-71.

249 For an overview of the issues raised by these mechanisms, see Shapiro, Robyn S. & Barthel, Richard, Infant Care Review Committees: An Effective Approach to the Baby Doe Dilemma?, 37 HASTINGS L.J. 827 (1986).Google ScholarPubMed

250 MINOW, supra note 226, at 340.

251 See Robert A. Burt, Authorizing Death for Anomalous Newborns, in GENETICS AND THE LAW 435 (Aubrey Milunsky & George J. Annas eds., 1976); Robert H. Mnookin, Two Puzzles, 1984 ARIZ. ST. L.J. 667, 677-81; Schneider, Carl E., Rights Discourse and Neonatal Euthanasia, 76 CALIF. L. REV. 151, 153-55 (1988).CrossRefGoogle ScholarPubMed

252 See Burt, supra note 251, at 440.

253 Mnookin, supra note 251, at 684.

254 See Burt, supra note 251, at 445 (“The possibility of criminal liability should force these physicians to give of themselves, to identify both with the family and with the newborn child as if the suffering of each were the physicians’ own.”).

255 Schneider, supra note 251, at 176.

256 In administrative law, for example, placing questions of substance in the hands of agencies may allow courts to duck ethical questions. Of course, the law may still convey a message about the conduct in question by virtue of the agency action. Procedural review, however, may leave the substantive legitimacy of that conduct uncertain.

257 Admittedly, the legal regime governing infanticide is not the only relevant background legal regime. Most notably, the Supreme Court has recognized a right to refuse life-sustaining treatment. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990). It has cabined this right, however, through notions of consent that do not precisely map onto selective non-treatment decisions, which involve infants unable to consent.

258 MINOW, supra note 226, at 334, 340.

259 Id. at 340. 260 GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 26 (1978).

261 For a discussion of the perils and necessity of dishonesty in law, see id., GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 172-81 (1982), GUIDO CALABRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW: PRIVATE LAW PERSPECTIVES ON A PUBLIC LAW PROBLEM 87-117 (1985), and Dan-Cohen, Mier, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984).CrossRefGoogle Scholar

262 Roe v. Wade, 410 U.S. 113, 164 (1973).

263 Planned Parenthood of Se. Pa. v Casey, 505 U.S. 833, 871-73 (1992).

264 Casey upheld a twenty-four-hour waiting period, parental consent requirements for minors, and reporting requirements. Id. at 881-99.

265 I am not aware of any scholars pushing this view.

266 For a discussion of these possibilities, see Dorothy C. Wertz, Drawing Lines: Notes for Policymakers, in PRENATAL TESTING AND DISABILITY RIGHTS, supra note 41, at 261, 263-78.

267 For such views, see Perry, Ronen, It's a Wonderful Life, 93 CORNELL L. REV. 329 (2008)Google Scholar (arguing for greater recognition of wrongful life suits); Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 YALE L.J. 1488, 1515 (1978)Google Scholar (arguing that these suits vindicate “the social interest in ensuring that prospective parents have access” to appropriate information for abortion).

268 See, e.g., Yen, Jennifer H., Is My Baby “Defective”? Fetal Genetic Testing as Part of a Public Health Care Plan, 36 SUFFOLK U. L. REV. 391, 395 (2003)Google Scholar (arguing that prenatal testing should be part of any serious health plan to combat inequities in its availability).

269 See Rakowski, Eric, Who Should Pay for Bad Genes, 90 CALIF. L. REV. 1345, 1408-12 (2002)CrossRefGoogle ScholarPubMed (examining government subsidies to test for conditions that make “life not worth living”); Lois Shepherd, Protecting Parents’ Freedom to Have Children with Genetic Differences, 1995 U. ILL. L. REV. 761, 769 (critiquing conceptions of “an emerging right to be born with a sound body and mind”).

270 See, e.g., Suter, supra note 42, at 260-70 (arguing for reform to repair the informed consent mechanism in prenatal testing).

271 See generally Hannemann, Angela M., A New Routine: Assisting Patients in Responding to Prenatal Diagnosis, 90 MARQ. L. REV. 337 (2006).Google Scholar

272 See, e.g., Dixon, supra note 46, at 50-53.

273 See Malinowski, Michael J., Coming into Being: Law, Ethics, and the Practice of Prenatal Genetic Screening, 45 HASTINGS L.J. 1435, 1518-25 (1993)Google Scholar (outlining a proposal for a commission to regulate prenatal testing).

