Monday, April 18, 2011

The Clash Between Women’s Right to Choose and Gender Selection

By Ori Herstein

According to The Economist (here), in India approximately 600,000 Indian girls are never born every year due to abortions performed for reason of gender selection. According to The Economist, upon performing an ultrasound test, many parents preferring to have a male child choose to abort female pregnancies. Reflecting on this phenomenon potentially brings one’s feminist values into conflict.

This apparently growing trend in India is problematic for several reasons. In addition to the fact that a gender imbalance in society will potentially have severe social implications for both younger and future generations, gender selection as a reason for abortion offends women as women. There is something wrong in these abortions that derives from the reason for undergoing them. And, there is a strong sense that – for feminist reasons – such abortions should be discouraged and even prohibited. In fact, India has done just that.

Prohibiting abortion when undergone for certain reasons clashes with the ideal of a “woman’s right to choose.” First, the right to choose by its very nature precludes limiting the choice to only certain and not to other reasons. The right to choose is in a sense also a right to do wrong: many accept that some abortions are wrong and still maintain that the State may not prohibit a woman’s right to make that choice. What is interesting in the Indian case is that a woman’s right to choose – often thought of as a feminist right – functions as a woman’s right to wrong women as women. This seems to put one’s feminist reasoning in a bind.

It is not impossible that in some places decisions about abortion are not really made by the pregnant women but by their families and husbands, and therefore perhaps full or better realization of a woman’s right to choose would yield less misogynistic results. But this is a factual speculation that, even if true, does not solve the theoretical puzzle.

Here is a possible solution: While gender selection is a feminist issue “all the way down” this is not the case for the right to choose. It seems to me that the right to choose is an autonomy and liberty right that happens to attach to women because of their sex, but could in principle attach to others. The fact that the right to choose is mostly a woman’s right to choose is, therefore, a matter of contingency and not category. In contrast, gender selection is categorically about gender. Thus, a feminist mostly devoted to the value of autonomy may favor – for feminist reasons – limiting the autonomy and liberty reflected in the right to abortion without internal contradiction.


Michael C. Dorf said...

When Planned Parenthood challenged the Pennsylvania law in the case that became Planned Parenthood v. Casey in the Supreme Court, one of the law's provisions banned sex-selection abortions. As I recall (either from the briefs or the oral argument--it was 20 years ago), PP did not challenge this provision. To be sure, sex-selection abortions in Pennsylvania were virtually unheard of, versus in contemporary India (and China), but even then, it was apparent that PP was engaged in the sort of calculus Ori describes here.

michael a. livingston said...

Wouldn't it be more intellectually honest to say that abortion rights, under all circumstances and without any further inquiry, was never properly a feminist issue--or at the very least, that there are a range of "feminist" views on the issue--and take it from there?

Ori Herstein said...

By "feminist" I guess I was referring to concerns for "women as women," nothing more. Questions of definition of what "feminism" is, accounting for its various waves and approaches does not really further answering the perplexity the post is design to offer an answer for. There is also no historical presumption in the post. It's pure analysis.

Sherry F. Colb said...

Very interesting post, Ori!

Here's my view, as someone who favors the right to choose abortion primarily for reasons of bodily integrity rather than pure equality (although part of what makes the bodily integrity intrusion as objectionable as it is is the fact that we do not impose similar sorts of routine and extreme intrusions on men). Rather than prohibiting sex-selection abortion (which puts pregnant women in the position of being forced to take pregnancies to term against their will, a bodily integrity assault that is not much mitigated by the fact that the woman's reason for not wanting to remain pregnant is a bad reason), I would suggest instead prohibiting the revelation of the fetus's sex to women (in places in which we believe sex-selection abortion is a common problem).

This way, a woman who does not want to remain pregnant has the right to stop being pregnant, but she does not have the right to have every piece of information that might motivate her to make this decision.

By analogy, a woman can decide to refuse to have sex with a man for any reason she pleases (including an offensive reason, such as his racial background), and he cannot legitimately force her to have sex against her will, even if "but for" his racial background, she would have consented.

