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Online Vol. 107, Issue 1

Cornell Law Review Online

Do Reason-Based Abortion Bans Prevent Eugenics?

Sital Kalantry, Associate Professor of Law, Seattle University School of Law

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13 Oct 2021

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics.1See Box v. Planned Parenthood of Ind. & Ky., 139 S. Ct. 1780, 1782 (2019). Justice Coney Barrett, when she was a judge on the U.S. Court of Appeals for the Seventh Circuit, dissented from the denial of en banc review. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health, 917 F.3d 532, 536 (7th Cir. 2018). Several judges on the U.S. Federal Court of Appeals have also argued that prohibitions on reason-based abortions prevent the elimination of certain groups of people. See Planned Parenthood of Ind. & Ky., Inc., 917 F.3d at 536 (Judge Easterbrook dissented from the denial of en banc review); Little Rock Family Planning Services v. Rutledge, 984 F.3d 682, 694 (8th Cir. 2021) (Judges Erickson and Shepherd framed the reason-based bans as anti-eugenics states); Preterm-Cleveland v. McCloud, 994 F.3d 512, 536, 547, 549–50 (6th Cir. 2021) (en banc) (Judges Sutton, Griffin, and Bush arguing the prohibition on termination of pregnancies on the basis of Down Syndrome is an anti-eugenics statute and further a compelling state interest). Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus.2Sex-selective abortion bans. Arizona, Arkansas, Kansas, Mississippi, Missouri, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Tennessee prohibit sex-selective abortion. Ariz. Rev. Stat. § 13-3603.02 (2020); Ark. Code Ann. § 20-16-1904 (2020); Kan. Stat. Ann. § 65-6726 (2020); Miss. Code Ann. § 41-41-407 (2020); Mo. Rev. Stat. § 188.038 (2020); N.C. Gen. Stat. § 90-21.121 (2020); N.D. Cent. Code § 14-02.1-04.1 (2019); Okla. Stat. tit. 63, § 1-731.2 (2020); 18 Pa. Cons. Stat. Ann. § 3204 (2020); S.D. Codified Laws § 34-23A-64 (2020); Tenn. Code Ann. § 39-15-217 (2020). Race-selective abortion bans. In Arizona, Mississippi, Missouri, and Tennessee, the same statute forbids race-selection. Ariz. Rev. Stat. § 13-3603.02 (2020); Miss. Code Ann. § 41-41-407 (2020); Mo. Rev. Stat. § 188.038 (2020); Tenn. Code Ann. § 39-15-217 (2020). Disability-selective abortion bans. Mississippi, Missouri, North Dakota, and Tennessee, all have also banned abortion on the basis of fetal anomaly, often specified as Down syndrome. Miss. Code Ann. § 41-41-407 (2020); Mo. Rev. Stat. § 188.038 (2020); N.D. Cent. Code § 14-02.1-04.1 (2019); Tenn. Code Ann. § 39-15-217 (2020). But note that Arkansas, Indiana, Illinois, Kentucky, Louisiana, Ohio, and Utah, have all passed additional motive-based abortion bans, but their statutes are currently permanently or temporarily enjoined by the courts (or, in Utah’s case, awaiting Roe v. Wade to be overturned). See Abortion Bans in Cases of Sex or Race Selection or Genetic Anomaly, Guttmacher Inst. (last updated Jan. 2, 2021), https://www.guttmacher.org/state-policy/explore/abortion-bans-cases-sex-or-race-selection-or-genetic-anomaly# [https://perma.cc/YX4V-87DT]. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3See, e.g., Adam Liptak, J. David Goodman and Sabrina Tavernise, Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law, N.Y. Times (last updated Sept. 23, 2021), https://www.nytimes.com/2021/09/01/us/supreme-court-texas-abortion.html [https://perma.cc/T36Y-VNFH]. Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions.4See No. 19-1392: Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women’s Health Organization, et al., Supreme Court of the United States (updated Sept. 24, 2021), https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-1392.html [https://perma.cc/C8C7-RLN7]. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.5In finding reason-based abortion bans constitutional, the Court would not only open the window for other intention-based bans, but more importantly expand the scope of constitutional abortion restrictions far beyond the viability standards established in Planned Parenthood of Southeastern Pennsylvania v. Casey.

