In September 2020, a whistleblower complaint was filed alleging that hysterectomies are being performed on women at an immigration detention center in alarmingly high rates. Regrettably, forced sterilizations are part of the nation’s longstanding history of weaponizing reproduction to subjugate socially marginalized communities. While public outrage in response to the whistleblower complaint was swift and relentless, it largely failed to acknowledge how eugenic ideologies and practices, including compulsory sterilizations, are ongoing and deeply entrenched in ableism. Indeed, a conversation that recognizes the ways in which eugenics continues to target people with disabilities is long overdue.

This Article contextualizes how eugenics has targeted people with disabilities over time, the ways in which these ideologies and practices persist, and why analysis and advocacy concerning eugenics—including the current abuses at immigration detention centers—that do not center the experiences of people with disabilities, especially people with disabilities who are also members of other socially marginalized communities, are inadequate. First, the Article explores the evolution of eugenics and its harmful effects on people with disabilities in the United States, including contemporary examples of eugenic policies and practices. Next, it describes ableism and its relation to eugenics, highlighting how eugenics is deeply rooted in ableism. Finally, the Article concludes by suggesting a path forward that addresses the role of ableism in eugenics, specifically discussing normative legal and policy implications. It also considers opportunities for collaboration across communities.

The COVID-19 pandemic has been especially devastating for people with disabilities, as well as other members of marginalized communities. Indeed, an emerging body of scholarship has revealed striking disparities experienced by people with disabilities. In particular, scholars have shined a light on issues relating to triage policies that allow for the rationing of critical health care and resources, such as ventilators, for people with disabilities if resources become limited and hospitals cannot treat all patients during the pandemic. These injustices are a deserving issue that urgently warrants extensive consideration by policymakers, legal professionals, and scholars.

At the same time, however, it is crucial to elucidate the ways in which the inequities people with disabilities are experiencing during COVID-19 are the result of deeply rooted injustices that have endured over time. To do so, a comprehensive analysis of the inequalities experienced by people with disabilities before and during the pandemic is needed, focused on understanding how law and policy affect these disparities. This Article, therefore, builds on, incorporates, and extends the existing scholarship about COVID-19 and disabled people by positioning it within the health justice framework and proposing normative legal and policy solutions to address deeply entrenched inequities that will affect people with during the COVID-19 pandemic and beyond.

The Americans with Disabilities Act (ADA) was passed thirty years ago with the promise of “equality of opportunity” for people with disabilities. Notwithstanding, a nascent body of scholarship indicates that parents with disabilities experience substantial and pervasive inequities within the child welfare system, and that the ADA is often disregarded or misapplied by child welfare agencies and courts. Yet, despite extensive legal and social science scholarship about child welfare system involvement among parents with disabilities, no studies have empirically examined why the ADA is not effectively safeguarding the rights of parents with disabilities.

This Article responds to that scholarly void and offers novel and critically needed data on the barriers and facilitators to compliance with the ADA by the child welfare system. This Study draws qualitative data from forty-five in-depth interviews with parents with disabilities, child welfare workers, and parents’ attorneys. Three themes emerged from the data indicating barriers and facilitators that affect compliance with the ADA by the child welfare system. First, knowledge, training, and information about the ADA by parents with disabilities, child welfare workers, and legal professionals impede or enable ADA compliance. Second, institutional support—especially well-defined agency policies and procedures about the ADA, agency culture and leadership, and resource availability—impact compliance with the ADA. Third, factors related to the legal and social context in which cases involving disabled parents occur—particularly tensions between children’s rights and parents’ rights and issues relating to the intersection between disability and child welfare law—are barriers or facilitators to ADA compliance. This Article concludes by identifying critical areas for further research and discussing the policy and practice implications of the findings.

A growing body of scholarship demonstrates that parents with psychiatric disabilities and their families experience a range of inequalities that families with nondisabled parents do not suffer. Parents with psychiatric disabilities contend with pervasive discrimination within the child welfare and family law systems, often resulting in the removal of their children and loss of custody. Moreover, some children of parents with psychiatric disabilities experience worse outcomes than their peers, while others do not. Yet, despite extensive legal and social science scholarship focused on parents with psychiatric disabilities and their families, no studies have empirically examined the legal needs of parents with psychiatric disabilities as perceived by parents themselves.

