Mirror of Justice

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Well, first of all, here's the part of Milbank's piece that leaps out at me: "Franks admitted he had no expectation that his latest bill would pass, because House leaders brought it up in a way that required a two-thirds majority. The purpose, he said, was to force pro-abortion-rights Democrats to make an uncomfortable vote." So why should we take this bill seriously at all? It's not an attempt to pass a law. It's an attempt to embarrass pro-choice Democrats.

This bill started out as the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011, purporting "to prohibit discrimination against the unborn on the basis of sex or race, and for other purposes." The racial aspect was dropped. While of course some people claim that legalized abortion is a genocidal plot against blacks, has anyone ever heard of a case where a woman aborted a child because of its race? Do black women have a high rate of abortion because the babies will be born black?

There are two questions one has to ask about a law like this. One is whether there is actually a problem that the law will remedy. Here's a a good article from the Washington Post about that.
http://www.washingtonpost.com/blogs/ezra-klein/post/congress-debates-ban-on-sex-selective-abortions-as-researchers-explore-how-often-they-happen/2012/05/30/gJQAwhpN2U_blog.html

The second question is, since a woman seeking an abortion (in the first trimester) does not have to give (or even have) a reason, how is anyone going to know she is having an abortion because of the gender of her child? How can such a law be enforced? Also, as is perfectly predictable of a pro-life law, a woman having an abortion for the purpose of sex selection is exempt from any and all provisions of the law. So abortion providers are put in jeopardy by this law, but not women seeking abortion.

Now, there is a reporting requirement: "A physician, physician’s assistant, nurse, counselor, or other medical or mental health professional shall report known or suspected violations of any of this section to appropriate law enforcement authorities. Whoever violates this requirement shall be
fined under this title or imprisoned not more than 1 year, or both."

What exactly does that mean? I don't know, but given the fact that it is in Asian cultures that abortion for sex selection is most widely practiced, who is most likely to fall under suspicion for seeking an abortion for sex selection? White women? Or even black women? This law, it seems to me, would have the effect of encouraging, at least to some extent, "racial profiling" on the part of abortion providers. Women from cultures where abortion for sex-selection is practiced in their countries of origin would inevitably be the most likely suspects for having sex-selection abortions in the United States. (Question: Would abortion providers be permitted legally to refuse a woman an abortion unless she signed a sworn statement that it was not for the purposes of sex selection? I don't know. Perhaps someone reading this can answer.) So it seems to me if abortion providers wanted to be exceedingly cautious, they would be wary of providing abortion for Asian women.

Rob says: "We would not hesitate to use law to try to prevent the custom of sati from taking root in the United States -- i.e., a widow throwing herself on her husband's funeral pyre -- even if practitioners tended to be concentrated within immigrant Hindu communities."

Why not ban it now? Do you suppose those in immigrant Hindu communities would be pleased if we banned it before there was evidence it was actually happening? Do you suppose American Muslims would not mind if we preemptively banned practices that take place in Muslim countries that don't happen in the United States? Might they not feel a certain sense of being singled out?

While I don't consider myself a member of the "pro-life" movement, I am very much opposed to, and appalled by, abortion for sex selection. But I think this is a ridiculous law. It is perfectly schizophrenic, in my opinion, to try to ban abortions for very specific reasons without putting at least *some* legal burden on women who seek them out. The message of this law is that abortion for sex-selection is forbidden to everyone . . . except women who have them. The law really can't be enforced, and yet it does put abortion providers in jeopardy, since they can be sued by a woman's relatives if the relatives believe the woman voluntarily had an abortion for sex-selection and the abortion provider knew it. Again, I am not a lawyer, but it seems to me to leave open the very distinct possibility that a woman can, of her own free will, have an abortion for the purpose of sex selection, and can then tell her husband and have him sue the abortionist for performing the abortion the woman freely sought.

