Bioethics Forum Essay
Preventing Sex-Selective Abortions in America: A Solution in Search of a Problem
Arkansas has recently joined seven other states (Arizona, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania, and South Dakota) in banning abortions for sex selection. Arizona’s law requires doctors to ask a woman seeking an abortion if she knows the sex of the fetus, and if she does, to tell her that it is illegal to choose an abortion on that basis. The law also requires doctors to obtain the medical records that pertain to her pregnancy history.
What is the rationale for such laws, and are they justified?
Most Americans oppose aborting a healthy fetus, simply because it is the “wrong” sex. Abortion for sex selection seems to exemplify sexism of a particularly lethal kind. Interestingly, such opposition does not appear to extend to taking sex into consideration in IVF, when couples are presented with the choice of having a girl or a boy in determining which of their viable embryos should be implanted. This difference in public attitude may be partly because IVF generally requires that a choice be made, at least in cases of single embryo transfer, whereas no such choice is required once a pregnancy is established. It may also be partly due to a feeling that the aborting of a fetus is morally worse than the discard of early embryos — a feeling that is prevalent even among those who claim that embryos, as much as fetuses, are human persons with a right to life.
Let us assume, for the sake of argument, that there is something morally problematic about aborting a fetus, solely because of its sex. The next question is whether this is a problem that needs to be addressed by law.
Both China (2005) and India (2004) have passed laws against abortion for sex selection. These laws are in response to unbalanced gender ratios, which are assumed to result from abortions of female fetuses, which stems from a culture in which males are highly prized and female children often regarded as burdens. Since a society that lacks enough women to bear children is unsustainable, laws against sex selective abortion might be thought to be desirable. However, this is far from obvious. For one thing, if women who want abortion for sex selection cannot get it legally, they may resort to illegal abortions, which are much less safe.
Moreover, in countries where women feel great pressure to produce a male child, they are likely to undergo as many pregnancies as necessary to get the desired son, which can be deleterious to their health. Most worrying, the unwanted girls may not get adequate food or medical attention, resulting in their ill health or death. They may be killed after birth. There might be better ways to prevent the abortion of female fetuses, including measures to change sexist cultures through public education on sexual equality, the promotion of female literacy, and in general the empowerment of women.
Even if laws against sex-selective abortions can be justified in countries like India or China, gender imbalance is not a problem in the United States, so that cannot be the rationale for laws banning sex-selective abortion. Indeed, the Republican sponsor of Arkansas’s bill, Charlie Collins, says that he wasn’t trying to predict an epidemic of sex-selection abortions. He just wants to make the statement that this is against the law in Arkansas, presumably because Arkansas views sex-selective abortion as morally wrong — even if such abortions are extremely rare. Making laws on the basis of majoritarian morality, without any concern for social need or likely outcomes, is known as legal moralism, and it is a very dangerous idea.
If states can decide which reasons for abortion are morally permissible, there is no end to the restrictions that might be imposed. Arizona prohibits abortions for reasons of race. North Dakota and Indiana passed laws making it illegal to get an abortion because the fetus has a genetic abnormality or disability, although a federal judge struck down Indiana’s law as unconstitutional. What could stop a state from banning abortions for reasons the majority regards as “trivial,” such as wanting to complete one’s education or be successful in a career?
An instructive example of the perils of legal moralism is the attempt of some states to pass laws forcing transgender individuals in high schools to use the bathroom or locker room of their birth sex. Although such laws are justified in terms of the “well-being and dignity of 99 percent of the students,” evidence that such laws threaten the well-being or dignity of other students is sorely lacking. Consider the claim that some girls who have been sexually abused might have their trauma rekindled by the presence of transgender students in the locker room. It seems to me that it is more likely they’d have their trauma rekindled by the presence of an individual who looks like a man, perhaps with a beard, than by someone who looks like them, even if she was born male. As the transgender student in Illinois pointed out, “Nobody’s getting naked” in the girls’ locker rooms. No one sees anyone’s genitals in ladies’ rooms, since women use stalls. The fact is, schools that allowed their transgender students use the bathrooms and locker rooms of their choice were not experiencing any problems; these laws were “solutions” in search of a problem.
So what was the real purpose of these laws? They were intended to express moral, often religiously based, disapproval of transgender individuals, and to make them feel isolated and ashamed. If anyone’s well-being and dignity was threatened, it was that of the transgender students. In similar manner, laws that make physicians into inquisitors are aimed at making women feel ashamed of their choice for abortion.
In some countries, such as Israel, women have to go before a committee to explain and justify their reasons for wanting an abortion. By contrast, in the U.S., the law protects the right of women, prior to viability, to make this most personal and intimate decision by themselves, without the need to justify their decision to a doctor, a panel, or a judge. We should keep it this way.
Bonnie Steinbock, a Hastings Center Fellow, is a professor of bioethics at Clarkson University and Icahn School of Medicine at Mount Sinai.