The Lessons of Sex-Selection Abortion

In this column, I will be reviewing a book written by my colleague, Sital Kalantry, entitled Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India. As the title suggests, Kalantry’s book spends a good deal of time analyzing sex-selection abortions and how one might think about such procedures if one is a feminist of the sort that she thinks we ought to be. Her analysis is penetrating and compelling, and it demonstrates the moral complexity of a seemingly simple topic. Like most good books, Kalantry’s not only taught me a new way to think about an area that I thought I had already understood; it also inspired me to think about a completely different area in a new way as well.

Let us start with the way many people feel about sex-selection abortion, where the pregnant woman selects girls for terminations. People—even or maybe even especially those who support women’s rights—don’t like it. It feels like discrimination against girls, and people wonder whether someone other than the woman is driving the choice. Many of us have heard the news that women in China and India have sex-selection abortions, and we figure that it might be taking place sometimes in the United States as well. So what should we do/think about this?

One might assume that we should have the same reaction to such abortions when they take place in India or China as we do to those that happen in this country. I believe we tend to get caught up in one of two ways of thinking about a cultural practice that falls outside of our moral comfort zone, wherever it happens to occur. One is that we simply defer to the foreign culture and embrace cultural relativism, concluding that whatever a culture considers legitimate is ipso facto legitimate. On this approach, despite whatever misgivings we might have, we would just say it is fine for women in India and China to have sex-selection abortions, because that’s what they do, and who are we to question it? We might conclude that the same is true when immigrants from these countries sex-select in the United States.

A second, opposite, approach is that we judge the practice negatively, also in a uniform way, and say, first, that it is wrong in India and China and second, that if it is discriminatory or otherwise objectionable in its country of origin, then it must also be discriminatory or objectionable here. On this approach, we would support sex-selection abortion bans or regulations in India and China as well as in the United States, never considering the possibility of treating the practice on the different continents differently.

Kalantry gives us a way out of this split. She observes that sometimes a practice looks like it’s the same one in its country of origin and here but that this appearance can be deceptive. What is discriminatory in one country, as a factual matter, may not be discriminatory in another. This is not cultural relativism (where we defer to a culture’s practices). Kalantry argues instead that an apparently similar practice may actually have a very different meaning, significance, and consequence when taken out of its place of origin and transplanted into the United States. This approach, which Kalantry calls the transnational legal feminist approach, stays true to feminism while encouraging us to cultivate humility about what we are seeing when immigrants move and transport some of their customs here.

Kalantry’s approach is in some ways the mirror image of cultural relativism. Cultural relativism takes what seems an uncontroversially objectionable practice in its country of origin and defers to that culture. Kalantry, rather than deferring to the culture in question, criticizes it and calls for regulation. In the U.S., by contrast, where we are ordinarily most comfortable regulating (because it is “our” culture at issue), Kalantry is willing to entertain the possibility that an originally harmful practice might have become benign upon transplantation. Kalantry is sensitive to the facts and wants to know about the practice on the ground, rather than just considering it in the abstract, in both its country of origin and the country to which it has moved, before she draws normative conclusions about it. She usefully notes that when a practice becomes one of a minority of the population, and when it is motivated by something different, its consequences and thus its normative status may change as well.

Kalantry uses sex-selection abortion and bans on the procedure to unveil her transnational feminist legal theory approach, an approach that she also applies to Muslim women wearing the veil. Quite a few states in the U.S. have either adopted or tried to adopt bans on sex-selection abortion. Kalantry shows us through her own and others’ research that sex-selection, when it does occur in the U.S., is very different from what it is when it occurs in India.

Women in India, when they selectively terminate, tend to do so in favor of boys. This happens mainly because of societal discrimination against girls. The consequence of selectively terminating females before they are born is a male skew in the population of those who are born, a skew that can have very negative effects on women and girls. A heavily male population may be more violent to women, for example.

