The State of Ohio is currently considering a bill that would ban abortions motivated by the presentation of Down syndrome by an embryo or fetus. One could view this law as simply another instance of anti-abortion folks attempting to limit women’s access to reproductive choice, and this view would certainly hold some truth. But prohibiting abortions based on a woman’s reasons for terminating—and, in particular, based on a eugenic reason for terminating—raises issues peculiar to this sort of legislation, worthy of its own separate consideration. In this column, I will consider some features of legislation with this focus and what it could mean for people dedicated to protecting a woman’s right to choose abortion.
Types of Abortion Regulations
Legislation regulating abortion falls largely into four categories: First, there are laws that are general in their scope in that they require anyone seeking an abortion of any sort to overcome obstacles, including a waiting period, an “informed consent” session, or a trip to a far-away hospital because small clinics lack the mandatory attributes of a place that performs abortions. I speak of these obstacles as general because they do not target particular women, particular pregnancies, or particular motivations for terminating.
Second are laws that target women based on their specific characteristics, such as being under the age of 18. Women in this category might be required to notify parents, obtain parental consent, or appear before a judge to prove their maturity and fitness to make a decision about whether to bear a child.
The U.S. Supreme Court has approved various incarnations of these first two types of regulation, in the form of waiting periods, for example (as in Planned Parenthood v. Casey), as well as parental notification and consent for minors, provided exceptions for mature minors and for the life and health of the minor mother.
A third type of limit on abortion concerns the timing of the procedure relative to the age of the developing fetus. The first major abortion decision from the U.S. Supreme Court, Roe v. Wade, divided pregnancy into three trimesters, the first of which would not be subject to any regulation, the second of which could be regulated for the wellbeing of the pregnant woman, and roughly the third of which (occurring after the fetus becomes viable—able to survive outside the womb) would be subject to prohibition, provided exceptions for the life and health of the mother.
Casey discarded the trimester framework but held onto viability as the dividing line between a right to abortion that may not be unduly burdened and an option by the government to prohibit all but life-and-health-necessitated abortions. Timing-related abortion regulations typically have as their premise the idea that abortions become increasingly problematic, from an ethical perspective, as fetal development progresses, with the State holding a correspondingly greater and greater interest in protecting the potential life over time. Prohibitions against later-term abortions (and arguably, those against so-called “partial-birth” abortions, upheld by the Supreme Court in Gonzales v. Carhart) fall into the third category.
A fourth and final type of regulation targets a woman’s reasons for wanting to terminate her pregnancy. One of the abortion regulations in the Pennsylvania law challenged in Casey was a prohibition against terminating a pregnancy on the basis of the sex of the embryo or fetus. Planned Parenthood of Southeastern Pennsylvania, the petitioner in Casey, chose not to challenge the prohibition against sex-selection abortion, so we do not have a specific answer from the Supreme Court regarding the validity of this sort of prohibition.
Despite the Court’s silence, a prohibition of sex-selection abortions does two things that, based on prior precedents, might appear fatal to the legislation: it prohibits the procedure altogether for those women who want to terminate for that reason, and it prohibits the procedure no matter when in pregnancy it is to take place. The legislation therefore appears to unduly burden the constitutional rights of such women to have an abortion, and it does so long before fetal viability. Yet the notion of a sex-selection abortion may be so repugnant to the Supreme Court as to trump these features of the law, a prospect that might have deterred Planned Parenthood from challenging that portion of the statute in Casey.
Though I ultimately believe that women should have unfettered access to safe and legal abortions, I can understand why targeted terminations would strike many as problematic. In my estimation, the right to abortion in its essence amounts to a right to bodily integrity rather than a right to kill an unwanted embryo or fetus. This is what distinguishes the position of the mother from that of the father of the pregnancy (the latter of whom has no right to terminate)—the mother is not seeking simply to end the life of an embryo or fetus but is seeking to end the internal occupation of her body by a foreign body. This foreign body causes pain, discomfort, and risk through its appropriation of the woman’s circulatory and other systems to serve its needs, much like a parasite (albeit one that many women welcome). When a woman decides to terminate a pregnancy because of what she has learned about the status of the fetus (e.g., that it is female or that it will have Down syndrome), however, the primary motivation is plainly to kill the specific fetus with the undesired characteristic, rather than just to regain her bodily integrity.
As I have explained elsewhere, though, the imposition of pregnancy on a woman’s bodily integrity still provides a sound basis for the right to terminate her pregnancy, even if the woman’s reasons are related to the characteristics of the fetus rather than to the burdens of pregnancy on her body. Once the woman learns of the status of her fetus and no longer wants to take the pregnancy to term, a decision to force her to do so constitutes a colonization of her body and a denial of her bodily integrity by the government. By an analogy described in my forthcoming book, co-authored with fellow columnist Michael C. Dorf, a woman who refuses sexual consent to an interested party solely because of the party’s race may be relying on an offensive criterion, but she still retains an absolute right to have her refusal to consent respected. Intrusions upon bodily integrity, in other words, cannot be justified just because the person is asserting her bodily integrity interest in a targeted fashion that we find offensive.