This Article responds to the scholarly void and offers new and much-needed data on the real world-experiences of these parents. This study draws qualitative data from in-depth interviews with twelve former clients of a legal services program in Massachusetts that provides representation to parents with psychiatric disabilities. First, this study shows that the legal profession lacks understanding of mental health, which some parents believe negatively affects representation and case outcomes. Second, attorneys may need to provide parents with psychiatric disabilities assistance beyond litigation, including taking more time to explain the legal process, assisting with administrative tasks, and coordination with and referrals to other supports and services. Third, our data suggest that parents with psychiatric disabilities may have ongoing legal needs that require access to additional legal services beyond those related to the child welfare and family law systems. This Article concludes by identifying critical areas for further research and discussing the policy implications of the findings.

A sizable body of scholarship indicates parents with disabilities – including physical, intellectual, psychiatric, and sensory disabilities – experience pervasive inequities that threaten their fundamental right to parenthood. In particular, compared to nondisabled parents, parents with disabilities are overrepresented in the child welfare system, receive inadequate family preservation and reunification services, and have disproportionate rates of termination of parental rights. Despite extensive legal and social science scholarship, however, there are no empirical analyses of judicial opinions to identify factors that predict termination of parental rights in cases involving parents with disabilities.

This is the first empirical legal study to analyze appellate decisions to determine predictors of termination of parental rights in appeals cases that included mothers with disabilities. In particular, we sought to understand whether a mother’s disability type was associated with the termination of parental rights. To that end, this study analyzed 2,064 appellate opinions decided between 2006 and 2016. We found that ninety-three percent of the cases resulted in the termination of parental rights. After controlling for a variety of parent, family, court, case, and policy characteristics, however, maternal disability type did not predict termination of parental rights. Nevertheless, the odds of termination of parental rights were higher for cases in which parents had substance use histories, household incomes below 200% of the federal poverty level, prior child welfare system involvement, negative expert testimony, or received family preservation and reunification services tailored to parents with disabilities. Conversely, the likelihood of termination of parental rights was decreased in cases that included positive expert testimony or were decided in the Southeast or West. The Article concludes by discussing the policy and practice implications of the study’s findings and identifying critical areas for further research.

The right to parent has long been regarded as one of our most treasured fundamental rights. Despite the disability rights movement’s many achievements, especially the passage of the Americans with Disabilities Act (“ADA”) in 1990, the right to parenthood remains inaccessible to many people with disabilities. Scholars and advocates have posited that the ADA has not adequately protected the rights of parents with disabilities involved with the child welfare system, particularly at the termination of parental rights phase. This Article develops this critique as applied to an original empirical study of 2,064 appellate termination of parental rights decisions decided between 2006 and 2016 that involved mothers with disabilities. This is the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases. In particular, we aimed to understand if a mother’s disability type predicts whether courts raise or apply the ADA.

This study found that the ADA was only raised in 6% of the decisions and only applied in 2% of the opinions. After controlling for parent, family, court, case, and policy characteristics, courts had a decreased likelihood of raising the ADA in cases involving mothers with psychiatric disabilities. Likewise, after controlling for parent, family, court, case, and policy characteristics, courts had lower odds of applying the ADA in cases involving mothers with psychiatric disabilities or multiple disabilities. Other factors were also associated with courts raising or applying the ADA, including criminal history, substance use history, prior child welfare system involvement, the presence of a disabled child, when the case was decided, geographical location, negative expert testimony, provision of family preservation or reunification services, and state dependency statutes that included parental disability as grounds for termination of parental rights. The Article concludes by discussing the policy and practice implications of the study’s findings and identifying directions for future research.

Substantial numbers of US parents with psychiatric disabilities are highly vulnerable to loss of child custody or visitation, through child welfare system involvement or divorce proceedings. This study describes the community-based needs of parents with psychiatric disabilities who experienced legal challenges to their parenting rights. This exploratory study involved semi-structured telephone interviews with twelve former clients of a legal services program that provides representation to low-income parents with psychiatric disabilities facing challenges to child custody or visitation. Interviews were audio-recorded, professionally-transcribed, and analyzed using a qualitative, content analysis approach. Three broad themes emerged regarding the types of supports parents reported as useful for their well-being: (1) informal support networks; (2) responsive mental health care for the whole family; and (3) meaningful legal representation. Within these three areas, unmet needs were frequent and problematic. A fourth theme emerged: chronic economic hardships and material deprivation, which point to unmet financial needs. The needs and supports described in this study should be addressed through the development of comprehensive services and supports that meet the psychosocial, legal, and socioeconomic needs of parents with psychiatric disabilities and their children. Future research is also warranted.