The Handicapping Effect of Judicial Opinions in Reproductive Tort Cases: Correcting the Legal Perception of Persons with Disabilities

Kerry T. Cooperman

Over the past twenty-five years, progressive legislation and aggressive advocacy have generated policies under which people with disabilities could participate more meaningfully in America's social, political, and professional spheres. The Americans with Disabilities Act of 1990 (the “ADA”) codified the most comprehensive safeguards of civil rights since the 1960s and carried the hope that it would enable people with disabilities to engage equally in their communities. A major player in the passage of the ADA, the disability community continued to develop political footholds, spearhead local and national social movements, and insist on new statutory protections. But this initial momentum did not yield the substantive changes that many had anticipated. Nearly a decade after the ADA's enactment, employees with disabilities lost over 95% of ADA cases; the Supreme Court of the United States restricted the Equal Employment Opportunity Commission's power to construe the ADA's protections; and prenatal genetic testing continued to spawn reproductive tort claims that negatively stereotyped persons with disabilities.

Reproductive technology has become a double-edged sword for the disability community. Although genetic innovation promises new medical therapies, it also breeds new litigation that etches false conceptions of disability, harm, and autonomy into the common law and the national consciousness. Alas, courts and legislatures often disregard the social messages that their laws fortify, and “surprisingly little legal scholarship” explains how reproductive tort claims affect people with disabilities.