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War on Women

160 million women and girls missing because of sex-selected abortions.

4:36 PM, Jan 22, 2013 • By MICHAEL STOKES PAULSEN
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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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