What’s the Matter With Bans on Race- and Sex-Selective Abortion? Everything.

A particularly pernicious narrative about abortion rights has taken hold in this country accusing pro-choice groups and abortion clinics of attempting to target minorities. But it's all based on lies and illogical arguments.

Conservative MP Mark Warawa speaks about Motion 408, his motion against sex-selection abortions, on Parliament Hill. The Star Phoenix

A particularly pernicious narrative about abortion rights is one that accuses pro-choice groups and abortion clinics of attempting to target “pre-born” minorities (and girls) for abortion, and dismissing as callously indifferent to the lives of “pre-born” minorities those who oppose efforts to ban so-called sex- and race-based abortion. 

The narrative, based upon an out-of-context quote by Margaret Sanger, the founder of Planned Parenthood, is as commonplace as it is false.  To hear anti-choice groups tell it, Margaret Sanger was a racist woman whose goal was to exterminate black babies and bring eugenics to the United States. This is, of course, nonsense.

According to the aggressively uninformed anti-choice crowd, Margaret Sanger proclaimed, “[W]e want to exterminate the Negro population.”  The full context of the quote, however, belies the meaning anti-choicers ascribe to it.

As David Edwards of Raw Story pointed out last year, in a 1939 letter to pro-birth control advocate Clarence J. Gamble, Sanger argued that black leaders should be involved in the effort to deliver birth control to the black community: “We do not want word to go out that we want to exterminate the Negro population, and the minister is the man who can straighten out that idea if it ever occurs.” Facts be damned, however, anti-choice groups wail about abortion being black genocide, or black babies being an endangered species. This “black genocide” narrative drives the debate over “race-selective” abortion laws that have been introduced during recent legislative sessions around the country and at the federal level. (Only two such laws passed: one in Kansas as part of an omnibus bill in 2012 (SB 313), and one in Arizona in 2011 (HB 2443). Currently, Indiana is considering a race-selective abortion ban (HB 1430.)

Narratives based on social biases and stereotypes drive the debate regarding sex-selection, as does a fundamental failure to grasp that “son preference” in certain cultures is based upon gender stereotypes and inequity, and that abortion bans do not address these issues. (Currently, gender-selective abortion bans are being considered at the federal level (SB 138 (PRENDA 2013) and in six states:  Indiana (HB 1430 and SB 0183); New York (AO2533 and SO2286); Virginia (HB 1316); Missouri (HB 386); North Dakota (HB 1305); and Texas (HB 309). (Notably, PRENDA 2012 (which failed to pass last year) dropped the “race-selection” provision before putting it up for a vote, however the remainder of this article will use the term PRENDA to refer to both race- and sex-selective abortion bans.)  

Generally, these bills would threaten doctors with up to five years in prison for performing such a procedure, and would permit fathers married to the woman who obtains an abortion to sue a doctor he believes performed an abortion based upon the sex or race of a fetus. These laws also require doctors and nurses to report women whom they suspect are seeking an abortion on the basis of gender bias. 

Anti-choice groups and politicians draft these laws not to champion gender and racial equality, but rather to tug on the heartstrings of fair-minded individuals, and to distract from the policies that these groups support—policies which perpetuate endemic poverty and social exclusion, deny women of color real reproductive choices, and actually increase the rate of unintended pregnancy and abortion in the black community. 

And, in drafting and debating these laws, anti-choicers attempt to back pro-choicers into a rhetorical corner.  After all, if the pro-choice community cannot agree that women should not be permitted to terminate pregnancies based on the sex or race of the fetus, then we must be monsters, right? Never mind that there is no statistical evidence to back up their claims that women seek abortion on this basis.

Despite anti-choicers’ transparent tactics, the pro-choice community must avoid being drawn into a discussion about whether or not sex- and race-based abortion is a problem in this country. It’s not a problem, but as the old saying goes: if you’re explaining you’re losing. Instead, we should use against the anti-choice community what the anti-choice community utterly lacks: logic and reason. 

In the case of PRENDA, logic and reason dictate that PRENDA is a worthless law with practically no applicability, designed to serve as another weapon in the anti-choice movement’s arsenal.    

As a legal matter, PRENDA adds a mens rea element to abortion restrictions where none feasibly can be proven, and in so doing, ensures that the implementation of PRENDA is a virtual impossibility. “Crimes” under PRENDA will be impossible to prosecute because PRENDA and laws like it attempt to turn reproductive choice into a hate crime, and hate crimes are very difficult to prosecute.

Hate crimes are crimes that require an extra layer of proof.  For example, in order to morph a run-of-the-mill assault—an act intended to cause an apprehension of harmful or offensive contact, and which causes apprehension in the victim that harmful or offensive contact is imminent—into a hate crime, a prosecutor must prove that the accused’s undisclosed intent was based upon prejudice.

So, not only does a prosecutor have to get inside the accused’s mind to prove intent, the prosecutor must then go one layer deeper into the accused’s mind to prove beyond a reasonable doubt that bias or prejudice formed the foundation for that intent.  Notably, laws like PRENDA add one further layer of proof. 

Under PRENDA, a prosecutor must prove that a woman sought to terminate a pregnancy based on the sex or race of the fetus, and also that the doctor performing the procedure knew that the woman sought to terminate a pregnancy based upon these prejudices.

Given the lack of statistical evidence supporting a claim that skewed race and sex ratios are a significant problem in the United States, it stands to reason that women in this country are not seeking abortions for biased reasons, and, further, that women are not vocal about their motivation for seeking abortions (or telegraphing their reasons for seeking abortion such that a doctor should be deemed to have knowledge).

These abortion bans serve no legal purpose whatsoever. 

From a policy standpoint, a review of the records of politicians who introduce and support such laws ably demonstrates that many of these politicians support de-funding Planned Parenthood, while also supporting TRAP laws which lead to mass closures of abortion clinics and reduce access to safe abortion care.  These politicians are not concerned about gender and racial discrimination. Their goal is to strip women of reproductive choice by making it increasingly difficult for women to seek abortions, and increasingly burdensome for doctors to perform them.

Quite simply, PRENDA, and laws like it have nothing to do with saving black babies from extinction and everything to do with controlling black women’s bodies. And simple sex-selection abortion ban bills are just as pernicious: They seek to control women’s bodies by feigning concern about the plight of “pre-born” girls, girls who, once they reach reproductive age, will be seen as little more than incubators for the next batch of fetuses.