Peter Blair, an astute commentator on abortion politics and pro-life issues, has released a new summer edition of his Substack "The Pelican". He has graciously allowed us to reprint an excerpt on the current legal discourse on "reasons bans." You should all, of course, become paying subscribers of his newsletter, and follow him on Twitter at @PeterAWBlair
In the Harvard Law Review, Profs. Melissa Murray and Michael Stokes Paulsen recently reflected, from very different perspectives, on the judicial future of restrictions on “trait-selection abortion.” These are laws that ban or regulate abortions that are performed for a specific class of reasons: to avoid having a child of a specific race or sex or one who has received (e.g.) a fetal diagnosis for a genetic disorder.
According to the Guttmacher Institute, 18 U.S. states have passed at least one such regulation as of July 1st, 2021 (compared, for example, to 26 states that have passed at least one TRAP regulation, 16 states that have passed flat bans on abortion prior to viability, and 27 states that passed at least one regulation pertaining to ultrasounds, all according to Guttmacher).
In recent years, restrictions on trait-selection abortions, or reasons bans, have been favored by some pro-lifers who believe that more expansive bans—such as heartbeat bills—are unlikely to provide good test cases for the Supreme Court. And in 2019, the Court did hear a case involving an Indiana reasons ban, but it declined to rule on the merits of the ban given that an insufficient number of lower courts had considered the issue. (Additional lower court review of these laws now appears to be happening—and in fact there is a certiorari petition currently pending before the Court with respect to an Arkansas law prohibiting abortions performed because the fetus has been diagnosed with Down syndrome).
Though Justice Thomas joined the Court’s decision, he issued a concurring opinion in which he argued that abortion and eugenics have historically been associated with each other, that abortion is “an act rife with the potential for eugenic manipulation,” that “the constitutionality of other laws like Indiana’s thus remains an open question,” and that “the Court cannot avoid [the issues raised by reasons bans] forever.”
SPC: The whole article is well worth reading. As the discourse around racial injustice continues to intensify, we cannot leave the wide range of ethical issues raised by sex-selective abortion undiscussed. Despite what Planned Parenthood and other sex-selective abortion advocates will say, abortion opponents know that women facing an abortion decision deserve all the facts.
The continuing disparities in abortion rates are only amplified when it comes to trait-selective abortion bans - because the traits people select for are, unsurprisingly, minority traits. The Planned Parenthood line is to only talk about the ethical issues by discussing genetic testing and genetic diagnosis (which has very, very troubling implications for disability rights - people with disabilities have the same right to life that we all do).
But this dodges a whole host of ethical issues surrounding how abortion providers screen pregnant women for abortion services - and the well-documented presence of sex-selection abortion and race-selection abortion. These issues disproportionately affect black women and Hispanic women. Given the troubling and persistent overrepresentation of white women in abortion advocate circles, it's clear that an honest debate on the history of birth control and abortion advocates is still a long way away.