At the same time, people understandably find troubling the decision to terminate a pregnancy on the basis of sex. It is, in a phrase, sex discrimination of a lethal form. If the fetus were born already as a baby and someone were to kill the baby because she was female, then we would call the act a hate crime (in addition to its being classified as a homicide). The same would be true if someone killed a born individual with Down syndrome because of his having Down syndrome. We would call this act a hate crime and perhaps punish it more severely than we would a “regular” murder committed without regard to the disability status of the victim.
Our law routinely and legitimately takes discriminatory motives into account, whether in identifying illegal hiring or housing practices or in enhancing the penalties for a criminal offense. A prohibition against sex-selection or Down-syndrome-selection abortion thus fits within a tradition of laws that bar acts of hostility or violence that target a particularly vulnerable, despised, or minority population. And born members of the two groups, respectively, might feel grateful for a law that implicitly expresses their value as full members of the community, saying in essence that “the fact that your baby will be a girl/a person with Down syndrome is not a good reason to kill her or him.”
One Hidden Cost of Down Syndrome Abortion
In addition to mirroring the structure of anti-discrimination and hate-crime sentencing enhancement laws and thereby also avoiding an expressive harm to members of the protected classes, the Ohio bill that would prohibit abortion on the basis of Down syndrome might be responsive to another phenomenon as well. Sometimes, when we have the option of doing something, that option can become a mandate. In the case of abortion for Down syndrome, I have a personal experience to share.
When I learned that I was pregnant with my younger child, I was already quite far along in the pregnancy. I went to the doctor to confirm that I was pregnant, and she proceeded to use a Doppler to play me a heartbeat and to send me to a radiologist who was able to tell me, through an ultrasound, that I was pregnant with a girl. I was very excited, but my doctor warned me that I should make an appointment with an obstetrician and arrange for an amniocentesis (an “amnio”) as soon as possible, because I was over 35 years old.
The way in which my doctor brought up an amnio made it clear to me and my husband that I was expected to undergo this procedure, which lets a pregnant patient know whether she is carrying a fetus with a chromosomal anomaly, including the one responsible for causing Down syndrome (a far more common occurrence in women past the age of 35 than in younger women). When I went to an obstetrician, he too urged me in no uncertain terms to get an amnio as soon as possible. I brought up the worry that an amnio could cause a miscarriage, but he informed me sternly that at my age, the odds of Down syndrome were sufficiently high that I really needed an amnio. Though my husband and I are generally assertive people, we felt that we had no option but to have the amnio, and we think we probably would have felt tremendous pressure to terminate, if the amnio had turned up the presence of Down syndrome.
I spoke about this phenomenon—of a choice becoming a mandate—in another column about physician-assisted suicide and abortion. I conclude from this phenomenon that it is crucial to ensure that doctors and others consciously avoid pressuring patients into making a choice that they have every right not to make. Others, however, conclude that people should not have the choice at all, because the slope from choice to mandate is too slippery. That is why Professor Yale Kamisar has opposed a right to physician-assisted suicide.
Concluding That the Law Is Wrong
Despite the various arguments in favor of the Ohio bill, including the anti-discrimination norm and the concern about a choice becoming a mandate, I nonetheless oppose the bill to prohibit motive-based abortion. As I explained earlier, I believe that a woman’s right to reject assaults on her bodily integrity must include the right to make a decision on a basis that some of us (or even most of us) consider offensive. Once a woman has information that makes her want to stop being pregnant, she has a powerful interest in terminating her pregnancy. Until she is able to do that without actually killing the fetus (something that may become possible with artificial wombs), the death of her fetus is an unavoidable consequence of exercising that right, which we hold sacred in our society, even when its exercise means that others will die. Blood drives remain optional, despite the trivial bodily sacrifice involved for most people in donating a pint and the grave need for a transfusion of patients experiencing blood loss.
Perhaps even more importantly, I believe that until an embryo or fetus is capable of having feelings, of suffering pain or of feeling pleasure, it remains a potential person. This means that the overwhelming majority of abortions that women have occur before there can be said to be “someone” there “who” is aborted. There is instead “something” that, if allowed to keep growing, could later become “someone.” For this reason, I do not regard the termination of a pre-sentience pregnancy—for whatever reason, good or bad—as an act of violence. It is accordingly not a hate crime against the fetus just as it would not be a hate crime against potential people to decide to use a diaphragm when having sex with someone of a despised racial or ethnic group, in order to avoid having a mixed-race child. We can find the act offensive (and many will), but the potential person who never develops as a result is not a “victim” of the offensive act.
Furthermore, it is hardly clear that wanting to avoid parenting a child with profound disabilities is offensive. Even some people who currently parent children with Down syndrome have written poignantly about how difficult the decision they made was and how crucial it was that they had the choice rather than experiencing a legal mandate. People who are not prepared to endure the extra expense, the inevitable challenges, and the ultimate loss of their child before he or she reaches old age, should have the choice to opt out of doing so, at least prior to fetal sentience (which appears to occur somewhere between 23 and 30 weeks gestation, according to medical sources). It would be wrong to force a woman to bring a profoundly disabled child into existence against the woman’s will. Until it comes into sentient existence, the fetus has yet to be someone who can be a “victim” of discriminatory abortion. The choice of whether to take her pregnancy to term must accordingly remain with the woman who is already “someone” and whose bodily integrity is uniquely at stake in an unwanted pregnancy.