LITTLE ROCK, Ark. — Members of the abortion lobby call Arkansas’ new law that bans sex-selective abortions “a solution in search of a problem,” but pro-life legislators and activists say the measure provides an important safeguard against a global phenomenon.
Some pro-life leaders in and around the Diocese of Little Rock also say they wish Arkansas House Bill 1434 would have gone further and provided protections for unborn children diagnosed with Down syndrome and other genetic abnormalities. But legislative priorities, for now, singled out the issue of sex-selective abortions.
“The U.S. is rather unique, at least in the civilized Western world, in not requiring a woman seeking an abortion to provide a reason pursuant to a statute to obtain the abortion. That is the revolutionary aspect of laws like this,” said Patrick Gallagher, the head of Catholic Charities of Arkansas.
Gallagher, who helped coordinate the efforts of local respect-life groups in lobbying for the legislation, told the Register that political organizations such as the American Civil Liberties Union sought to label the law as an unnecessary measure to address a nonexistent problem.
Though conceding that there is no statistical evidence of gender-selective abortions in Arkansas — a statistic for which there is no mandatory reporting in the state — Gallagher noted that such abortions are commonplace in many Asian cultures and even Latin America. In a globalized world, he said that cultural reality can easily move across international borders.
“To assume that it is not a problem or a likely problem in the future in Arkansas is to presume Arkansas is some isolated backwater that will never be touched by things that affect the rest of the sophisticated world,” Gallagher said. “That is a false and preposterous assumption.”
According to the Guttmacher Institute, a research center that supports legal abortion, Arkansas became the eighth state in the country to ban sex-selective abortions, when Gov. Asa Hutchinson signed the bill into law on March 29.
The law, which takes effect on Jan. 1, 2018, requires a doctor to ask a woman seeking an abortion if she knows the gender of her baby and to inform her that aborting the child based on that information is illegal. The doctor is also mandated to obtain the woman’s medical records that pertain to her pregnancy history and look for any evidence of sex-selective abortions.
“If someone is trying to have a boy, it wouldn’t be far-fetched to see a pregnancy track record where, in a recent period of time, there were multiple abortions, and this would be a data point to help the physician assess the situation,” said state Rep. Charlie Collins, R-Fayetteville, who sponsored the bill.
Inspired by China
Collins told the Register the idea to sponsor the legislation came about after conversations related to China’s population-control policies — where sex selection has led to a lopsided ratio in favor of boys — and the fact that such abortions were legal in most of the United States.
“The fact that gender-based abortions are not illegal, to me, says something about our culture,” said Collins, who added that such a law will become increasingly relevant as prenatal technologies develop and enable parents to know the gender of an unborn child earlier in pregnancy. Currently, a mother can learn the gender around 18 to 20 weeks, which is near the point of viability outside the womb.
Under Roe v. Wade and subsequent court rulings, women have an absolute legal right to abortion until fetal viability, and states cannot place restrictions that effectively prohibit that right or cause an “undue burden” for women seeking abortion.
Said Collins, “It may not seem like a pressing, urgent need at this time, but those technologies for identifying the gender of the baby are going to continue getting better and better, and I envision, in three to 10 years, we may very well get to the point where, at one or two weeks, or three to five weeks of gestation, they’ll be able to conclusively identify the sex of a child.”
Collins added: “Now, all of a sudden, it’s a very different dynamic.”
Will the Law Be Challenged?
Pro-abortion organizations such as Planned Parenthood, the ACLU and the Center for Reproductive Rights have declared the Arkansas law to be an unconstitutional provision that would not survive a legal challenge. Pro-life advocates were expecting that argument.
“I don’t expect the abortion lobby to waste capital on challenging the gender-selective abortion law, but I do think they will do it on the dismemberment law,” said Rose Mimms, director of Arkansas Right to Life, referring to a law the governor signed in February that bans a gruesome form of abortion.
“I don’t expect a legal challenge, and even so, I wouldn’t be concerned,” said Luke McCoy, a staff lobbyist with the Family Council, a Little Rock-based organization that advocates for traditional and biblically-rooted family values in public policy.
The Family Council took a lead role in lobbying for Collins’ bill because, McCoy told the Register, investigations conducted by Live Action documented evidence that Planned Parenthood affiliates in five other states encouraged women to abort their babies for reasons of gender.
Said McCoy, “If it’s happening in Arizona, if it’s happening in North Carolina, Texas, New York and Hawaii, who’s to say it’s not happening here?”
Pro-abortion-rights groups claim to be skeptical that gender-selective abortion is a widespread problem in American society. The Guttmacher Institute says that, at most, the evidence is “limited and inconclusive” that sex-selective abortions occur in certain immigrant communities.
However, the Charlotte Lozier Institute, the research arm of the pro-life Susan B. Anthony List, says sex-selective abortions in favor of males is practiced in some Asian immigrant communities in the United States and other Western nations, such as the United Kingdom. In the last 20 years, statistics show that sex ratios at birth within Asian-Pacific immigrant communities in the U.S. and U.K. have climbed sharply, resulting in “highly unbalanced” ratios in favor of males.
New Legal Territory
The Charlotte Lozier Institute also provides a legal analysis suggesting the federal courts, including the U.S. Supreme Court, could decide to uphold sex-selective abortion bans. The bans’ supporters — citing the fact that girls are more frequently targeted for sex-selective abortion — frame the measures in the context of sex discrimination, which violates civil-rights laws and the U.S. Constitution’s guarantee of equal protection under the law.
Balancing existing precedents on abortion with those competing claims could “create some heartburn” in the courts, but Bob Destro, a law professor at The Catholic University of America, told the Register that, ultimately, the question would be decided by U.S. Supreme Court Justice Anthony Kennedy, who is considered the high court’s swing vote.
“I could see a scenario where [Kennedy] would be disgusted personally by the claim that you don’t want a boy or a girl,” said Destro, adding that such a case would be “fascinating” and explore legal territory in the pre-viability stage of pregnancy, for which the court has not previously allowed any restrictions.
Collins, the law’s sponsor, said his bill was ultimately about “getting out in front of the future,” with the evolving technology, but also the country’s increasing diversity that is bringing new cultures from across the globe into Arkansas.
Said Collins, “It’s about getting an important legal principle established in Arkansas: that regardless of when you find out the sex of the baby or what your background is culturally, sex-selective abortion is not something that is going to be legal here.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.