274 See Dixon, supra note 46, at 46-50 (identifying pitfalls for informed consent requirements for prenatal testing).

275 See, e.g., BUCHANAN ET AL., supra note 158, at 156-202.

276 Like the Child Abuse Amendments, such a standard might disallow selective abortion except in cases where treatment will be futile at birth.

277 For such a proposal, see Hensel, supra note 153, at 190-93.

278 The Prenatally and Postnatally Diagnosed Conditions Awareness Act is one example of this approach. Other legislation could be more unequivocal in its condemnation, if not its legal sanctions.

279 Such change is unlikely, but the importance of context that this reveals will be instructive as we address ambivalence about disability in other areas of the law.

280 See Bagenstos, supra note 222, at 54-83 (focusing on these three areas in making prescriptions for the future of disability law).

281 This is the overriding concern of the present law. See H. RUTHERFORD TURNBULL III, MATTHEW J. STOWE & NANCY E. HUERTA, FREE APPROPRIATE PUBLIC EDUCATION: THE LAW AND CHILDREN WITH DISABILITIES 153-204 (7th ed. 2000).

282 For an expression of this possibility, see Reginald L. Jones & Samuel Guskin, Attitudes and Attitude Change in Special Education, in ATTITUDES AND ATTITUDE CHANGE IN SPECIAL EDUCATION: THEORY AND PRACTICE 1, 11 (Reginald L. Jones ed., 1984) (“A teacher may feel that a handicapped child will complicate his teaching job, but if such a child is placed in the classroom he may demonstrate effective effort in working with her. On the other hand, a teacher may express highly desirable values about integration and yet show unhappiness with and hostility toward a child who has serious emotion and learning problems.”). The history of educational services for people with disabilities is littered with instances of abuse. State institutions for the mentally retarded provide the most graphic example. See generally BURTON BLATT & FRED KAPLAN, CHRISTMAS IN PURGATORY: A PHOTOGRAPHIC ESSAY ON MENTAL RETARDATION (1966). For a more recent set of abuses, see U.S. GOV't ACCOUNTABILITY OFFICE, GAO-09-719T, SECLUSIONS AND RESTRAINTS: SELECTED CASES OF DEATH AND ABUSE AT PUBLIC AND PRIVATE SCHOOLS AND TREATMENT CENTERS 5-7 (2009), which details deaths arising out of improper use of restraints in special education.

283 For a particularly troubling and extreme example, see Boy Convicted of “£5 Bet” Murder, BBC NEWS, Jan. 22, 2008, http://news.bbc.co.uk/2/hi/uk_news/england/wear/7202351.stm (last visited June 5, 2009), which details the murder of a young man with disabilities by a trio of young men who bet on which of them could knock him out first.

284 For a discussion of the notions of value that have driven legal discourse concerning the Education for All Handicapped Children Act (EAHCA) and the Individuals with Disabilities Education Act (IDEA), see generally Weber, Mark C., The Transformation of the Education of the Handicapped Act: A Study in the Interpretation of Radical Statutes, 24 U.C. DAVIS L. REV. 349 (1990).Google Scholar

285 For an argument questioning this view, see Colker, Ruth, The Disability Integration Presumption: Thirty Years Later, 154 U. PA. L. REV. 789, 850-53 (2006).CrossRefGoogle Scholar

286 For an early view to this effect, see, for example, Note, Enforcing the Right to an “Appropriate” Education: The Education for All Handicapped Children Act of 1975, 92 HARV. L. REV. 1103, 1125-26 (1975)Google Scholar, which argues that courts should interpret the EAHCA such that “an appropriate education for a particular child would require services aimed at developing the child's intellectual capacity to the same degree that the school sought to develop the ‘normal’ abilities of its nonhandicapped students.”

287 Pub. L. No. 94-142, 89 Stat. 773 (1975).

288 For a discussion of the dangers of “choice” for students with disabilities, particularly its potential to perpetuate inequalities, see, for example, Minow, Martha, Confronting the Seduction of Choice: Law, Education, and American Pluralism, 120 YALE. L.J. 814, 843-48 (2011).Google Scholar

289 Pub. L. No. 101-476, 104 Stat. 1103 (1990).

290 Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C. 1972); Pa. Ass’n for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971).