He can, however, legitimately not disclose the fact of his racial background to a woman in whom he is interested. If the woman then consents to have sex with him, the fact of his withholding racial information does not convert the consensual sex into rape (for similar arguments, check out my FindLaw column about the Jerusalem rape-by-deception case [] and my G.W. symposium article about reproductive rights and what we owe future generations [].

Ori Herstein said...

Thanks Sherry,

The “right to choose” response would probably be on the lines that a true realization of that right requires access – or at least forbids restricting such access – to all information relevant to making an informed choice. The assumption being that an ill-informed choice is no choice at all (in the relevant sense). But this is still within the autonomy framework as opposed to your bodily integrity framework.

I suspect that the bodily integrity framework will run into trouble when we realize that it has subjective components: one’s idiosyncratic values contribute to determining whether something does or does not impinge on one’s bodily integrity. For example, I think that tricking a kosher keeping Jew into eating non kosher food does raise a bodily integrity issue, even though it would not raise such an issue for most people. If this is the case, then one’s preferences may factor into what needs to be disclosed under a bodily integrity scheme. In any case, disclosure issues are complicated b/c they also involve the disclosing party’s interests. But forbidding disclosure seems less problematic, so perhaps bodily integrity can justify a ban on disclosure bans? In any case, according to The Economist India has forbidden ultrasound testing when motivated by the desire to know the sex of the fetus. These legal measures have apparently proven insufficient.

AF said...

Though prohibiting sex-based abortions may be an imposition on the right to choose, it strikes me as rather obvious that the imposition is justified. I'm not even sure if it's necessary to say that equality should trump autonomy. It's enough to say that the imposition on autonomy is minor in comparison to the imposition on sex equality.

The real difficulty seems practical rather than theoretical: how do you actually go about preventing gender-motivated abortion? You could criminalize it on the books, but that would be very difficult to enforce. To effectively prevent the practice, you would likely have to go beyond merely prohibiting it, and instead prohibit practices that enable it, such as the sex identification of fetuses, as Sherry suggests. But even that doesn't strike me as particularly problematic from an autonomy perspective. Ori is correct that an autonomy-based objection could be articulated, but the objection seems weak.

Incidentally, I'm not sure if Sherry is suggesting a general prohibition on identifying the sex of a fetus to the mother, or rather a prohibition on having an abortion once the sex of the fetus has been revealed. The latter seems preferable to the former, as it's not obvious why women who don't want to have an abortion should be prevented from knowing the sex of the fetus.

Ori Herstein said...


Regardless of the Q on which side you come down on (women's dignity/equality or autonomy) I do not agree that having a baby you do not want to have does not significantly impose on autonomy.

AF said...

"Regardless of the Q on which side you come down on (women's dignity/equality or autonomy) I do not agree that having a baby you do not want to have does not significantly impose on autonomy."

Under the proposed regime, you never have to have a baby you don't want to have; you can have an abortion. What you cannot do is decide that you do want a baby, but only if it is a boy, and have an abortion once you find out it is a girl. That may be a freedom, but it isn't one that need give us much pause about restricting, any more than any number of prohibitions that restrict the autonomy to do things that are immoral and socially harmful. I'm strongly pro-choice, primarily on autonomy grounds, but I'm not sure why the abortion right should be uniquely immune to that sort of restriction.

tjchiang said...

I don't understand your solution. If I understand correctly, you are saying that the right to choose is not a gendered issue "all the way down" because it attaches to pregnancy, and it is merely "incidental" that only women can get pregnant. I thought that line of thought died with the PDA.

Moreover, gender selection is categorically about gender only because you are defining the category that way. We can make it broader -- how about "immorally selective selection." So this would include not only sex-selective abortions, but also selective abortions based on say, hair color or skin tone. Maybe parents would really like blond, blue-eyed, pale skinned babies and not just male babies. I would say that the issues are still the same.

Paul Scott said...

Some things that seem very close to the current issue but that seemingly have no moral objection:

If I adopt, I can pick the sex and race of my child.

