Last week, Arizona enacted a new law prohibiting abortions carried out on the basis of race or gender. The new law makes it unlawful for physicians to perform or induce such abortions, and requires physicians to obtain an affidavit from the patient that the abortion is not being obtained “because of the child’s sex or race.” The law does not penalize the women obtaining such abortions. The law also provides that a woman’s husband, or parents if she is a minor, may file a suit for civil damages and attorneys’ fees for violations of the law.
Specifically, the text of HB-2443 provides, in relevant part:
13-3603.02. Abortion: sex and race selection: injunctive and civil relief; failure to report; classification; definition
A. A person who knowingly does any of the following is guilty of a class 3 felony:
1. Performs an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.
2. Uses force of the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion.
3. Solicits or accepts monies to finance a sex-selection or race-selection abortion.. . . .
36-2156. Affidavit
A person shall not knowingly perform or induce an abortion before that person completes and signs an affidavit that:
1. States that the child to be aborted is not being aborted because of the child’s sex or race.
2. Is signed by the woman on whom the abortion is to be performed or induced.
3. Is signed by the person performing or inducing the abortion.
Although Reuters reports the new law makes Arizona “the first state in the nation to outlaw abortions performed on the basis of the race or gender of the fetus,” Constitutional Law Profs Blog indicates this isn’t true as to sex-selective abortions:
Arizona is not the first state with a statute prohibiting so called sex-selective abortion. Oklahoma, Pennsylvania, and Illinois all have such statutes passed in 2010. For example, the Oklahoma statute provides:
No person shall knowingly or recklessly perform or attempt to perform an abortion with knowledge that the pregnant female is seeking the abortion solely on account of the sex of the unborn child. Nothing in this section shall be construed to proscribe the performance of an abortion because the unborn child has a genetic disorder that is sex-linked.
Okla. Stat. tit. 63, § 1-731.2.B (2010).
Arizona’s bill is based on the finding of the Arizona Legislature as follows:
Evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman’s health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child’s sex or race by prohibiting sex-selection or race-selection abortions.
There does seem to be some evidence to support this. Joe Carter shares the stats about the escalating gender ratio at birth in various Chinese provinces. Where a natural ratio typically sits between 103 and 106 boys to every 100 girls at birth, several of China’s provinces are seeing rates upwards of 130 and even 140 boys per 100 girls. And while far less pronounced, the ratio has also climbed in the U.S. between 1975 and 2002, most drastically among Japanese Americans:
The race-selective component of Arizona’s new law has generated considerably more controversy, though there seems to be little if any data of any trends in abortions rates based on the race of the unborn child. This has led some to argue that “[t]he politicians in Arizona should just be honest and admit this is about limiting abortion rights, instead of inventing a problem to trick people into backing their cause.”
With that basic setup, here are my initial opinions about Arizona’s prohibition on gender- and race-based abortions:
First, the law probably would have been better off if it prohibited only gender-based abortions, as it appears there is at least a modicum of evidence to support taking action on that point. This does not seem to be the case as to race-based abortions. In fact, the race-based selection issue will likely (and probably by design) foment more hostile rhetoric over the abortion-as-genocide issue. Without engaging the merits of that particular debate, rhetorically speaking, I don’t think it helps the pro-life cause.
Second, at least as to the gender-based selection component, I think this is a good law politically speaking. In the long view, abortion in the U.S. is a political question. The Supreme Court’s decisions in Roe and its progeny are rightly criticized as politically motivated, grounded in extra-constitutional doctrine, and thus representing the nadir of judicial legitimacy. Notwithstanding the constitutional and moral questions underlying abortion, as a practical matter the 28 years since Roe have proven that a judicially-imposed one-size-fits-all national abortion policy just does not make sense. Unlike watershed Supreme Court cases concerning the Commerce Clause or the Non-Delegation Doctrine, for example, Roe could be overturned without severely impacting national economic and regulatory policy. This is why Roe is always one of the most closely scrutinized topics for Supreme Court nominees: it is well understood that the court-created right to abortion hangs not by the force of the judicial and constitutional reasoning supporting it, but by the political makeup of the Court. Thus, state laws that push back against that unwise judicial regime are helpful in moving forward toward establishing a more legitimate, a more robust legal and policy framework on abortion.
Finally, and again as to the gender-based selection component only, I also think it is a good law substantively speaking. Consider that perhaps the best argument against the law is that it “polices women’s thoughts”—i.e., it purports to tell women what sorts of reasons for having an abortion are impermissible. But this begs the question. Of course it is telling women what sorts of reasons for having an abortion are impermissible. This is what the abortion debate is all about: pro-life advocates think there are limited permissible reasons; pro-choice advocates think there are limited impermissible reasons, or perhaps, no impermissible reasons at all. To object to the Arizona law because it limits the permissible reasons for abortion simply announces which side of the argument you’re on—it does nothing to advance the argument itself. For pro-life advocates, then, Arizona’s law represents a fine political victory for the view that abortions should be more limited than they are currently.