Here's the thing. Pro-lifers invent every kind of law they can think of to try to place burdens and restrictions on abortion, and then when people who are pro-choice (or just plain reasonable) attempt to block them, they get smeared by pro-lifers. It seems to me this is just a bad law, but anyone who votes against it will be accused of not caring about "gendercide" against baby girls. This is not serious legislation. It's another skirmish in the "culture war" (just like the Illinois Born Alive Infant Protection Act was). This law, if passed, would not save one life. It's all a politica game over a hot-button political issue. It's almost not even about abortion.

Posted by: David Nickol | May 31, 2012 2:31:23 PM

David,
So you are "very much opposed to, and appalled by, abortion for sex selection" but you think this particular law is bad legislation. What legislation (or other act) would you suggest to curb the practice?

Posted by: Thales | May 31, 2012 5:12:41 PM

Thales,

First, I don't know that there is enough evidence of sex-selection abortions being performed in the United States to pass a law against them. We can't pass laws against everything bad we can think of that *might* happen. Second, I am not sure there is a way to make abortion for sex-selection illegal. To the best of my knowledge, the law in the United States allows a woman to have an abortion in the first trimester for any reason she chooses, and she does not have to give a reason. I think to undo "abortion on demand" in the first trimester, we'd need action from the Supreme Court. And if the law allows abortion for any reason, then how do you stop women with a specific reason from procuring an abortion? If you can outlaw abortion for sex-selection, then you can outlaw it for other reasons, too, and if that were possible, all that would be necessary for pro-lifers to do is make "reasonable" guidelines for what justifies an abortion.

By the way, since over 90 percent of abortions are performed before it is even possible to determine the sex of the fetus, it simply has to be the case that, even if a small number of women are having abortions for sex-selection, many more women are having abortions for reasons I would find just as unjustifiable as for sex selection.

What I find frustrating is that this has been turned into a game. Pro-life politicians keep coming up with new angles that don't really prevent any abortions but give the illusion they are doing something, and then they demonize the pro-choice politicians for opposing laws like this (or the Born Alive Infant Protection Act, which did absolutely nothing).

I do suppose the people are correct who complain the Supreme Court has made reasonable solutions impossible, but perhaps it is time for both sides to face that fact and try to prevent unwanted pregnancies, encourage adoptions, and so on as alternatives.

Posted by: David Nickol | May 31, 2012 6:25:48 PM

Let me add that in my opinion, a bad law trying to ban abortion for sex-selection is worse than no law at all.

Posted by: David Nickol | May 31, 2012 6:29:49 PM

Ross Douthat has a great little blog post on the Milbank column: http://douthat.blogs.nytimes.com/2012/05/31/when-is-sex-selective-abortion-a-problem/

Posted by: Catholic Law Student | Jun 1, 2012 9:54:54 AM

David,

As to your first point, whether sex-selection abortions happen in the U.S., it's my understanding that there is plenty of evidence that it does happen on occasion -- Milbank's article concedes as much. Of course, it doesn't happen very often, but I don't know why that's an argument against the law. Besides, even if it never happened in the U.S., the law still has an educational component, it frames the values that a society holds, it would prevent people in the future from committing the act (like those people immigrating from cultures where the act was acceptable), and it makes a statement to the rest of the world about American values compared to those of other nations -- a good example of this is the U.S. criminalization of female genital mutilation in 1996, which was passed even though there wasn't much FGM occurring in the U.S. (if at all). But I think we can set this whole issue all aside, since your position isn't based primarily on the fact that these acts never occur in the U.S -- in other words, assuming that these acts occur in the U.S., you'd still be against the law. So let's assume for our purposes that they do occur in the U.S., and explore why you think the law is still bad.

I find your discussion about Supreme Court jurisprudence puzzling: the Roe semester framework was abandoned in Casey, I'm fairly certain that the current jurisprudence is not that abortion is allowed "for any reason," and am I wrong in thinking that you can't detect sex until after the first trimester so why talk about the first trimester anyways? But setting all those aside, here's the main reason why I find your point puzzling: the exact nature of current Supreme Court jurisprudence on abortion is entirely irrelevant to this current discussion. We're not discussing whether a sex-selection law is constitutional or not; we're discussing whether the law is a good idea or not. So assume that there is no constitutional impediment to the law.