In the U.S., when women (including immigrants from India) selectively terminate, they tend to do so as a means of achieving gender balance within the family. If they have girls, they might select in favor of a boy, but if they have boys, they might select in favor of a girl. Both the motive and the consequence of the practice in the U.S. is therefore different. The motive is not to eliminate a girl but to have a mix of sexes, a more benign wish. And the consequence for the population is minimal, both because sex-selection is rare and because it does not systematically skew in one direction.

Because her approach is feminist, Kalantry asks, in each place where sex-selection abortion might take place, what the impact of the practice and of the regulation of the practice might be for girls and women. In India, for example, it is illegal to tell women the sex of their fetus, as a measure against sex-selection abortion. Kalantry concludes that such a measure may be warranted because although it limits women’s reproductive options and denies women information about their bodies, it does so to prevent the greater harm of a highly male-skewed population.

In the United States, by contrast, where sex-selection is rare and balanced enough not to have much of an impact on girls and women as a group, the bans on sex-selection abortion are all downside with no upside. They limit women’s reproductive options and, perhaps more importantly, they deter doctors from performing any abortions for Asian American women—whom doctors suspect of sex-selection—even when they are not sex-selecting. Doctors, in other words, are profiling their patients and trying to avoid getting into legal trouble. Kalantry therefore comes down firmly against the bans in the United States.

As someone who thinks a lot about abortion, not just sex-selection abortion, I am especially grateful to Kalantry for delving into this topic. Her book helped me to think about the various frames into which one might place a decision of a woman to terminate a pregnancy. First, Kalantry discusses the stereotype people have of women abroad whose boyfriends or husbands are forcing them to have a sex-selection abortion. This brings to mind a first frame for abortion: an act by a man against a woman. Then Kalantry explains that the decision to sex-select in India is more likely to result from a woman’s perception of how a girl will be treated, as something less than a boy, than from coercion by a husband or boyfriend. In this second frame, abortion is an act by society against a woman, because it motivates her by discriminating against her and other women.

A third frame is the one in which abortion is an act by a woman against her embryo or fetus. This is the original pro-life frame, although the pro-life movement seems to have adopted the first frame as well (where women are victims of abortion coerced by men). Yet another, fourth frame, appears if we think of abortion as an assertion of bodily integrity: abortion is then an act by a fetus against a woman, in that the fetus’s intrusion motivates the abortion. With her transnational feminist legal approach, Kalantry by implication takes seriously the fourth (bodily intrusion) frame. At the same time, she complicates the assumption of the first (coercion by a partner) frame by introducing the second (societal discrimination) frame. She thus renders the choice to abort a female for her sex an understandable reaction to societal attitudes (in India), even if it is ultimately too harmful to girls and women to be simply tolerated.

The one frame that Kalantry does not engage is the third one, the frame in which abortion is an act by a woman against her embryo or fetus. Indeed, she highlights her negative view of the fetus in two ways. First, she describes the fetus’s sex in various places as its “future sex” (implying that the fetus does not yet have a sex but will have one in the future). Second, she says approvingly that the fetus lacks any right against discrimination, because such a right would imply personhood.

Though I am pro-choice, I want to question this decision to disregard the third frame, that of the woman acting against her fetus. I found the idea of a fetus’s “future sex” somewhat jarring, because it seemed to deny that the fetus has a real existence. Even if one believes in the right to abortion, after all, one must acknowledge that the fetus does exist before birth and that it has certain characteristics, including chromosomes and genitalia that designate it as having a particular sex (to the same degree, at least, as a newborn baby).

Her reference to future sex and her reluctance to consider the possibility that a fetus has an interest in not being discriminated against make me wonder whether Kalantry considers the fetus worthy of any moral consideration at any point during pregnancy. In various places, she says that even though she concludes that sex-selection abortion should not be banned in the United States, she does not like the practice. In her words, “I do not support the practice nor do I support a right to sex select,” “I am not suggesting that even one abortion for purposes of sex selection is morally acceptable or appropriate. I do not support the practice,” and “I do not support an affirmative right to sex-select.” My question, in reading the book, was why not?