If I have in virto fertilization, I can pick the sex of my child.

So, clearly sex and even race discrimination is perfectly ok when it comes to choosing your family, so long as the means of that selection is not an otherwise lawful abortion.

Is this because the means of sex determination during pregnancy is morphology? Would people be more comfortable with this if it were a genetic test?

I don't personally see a way around this conflict. I suspect if you are feeling a conflict it is just a lack of comfort with abortions - or at least with abortions on a creature developed enough that morphological sex determination is possible. If that is the case, then you should probably be in the "life or health" camp at that late a stage for abortion.

Joe said...

Paul points out that sometimes sex is allowed to be chosen. Private discrimination is allowed in various contexts, including the race of whom we marry or privately associate with. This too can promote discrimination.

But, private discrimination is allowed even today in various contexts. I don't think it is reasonable to get around this by promoting ignorance (the Prof. Colb approach).

As to why Planned Parenthood didn't challenge the law, sounds strategic. It's hard to imagine it really being enforced. How could you prove beyond a reasonable doubt that a woman actually relied on sex? It's hard enough even today to prove a Batson challenge. There is often a conceivable reason there and that's a lot more open than this is likely to be.

I can even imagine various scenarios where the choice is arguably legitimate. For instance, selective abortion for multiples (let's say quints) where it necessary for health reasons. Is it immoral if there is a 4-1 sex breakdown to choose one of the four? Certain genetic diseases might be carried by sex in various cases. And, especially for very early abortions, if someone has five boys, would it really be wrong to abort once or twice to get that girl? That is, unless one thinks abortion is wrong in general.

And, yes, sometimes the choice -- as with other private choices -- will promote what many of us thinks is discrimination. But, free choice leads to negative results in many cases. Barring free choice or promoting ignorance in private medical decisions is not the best solution in this case.

AF said...

Paul Scott said: "I suspect if you are feeling a conflict it is just a lack of comfort with abortions - or at least with abortions on a creature developed enough that morphological sex determination is possible. If that is the case, then you should probably be in the "life or health" camp at that late a stage for abortion."

I somewhat agree with the first sentence but disagree with the second. It's true that if you see abortion as an unproblematic procedure with no downside even in the second trimester, then there is not much more reason to object to sex selection in abortion than in in vitro fertilization (which in itself is open to question).

However, if you think that destroying a fetus, at least at the stage where its sex can be identified, has moral significance, but is justified by the autonomy of the mother, then it seems perfectly consistent to say that abortion should generally be available but use of abortion as a method of gender selection (or selection for other genetic traits) should not be allowed.

Joe said...

Bottom line, really, how is this thing enforceable in the real world? If there is a ban, women won't admit that is the reason, and if the issue is that they really don't have a free choice on the matter (as is likely the case often in India), that would be a problem whatever the reason for the abortion is.

Paul Scott said...

AF: Let's just step through this. As I understand your position:

1. It is not morally problematic to select the sex of your child (we know this from adoption and IVF and even from simple pre- and post-coital techniques used to increase the probability of one sex over the other).

2. Abortion is acceptable under "many, but not all" circumstances after the fetus is sufficiently developed that morphological sex determination is possible. This is based on autonomy.

Given 1, how do you exclude 1 from 2 yet allow other things into 2 that do not amount to "life and health" and what are at least some of those other things?

AF said...


I think sex selection is morally problematic when it reflects sexist cultural values or (relatedly) threatens to create gender imbalances in the population. Furthermore, I think that parents' interest in having access to sex selection is relatively weak and can easily be outweighed by other morally relevant considerations.

If sex selection can be achieved without morally significant drawbacks (as I understand to generally be the case with adoption and IVF in the US), then I have no problem with it being permitted. But I would support a ban on sex selection in adoption or IVF if there were evidence that it resulted in girls (or boys) having a harder time finding good adoptive homes, or too many families choosing to have boys (or girls) through IVF. Also, I wouldn't want public health insurance to cover sex selection in IVF (even though I support universal health care) because I think scarce public resources should be spent on other things.

