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'Reason Bans' on Abortion

Susan Estrich on

The latest effort by anti-abortion activists to limit access to abortion, notwithstanding Roe v. Wade, takes the form of "reason bans," in which a woman's right to an abortion depends on the reason she wants it. This week, the North Carolina legislature advanced a bill that set forth the prohibited reasons and would penalize any doctor who defies the ban.

Other states have already passed such reason bans. What makes North Carolina's newsworthy is that the legislature has added Down syndrome to the list of reasons. Doctors who perform what would otherwise be a lawful abortion would be punished if the woman's decision was based on Down syndrome or on race. Down syndrome can be detected in the first trimester.

The constitutionality of these laws has yet to be tested in the courts. A court made two decisions blocking similar laws shortly after they took effect. An appellate court reversed the blocks, holding that the laws are not void for vagueness, but it has yet to rule on whether the laws interfere with a woman's right to choose an abortion in consultation with her physician.

The right to choose abortion prior to viability is grounded in the right to privacy. In my lifetime, Roe has become an old chestnut that would be difficult for any court to overturn. Instead, the favored tactic of anti-abortion advocates is laws such as this one, thinly veiled efforts to impose restrictions on abortion, which states are free to do so long as they do not "unduly burden" a woman's right to choose. It is hard to see how reason bans can survive that test, even with the new Supreme Court we have, but there are any number of judges, not to mention legislators, who have already disagreed with that conclusion.

An abortion is something "the woman and her responsible physician necessarily will consider in consultation," Justice Blackmun repeatedly emphasized in Roe, sometimes to the consternation of my feminist colleagues. Rather than protecting the privacy of that consultation, with reason bans, women will have no choice but to lie to their doctors to protect them both.

I understand the efforts of adults with Down syndrome, as well as parents of children with the condition, to fight against the notion of a woman terminating a pregnancy because of it.

I remember a wonderful scene in a television show where the actor (who has Down syndrome) playing a kid with Down syndrome goes to the hospital to see the father of a newborn with Down syndrome. "Congratulations," he says enthusiastically. And the father agrees.

But how do we sit in judgment? What about a woman who can't afford another child? What about a battered wife? What about a teenager? What about an athlete who wants to compete? Once we start down the road of reasons, someone must distinguish the good from the bad, a calculus that is hardly universal.

 

It is the essence of the right to privacy that keeps government out of our most personal decisions, whether it's the decision to use contraceptives, as ruled in the famed 1965 Griswold v. Connecticut decision, or to marry a person of the same sex, as decided in the equally famed Obergefell v. Hodges case half a century later. We each have the right to our own moral calculus.

If a spouse can't block an abortion and a parent can't block an abortion, then what gives the state the right to do so?

I would never even suggest that a woman facing a Down syndrome diagnosis for her unborn child should terminate her pregnancy.

I am only saying that it has to be her choice, just like it has to be the choice of the rape victim, or the victim of incest -- not because those unborn children have no worth but because the mother's right to privacy gives her the right to choose, not us.

And she will live with the choice, not us, which is reason enough to recognize that it is hers to make.

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