Evidence You Can Use: Banning Abortions in Cases of Race or Sex Selection or Fetal Anomaly is designed to give advocates, service providers and policymakers the data and resources they need to engage in ongoing policy discussions in their states. It includes information on state laws and policies, a synthesis of the relevant research, information on states in which the issue has been debated in the past three years and links to state-specific data. The toolkit provides an evidence base for understanding the consequences of restrictions that ban abortion based on a person’s reason, or suspected reason, for ending the pregnancy.

BACKGROUND

State legislatures have adopted abortion restrictions that target specific populations of women and pregnancy conditions by banning abortion on the basis of sex selection, race selection or genetic anomaly. These bans stigmatize pregnant people of color who seek abortions by questioning the motivation behind their abortion decision. In recent years, members of Congress have introduced federal legislation that would prohibit abortion based on the sex or race of the fetus.

Historically, sex selection has occurred most frequently in countries where there is a strong gender bias that manifests in a preference for sons. Evidence from the global context indicates that sex-selective abortion bans do not work to prevent sex selection, because these bans do nothing to challenge the phenomenon of son preference or its underlying causes and they are difficult to enforce. Also, sex-selective abortion is only one of several medical methods of choosing the sex of a fetus; others, such as sperm sorting and preimplantation genetic diagnostics, remain legal under state bans on sex-selective abortion. There is broad international consensus that the most effective way to combat sex selection is to implement policies that promote gender equity.

Race-selective abortion bans are based on the idea that women of color are coerced into abortions or are complicit in a “genocide” against their own community.1,2 There is no evidence that women of color seek abortions on the basis of race or that a ban on race-selective abortions would decrease abortions among this group.

While nominally aimed at combating gender and racial discrimination, U.S. bans on sex- and race-selective abortions send the message that women, and especially women of color, cannot be trusted to make their own medical decisions.3 They place women’s motivations for having an abortion under suspicion, thereby opening the door to discrimination toward and racial profiling of women of color and immigrant women. In particular, proponents of sex-selective abortion bans cite limited and inconclusive evidence that sex selection is practiced among some Asian communities in the United States, and proponents of race-selection bans erroneously claim that black women are targeted by abortion providers. Rather than protecting these communities, the laws perpetuate harmful stereotypes and put women at risk by making abortion less accessible. By forcing providers to scrutinize and second-guess women’s reasons for seeking an abortion, the bans discourage honest, confidential conversations and interfere in the provider-patient relationship. As a result, patients may withhold information or be dissuaded from seeking care from providers altogether.4

Similarly, laws that prohibit abortions or provision of information on abortion services in cases of fetal genetic anomaly restrict women’s ability to make decisions that are best for themselves and their families. In 2013, North Dakota was the first state to prohibit abortion in cases of fetal anomaly, including in cases where the fetus has a condition that is incompatible with life and will die before or soon after birth. In 2014, Louisiana enacted a law prohibiting health care providers from providing information on abortion as a “neutral or acceptable option” after a diagnosis or potential diagnosis of a fetal anomaly or genetic condition.

STATE LAWS AND POLICIES

For a chart of current laws and policies in each state related to abortion bans for specific purposes, see Abortion Bans in Cases of Sex or Race Selection or Genetic Anomaly.

For information on state laws and policies related to other sexual and reproductive health and rights issues, see State Law and Policies, issue-by-issue fact sheets updated monthly by the Guttmacher Institute’s policy analysts to reflect the most recent legislative, administrative and judicial actions.

RELEVANT DATA AND ANALYSIS

Lack of Evidence to Support Bans on Sex-Selective Abortions

Data from the United States and other countries demonstrate that bans on sex-selective abortion do not work. Banning the practice does nothing to confront the underlying causes of gender bias in society nor does it advance efforts to promote gender equity. There is international consensus that action to address the underlying reasons for son preference is necessary.5,6

Lack of Evidence to Support Bans on Race-Selective Abortions

Race-selective abortion bans are based on the idea that women of color are coerced into abortions or are complicit in a “genocide” against their own community.2 There is no evidence that women of color seek abortions on the basis of race or that a ban on race-selective abortions would decrease abortions among this group. Instead, there is a need to address elevated abortion rates among women of color by addressing their reproductive health needs, including family planning services and access to abortion care.

