Sex-selective abortion bans are unconstitutional, says Carol Sanger.

Why Sex-Selective Abortion Bans Are Terrible for Women—and Unconstitutional

Why Sex-Selective Abortion Bans Are Terrible for Women—and Unconstitutional

The XX Factor
What Women Really Think
May 20 2016 9:01 AM

Why Sex-Selective Abortion Bans Are Terrible for Women—and Unconstitutional

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A rally outside the Supreme Court on March 2.

Saul Loeb/AFP/Getty Images

For decades, conservative legislators have worked to roll back abortion rights through laws ostensibly designed to protect women. Republicans across the country have successfully passed mandatory ultrasounds, waiting periods, and “informed consent” measures, as well as draconian clinic regulations obviously designed to shutter abortion providers. With many of these laws faring poorly in court, however, some legislators have turned to a different tactic: outlawing abortion based on certain fetal characteristics, such as sex and disability. Most recently, Indiana became the eighth state to ban abortion because of the fetus’ sex; at least eight other states are currently considering similar bills.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

These measures might seem to put abortion rights supporters in a tough spot: The American conversation about abortion centers around women’s equality, yet sex-selective abortions would appear to undermine that equality by perpetuating sex discrimination. Columbia Law School professor Carol Sanger disagrees: She believes these laws unduly restrict women’s autonomy and violate the constitutional guarantee of liberty. On Wednesday, we spoke about the dangers that sex-selective abortion bans pose to women and society. Our conversation has been edited and condensed.

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How do these new abortion restrictions differ from what we’ve seen in the past?

For a long time after Roe v. Wade, states passed “women-protective” laws, like “informed consent” rules—telling women, “We care about how you’re going to feel after your abortion, so we really want you to know all this information beforehand.” Of course, restricting abortion was the real purpose of these laws, not protecting women. 

These new restrictions go much further, simply banning abortions in certain cases. It’s very clever. They’re a much bolder move in terms of challenging the basic abortion right. It’s a move from the woman to the fetus—which, of course, has always been the central concern. These laws say, not only do we think the fetus is a vulnerable entity—a “child,” even—but we need to protect the most vulnerable of fetuses. We’ll pick out girl fetuses, disabled fetuses, and say: You can’t abort them.

These laws say to women: Hey, we thought you cared about discrimination against women. If you do, support these laws, and put your money where your mouth is.

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So you don’t think the legislators behind these laws really care deeply about preventing sexism.

If they do, then this is a strange place to make an intervention designed to improve our society—by saying, let’s stop this problem right at abortion, rather than saying, “Let’s have a society where being a woman isn’t a disadvantage.” Or, on the disability issue, “Let’s make being disabled in our country less of a burden.”

These laws didn’t come out of the feminist movement. They didn’t come out of the disability rights movement. They came out of conservative state legislatures that were trying to figure out how to whittle away abortion rights on ethical-sounding grounds.

But what if these laws were passed in good faith? Leaving aside the politics, is there really something fundamentally wrong with sex-selective abortion bans?

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Well, first of all, do we know if lots of American women are actually getting sex-selective abortions?

They aren’t. Researchers have found that if sex-selective abortions happen at all in the United States, they are extremely rare.

So this is symbolic legislation. And it sends the message that women are out there slaughtering girl fetuses. Well, they’re not—there’s nothing to support that. So the legislation is meant to call women out. It’s meant to say, “Well, if you support abortion rights, you aren’t really much of a feminist.” And it’s a wedge issue: “Let’s start with the girl fetuses, that’ll shut feminists up. Then let’s move to disability and ban abortion based on that.” Both categories make women seem cruel if they want to abort.

You think these laws actually denigrate women then?

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They’re a way to slice into the basic abortion right. When legislators pass a law like this, there must be a reason. And the reason is that they’re trying to hack away at the constitutional right to an abortion. I don’t think those statutes will be upheld.

Do you mean you think the courts will find them to violate the Constitution?

Yes. In the United States, we don’t require women to give a reason for wanting an abortion. That violates the basic idea of autonomy in Roe v. Wade and Planned Parenthood v. Casey. The main point of Roe is that everybody has the right to decide whether she wants to become a parent or not. Casey said women have the right to make this decision about your body and the shape of your life in this circumstance, which is so fundamental to how we live, whether we have children or not.

There’s not even a hint of anything in these foundational cases that suggests the specific characteristics of the fetus matter. It’s just not there. And in Casey terms, these laws are definitely a “substantial obstacle” to a women’s right to have an abortion. They’re prohibitions! And Casey says that, prior to fetal viability, states aren’t allowed to do that.

Personally, do you have any qualms about sex-selective abortions?

I’m not for abortion for sex grounds. But I don’t think the people who proposed these sex-selective abortion bans are interested in improving the status of women in other ways. These laws are an intervention into the abortion right. They diminish women’s autonomy.