“Eugenic Abortions” and the Problematic Popularity of the Reason-Based Ban

A person’s reasons for seeking abortion is not how the right to abortion is established in our constitution. 

"Eugenic Abortions" and the Problematic Popularity of the Reason-Based Ban
A 2019 Stop Abortion Bans Rally in St Paul, Minnesota. (Lorie Shaull / Wikimedia Commons)

President Biden signed a record 13 executive orders his first day in office. Among those, he ordered federal programs to root out policies that could perpetuate discrimination and racism. President Biden’s avowed commitment to equality and diversity echoes the calls for racial justice heard around the nation over the last year.

Anti-abortion advocates would have the country believe that they are among those voices. Currently, 11 states have enacted laws that prohibit abortions at any point in pregnancy for reasons of sex, race or disability of the fetus. A Tennessee law turns physicians into Class C felons if they perform an abortion knowing, or have reason to know, that the pregnant woman seeks termination “because of” the fetus’s sex, race or a Down syndrome diagnosis. The federal Sixth Circuit Court of Appeals allowed this law to go into effect.  

A similar ban was overturned by the Seventh Circuit Court of Appeals (Box v. Planned Parenthood), and Indiana’s petition to the Supreme Court was denied because, at that time, there was no split among the courts. Now there plainly is, and it may be only a matter of time before the Supreme Court hears the issue.

Indeed, Justice Clarence Thomas, in a concurring opinion in Box, wrote that it is a live question “whether the Constitution requires [s]tates to allow eugenic abortions.” Now Justice Amy Coney Barrett, as an appellate judge, joined the dissent when the Seventh Circuit struck down Indiana’s reason-based ban in Box.

Reason-based bans are difficult to enforce, but increasingly popular.

Leave aside for a moment that prohibitions on ‘race’-based abortions are entirely incomprehensible. Consider how difficult it would be to enforce any reason restriction. What do providers know (or should  know) about a person’s reasons for seeking an abortion? What would be considered due diligence to ask and how should providers test the veracity of their patients’ answers? Lie detector tests?

Certainly no one wants to test anti-abortion states’ resolve to monitor physicians and patients. But even the most robust vetting would be difficult to enforce, and there is no doubt that communities and individuals of color would be policed more closely than others.

Despite the challenges of implementation, reason-based bans appear to have symbolic value for some.  The invocation of race, sex and disability seemingly squares with calls to end discrimination and dismantle systematic racial and intersectional injustice. Indeed, couched in the language of eugenics prohibition, they touch on powerful emotions.

That may be why those who otherwise support abortion rights (61 percent of Americans) are sympathetic to reason-based abortion bans. Although a majority of the country believes individuals should decide whether to carry a pregnancy to term, a large percentage of Americans believe that the reason for seeking an abortion matters. But a person’s reasons for seeking abortion is not how the right to abortion is established in our constitution.  

We have a time, or gestational-age, based regime, not a rationale-based one. Our constitution does not peer into the mind or heart of a person seeking to end a pregnancy: It draws a line at viability, prohibiting states from interfering with pregnancy decisions prior to it. In justifying constitutional abortion rights, those supportive of abortion have looked beyond privacy to values like equality and non-discrimination.

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It is striking that non-discrimination is the justification for reason-based bans—that banning sex-based abortions, abortion foes would have you believe, is an intervention on behalf of women’s rights. That some of these arguments now have broader appeal spotlights the need to be clear about the pernicious effects of these laws, beyond their attempt to limit access to abortion services.

Reason-based bans generate stigma and incite division.

Anti-abortion forces have co-opted the present energy to contest structural racism to further an anti-abortion agenda. While purporting to advance notions of equality on the basis of race, sex and disability, these laws subject people’s reproductive decisions to scrutiny, regardless of the gestational age or viability of the fetus. Moreover, they generate stigma. They turn all those who seek abortions into purported bigots.  

And, ultimately, reason-based bans try to pit social justice movements against each other, positing that reproductive justice is not on the side of racial justice or disability rights. This is not an accident: These laws are designed to weaken coalitions and produce fragmentation. What we need at the moment is more solidarity across social justice movements, not fracture.

With the end of Trump administration and the inauguration of President Biden, this is a critical time to assess the seeming popularity of reason-based bans and express solidarities in dismantling racial injustice. 

We need legislation and action that actually addresses systemic racism, the legacy of eugenics, sexism and ableism. The concerns are real and pressing, but abortion bans trade on that support without offering any meaningful change to why and how people seek abortion in the first place.  The overwhelming reason people seek abortions is financial insecurity; they cannot afford a child and they can barely make ends meet for the children they have. Economic vulnerability is, of course, deeply rooted in and reinscribes racism, sexism and ableism. 

Policy that supports individuals and families with meaningful resources—affordable child care, health care, higher wages, quality public education, just to name a few—would do more to address inequality than any abortion restriction could. Together with state and federal laws that protect abortion rights, like that just passed in Massachusetts and alluded to in President Biden’s statement on Roe’s anniversary, progressive and redistributive policies and programs can target the race, gender, socio-economic and other disparities that drive discrimination.  

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About and

Rachel Rebouché is the James E. Beasley professor of law and associate dean for research at Temple University School of Law, where she teaches family law, health care law and contracts. She publishes on topics related to reproductive health and regulation, and she is a co-investigator on research projects supported by the World Health Organization and the Center for Reproductive Health Research in the Southeast. She previously served as associate director of adolescent health programs at the National Partnership for Women and Families and as a women’s law and public policy fellow at the National Women’s Law Center.
Mindy Jane Roseman is an international human rights lawyer; she directs the Gruber Program for Global Justice and Women’s Rights at Yale Law School. She writes and teaches about gender, sexuality, reproduction, and human rights.