Decision Making in Cases of Genetic Anomaly

Several states have passed laws (North Dakota’s is the only one currently in effect) that proscribe abortion in cases of fetal genetic anomaly, including in circumstances where the fetus cannot survive outside the womb. Other laws prevent patients from receiving information about abortion as one of the options after receiving a prenatal diagnosis of Down syndrome or other genetic conditions or impairments. Both types of restrictions would prevent women from making informed decisions that they deem best for their family and circumstances.

  • Some states have adopted laws that require patients receiving a diagnosis of a fetal genetic condition be given information about the condition from a health care provider. This information—about the medical condition or disability, comprehensive pregnancy options, and resources for the child and family—is intended to counter implicit bias against a particular condition or disability that may cause providers not to offer complete information about living with certain conditions or to emphasize abortion as the best outcome. However, abortion opponents have used these bills to push their own agenda by labeling them as “pro-information” while preventing patients from receiving information about abortion as an option to consider in response to a diagnosis.22
  • The American College of Obstetricians and Gynecologists recommends offering screening tests for fetal anomalies to all pregnant women, including those in their second trimester.23 Studies show that 96–98% of amniocentesis results are negative for fetal problems.24,25,26,27 Some women who receive a diagnosis of fetal anomaly choose to carry the pregnancy to term. A positive diagnosis allows them to prepare for the birth of a child who may have disabilities.

RECENT STATE ACTION ON THIS ISSUE

States that have addressed this issue in the past three years are listed below.

E: State enacted a relevant measure

V: State vetoed measure

A: State adopted measure in at least one chamber

 

States that prohibit abortion for purposes of race or sex selection

Arkansas (2017)

E

Indiana (2016)

E

Missouri (2017)

A

States that prohibit abortion in cases of possible fetal anomaly

Indiana (2016)

E

Louisiana (2016)

E

Ohio (2017)

E

Oklahoma (2016, 2017)

A

Pennsylvania (2018)

A

Utah (2018)

A

States that prohibit medical providers from offering information on abortion to patients following diagnoses of fetal anomaly

Tennessee (2018)

E

 Texas (2017)

A

Utah (2018)

A

REFERENCES

1. NAPAWF, Race and Sex Selective Abortion Bans: Wolves in Sheep’s Clothing, 2013, https://www.napawf.org/uploads/1/1/4/9/114909119/prendaissuebrief_11.26-final.pdf.

2. Kathryn Joyce, Abortion as black genocide, Public Eye, Summer 2010, https://www.politicalresearch.org/2010/04/29/abortion-as-black-genocide-an-old-scare-tactic-re-emerges/.

3. Statement of Miriam Yeung, Executive Director, National Asian Pacific American Women’s Forum, U.S. House Committee on the Judiciary, H.R. 4924, the Prenatal Nondiscrimination Act (PRENDA) of 2016 hearing, Apr. 14, 2016, https://docs.house.gov/meetings/JU/JU10/20160414/104783/HHRG-114-JU10-Wstate-YeungM-20160414.pdf.

4. American College of Obstetricians and Gynecologists (ACOG), Statement on abortion reason bans, 2016, http://www.acog.org/About-ACOG/News-Room/Statements/2016/ACOG-Statement-on-Abortion-Reason-Bans.

5. United Nations Population Fund (UNFPA), Programme of Action of the International Conference on Population and Development, Cairo, 5–13 September 1994, New York: UNFPA, 2004, https://www.unfpa.org/sites/default/files/event-pdf/PoA_en.pdf.

6. Fourth World Conference on Women, Beijing, China, Sept. 4−15, 1995, Report of the Fourth World Conference on Women, New York: United Nations, 1996, http://www.un.org/womenwatch/daw/beijing/official.htm.

7. Barot S, A problem-and-solution mismatch: son preference and sex-selective abortion bans, Guttmacher Policy Review, 2012, 15(2):18−22, https://www.guttmacher.org/gpr/2012/05/problem-and-solution-mismatch-son-preference-and-sex-selective-abortion-bans.

