October 25, 2011


It's a Girl (Michael Stokes Paulsen, October 24, 2011, Public Discourse)

The shocking reality of sex-selection abortion cries out for laws banning the practice. Polls have shown that about 95% of the American people oppose sex-selection abortion. Even those who style themselves "pro-choice" overwhelmingly agree that abortion should not be allowed when the reason for such a choice is that the child to be born is female. The most pernicious radical feminist argument for abortion rights--that abortion is essential for "gender equality"--doubles back on itself in the case of sex-selection abortion: If abortion on the basis of the sex of the child--killing girls because they are not boys--is not sex discrimination, it is hard to know what is. (Hvistendahl is, awkwardly, pro-choice, yet horrified by the consequences of "unnatural selection.")

Four states--Illinois, Pennsylvania, Oklahoma, and most recently Arizona--have enacted laws prohibiting sex-selection abortion. Those laws have yet to be tested in the courts. At least seven other states have considered bills that would ban the practice. A sex-selection-ban bill was introduced in Congress in 2009--I worked with committee staff on the bill--but it died in the then Democrat-controlled House.

Are such bans constitutional, under the Supreme Court's decisions creating a right to abortion? The question such laws present is a dramatic one, challenging the underpinnings of Roe v. Wade in the most fundamental and direct of ways: Does the U.S. Constitution create a right to abortion, even when the woman's reason for abortion is that she does not like the sex of her unborn child?

Sadly, the answer, under the Supreme Court's absurd, through-the-looking-glass constitutional law of abortion, is yes. Under Roe and the Court's 1992 decision in Planned Parenthood v. Casey, a woman has a constitutional right to abort for any reason up to the point of "viability," when the child could live outside the mother's womb. Even after viability, a woman may abort for any "health" reason, an exception that ends up swallowing the rule: The Court's abortion decisions define "health" justifications for abortion to include any "emotional," "psychological," or "familial" reason for wanting an abortion.

A pregnant woman's (or a couple's) preference for a boy rather than a girl would seem to fit comfortably within the gaping loophole for "emotional" or "familial" reasons for abortion. Parents are thus free to choose to kill female human fetuses because they are female, even when the unborn child could live outside her mother's womb. It thus appears that, under Roe and Casey, laws banning sex-selection abortions are unconstitutional through all nine months of pregnancy.

This, of course, is madness, and it highlights, in an especially persuasive way, the extreme madness of the Supreme Court's current abortion doctrine. It exposes the grim legal reality that abortions may be had for any reason. It lays bare the doublespeak of "health" justifications for abortions, and it highlights the logical (and moral) incoherence of abortion-rights arguments predicated on notions of "women's rights" or "equal protection": A right to abortion, in the name of gender equality, ends up being a right to abort females.

Posted by at October 25, 2011 6:46 AM

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