Now as far as I can tell (and sorry if I'm misunderstanding you), your argument against the law is that "if you can outlaw abortion for sex-selection, then you can outlaw it for other reasons, too." I guess I'm again puzzled -- it seems you're staking a position of blanket opposition to abortion restrictions, but that can't be right. The state has an interest in fetal life, and obviously, we as Christians have an interest in fetal life, and thus, it's practically self-evident that means that the state, and we as voters, are able to impose restrictions on how abortions are performed, and when, and how, and where, and by whom and with what credentials, etc. Now generally, the sticking point in debates is whether restriction X is reasonable or unreasonable. But it sounds like you're not making that argument but instead either contesting the (largely undisputed) fact that some restrictions can be imposed, or you're arguing that restriction X is bad because some other and quite unreasonable and unjustified restriction Y is bad. But that's not a valid argument. So I feel like I'm misunderstanding you somehow.

Finally, with regard to your "game" comments, I think they're unfair. Speaking for myself, I truly am opposed to sex-selection abortions, and I think that this law would actually help prevent these acts as well as positively shape our society's values against this barbaric practice. It's not a game for me.

Posted by: Thales | Jun 1, 2012 10:38:48 AM

Thales,

The difference between outlawing female genital mutilation and outlawing abortion for sex selection is that women in the United States have a constitutionally protected right to abortion. I realize that many people are appalled by this fact, but it is a fact. So attempts to regulate abortion are much more complicated than attempts to regulate most other things. Attempts to regulate abortion are, in some ways, fraught with the same difficulties as attempts to regulate speech or religious practices. My understanding is that currently in America, a woman has a constitutional right to an abortion up to the time of viability, and the state may only make laws that do not place an "undue burden" on that right. It is not at all clear that a ban on abortion for the purpose of sex selection would be constitutional, so I can't accept an assumption that there are no constitutional issues. I don't think the issue has been tested in any court. An interesting question is why it took pro-lifers almost forty years to come up with the idea of passing laws against abortion for sex selection. There have been bans in India since 1994 and in China since 1995.

You say: "[I]t seems you're staking a position of blanket opposition to abortion restrictions, but that can't be right."

What I meant to say was that the law would be on the pro-life side if it were possible to legislate what were acceptable and unacceptable reasons for abortion. To the best of my knowledge, the house bill was the first (federal) attempt to pass a law saying there was an unacceptable reason for an abortion (there are state laws in Arizona and, I think, Oklahoma). My point is that if you can pass laws saying it is not a sufficient reason to have an abortion because you are pregnant with a girl and you want a boy, you can pass a law saying it's not a sufficient reason to have an abortion because you already have two kids and don't want another. It's been forty years since Roe v Wade, and unless I am mistaken, there are no laws (except in Arizona and Oklahoma) that criminalize any abortion because of the pregnant woman's reason for wanting it. Why not? It seems to me because it is unconstitutional. What are the other "reasonable" restrictions on first-trimester abortions?

I am not arguing that this is an ideal situation. I am arguing it is the one we are in. I think it is an opinion I have heard expressed by a number of conservatives that Roe v Wade short-circuited the political process and made it impossible to come up with reasonable solutions and compromises on abortion.

It seems to me, even if there were not constitutional problems, that the proposed law was deeply flawed. If a woman can have an abortion for NO reason, how can you criminalize an abortion for a specific reason? If a woman can't be required to tell why she is having an abortion, how can a doctor be certain what the woman's reasons are? Under this law, a woman would be legally scott-free if she had an abortion for the purpose of sex selection, but the abortionist could be sued by the woman's husband or sent to jail. How do you discourage women from having abortions for sex selection without in SOME way holding them responsible? How can you have a reasonable law where a person sets up all the conditions for a crime and has solid legal immunity for anything that happens?