8. World Health Organization (WHO), Preventing Gender-Biased Sex Selection: An Interagency Statement OHCHR, UNFPA, UNICEF, UN Women and WHO, 2011, http://www.who.int/reproductivehealth/publications/gender_rights/9789241501460/en/.

9. Citro B et al., Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States, University of Chicago Law School International Human Rights Clinic, National Asian Pacific American Women’s Forum (NAPAWF) and Advancing New Standards in Reproductive Health, 2014, https://ihrclinic.uchicago.edu/sites/ihrclinic.uchicago.edu/files/uploads/Replacing%20Myths%20with%20Facts%20-%20Sex-Selective%20Abortion%20Laws%20in%20the%20United%20States.pdf.

10. Mohapatra S, False framings: the co-opting of sex-selection by the anti-abortion movement, Journal of Law, Medicine & Ethics, 2015, 43(2):270−274, https://www.ncbi.nlm.nih.gov/pubmed/26242948.

11. Almond D and Sun Y, Son-biased sex ratios in 2010 US Census and 2011–2013 US natality data, Social Science & Medicine, 2017, 176:21–24, https://doi.org/10.1016/j.socscimed.2016.12.038.

12. Jatlaoui TC et al., Abortion surveillance—United States, 2013, Morbidity and Mortality Weekly Report, 2016, Vol. 65, No. SS-12, https://www.cdc.gov/mmwr/volumes/65/ss/ss6512a1.htm.

13. Guttmacher Institute, Claim that most abortion clinics are located in black or Hispanic neighborhoods is false, News in Context, June 1, 2014, https://www.guttmacher.org/article/2014/06/claim-most-abortion-clinics-are-located-black-or-hispanic-neighborhoods-false.

14. Guttmacher Institute, Induced abortion in the United States, Fact Sheet, 2018, https://www.guttmacher.org/fact-sheet/induced-abortion-united-states.

15. Jerman J, Jones RK and Onda T, Characteristics of US Abortion Patients in 2014 and Changes Since 2008, New York: Guttmacher Institute, 2016, https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014.

16. Gamble VN, A legacy of distrust: African Americans and medical research, American Journal of Preventive Medicine, 1993, 9(Suppl. 6):35–38.

17. Dehlendorf C, Harris LH and Weitz TA, Disparities in abortion rates: a public health approach, American Journal of Public Health, 2013, 103(10):1772–1779.

18. Armstrong K et al., Prior experiences of racial discrimination and racial differences in health care system distrust, Med Care, 2013, 51(2):144–150.

19. Boulware LE et al., Race and trust in the health care system, Public Health Reports, 2003, 118(4):358–365.

20. ACOG, Legislative Interference with Patient Care, Medical Decisions, and the Patient-Physician Relationship, 2016, https://www.acog.org/Clinical-Guidance-and-Publications/Statements-of-Policy-List.

21. Brief of Black Women’s Health Imperative as Amicus Curiae in Support of Plaintiffs-Appellants, NAACP v. Horne, No. 13-17247, 9th Cir., 2014, https://www.aclu.org/legal-document/naacp-et-al-v-tom-horne-et-al-amicus-brief-black-womens-health-imperative-support-pts.

22. Center for Reproductive Rights (CRR), Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement, New York: CRR, 2017, https://www.reproductiverights.org/document/shifting-the-frame-on-disability-rights-for-the-us-reproductive-rights-movement.

23. ACOG, Screening tests for birth defects, 2014, http://www.acog.org/Patients/FAQs/Screening-Tests-for-Birth-Defects.

24. Crandall BF et al., Chromosome findings in 2,500 second-trimester amniocenteses, American Journal of Medical Genetics, 1980, 5(4):345−356.

25. Han SH et al., Clinical and cytogenetic findings on 31,615 mid-trimester amniocenteses, Korean Journal of Laboratory Medicine, 2008, 28(5):378−385.

26. Philip J et al., Fetal chromosome analysis: Screening for chromosome disease? Prenatal Diagnosis, 1983, 3(3):209−218.

27. Lowe CU, The Safety and Accuracy of Mid-trimester Amniocentesis: The NICHD Amniocentesis Registry, Washington, DC: U.S. Department of Health, Education, and Welfare, Public Health Service, National Institutes of Health, National Institute of Child Health and Human Development, 1978.