With respect to abortion, I believe that the fetus has moral significance, which increases throughout the pregnancy. At the same time, I believe that women have a very strong interest in being able to choose whether or not to have a child, which justifies abortion. But I don't believe the interest in sex selection, which is much weaker than the right to choose, does justify terminating a pregnancy. So in principle, I would support a ban on abortion for reasons of sex selection.

Paul Scott said...

OK, I get your position and agree with its consistency. That position, however, does not accept 1, since you do believe that there are moral problems with the sex selection of children and would ban/restrict that sex selection in areas outside of abortion. To me, I see your position then as consistent on that basis.

I see the issue as reflected by societal choices as being different from your position, however. As I see it, as described in Ori's post, societies do not have a moral objection to the sex selection of children unless the means of that sex selection is abortion. Contrary to Ori, I do not see that as a tenable position unless you also adopt a "health or life" restriction on abortions at that stage - which in turn means that the "sex selection" prohibition is not really about sex selection at all, but instead is simply a restriction on the availability of abortions at that stage.

To make it more clear, I see the sex selection issue as irrelevant, since other ares make it clear that sex selection is not judged by society as a moral problem. I find it likely that the prohibition of "sex selection abortions" is nothing more than a politically difficult to defeat (if practically impossible to enforce) restriction on access to abortion. While I agree that there is a consistent position to be taken (your position); I do not see a legitimate position that approves of sex selection except in the case of abortion.

bjn said...

If you agree that abortion (at least early trimester abortion) is a constitutional right, any limitation based on the reason is an interference with that right. There is probably some constituency which will be offended by any reason (e.g., disability advocates, feminists, adoption advocates, etc.) even if that same constituency agrees that some abortions would be legal and that some reasons are "legitimate." If we start limiting the acceptable reasons for the choice, the right to the choice will inevitably diminish or disappear.

Jane Calderwood Norton said...

Hi Ori,
I haven't had a chance to read other people's comments but I was intrigued by your comment that "the right to choose by its very nature precludes limiting the choice to only certain and not to other reasons." This may be true but it is not inconsistent with the value of autonomy, which unpins any rights to choose, to value certain choices over others. After all, as Raz argues in The Morality of Freedom, autonomy (or as you say the 'right to choose') is only valuable if directed towards the good.

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Prohibition of abortion, when examined by a number of reasons clash with the ideal of a "woman's right to choose." First, the right to choose their very nature, limit the choice to exclude certain reasons and not others . The right to choose is somehow also a right to do wrong: Many agree that some abortions are wrong and still maintains that the state can not prohibit a woman's right to make that choice. What is interesting in Indian case is that a woman's right to choose - often seen as a feminist act - acts as the right of women to women badly as women. It seems to her feminist argument in a dilemma.WOW GoldRS GoldCheap tera goldCheap Tera GoldTera Power LevelingTera AccountTera ItemsRS GoldBuy RS Gold Eden EternalEden Eternal ReviewEden Eternal Gold

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Jason Greaves said...

I am actually writing a law journal comment about this topic, and stumbled upon your discussion during my research. I though you might be interested to know that Mr. Dorf is correct that the PA statute, prohibiting sex-selective abortion, was mentioned in the briefs of PP v. Casey. However, the Petitioners specifically did not concede the constitutionality of that statute. In fact, they expressed their view that the statute is unconstitutional under Roe v. Wade, and that the only reason they didn't challenge it was that they lacked Article III standing. Reply Brief for Petitioners at 11 n.20, Planned Parenthood v. Casey, 505 U.S. 833 (1992) ("[T]he Solicitor [General's] contention that petitioners opted not to challenge section 3204(c) (prohibiting abortions based on the sex of the fetus) because they believe it is constitutional, is simply wrong. While petitioners believe this position violates Roe, it obviously could only be challenged by a plaintiff who could satisfy Article III's standing requirement. Thus, a challenge remains a future possibility") (internal citations omitted).

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