291 Pa. Ass’n for Retarded Children, 334 F. Supp. at 1258.

292 Pub. L. No. 105-16, 111 Stat. 37, 38.

293 34 C.F.R. § 104.33(b)(1) (2010).

294 These procedures are particularly important in the development of individualized education programs. For an overview, see TURNBULL, STOWE & HUERTA, supra note 281, at 160-173.

295 458 U.S. 176, 189 (1982).

296 Id. at 200.

297 For a careful tracing of this retreat, see Weber, supra note 284. For a discussion of the modern standard, see Scott F. Johnson, Reexamining Rowley: A New Focus in Special Education Law, 2003 BYU EDUC. & L.J. 561, 585, which argues that “the 1997 amendments to the IDEA make clear that the foundation underlying Rowley's reasoning is no longer present.”

298 See Weber, Mark C., The IDEA Eligibility Mess, 57 BUFF. L. REV. 83, 153 (2009)Google Scholar (arguing that “courts should appreciate … that they are being led on a misguided search for the ‘truly disabled,’ a search that IDEA does not require, but that instead threatens to undermine the goals of the statute”).

299 See H. Rutherford Turnbull III, Individuals with Disabilities Education Act Reauthorization: Accountability and Personal Responsibility, 26 REMEDIAL & SPECIAL EDUC. 320, 320 (2005)CrossRefGoogle Scholar (describing the 2004 reauthorization of IDEA as “social reform on a large scale—more like a ‘welfare state’ reform law than a civil rights or school reform law”).

300 For example, it might require that educational programs meet a strict disparate impact requirement yet leave that requirement unenforced.

301 This could be achieved through a school voucher system. Many scholars have expressed concern that such a system would leave individuals with disabilities worse off, however. See, e.g., Minow, Martha, Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew It, 49 DUKE L.J. 494, 528 (1999).CrossRefGoogle Scholar

302 That is, in those contexts, the prevailing legal order precludes the adoption of overtly ambiguous standards because of the shadow of death. The complexity of the educational system welcomes such overtly ambiguous standards. Indeed, they have long befuddled courts and commentators.

303 For a discussion of the parent-professional dynamics involved in the IEP process, see Goldstein, Sue et al., An Observational Analysis of the IEP Conference, 46 EXCEPTIONAL CHILD. 278 (1980)CrossRefGoogle Scholar. For a broader view of parent-professional collaboration, see ANN P. TURNBULL ET AL., FAMILIES, PROFESSIONALS, AND EXCEPTIONALITY: POSITIVE OUTCOMES THROUGH PARTNERSHIP AND TRUST (5th ed. 2005).

304 For an intricate analysis of these different considerations, see generally KELMAN & LESTER, supra note 227.

305 For a summary of research on this imbalance, see Lynn M. Daggett, 8 U.C. DAVIS J. JUV. L. & POL’Y 1, 23-29 (2004).

306 Many parents feel intimidated and only nominally included in the IEP process. See David M. Engel, Law, Culture, and Children with Disabilities: Educational Rights and the Construction of Difference, 1991 DUKE L.J. 166, 192-194.

307 For a discussion of the power of this presumption, see Weber, Mark C., The Least Restrictive Environment Obligation as an Entitlement to Educational Services: A Commentary, 5 U.C. DAVIS J. JUV. L. & POL’Y 147, 158 (2001).Google Scholar

308 This is not to say that parents do not have bargaining chips at present; indeed, that is the purpose of the IDEA's safeguards. I merely intend to draw attention to possible measures that might level the playing field. This is a frequent topic of discussion in special education law. My aim is to reconceptualize the purpose of promoting a genuine discussion between parents and professionals.

309 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 294 (2006); Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005).

310 See Kelly D. Thomason, Note, The Costs of a “Free” Education: The Impact of Schaffer v. Weast and Arlington v. Murphy on Litigation Under the IDEA, 57 DUKE L.J. 457, 485-86 (2007).Google Scholar

311 Along these lines, some scholars have argued for an approach based on the relationships between students that would yield something approaching a universally designed classroom. See, e.g., MINOW, supra note 226, at 83-86.

