The Flawed Logic of Prenatal Discrimination

As the Supreme Court heard oral arguments this week in the same-sex marriage cases, North Dakota enacted three of the most restrictive abortion laws in the country. Two of them are unlike any ever considered by U.S. courts.
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North Dakota this week enacted three of the most restrictive abortion laws in the country. Two of them are unlike any that courts in the United States have ever considered.

One bans abortion wholesale after a fetal heartbeat is "detectable" (as early as six weeks into a pregnancy), unless termination would save the woman's life. The other law forbids any abortion that's sought on the basis of fetal sex or genetic anomaly, even fatal ones.

Both laws should be struck down as unconstitutional. But the selective abortion ban presents new legal questions for supporters of reproductive rights. Indeed, the Supreme Court in Roe v. Wade declined to insist that a woman "is entitled to terminate her pregnancy . . . for whatever reason she alone chooses."

The heartbeat law that outlaws abortion early in pregnancy is the more straightforward violation of that constitutional right. Roe made clear that a woman's right to abortion extends until a fetus can survive on its own, typically at around twenty-three or twenty-four weeks. In Planned Parenthood v. Casey, the Supreme Court reaffirmed "Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."

Yet aside from that insufficient interest in preserving fetal life, North Dakota offers no other constitutionally recognized justification for its previability ban. So there can be no question that the heartbeat law violates the right to abortion protected under the Supreme Court's holdings in Roe and Casey.

Existing law doesn't so readily dispose of the ban on selective abortion. That's because North Dakota lawmakers suggest that this law promotes, besides the fetal preservation interest, three other purported interests in combating demographic imbalance, prenatal discrimination, and expressive harm.

Consider the demographic interest. Skewed gender proportions in certain parts of Asia reinforce the mistreatment of women and lead to the marginalization of unpartnerable men. But the sex ratio in the U.S. falls squarely within the biological norm; selective reproduction doesn't risk disrupting that balance of boys and girls in the next generation. As for the genetic anomalies prong, legislators don't argue that the state has an interest in increasing the number of children born with even the most debilitating conditions.

Second is the prenatal discrimination rationale. Fetuses singled out because of their sex or genetics deserve special protection, this argument goes, greater than for other fetuses whose destruction the law allows. So it's not destroying a fetus that the law targets, at least not principally, but rather discriminating against it.

But no fetus has a claim not to be treated differently on the basis of particular characteristics. As a matter of law, not a single Justice of the Supreme Court has ever suggested that fetuses qualify as persons with rights to equal protection under the law. As a matter of science and secular morality, not even a fully developed fetus has the mental capacity required for it to care whether it is treated unfairly. Prenatal discrimination doesn't frustrate any self-identity that it knows or any sense of dignity that it might enjoy.

Selective abortion can of course matter to born people too. This is the expressive harm argument. To permit abortion based on sex or genetics, on this account, is to send the disparaging message that girls and people with disabilities make less desirable children, or even that they shouldn't be born at all. This final asserted interest looks insincere in political context. After all, the state hasn't tried to restrict similar practices like selecting against certain sperm or embryos after testing for sex or genetic anomalies.

Even if this expressive interest weren't just a pretext for illicit purposes, it'd still be too weak to justify the law's restriction of abortion rights. As Justice Brennan argued (though not for a majority of the Court): "However laudable" the "moral tone" that the state might seek "to maintain or create," it can't promote those values, in the absence of more concrete goals, "by means that" restrict constitutional "guarantees."

So none of the alternative arguments that lawmakers make in defense of the selection law--not expressive harm, not demographic imbalance, not prenatal discrimination--withstands scrutiny.

The third abortion restriction that became law in North Dakota this week may be the most dangerous. It aims to shut down the state's only abortion clinic by imposing onerous and unnecessary requirements under the guise of advancing women's health. Similar targeted regulations of abortion providers, so-called TRAP measures, have been intensively litigated in many other states, with mixed success.

Federal courts should strike down all three abortion restrictions. The selection ban presses constitutional analysis beyond the state's conventional interest in fetal preservation. Its never-before-tested arguments for restricting abortion try to sidestep rather than override Roe. That could give the law a greater chance of attracting the five Supreme Court votes needed to transform the national landscape of reproductive rights.

Dov Fox is an Academic Fellow at Georgetown University Law Center. His publications include "Racial Classification in Assisted Reproduction" in The Yale Law Journal.

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