Pregnant and Prejudiced: The Constitutionality of Sex- and Race-Selective Abortion Restrictions

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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).1 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."2 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.3 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.4

PRENDA is part of a larger trend of legislation banning abortions based on the motives of women.5 Before the introduction of the federal bill, three states had already banned sex-selective abortions.6 In 2011, Arizona became the first state to ban both sex- and race-selective abortions.7 Many other state legislatures introduced similar legislation in 2012.8 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.9 The North Dakota legislature passed a law in 2013 banning abortions based on genetic abnormalities.10

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.11 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.12

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.13 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. …