Why North Dakota’s Ban on Genetic Selection Matters (Online Abortion and Reproductive Technology Symposium)

[Ed Note: Posted on behalf of Jaime King]

On March 26, 2013, North Dakota Governor, Jack Dalrymple, signed into law two of the nation’s most restrictive abortion bills. The first, HB 1456, prohibits providers from performing an abortion once a fetal heartbeat can be detected, which can be as early as six weeks gestation (Fetal Heartbeat Ban).  The second, HB 1305, prohibits providers from knowingly performing abortions sought solely because of the sex of the fetus or because the fetus has been diagnosed with a genetic abnormality or the potential for a genetic abnormality (Sex and Genetic Selection Ban).

Much of the press coverage and discussion of these unprecedented laws has focused on the Fetal Heartbeat Ban. This is largely because the prohibition eliminates nearly all access to abortion in the state and poses a direct challenge to a woman’s right to choose to have a pre-viability abortion free from undue state interference, as delineated in Planned Parenthood v. Casey.   Viability has typically been established around 24 weeks gestation, which is generally considered the end of the second trimester. The sweeping nature of this prohibition essentially negates the impact of a prohibition on sex or genetic selective abortions, as testing for those conditions, even with non-invasive prenatal testing techniques, cannot be performed reliably prior to nine or ten weeks gestation. By that point, the Fetal Heartbeat Ban would already prohibit any form of selective abortion.

But we should not ignore this law, as it is the more insidious of the two. As a direct threat to abortion access for all women, the Fetal Heartbeat Ban is very likely to be found unconstitutional, short of a complete overturning of Roe v. Wade. The Sex and Genetic Selection Ban, however, is subject to more debate. Since Roe, we have largely assumed that women can have an abortion for any reason prior to viability, but the courts have never directly addressed the issue.  Recent polls have found that over 3/4 of Americans would support bans on sex selective abortions,[1] and five states have already passed sex selection bans.[2]  The question of whether a woman’s reason matters is upon us.

Opening the door to permit states to invade and assess women’s private thoughts regarding her reasons for having an abortion strikes directly at the heart of the reproductive liberties protected by the Fourteenth Amendment. If states can regulate access to abortion based on a woman’s reasons for having it, they can significantly limit access in a piecemeal fashion – slowly and deliberately circling in on the right.Few states are likely to go as far as North Dakota has in prohibiting abortion for any genetic reason. Many would suggest that forcing a woman to carry a child to term who will suffer significantly from a genetic disorder and die at a young age is unduly cruel to the parents and, in rare instances, the child. In fact some of the sex selection bans, explicitly exclude sex selective abortions sought to avoid X-linked disorders.

But effectively drawing lines based on the seriousness of disease or genetic condition, medical vs. non-medical characteristic, or by any other measure will prove to be a gargantuan task, fraught with inconsistencies, inaccuracies, political influence, and eugenic overtones. Further, as Adrienne Asch has argued numerous times, once the state begins categorizing a woman’s reasons for having an abortion as “acceptable” and “unacceptable”, it necessarily begins to categorize some lives as worth protecting and other lives as not. It remains unclear why all genetic conditions should be designated unacceptable, but all non-genetic reasons would remain.

Some argue that lack of enforcement minimizes the relevance of these laws. For sure, enforcement is unlikely to be easy or common. None of the existing selective abortion bans would punish or fine the women who seek these abortions, rather they impose civil and criminal penalties on providers. Women have the option of simply not informing the abortion provider of their reasons for seeking the abortion, and providers might remind women of the prohibition.

But what is important here are not the specifics of Sex and Genetic Selection Abortion Bans, but what the restriction of reasons means for the abortion right as a whole. Selective abortions are likely to continue in states with Sex and Genetic Selection Bans. But the idea that the state cannot invade a woman’s innermost personal thoughts about her body and her life will not.

[1] http://www.lozierinstitute.org/sex-selection-abortion-worldwide-son-bias-fueled-by-population-policy-abuse/.

[2] Illinois, Pennsylvania, Arizona, Oklahoma, and North Dakota.

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

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