Today marks the fortieth anniversary of Roe v. Wade, the Supreme Court decision establishing a constitutional right to abortion. Advocates of Roe and abortion rights frequently portray abortion as a matter of “women’s rights” or as a “women’s issue.” Abortion, it is said, is crucial to women’s equality – to the ability of women to control their own lives and destinies. As for the fetus, the usual argument is that fetal human life is not yet, really, actual human life but only “potential life” and thus not truly a human person. Abortion is thus morally allowable and, for the sake of advancing the freedom and equal social status of women, must be left to a woman’s unrestricted choice.

So the argument goes. But the gender-equality-female-empowerment case for abortion rights is vulnerable to a simple question: What do you think of sex-selection abortion?

Consider posing the question to a thoughtful pro-choice friend. Or ask it of yourself if you think of yourself as pro-choice on abortion. Do you favor or oppose a legal right to abortion even for purposes of sex-selection of a born child – that is, abortion had because (typically) the child otherwise to be born would be a girl? If not, why not? The answers to such a question produces reveal a great deal about our abortion debate, and the often-unexamined premises of the pro-choice position.

Consider first the raw numbers. Worldwide, sex-selection abortion is distressingly common. Each year, millions of abortions are committed because the child is discovered to be a female, a fact now easily revealed by ultrasound early in pregnancy. Statistically, it is clear that abortion is widely used specifically to prevent the births specifically of baby of girls. In 1991, Harvard economist Amartya Sen examined birth-ratio disparities and demonstrated that “More Than 100 Million Women are Missing” (the title of his New York Review of Books article). Today the number of missing and presumed dead stands at 160 million women and girls – undesired females killed by abortion or infanticide. The incidence of sex-selection abortion of girls is more pronounced in certain Asian populations, but it exists in western nations as well, including the United States.

The reality of sex-selection abortion assaults the premises underlying the abortion-rights position. The “women’s rights” argument doubles back on itself in this setting. A right to abortion, in the name of gender equality, ends up being a right to abort girls because they are girls. What does that do to the notion that abortion advances gender equality and women’s rights? If abortion on the basis of the sex of the child to be born – killing girls because they are not boys – is not sex discrimination and gender-based violence, it is hard to know what is. And if abortion produces a gender-skewed human population, a world in which women and girls are systemically culled and their percentage of the population reduced – and it does – it is very hard to think this an advance for women’s freedom and equality. Demographers and some feminists have coined a term for this war on women: gendercide.

Whatever one’s views on abortion as a general proposition, surely sex-selection abortion should be banned. Most reasonable people, including many who think of themselves as pro-choice, agree. Polls show 90 percent or more of Americans oppose sex-selection abortion. It does nothing to further equality or protect women and girls. Quite the reverse, the practice devalues and kills female humans for the sin of being female. Those most committed to promoting the equal status of women and girls should be the most committed to banning sex-selection abortion. If sex-selection abortion is not wrong, nothing is wrong.

But here’s the even deeper point. Our instinctive, quite proper revulsion to sex-selection abortion lays bare a more fundamental problem with the pro-choice argument: it challenges the “it”-ness of the human fetus. A crucial prop of all arguments for abortion rights is that the human fetus has no true human status meriting protection. Kick that prop out from underneath the abortion-rights position and the argument for abortion rights largely collapses. Recognizing that the fetus has a gender, as a girl or boy, is a giant step toward recognizing the essential humanity of the unborn child. Think about it for a moment. Why exactly, is sex-selection abortion wrong? At bottom, the reason must be that the human fetus is more than an “it.” It’s a girl, or a boy. And once that is recognized the game is up.

Contrast this with standard abortion-rights ideology denying any human moral or legal status to the fetus. If one were to take seriously the idea that the gestating human fetus is not yet meaningful human life, why would it matter that an abortion is had specifically to avoid giving birth to a girl? The fetus is not, on this ideology, really “a girl” at all. It is only a “potential girl.”

Nobody truly believes this. Confronted with the fact that the unborn human fetus has a gender – that “it” is a girl or a boy – it becomes difficult to deny the humanity of the human fetus. Despite forty years of social (and legal) conditioning, most ordinary, sensible people have not drunk the pro-choice Kool-Aid. They do not really believe that the unborn child isn’t really a child. In their hearts, and in their minds, they know better.

Only the most hardcore, committed abortion ideologues insist on following the logic of their ideology to such an absurd conclusion. And it is becoming almost impossible to do so in the face of statistical reality. How can birth rates of boys and girls be, in some cultures, so out-of-whack, if the fetuses aborted for their sex were not “really” ever girls at all? It simply blinks reality. If 100 girls are born for every 130 boys, it’s not because nature just suddenly decided to act differently. The reason is that, somewhere along the way, the lives of the girls were terminated. That fact either matters or it doesn’t. And if it matters, it has to be because the life of a female human embryo or fetus, gestating in her mother’s womb, matters even when still in the womb.

This brings us back to Roe v. Wade. Since Roe was decided forty years ago, there have been nearly sixty million legal abortions in the United States. Under Roe, the reason for which an abortion is performed does not matter. Before viability, the Court’s doctrine explicitly holds that abortion may be had for any reason the pregnant woman chooses. And even after viability, the result is little different, as abortion may be had for reasons of the woman’s health, with “health” defined, bizarrely, as embracing any “emotional” or “family” reason for abortion. The “health” loophole is broad enough to permit abortion because the pregnant woman feels she does not want a girl. The shocking conclusion is that, under current Supreme Court doctrine, sex-selection abortion is a constitutional right, throughout all nine months of pregnancy.

A substantial majority in the U.S. House of Representatives voted for a bill last May to ban sex-selection abortion – the “Pregnancy Non-Discrimination Act,” or “PRENDA” – but it failed on procedural grounds. Were it enacted, it would force the Supreme Court to confront the implications of its own extremism in Roe and might well lead to reconsideration of its abortion-law doctrine in some respects. But PRENDA has no chance today. President Obama opposes, and would veto, any restriction on abortion, including a law banning abortion for reasons of sex-selection.

It is a sobering thought that America’s constitutional regime today permits abortion because the child otherwise to be born would be a girl – or, for that matter, for any other reason the pregnant woman desires an abortion. This will only change when public attitudes change. So on this somber fortieth anniversary of Roe, it is a question worth asking your pro-choice friends, or pondering yourself: What do you think of sex-selection abortion?

Michael Stokes Paulsen is distinguished university chair and professor of law at the University of St. Thomas (Minneapolis, MN) and author of many articles and books on constitutional law.

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