argument against selective abortion

The ethical case against sex-selective abortion isn’t simple

Lecturer in Global Ethics, Department of Philosophy, University of Birmingham

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Jeremy Williams does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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A key theme in public debate over abortion in many countries over the last few years has been the morality and legality of sex-selective terminations. Now the use of an early prenatal testing technique in the UK has led to further concerns.

The Non-Invasive Prenatal Test (NIPT) is being fully introduced on the NHS this year, as a safe method of detecting Down’s Syndrome and other genetic conditions. But it has been internationally available from private providers for a number of years, and, as a 2017 report noted , is often offered as a sex-determination test. This has raised concerns that the test may be used to facilitate sex-selective abortion – particularly within communities where women can be subject to strong cultural and familial pressure not to have girls. The current legal status of this practice in the UK is a matter of some controversy .

The BBC’s Victoria Derbyshire recently reported online discussion among British women about using NIPT to abort female foetuses. In response, the Labour Party announced a policy of banning the use of NIPT for sex determination. Labour’s equality and women’s spokesperson, Naz Shah, described sex-selective abortion as “incredibly unethical”.

Shah’s view – that sex-selective abortion is morally wrong, and that the law ought therefore to prevent it – is widely shared, including among those who otherwise identify as pro-choice. Similar sentiments were expressed by politicians in 2012, when an undercover investigation by the Telegraph found a number of doctors that appeared willing to perform sex-selective terminations.

But if you propose to deprive women of facts about their pregnancies, or interfere with choices they might make about their own bodies and futures, you must do more than allege wrongdoing. Articulation of a clear and compelling moral objection is required.

So: what kind of objections can be made in this case?

Sex discrimination

Sex-selective abortion is often dismissed as an abortion chosen due to a trivial preference, like a preference for one consumer product over another. And it would be natural to infer that it is therefore a classic case of unjust discrimination. What could be more obvious than that it is wrong to treat someone – in this case a foetus - less favourably simply on the arbitrary grounds of sex?

This characterisation of the practice is, however, dubious. Take first the thought that sex-selective abortion cannot be motivated by serious reasons. In fact, women who seek such abortions can have purposes that are just as weighty as those of women seeking non-selective terminations. They may be justifiably afraid, in particular, that the gender of their child may lead to the failure of their marriage, or their being left destitute. Cases described by the organisation Jeena International , for instance, show that it would be a mistake to assume that women in countries like the UK are necessarily immune to these risks. Yet, while Jeena International advocates the prohibition of sex selection, it is precisely when women face precarious circumstances like these that the option of abortion seems most crucial.

Consider next the suggestion that sex-selective abortion constitutes unjust discrimination against the foetus. This casts the foetus as having a right to be treated as our equal. But that idea undermines the case for abortion rights in general, not just sex-selective abortion.

Social impact

In order to avoid providing tacit support for a pro-life position, ethical critics of sex selection often argue that the practice’s victims are not foetuses, but existing persons in society. There are number of versions of this position, pointing to a variety of anticipated bad social consequences. The question is whether any are strong enough to justify abridging choice in an area of such deep personal importance as procreation.

One immediate fear is that, if sex-selective abortion is available, it could lead to harmful unbalancing of the sex ratio. This seems a fairly remote possibility in a country like the UK, at least, where strong son-preference is not widespread.

But another common rationale for prohibiting sex-selective abortion may be more applicable. It appears , for instance, to have been part of the motivation behind an (unsuccessful) attempt to change the law on sex selection by Fiona Bruce MP in 2015. On this view, a ban is needed to protect women from being coerced by their families or spouses into having the procedure.

Domestic coercion is undoubtedly a matter of grave concern. But it is unclear that prohibiting sex-selective abortion is the right remedy. This is because vulnerable women are at risk of being coerced into unwanted abortions generally. In all such cases, the appropriate policy is arguably instead to tackle domestic oppression directly, giving women meaningful exit options, while leaving abortion open to those who need it.

Tackling inequality

Yet another argument focuses on the message that allowing sex-selective abortion allegedly transmits. As one columnist evocatively puts the point : “I don’t want my daughter to learn that a girl’s life is worthless.” The suggestion here is that the existence of the practice vividly expresses the inferior status of women, making the struggle for gender equality still more difficult. But this case for prohibition can also be questioned on an ethical level.