If the fetus is not worthy of being protected against discrimination at any point during gestation (even as one factor to consider in the calculus), if it does not even have a sex, then what exactly bothers Kalantry about sex-selection abortion in the United States? It is not motivated by antipathy to girls but typically by a desire to achieve gender balance in a family. It is not likely to have any serious demographic consequences because so few people do it and because it happens in both directions. So why does Kalantry repeatedly say she disapproves of it? I wonder whether it is because at some level, she recognizes that at some point in pregnancy, the fetus has enough of a moral status to be entitled not to be killed for being a girl or for being a boy (or perhaps at all). As further elaborated in my book with Michael Dorf, Beating Hearts: Abortion and Animal Rights, my proposal would be that the fetus gains this entitlement to moral consideration (and therefore to a recognition of the possibility of sex discrimination) at the point of sentience, when the fetus begins to experience his or her world.

Another interesting idea that Kalantry inspired in me concerns the complicated relationship between disparate treatment and disparate impact in discrimination. Under Title VII of the Civil Rights Act, employers may not discriminate in hiring, firing, or other conditions of employment on the basis of race, sex, and other categories.

As the law has developed, there are two types of discrimination claims that one can make: disparate treatment and disparate impact. Under disparate treatment, the person claims that the employer intentionally discriminated against her on the basis of race, for example. Under disparate impact, the plaintiff does not have to allege any intentional disparity but instead asserts that some instrument used to allocate benefits and burdens at the job happens to have the effect of leaving African Americans in a less favorable position than whites, for example. This could be a test that determines who gets a promotion and happens to yield a disproportionate number of whites getting promoted, even though no one set out to try to disadvantage African Americans.

In the law, disparate treatment is considered worse, and while disparate treatment is almost never allowed, disparate impact may be justified if the particular instrument is job related and consistent with business necessity.

It seems logical to consider disparate treatment worse than disparate impact, because in the former case, there is a bad actor, someone who is intentionally discriminating. In the second, by contrast, there is a disproportionate effect of a well-meaning practice. But Kalantry shows how impact might be more important than treatment. In the context of sex-selection abortion, the practice necessarily involves disparate treatment in China, India, and the United States. But it is actually disparate impact, the effect on the population demographically, that tells Kalantry that limits on the practice may be justified in India but not in the United States.

In the U.S., in other words, such abortions involve disparate treatment, because a woman who sex-selects is intentionally discriminating on the basis of sex. Yet there is no disparate impact, because the population does not become male-skewed as a result of the uncommon and bi-directional choices women make. In India, by contrast, there is disparate impact, in that the population becomes male-skewed as a result of the practice. And that is what makes it legitimately subject to regulation, not the disparate treatment that it shares with the practice in the United States.

This is a very useful lesson, because our law simply does not take impact seriously enough. Not only is disparate impact potentially excusable in employment discrimination law, but it carries no weight at all in equal protection jurisprudence, other than as evidence of intentional discrimination. This means that, for example, if we can show that people who kill white people are much more likely to be executed than people who kill African American people, this has no bearing on the legality of the death penalty.

Even when there are terrible real-world effects, the Supreme Court has interpreted the Constitution to have nothing to say about those effects, so long as we cannot show that anyone intentionally brought them about. In her important book, Kalantry teaches us that we ought to be paying close attention to the effects of people’s actions and that sometimes effects are more important than intentions. It is easy to forget that if we look exclusively to our law as a guide.

After reading her book, I am grateful to Kalantry. She has educated me and all others who read what she has written about the complexity of practices to which we might have otherwise had a knee-jerk negative reaction. Though she herself does not approve of sex-selection abortion, and I am curious to know why that is, she takes an empirically supported look at the practice here and elsewhere and draws sophisticated conclusions about the proper place for regulation on the basis of that scrutiny. Her approach to evaluating cross-border practices, the transnational feminist legal approach, deserves to be studied and deployed as we encounter more and more transplanted customs whose migration may have changed their deep meaning and thus their normative status as well.