312 See, e.g., Diller, supra note 223, at 1008 (arguing that “attempts to divide the ADA and the disability benefit programs into two mutually exclusive policy spheres are based on misunderstandings of both statutory schemes”).

313 Pub. L. No. 110-325, 122 Stat. 3553.

314 For an overview of empirical work on this question, see Richard V. Burkhauser & David C. Stapleton, A Review of the Evidence and Its Implications for Policy Change, in THE DECLINE IN EMPLOYMENT OF PEOPLE WITH DISABILITIES: A POLICY PUZZLE 369 (David C. Stapleton & Richard V. Burkhauser eds., 2003).

315 Sheltered workshops typically provide an instructive example of unduly low expectations. For a criticism of these institutions, see tenBroek, Jacobus, Sheltered Workshops for the Physically Disabled, 44 J. URB. L. 39 (1966).Google Scholar Unduly high expectations are more rare and harder to define with certainty given social prejudice and imperfect scientific understanding of impairments.

316 Few scholars have argued that the employment rate for people with disabilities is inefficiently high. But see RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 485-88 (1995) (raising this possibility, at least in the foreseeable future, under the ADA).

317 For vignettes about some such abusive relationships, see MARK C. WEBER, DISABILITY HARASSMENT 1-9 (2007). Sheltered workshops represent an effort at an overprotective environment.

318 See Samaha, supra note 2, at 1280-84.

319 42 U.S.C. § 12101(a)(7) (2000) (amended 2008).

320 For a discussion stressing the novelty of the reasonable accommodation standard, see Karlan, Pamela S. & Rutherglen, George, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996).CrossRefGoogle Scholar For a view of the parallels between reasonable accommodation and disparate impact, see Jolls, Christine, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642 (2001).CrossRefGoogle Scholar

321 For a description of the disability community's historical reaction against these views, see SHAPIRO, supra note 205, at 184-210.

322 See Diller, supra note 223, at 1060-62.

323 See, e.g., Patricia Rogan, Michael Callahan & David Hammis, Toward Full Citizenship: New Directions in Employment for People with Significant Disabilities, in MAKING THE DAY MATTER: PROMOTING TYPICAL LIFESTYLES FOR ADULTS WITH SIGNIFICANT DISABILITIES 35, 35 (Pamela Walker & Patricia Rogan eds., 2007) (summarizing research that “people with high support needs can work if the job is matched to their abilities and interests, and if they are provided with the necessary supports”).

324 For a classic statement to this effect, see tenBroek, Jacobus & Matson, Floyd W., The Disabled and the Law of Welfare, 54 CALIF. L. REV. 809, 831 (1966)CrossRefGoogle Scholar (“It is the agency of welfare, not the recipient, who decides what life goals are to be followed, what ambitions may be entertained, what services are appropriate, what wants are to be recognized, what needs may be budgeted, and what funds allocated to each.”).

325 See Diller, Matthew, Judicial Backlash, the ADA, and the Civil Rights Model, 21 BERKELEY J. EMP. & LAB. L. 19, 48-51 (2000).Google Scholar

326 For discussion of this phenomenon, see Jolls, supra note 320, at 651-71 (2001).

327 For an attempt to understand the narrowness of judicial interpretations, see, for example, Diller, supra note 325. For a broader treatment from a disability rights perspective, see MARY JOHNSON, MAKE THEM GO AWAY: CLINT EASTWOOD, CHRISTOPHER REEVE & THE CASE AGAINST DISABILITY RIGHTS (2003).

328 See Diller, supra note 325, at 23 (arguing that the ADA “appears to judges as a kind of subsidy conferred on a class of people singled out by Congress for special treatment”). For a doctrinal overview, see id. at 47-51.

329 See generally Diller, Matthew, Entitlement and Exclusion: The Role of Disability in the Social Welfare System, 44 UCLA L. REV. 361 (1996).Google Scholar

330 Id. at 364.

331 For an argument about subsidizing reasonable accommodations, see Moss, Scott A. & Malin, Daniel A., Note, Public Funding for Disability Accommodations: A Rational Solution to Rational Discrimination and the Disabilities of the ADA, 33 HARV. C.R.-C.L. L. REV. 197, 219-31 (1998).Google Scholar

332 For an argument to this effect, see Mark C. Weber, Disability and the Law of Welfare: A Post- Integrationist Experiment, 2000 U. ILL. L. REV. 889, 943-47.

