Academic

Foy & Griffin on Antidiscrimination Law & Selective Abortion

By Lawrence Solum

Dov Fox and Christopher L. Griffin Jr. (Yale Law School and Yale Law School) have posted The Collateral Effects of Law on Social Behavior: The Case of Antidiscrimination Law and Selective Abortion on SSRN.  Here is the abstract:

This Article explores the powerful ways in which changes in the law can bring about unexpected changes in social behavior that is unrelated to that which the law regulates. We puzzle through this unexamined phenomenon by considering the relation between a major antidiscrimination law, the Americans with Disabilities Act (ADA), and a routine reproductive practice, selective abortion on the basis of Down syndrome. Our empirical analysis of U.S. natality data suggests that the ADA has the surprising effect of preventing the existence of the very class of people the law was intended to protect. We explain this paradox by showing how the ADA's implementation mechanism generates stigmatizing attitudes toward people with disabilities. The law's requirement that those seeking its protection prove the limitations caused by their disability does damage to our understandings and expectations about what it means to be disabled. Using formal regression analysis, we find suggestive evidence that the ADA significantly increased the incidence of decisions to terminate a pregnancy following a positive test for Down syndrome. We discuss the implications of this "expressive externality" for disability, family, and reproduction law in the United States.

There was some glitch with SSRN & I was unable to download the paper.  I was interested in how the authors treat the notoriously difficult possible persons problem.  Hopefully this will become available soon.

Full post as published by Legal Theory Blog on May 08, 2008 (boomark / email).