I know there are countless people who are very distressed about legal abortions and who want to do anything they can to stop them. But we have an admission right in the article we are discussing that the sponsor of the bill didn't expect to get it passed: "Franks admitted he had no expectation that his latest bill would pass, because House leaders brought it up in a way that required a two-thirds majority. The purpose, he said, was to force pro-abortion-rights Democrats to make an uncomfortable vote."

You put forward a bad bill (possibly unconstitutional) with no expectation of getting it to pass, and you bring it to a vote to try to embarrass the people who oppose it. Now, of course, both parties do things like this all the time, but that doesn't mean it's not a game. It's pure partisan politics.

Posted by: David Nickol | Jun 1, 2012 2:14:09 PM

David,

First, again, I don't know why you're talking about the constitutionality of such a law. The constitutionality of the law is irrelevant to the discussion about whether it is a bad law or not.

Second, if you want to talk about the constitutionality of such a bill, it's plainly obvious that the Supreme Court has never weighed in on this issue and that there is a valid argument for the law's constitutionality. So let's just let the Supreme Court resolve that one. Moreover, it seems to me that your understanding of Roe's constitutional jurisprudence is off. You say that a woman can have an abortion for no reason, but that's not the law: under Roe, a woman doesn't have a right to an abortion for any or no reason. Roe said that a woman's right to an abortion is NOT absolute and that she is NOT entitled to terminate her pregnancy "for whatever reason she alone chooses," and that the state has an important interest in restricting abortion. (This is setting aside the fact that Roe has been superseded by Casey.) But as I said, the constitutionality of the bill is irrelevant to the discussion of whether it's a good idea or not.

So, on to your listing of the bill's flaws:
-"If a woman can have an abortion for NO reason, how can you criminalize an abortion for a specific reason?" As I said above, I don't believe that's the law; a woman doesn't have an absolute right to an abortion. It's my understanding that current abortion jurisprudence doesn't require that women have an unrestricted right to an abortion for whatever reason, including non-health reasons, they choose.

-"If a woman can't be required to tell why she is having an abortion, how can a doctor be certain what the woman's reasons are?" Even though a woman isn't required to tell a doctor why she is having an abortion, obviously she could choose to tell the doctor her reason, and then the doctor would know; or the doctor could find out some other way. It reminds me of getting a prescription: If I lie to the doctor about pain I'm feeling and get medication for my drug habit, the doctor hasn't acted illegally in writing me a prescription because he doesn't know of my illegitimate intention; but if I tell the doctor I want pain medication to support my drug habit and I get medication, the doctor has acted illegally in writing me a prescription since he knows of my illegitimate intention.

-"How do you discourage women from having abortions for sex selection without in SOME way holding them responsible?" In this particular case, you make it more difficult for them to get a sex-selected abortion by prohibiting them. Now obviously, women can lie to get a sex-selected abortion, but I don't see it to be that much different from me getting pain medication for my drug habit: it's easier for me to get the medication from a doctor if I have an absolute right to get drugs for any reason, while it's harder for me to get the medication if I have to give a non-illegitimate reason for the drugs. Same with abortion.

-"How can you have a reasonable law where a person sets up all the conditions for a crime and has solid legal immunity for anything that happens?" I'm not quite clear on what you're saying with this last question, but if I'm understanding correctly, here's my answer: As we've argued about before, it's not odd or illogical to penalize those professionals who perform illegal abortions and not women who seek out illegal abortions.

Posted by: Thales | Jun 1, 2012 4:40:51 PM

Thales,

In the United States, how could a law that was unconstitutional be considered a good law? I really don't understand your position here.

You say: "As I said above, I don't believe that's the law; a woman doesn't have an absolute right to an abortion."

Aside from two state laws (Arizona and Oklahoma) restricting abortion for sex selection, are there any laws, state or federal, that prohibit an adult woman from procuring an abortion, for any reason at all, prior to viability? The right to abortion may not be absolute in theory, but in actual practice, while there are laws that require women to jump through various hoops (waiting periods, informed consent) before getting an abortion, is there any reason given in any law or court decision that allows the state to use its power to prevent a woman from procuring an abortion?

