Are Sex-Selection Abortion Laws Unconstitutional?

An article by Michael Stokes Paulsen explores the possible outcomes to an inevitable Supreme Court review of state laws banning sex-selection abortion, and it doesn't look good for Roe v. Wade.

Under current law, a woman has the right to an abortion for any reason before viability, and for "health" reasons after that (including "emotional" and "familial" reasons, under which sex-selection would seemingly fall). But now states are beginning to challenge this by passing laws against sex-selection abortions.

Paulsen contends that a public discussion of the legitimacy of these laws will bring to light the inconsistent reasoning supporting the pro-choice position. For example:

The most pernicious radical feminist argument for abortion rights—that abortion is essential for “gender equality”—doubles back on itself in the case of sex-selection abortion: if abortion on the basis of the sex of the child—killing girls because they are not boys—is not sex discrimination, it is hard to know what is.

So how will the Supreme Court Justices work through the contradictions? Paulsen says it's a no-win situation for Roe:

Being confronted with a harsh reality can change the minds of persons who have thought about a question only in abstract, arid terms. It is possible, then, that even a pro-abortion Court, confronted with a law banning sex-selection abortion, might recognize and retreat from the consequences of its own prior decisions. Enacting sex-selection bans, even if contrary to Roe and Casey, just might lead the Court to begin charting a path away from Roe.

A sex-selection ban would indeed present the Supreme Court with a dilemma. To strike down such a law—in essence, to embrace a constitutional right to sex-selection abortion—would expose just how extreme and immoral the Court’s present abortion doctrine really is. To read such a result in the name of “gender equality” would be monstrous and absurd. Such a ruling would undermine support both for Roe and for the Court as an institution as never before. (Concern for the Court’s own prestige and public support was, in fact, part of the reasoning in Casey for reaffirming Roe.) A sex-selection ban dares the pro-abortion justices to embrace an abortion right to kill girls for being girls. Such a ruling would expose the illegitimacy of the Court’s abortion decisions.

On the other hand, for the Court to uphold a ban on such abortions would require a concession with powerful symbolic consequences: the human fetus has a gender; and killing a living fetus on the basis of such a distinctive, personal, permanent feature of human identity is unthinkable, and may rightly be punished. Such a concession would undermine the moral and legal premises of the entire judicially created right to abortion. If abortion merely removes unwanted tissue, its gender does not matter. But if gender matters, it must be because the unborn living being in the womb is already a human child, not merely “potential” life. The issue of sex-selection abortion thus challenges the very “it”-ness of the living human embryo or fetus killed by abortion—the implicit non-humanity of the fetus that underlies most arguments for allowing abortion. It is a girl or a boy—a member of the human family, albeit an extremely vulnerable one, whose life hangs in the balance. Acknowledge the humanity of the fetus and the regime of Roe collapses.

Paulsen calls for politicians to force this discussion by proposing a federal law against sex-selection abortion. Asking people to declare where they stand on the legal killing of unborn girls because they're girls could powerfully focus and clarify the abortion debate.

Comments

[RonH]

An imbalance in gender numbers creates social problems. So we have reason to avoid it.

That can be done in various ways, not all of which have to prohibit anything. This one is clumsy, unenforceable, and violates women's rights.

There are other ways of selecting gender.

Ever wonder why the ratio is 1:1?

RonH

[SteveK]

You can't discriminate against non-persons or non-humans. It looks like the court is in a real pickle.

[SteveK]

If the state laws are upheld I can see it becoming not such a good idea to learn the sex of your child if you are still considering abortion as an option. That fact will surely be brought up in court.

[Francis Beckwith]

RonH writes: "An imbalance in gender numbers creates social problems. So we have reason to avoid it."

But that means that gender as a reason to destroy a fetus is not intrinsically wrong. The argument is not that one think of contingent reasons to not kill a fetus based on its gender. Rather, the argument is that there is something intrinsically wrong in killing a fetus based on its gender. After all, according to your logic, it would actually be morally required to kill a fetus based on gender if there were "too many" of one gender or the other.

It reminds me of the Supreme Court's reasoning in Brown v. the Board of Education in which the alleged learning differences between black and white school children showed that segregation violated equal protection. But that can't be right. It can't be that bigotry becomes right if it in one case it has a positive consequence for its victim, as in the case of Cecil Partee. He was not allowed to attend the University of Arkansas law school because he was black, though the state accommodated him by paying him to attend Northwestern, a higher ranked law school. He was clearly wronged by the state of Arkansas, since they excluded him based on race. However, he wound up better off. Read about here: http://books.google.com/books?id=F9rjjf_vsC4C&lpg=PA54&ots=j1mQTz_SSb&dq=northwestern%20law%20school%20Arkansas%20black%20Arkes&pg=PA54#v=onepage&q&f=false

[Jim]

Huum weren't the Chinese hip on this thing for a while?

[SteveK]

Or as one Catholic blogger likes to put it.

"Just enough of me, way too much of you."

[Brad B]

Good point Dr. Beckwith. BTW, I have to say thanks for providing some basic introductory logic as a part of your excellent book "Politically Correct Death". I think I read and re-read the dialogues in the back maybe 30 times over the years. Even though it [the book] deals with older arguments, it's still a good read and shows the importance of using good logic in general but particularly in pro-life activism.

[RonH]

Frank,

Intrinsically wrong, intrinsically schmong.

... it would actually be morally required to kill a fetus based on gender...

You get that from what I said? How is that?

RonH

[Marc]

Despite having a pro-life position myself, it strikes me that the following from Paulsen's article is drawing a long bow:

"But if gender matters, it must be because the unborn living being in the womb is already a human child, not merely “potential” life."

My counter, if I were so inclined, would be merely to re-state as: "... it is because the "potential" life in the womb, if allowed to develop into a human child, would be... [insert a gender]."

I love the argument on gender equality though. Not certain it would stand up in court, but it's a strong social/moral argument.

[Judith]

I argue as a homosexual. They say they are 'born that way'. So how do we know it is a male or female in the womb.Just because they look a certain way does not mean anything. Right?

[Brian]

Judith,
I think in order to continue this discussion, we need to have a common understanding of "male" and "female". From a biological perspective sex (male and female) is determined at conception via genetics (XY chromosome = male, XX chromosomes = female). However, "gender" is a more sociological term linked with self identity. Therefore, people can choose to have "gender" reassignment surgery while nothing can be done about one's biological sex.

Of course one can use ultrasound to determine the physical characteristics of an unborn child that are strongly linked to their genetic sex. Amniocentesis can determine the genetic sex of the unborn. However, I am aware of no prenatal or perinatal testing that can predict how a person will self-identify.