Pregnant and Prejudiced: the Constitutionality of Sex- and Race-selective Abortion Restrictions

• Publication year: 2021

PREGNANT AND PREJUDICED: THE CONSTITUTIONALITY OF SEX- AND RACE-SELECTIVE ABORTION RESTRICTIONS

Justin Gillette(fn*)

Abstract: Six states currently restrict a woman's access to abortion based on her personal motivations for seeking the procedure. These laws, which prohibit abortions that are sought based on the fetus's sex or race, raise challenging constitutional issues, as the restrictions do not fit neatly into the U.S. Supreme Court's abortion jurisprudence framework. The constitutionality of these laws is also unclear because no legal challenge has been brought against them. This Comment argues that motive-based abortion restrictions are unconstitutional on several grounds. First, the laws violate the woman's constitutional liberty rights, which protect the personal beliefs and motivations behind her decision to terminate a pregnancy. Second, the laws conflict with the Court's holding that governments cannot prohibit abortions before the fetus has reached viability. Third, while the Court's decision in Gonzales v. Carhart may support abortion restrictions motivated by moral concerns, the interests recognized in Gonzales are distinguishable from those furthered by motive-based restrictions. For these reasons, reviewing courts should strike down motive-based abortion restrictions as unconstitutional.

INTRODUCTION

On December 1, 2011, Representative Trent Franks of Arizona introduced the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act (PRENDA).(fn1) The bill imposed criminal sanctions, including up to five years of jail time, on abortion providers who conduct the procedure when they know that the "abortion is sought based on the sex . . . or race of that child, or the race of a parent of that child."(fn2) In the House Judiciary Committee hearing, Representative Franks proclaimed that while the country had made great strides in protecting the civil rights of women and minorities, it had not yet adequately protected the civil rights of the unborn.(fn3) He illustrated this point with dramatic statistics: [T]oday in America between 40 and 50 percent of all African American babies, virtually one in two, are killed before they are born, which is a greater cause of death for African Americans than heart disease, cancer, diabetes, AIDS, and violence combined. . . . Fourteen million Black babies have been aborted since Roe v. Wade. . . . Now, you add to that the thousands of little girls who have been aborted in America simply because they are little girls instead of little boys. And these are travesties that should assault the mind and conscience of every American.(fn4)PRENDA is part of a larger trend of legislation banning abortions based on the motives of women.(fn5) Before the introduction of the federal bill, three states had already banned sex-selective abortions.(fn6) In 2011, Arizona became the first state to ban both sex- and race-selective abortions.(fn7) Many other state legislatures introduced similar legislation in 2012.(fn8) Some states have even considered banning selective abortions on grounds other than sex or race. In 2005, a state representative in Maine introduced a bill that would have prohibited abortions based on the sexual orientation of the fetus.(fn9) The North Dakota legislature passed a law in 2013 banning abortions based on genetic abnormalities.(fn10)

Proponents of PRENDA and similar motive-based restrictions claim that the laws are a response to a grave problem-the abortions of thousands of African-American and female fetuses in the United States.(fn11) Opponents of these measures argue that the claims of sex- and race-motivated abortions are unfounded and that the legislation is a dishonest attempt to chip away at women's reproductive rights.(fn12)

While the veracity of claims that certain fetuses are being specifically targeted for abortions is debatable, it is true that advances in reproductive technology have made it possible to identify more characteristics of a fetus at earlier stages of pregnancy.(fn13) These technological developments are relevant to the parents' decision whether or not to have a child, as they will have more relevant data on which to base their decision.(fn14) Forms of noninvasive prenatal diagnosis, such as the analysis of fetal DNA found in the mother's bloodstream, have the potential to reveal the sex of the fetus, along with other genetic traits, early in the first trimester.(fn15) Preimplantation genetic diagnosis allows parents to screen embryos for certain conditions and traits, including sex, prior to in vitro fertilization.(fn16) While some of these emerging technologies are costly and are not yet available to the majority of parents,(fn17) other forms of prenatal analysis, such as genetic testing for Down syndrome or cystic fibrosis, are already common practices in the United States.(fn18)