333 Consider, for example, the facts in Vande Zande v. Wisconsin Department of Administration. In that case, a prominent part of the dispute concerned whether the defendant employer needed to lower break room countertops so that the plaintiff could wash her mug in the kitchen rather than the bathroom. The court did not consider how the prevailing setup would affect the interpersonal dynamics within the office. Vande Zande v. Wis. Dep't of Admin., 44 F.3d 558, 545-56 (7th Cir. 1995) (Posner, J.).

334 Proposals for such a scheme have been advanced, however. See, e.g., Sturm, Susan, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001).CrossRefGoogle Scholar

335 This would push together the two normative principles advanced here for the law to both avoid provoking ambivalence and consciously expose ambivalence.

336 For discussions to this effect, see Part IV.B and Part IV.C.

337 See generally DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC (1971).

338 For an overview of these issues, see CHARLES E. DRUM ET AL., DISABILITY AND PUBLIC HEALTH (2009).

339 Among the most prominent is Jerry Lewis’ annual telethon to raise money for muscular dystrophy. For a critical view, see HARRIET MCBRYDE JOHNSON, TOO LATE TO DIE YOUNG: NEARLY TRUE TALES FROM A LIFE 47-75 (2005). In recent years, the disability group Autism Speaks has been particularly motivated by the search for a cure. See Bob Wright & Suzanne Wright, Founders’ Message: A Message from Suzanne and Bob Wright, AUTISM SPEAKS, http://www.autismspeaks.org/ founders.php (last visited Sept. 19, 2011) (“This disease has taken our children away. It's time to get them back.”).

340 For an overview, see Gostin, Lawrence O., The Americans with Disabilities Act and the Corpus of Antidiscrimination Law: A Force for Change in the Future of Public Health Regulation, 3 HEALTH MATRIX 89 (1993).Google Scholar

341 See Crossley, Mary, Becoming Visible: The ADA's Impact on Health Care for Persons with Disabilities, 52 ALA. L. REV. 51, 57-63 (2000).Google Scholar

342 Id.

343 See Peters, Philip G., Jr., When Physicians Balk at Futile Care: Implications of the Disability Rights Laws, 91 NW. U. L. REV. 798, 825-42 (1997).Google Scholar

344 See United States v. Univ. Hosp., 729 F.2d 144, 156-59 (2d Cir. 1984) (finding that section 504 does not apply to medical treatment decisions). The court in University Hospital stated further: “one would not ordinarily think of a newborn infant suffering from multiple birth defects as being ‘otherwise qualified’ to have corrective surgery performed.” Id. at 156. For a comparable analysis under the ADA, see Johnson v. Thompson, 971 F.2d 1487, 1493-94 (10th Cir. 1992).

345 In re Baby K, 832 F. Supp. 1022, 1029 (E.D. Va. 1993), aff’d, 16 F.3d 590 (4th Cir. 1994).

346 See Peters, supra note 343, at 816-17.

347 521 U.S. 702, 732 (1997) (“The State's assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as everyone else’s.”).

348 Id. at 735-36.

349 OR. REV. STAT. 127.805 § 2.01 (2011).

350 Id. at § 1.01 (“‘Capable’ means that in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, psychiatrist or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available.”).

351 Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 281 (1990).

352 Id. at 270-72. \353 179 Cal. App. 3d 1127, 1135-37 (1986).

354 Cruzan, 497 U.S. at 282.

355 For a critical analysis of these laws as they affect people with disabilities, see Stith, Marah, The Semblance of Autonomy: Treatment of Persons with Disabilities Under the Uniform Health-Care Decisions Act, 22 ISSUES L. & MED. 39 (2006).Google ScholarPubMed

356 For a critical discussion of the views of disability expressed in the Bouvia case, see, for example, PAUL K. LONGMORE, WHY I BURNED MY BOOK AND OTHER ESSAYS ON DISABILITY 149-74 (2003). Longmore writes that the case dramatized “arguments for euthanasia, aid-in-dying, assisted suicide, and medical cost containment [that] simply rationalize the ultimate act of oppression.” Id. at 168.

357 This metaphor derives from Rose, Carol M., Crystals and Mud in Property Law, 40 STAN. L. REV. 577 (1988).CrossRefGoogle Scholar