Save the unborn, but only if they're male? (Kevin Kreneck / Los Angeles…)
The first time I heard about abortion for sex selection was in 1981, when I interviewed the Rev. Richard McCormick, a Jesuit bioethicist at Georgetown University. "We have abortion now for sex selection," he told me. "Whatever you think of abortion, that’s the worst possible reason for an abortion -- 'I don’t want a girl this time.' That scares me because I think it can change us subtly in the process."
It’s possible that many of the 246 members of the House who voted for the Prenatal Nondiscrimination Act -- a bill criminalizing abortions for sex selection -- agreed with McCormick that "I don't want a girl" is an attitude worth sanctioning apart from the desirability of abortion in general.
I doubt it. The bill, which failed because it was considered under rules requiring a two-thirds majority, is better interpreted as a Republican stunt designed to force Democrats who favor abortion rights to cast what could be called a "sexist" vote. Adding to the disingenuousness is the fact that a lot of the bill's supporters don't accept abortion under any circumstances. Finally, there is the little matter of Roe vs. Wade, which doesn't provide an exception for abortion restrictions aimed at sex selection.
That said, is there a rational argument -- assuming Roe weren't an impediment -- for banning abortions for sex selection while permitting other abortions? Unpacking McCormick's argument after all these years is a challenge, but I took him to say that the discrete problem with a sex-selection abortion is that it legitimizes theories about male superiority. Allowing them would "change us" by making us more tolerant, say, of sex discrimination in the workplace or patriarchal marriages.
If that's the problem, Congress in a world without Roe might enact a principled law that distinguished between abortions for no reason and abortions for a bad reason. If that sounds absurd, consider the fact that the Supreme Court already has squared the "any reason/no reason" circle in one area of the law.
In the 1986 case of Batson vs. Kentucky, it upheld the venerable practice of prosecutors engaging in "peremptory challenges" of prospective jurors -- that is, challenges for which no explanation is required. (A challenge for "cause" cites some prejudicial factor such as a friendship between the juror and the defendant.) But the court said that prosecutors could not use a peremptory challenge to exclude blacks, and set down an elaborate process by which a judge could flush out such a motive.
Critics of the Batson decision accused the court of logical illiteracy. How could there be gradations of peremptoriness? If a challenge can be made for no reason, by definition it encompasses any unspoken reason, from a belief that a black (or white) juror will vote in a particular way to the hunch that clergymen are soft touches for the defense or that Mormons will give the prosecution a break. The whole purpose of peremptory challenge is to give a prosecutor's hunches free rein in manipulating the composition of the jury.
If a legal system can tolerate challenging a juror for "any" reason but not for a specific reason, maybe one could devise a system in which abortion for any reason would be legal, but not abortion for discriminatory reasons (gender, race, disability). But that would create a situation in which a woman could still abort a fetus for other ignoble or arguably frivolous reasons -- like saving money on future college tuition.
That is the scenario contemplated by the Prenatal Nondiscrimination Act. Which is why it's hard to take its supporters seriously.
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