Recently, legislators have become increasingly concerned about women obtaining abortions for reasons related to specific fetal traits, which has resulted in the introduction of state and federal legislation to curb such practices.(fn19) These motive-based restrictions raise challenging constitutional issues, as the laws do not fit neatly within the U.S. Supreme Court's abortion jurisprudence framework. Currently, the State can fully restrict women's access to abortion once the fetus has attained viability, as long as there is an exception for the mother's health.(fn20) Before a fetus has reached viability, the State can only create mechanisms to influence and inform the woman's decisionmaking, but cannot pass measures that constitute an "undue burden" on the woman's ability to obtain an abortion.(fn21) The Supreme Court has arrived at these standards by weighing a variety of distinct interests: the State's respect for fetal life;(fn22) the State interest in women's mental and physical health;(fn23) and the woman's interest in her own reproductive autonomy.(fn24) Through weighing these competing interests, the Supreme Court has upheld several types of abortion restrictions, including restrictions on when an abortion can be performed,(fn25) what kinds of medical procedures can be used,(fn26) and what information the State can require doctors to provide pregnant women who are seeking an abortion.(fn27) However, the Supreme Court has not yet weighed in on whether a woman's right to an abortion may be restricted based on her personal thoughts.

This Comment will examine the constitutionality of sex- and race-selective abortion restrictions. Part I details the state laws restricting sex-and race-selective abortions, and the 2011 federal bill. Part II provides an overview of the Supreme Court's right to privacy jurisprudence and the doctrinal shifts that have occurred in the Court's understanding of this right. Part III describes the Supreme Court's evolving jurisprudence on abortion, as evidenced by the doctrinal shifts in three landmark abortion cases: Roe v. Wade (fn28) Planned Parenthood of Southeastern Pennsylvania v. Casey, (fn29) and Gonzales v. Carhart.(fn30) Part IV examines how, through these cases, the Court has refined the types of individual and State interests courts can consider when assessing abortion laws.

This Comment argues in Part V that the motive-based abortion laws infringe on women's constitutional rights on several grounds. First, a woman's liberty interest in reproductive decisionmaking extends to her personal beliefs and thoughts. Second, these laws deprive a woman of the chance to obtain an abortion prior to viability once she reveals her discriminatory motives. This result conflicts with Casey, in which the Court held that the State could not create an absolute bar to obtaining abortions previability. Third, the moral interests asserted in these statutes are dissimilar from the interests recognized by the Supreme Court in Gonzales. Although motive-based abortion laws may find some support in that decision-upholding a federal ban on "partial-birth abortions"- these laws differ from the Partial-Birth Abortion Act in that they do not prohibit actions that are analogous to criminal actions, protect women's mental health, or target specific medical procedures. For these reasons, this Comment proposes that courts reviewing motive-based abortion restrictions should find the laws unconstitutional.

I. STATES ARE INCREASINGLY INTERESTED IN ENACTING SEX- AND RACE-SELECTIVE ABORTION LAWS

Currently, six states ban abortions based on a woman's motives.(fn31) Even though some of these laws have existed for several decades, their constitutionality has yet to be challenged in court. The increasing interest in these laws, as evidenced by several state legislators recently proposing similar bills,(fn32) combined with the advances in technology that will make more fetal information available at earlier stages of pregnancy,(fn33) suggests that courts may have to consider the validity of these laws in the near future.

A. Several States Have Passed Motive-Based Abortion Restrictions

Illinois became the first state to ban sex-selective abortions in 1975.(fn34) The law states that "[n]o person shall intentionally perform an abortion with knowledge that the pregnant woman is seeking the abortion solely on account of the sex of the fetus,"(fn35) but contains an exception for abortions performed in connection with genetic disorders that are linked to sex.(fn36) During Senate debates over the bill, proponents of the law...