The Next Phase of the Abortion Debate

by Reihan Salam

It is not at all uncommon for pro-life politicians to face vigorous questions about the particular abortion restrictions they favor, and for good reason. Americans are deeply divided over abortion, and it is only right that those who take a pro-life stance carefully explain their reasoning. Presenting public officials with hard cases, like whether or not to permit abortion in cases of rape or incest, allows them to do just that. What I find frustrating, however, is that it is relatively rare that pro-choice politicians face similarly vigorous questions about hard cases on the other side of the abortion debate. For example, while Florida senator Marco Rubio has devoted considerable time and attention to the question of why he opposes abortion in cases of rape and incest, and why he has also backed legislation that allows for exceptions, I’d like to have a more detailed sense of where the leading candidates for the Democratic presidential nomination, Bernie Sanders and Hillary Clinton, stand on sex-selective abortion and abortion in cases of Down syndrome.

My understanding is that Clinton, in her role as secretary of state, condemned the practice of sex-selective abortion in China and India, where its pervasiveness is a reflection of deeply-ingrained misogyny, and where it has contributed to dangerous gender imbalances. But would she favor federal or state legislation aimed at eradicating sex-selective abortion in the U.S.? Would she appoint federal judges who believe that such legislation would be constitutional? There are seven states that have laws banning sex-selective abortion, so this is not an abstract possibility. Noah Feldman, a professor at Harvard Law School, gives reason to believe that these laws are constitutional in a new Bloomberg View column. “The argument in favor of those laws is that the state has a compelling interest in combating sex discrimination,” writes Feldman. He then goes on to add that a similar logic might apply to the state’s compelling interest in countering discrimination against those with Down syndrome. 

The occasion for Feldman’s column is the ongoing debate in Ohio over whether or not to ban abortions motivated by a desire to avoid having a child with Down syndrome. (All of the evidence suggests that this practice is extremely widespread, incidentally.) Because Feldman recognizes that a Supreme Court that finds a ban on sex-selective abortion constitutional might also accept a law like Ohio’s, he writes that pro-choice activists “had better try hard to defeat the Ohio law before it becomes law.” Even if such a law passes and proves difficult to enforce for the time being – as of yet, no one has been prosecuted under the state bans on sex-selective abortion — that could very well change as prenatal screening technologies advance. “Sooner or later,” Feldman warns, “the courts are going to have to confront the balance between reproductive freedom and the ethics of choosing a child.” Given that the next president will have an impact on the composition of the Supreme Court for many years to come, we deserve to know where all the candidates, pro-choice and pro-life, stand on these issues. 

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