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Abstract

Disability law is still undertheorized. In 2007, Ruth Colker wrote that disability law was undertheorized because it conflated “separate” with “unequal,” and because disability was largely ignored or poorly understood within theories of justice. The solution for Colker was to attach the anti-subordination perspective, which was developed to apply to race and sex, directly to disability. This Article argues that this transportation from the race and sex contexts was a partial solution, but is not sufficient to give full substance to disability law theory. Concepts from critical race theory and feminist jurisprudence have long been simply transported into the disability context, acting as an imperfect facsimile. The primary purpose of those concepts was to describe, analyze, and remedy problems primarily related to race and gender, not disability. While disability law has benefitted to some extent from inclusion in these legal theories, many of the unique features and complexities of disability law have been left on the table. This Article explores those complexities. Autonomy, usually thought of as an uncomplicated social good for other groups, is challenged in disability theory by two competing values. The value of anti-subordination is critical because it seeks to address, and redress, discrimination, sigma, and stereotyping. An anti-subordination perspective gives a voice and supplies resources to people with disabilities, and will counsel against choices that support stigma and stereotyping. An anti-subordination perspective might seek to limit a right to physician-assisted suicide, for example, because of concerns about exploitation and the messaging that disabled lives are not worth living. This runs counter to an autonomy-focused perspective, which would support the choice to end one’s life in the end stages of a terminal disease. An anti-eliminationism perspective advocates for the preservation of, and resources for, disabled lives. This comes to mean that not only are people with disabilities valued, but their disability is valued too. Instead of seeking to end Autism, for example, an anti-elimination perspective seeks to support Autistics. However, an anti-eliminationism perspective might also support the restriction of choice, and therefore come into conflict with autonomy, where there is a choice that results in the end of a disability. An anti-elimination perspective could seek to restrict the ability to selectively terminate pregnancies when a disability is found, for example. Anti-eliminationism inherently challenges the notion that getting rid of disability is a good thing. Parts I, II, and III of this Article describe the values of autonomy, anti-subordination, and anti-eliminationism in the disability context, and argue that these values are each critical components of disability law and theory. Part IV of this article provides an overview of some real-world examples where these values come into immediate conflict.

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