You say: " It reminds me of getting a prescription . . . "

If you find a doctor who is willing to write you a prescription for a controlled substance that he knows you do not need for a legitimate medical reason, you and the doctor are both breaking the law. If you manage to deceived a doctor into writing a prescription for a controlled substance that he thinks you have a legitimate medical need for but you know you do not, the doctor is not breaking the law, but you are. That is the difference between lying to get a prescription and lying to get an abortion for the purpose of sex-selection.

You say: ". . . . it's not odd or illogical to penalize those professionals who perform illegal abortions and not women who seek out illegal abortions."

We've had this discussion before about abortion in general, and I still disagree with you. But it seems to me that when it comes to abortion for sex selection, it is somewhat of a different discussion. If abortion in general is prohibited, then it is plausible (if not necessarily fair) to control abortion by controlling the supply and ignoring the demand. But when sex-selection abortion is prohibited, the only person guaranteed to know that a particular abortion is prohibited is the woman who seeks it. The law, in effect, says to women, "If you want an abortion for the purpose of sex selection, you may lie to your doctor, obtain the abortion, and you will not be breaking the law. Or, you may tell the truth to your doctor, obtain the abortion, and you will not be breaking the law, but your doctor will."

I am trying to think of any other type of law where it is totally legal to obtain something by lying, but where someone gets prosecuted if the truth is told. It just boggles the mind, frankly, how some pro-lifers want to relieve women of *all* legal responsibility for their actions regarding abortion. Under what other circumstances it the guiding principle, "Everything is legal as long as you lie"?

Do you really think, if there are sex-selection abortions taking place in the United States to begin with, that the law that failed to pass in the House would have done anything significant to prevent them?

Posted by: David Nickol | Jun 2, 2012 3:10:29 PM

David,

-"In the United States, how could a law that was unconstitutional be considered a good law?"

Remember, we're talking about abortion jurisprudence, and there's good reason to think that the entire current abortion jurisprudence is not based on the Constitution and that a true reading of the Constitution requires its reversal (e.g., see those pro-abortion lawyers who admit that Roe has no constitutional basis). And, even assuming Roe's validity, even more obviously does the proposition "a woman has the right to terminate her pregnancy for whatever reason she alone chooses" have no basis in the Constitution (see Roe's holding). My point is that for pro-life people crafting laws, it is supremely silly to defer for one moment to the all-abortion-rights-are-constitutional jurisprudential view, and that the all-abortion-rights-are-constitutional jurisprudential view is irrelevant to our consideration here about whether an abortion law is bad for our society.

-You misunderstand the reason I brought up the doctor prescription. It seemed that you were suggesting that since sometimes a doctor could be uncertain about a woman's reasons for an abortion, then the law was useless and wrong. That's why I brought up the prescription law, a law where a doctor could be uncertain about a person's reasons for medication, and yet the law still exists and is enforced from time to time.

-"I am trying to think of any other type of law where it is totally legal to obtain something by lying..."
To a large extent, one might argue that abortion is sui generis, and thus it's not really relevant if other examples can't be found in other contexts. But I actually think that there are a lot of similarities with assisted suicide: I think it's good not to censure those people who attempt or commit suicide -- these people need support, not condemnation -- while it's good to impose legal penalties on medical professionals who knowingly and willingly facilitate suicide. So, to go to your questions: consider lying to a doctor to get medication for an overdose vs. enlisting the doctor to knowingly supply medication for an overdose.

-"Do you really think, if there are sex-selection abortions taking place in the United States to begin with, that the law that failed to pass in the House would have done anything significant to prevent them?"

Yes. Sure, those abortions could have still happened without the law, but the law would have made it at least slightly more difficult for those abortions to happen, it would have strengthened the societal norm against those abortion, it would conveyed a societal message of disapproval, all of which would have possibly dissuaded some from obtaining such abortions.

Posted by: Thales | Jun 3, 2012 11:38:42 AM

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Sex-selection abortion ban = anti-Asian?

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