To read this Essay, please click here: Do Reason-Based Abortion Bans Prevent Eugenics?

References

References
1 See Box v. Planned Parenthood of Ind. & Ky., 139 S. Ct. 1780, 1782 (2019). Justice Coney Barrett, when she was a judge on the U.S. Court of Appeals for the Seventh Circuit, dissented from the denial of en banc review. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health, 917 F.3d 532, 536 (7th Cir. 2018). Several judges on the U.S. Federal Court of Appeals have also argued that prohibitions on reason-based abortions prevent the elimination of certain groups of people. See Planned Parenthood of Ind. & Ky., Inc., 917 F.3d at 536 (Judge Easterbrook dissented from the denial of en banc review); Little Rock Family Planning Services v. Rutledge, 984 F.3d 682, 694 (8th Cir. 2021) (Judges Erickson and Shepherd framed the reason-based bans as anti-eugenics states); Preterm-Cleveland v. McCloud, 994 F.3d 512, 536, 547, 549–50 (6th Cir. 2021) (en banc) (Judges Sutton, Griffin, and Bush arguing the prohibition on termination of pregnancies on the basis of Down Syndrome is an anti-eugenics statute and further a compelling state interest).
2 Sex-selective abortion bans. Arizona, Arkansas, Kansas, Mississippi, Missouri, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Tennessee prohibit sex-selective abortion. Ariz. Rev. Stat. § 13-3603.02 (2020); Ark. Code Ann. § 20-16-1904 (2020); Kan. Stat. Ann. § 65-6726 (2020); Miss. Code Ann. § 41-41-407 (2020); Mo. Rev. Stat. § 188.038 (2020); N.C. Gen. Stat. § 90-21.121 (2020); N.D. Cent. Code § 14-02.1-04.1 (2019); Okla. Stat. tit. 63, § 1-731.2 (2020); 18 Pa. Cons. Stat. Ann. § 3204 (2020); S.D. Codified Laws § 34-23A-64 (2020); Tenn. Code Ann. § 39-15-217 (2020). Race-selective abortion bans. In Arizona, Mississippi, Missouri, and Tennessee, the same statute forbids race-selection. Ariz. Rev. Stat. § 13-3603.02 (2020); Miss. Code Ann. § 41-41-407 (2020); Mo. Rev. Stat. § 188.038 (2020); Tenn. Code Ann. § 39-15-217 (2020). Disability-selective abortion bans. Mississippi, Missouri, North Dakota, and Tennessee, all have also banned abortion on the basis of fetal anomaly, often specified as Down syndrome. Miss. Code Ann. § 41-41-407 (2020); Mo. Rev. Stat. § 188.038 (2020); N.D. Cent. Code § 14-02.1-04.1 (2019); Tenn. Code Ann. § 39-15-217 (2020). But note that Arkansas, Indiana, Illinois, Kentucky, Louisiana, Ohio, and Utah, have all passed additional motive-based abortion bans, but their statutes are currently permanently or temporarily enjoined by the courts (or, in Utah’s case, awaiting Roe v. Wade to be overturned). See Abortion Bans in Cases of Sex or Race Selection or Genetic Anomaly, Guttmacher Inst. (last updated Jan. 2, 2021), https://www.guttmacher.org/state-policy/explore/abortion-bans-cases-sex-or-race-selection-or-genetic-anomaly# [https://perma.cc/YX4V-87DT].
3 See, e.g., Adam Liptak, J. David Goodman and Sabrina Tavernise, Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law, N.Y. Times (last updated Sept. 23, 2021), https://www.nytimes.com/2021/09/01/us/supreme-court-texas-abortion.html [https://perma.cc/T36Y-VNFH].
4 See No. 19-1392: Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women’s Health Organization, et al., Supreme Court of the United States (updated Sept. 24, 2021), https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-1392.html [https://perma.cc/C8C7-RLN7].
5 In finding reason-based abortion bans constitutional, the Court would not only open the window for other intention-based bans, but more importantly expand the scope of constitutional abortion restrictions far beyond the viability standards established in Planned Parenthood of Southeastern Pennsylvania v. Casey.
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