Bench Memos

On Banning Sex-Selection Abortions

“Millions of women obtain abortions because they do not want baby girls,” observes law professor Michael Stokes Paulsen in a compelling Public Discourse essay. Although most widespread in Asia, sex-selection abortion “occurs in America, too, and the practice is likely to increase.” As Paulsen explains, there is no question that the abortion regime concocted by the Supreme Court in Roe v. Wade and Planned Parenthood v. Casey would prevent a ban on sex-selection abortion at any point before “viability,” and the Court’s expansive discussion (in Roe’s companion case of Doe v. Bolton) of a “health” exception would appear to mean that “under Roe and Casey, laws banning sex-selection abortions are unconstitutional through all nine months of pregnancy.” (Point 3 of my 2005 Senate testimony on the legacy of Roe offers competing readings of Doe’s garbled discussion.)

Paulsen argues that the “fact that laws banning sex-selection [abortion] may fly in the face of the Roe and Casey decisions” is a “powerful reason to enact” such laws:

The justices, and abortion supporters generally, ought to be forced to confront the uncomfortable reality of the Court’s abortion jurisprudence. Those who style themselves as “centrists” or “moderates” on abortion–such as those who claim to be “personally opposed but pro-choice” or who acquiesce to Roe’s abortion regime for some other political or social reason—need to understand precisely what such a position entails and the lethal logic of what they have agreed to accept.

Paulsen nicely sketches the dilemma that a sex-selection ban would present for Supreme Court justices who support the Roe/Casey regime:

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 naked 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.