Is it sexist for a family who has one boy to want a girl as their next child? Is it sexist for a parent to want to have only girls? Do Kim Kardashian and Kanye West have a “son preference” because they selected in favor of a boy? Is it sexist for a family who has one girl to desire a boy as their next child or it is sexist only when Asian Americans desire a boy?
Claiming that sex selection is discriminatory and widespread among Asian Americans, state legislative representatives across the United States are on a campaign to prohibit people from sex selecting. In the last several years, over half of state legislatures have voted on bills to ban sex selection—if a woman aborts a fetus because of its predicted biological sex. Ten states have passed laws to ban sex-selective abortion. Even though the bill was rejected, the majority of the U.S. House of Representatives voted to ban sex-selective abortion. Even legislators who are pro-choice have voted in favor of these abortion restrictions. But the problem is that their views are based on misinterpretations of old empirical data.
In response to a suit brought by the ACLU and the Center for Reproductive Rights (CRR) last month, a U.S. Federal District Judge in Arkansas granted a preliminary injunction against Arkansas’ ban on sex-selective abortion. The Arkansas law requires doctors to obtain the entire pregnancy-related medical records of a patient who knows the predicted biological sex of her fetus prior to terminating her pregnancy. The ACLU and CRR did not challenge the ban as unconstitutional, but instead argued that it violates the right to privacy.
Other courts have addressed the constitutionality of sex-selective abortion bans. Last summer, finding that it violated Roe v. Wade, a U.S. Federal District Judge in Indiana granted an injunction against Indiana’s law against sex selection. Sex-selective abortion bans, like disability-selection and race-selection bans, are known as “reason-based bans.” They limit the reasons that a woman can exercise her right to choose.
If the question about whether or not sex selection is constitutional does reach the U.S. Supreme Court, the outcome of the case will turn on the set of facts the Court believes. The narrative that prevails today is that many Asian Americans abort female fetuses and do so because they prefer sons and have an aversion to daughters. In 2008, two economics professors, Edlund and Almond, reported in an influential academic journal that when Asian Americans have one or two girls, the ratio of boys to girls they have at their next birth is higher than the ratio of boys to girls of similarly-situated Caucasian Americans.
Many news articles blew the scope of the findings out of proportion. A writer for Slate, for example, explained that the disparities in births of boys and girls among Asian Americans was as great as in China and India—but in India alone there are 60 million fewer girls than there should be a year, and Edlund and Almond’s study reveals that, at most, there were just over 2000 fewer girls among Asian Americans in the entire United States. (Though they never reported the actual number of “missing girls” but only the sex ratio.)
Edlund and Almond’s study examined U.S. census data that is almost 20 years old now. I teamed up with economists to examine more recent sex ratio data. Our analysis of the sex ratio of children of people who trace their ancestry to India, China and Korea from 2008 to 2012 as well as national polling data suggest that a very small number of this group could be using some method—either sperm-sport, IVF, or abortion—to sex select for a girl when they have two boys and for a boy when they have two girls. This data suggests that a very small number of Asian American could be attempting to balance their families with both boys and girls. It is a form of stereotyping to assume that just because the people who trace their ancestry to parts of Asia, they act out of “son preference” and “daughter aversion.”
If the Supreme Court believes the prevailing narrative based on old data, it might find that a state has a legitimate interest in adopting the bans because they address sex discrimination in the Asian American community. While no one supports abortion because of the sex of the fetus, the costs of the bans are great. Medical professionals worried about criminal liability may profile Asian American women and deny abortion care. All women will be subject to invasive questioning about the reasons they are seeking to terminate their pregnancies and there could be potential delay in the provision of medical services.
If sex-selective abortion bans are found to be constitutional, it would pave the way for many other “reason-based bans.” North Dakota already prohibits a woman from exercising her right to choose if she is doing so because she does not want to raise a child with a genetic disability. If the U.S. Supreme Court thinks sex selection is sexist, more states will begin to chip away at a woman’s reasons for terminating her pregnancy.
Today Americans know all too well today that “facts” depend on which news outlet is reporting them. How the Supreme Court rules on whether or not sex selection is sexist largely depends on how it views the facts. If the Supreme Court believes the story that has gained national currency, it will have devastating consequences for all women’s right to choose in the United States.
Sital Kalantry, a professor at Cornell Law School, is the author of “Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India.”