One reason is that it is analogous to an argument that some disability rights advocates have made, to the effect that prenatal testing likewise broadcasts a hurtful, disrespectful message about the value of disabled lives. If someone were to argue, on these grounds, that selective abortion for disability is not only ethically problematic but ought to be banned, pro-choice people would no doubt reply (a) that there is no intention to express any such message, and (b) that in any case preventing women from obtaining needed abortions is not an equitable way of pursuing justice and equality for the disabled. These replies seem applicable in the case of sex selection too.

All this indicates that the ethical case for prohibition is less straightforward than one might expect. We can agree, of course, that much more progress needs to be made towards a world without the pervasive sex inequalities that lead some women to choose sex-selective abortion in the first place. But our problem is what to do here and now, while those inequalities persist. The dilemma is that, while such abortion can plausibly be seen as reinforcing relevant inequalities, prohibiting it arguably involves a perverse shift of the burdens of achieving gender justice onto vulnerable women themselves.

• Sexual selection
• Interdisciplinarity

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• America’s Abortion Quandary

1. Americans’ views on whether, and in what circumstances, abortion should be legal

Table of contents.

• Abortion at various stages of pregnancy 
• Abortion and circumstances of pregnancy 
• Parental notification for minors seeking abortion
• Penalties for abortions performed illegally 
• Public views of what would change the number of abortions in the U.S.
• A majority of Americans say women should have more say in setting abortion policy in the U.S.
• How do certain arguments about abortion resonate with Americans?
• In their own words: How Americans feel about abortion 
• Personal connections to abortion 
• Religion’s impact on views about abortion
• Acknowledgments
• The American Trends Panel survey methodology

As the long-running debate over abortion reaches another  key moment at the Supreme Court  and in  state legislatures across the country , a majority of U.S. adults continue to say that abortion should be legal in all or most cases. About six-in-ten Americans (61%) say abortion should be legal in “all” or “most” cases, while 37% think abortion should be  illegal  in all or most cases. These views have changed little over the past several years: In 2019, for example, 61% of adults said abortion should be legal in all or most cases, while 38% said it should be illegal in all or most cases.    Most respondents in the new survey took one of the middle options when first asked about their views on abortion, saying either that abortion should be legal in  most  cases (36%) or illegal in  most  cases (27%). 

Respondents who said abortion should either be legal in  all  cases or illegal in  all  cases received a follow-up question asking whether there should be any exceptions to such laws. Overall, 25% of adults initially said abortion should be legal in all cases, but about a quarter of this group (6% of all U.S. adults) went on to say that there should be some exceptions when abortion should be against the law.

One-in-ten adults initially answered that abortion should be illegal in all cases, but about one-in-five of these respondents (2% of all U.S. adults) followed up by saying that there are some exceptions when abortion should be permitted. 

Altogether, seven-in-ten Americans say abortion should be legal in some cases and illegal in others, including 42% who say abortion should be generally legal, but with some exceptions, and 29% who say it should be generally illegal, except in certain cases. Much smaller shares take absolutist views when it comes to the legality of abortion in the U.S., maintaining that abortion should be legal in all cases with no exceptions (19%) or illegal in all circumstances (8%). 

There is a modest gender gap in views of whether abortion should be legal, with women slightly more likely than men to say abortion should be legal in all cases or in all cases but with some exceptions (63% vs. 58%). 

Younger adults are considerably more likely than older adults to say abortion should be legal: Three-quarters of adults under 30 (74%) say abortion should be generally legal, including 30% who say it should be legal in all cases without exception. 

But there is an even larger gap in views toward abortion by partisanship: 80% of Democrats and Democratic-leaning independents say abortion should be legal in all or most cases, compared with 38% of Republicans and GOP leaners.  Previous Center research  has shown this gap widening over the past 15 years. 

Still, while partisans diverge in views of whether abortion should mostly be legal or illegal, most Democrats and Republicans do not view abortion in absolutist terms. Just 13% of Republicans say abortion should be against the law in all cases without exception; 47% say it should be illegal with some exceptions. And while three-in-ten Democrats say abortion should be permitted in all circumstances, half say it should mostly be legal – but with some exceptions. 

There also are sizable divisions within both partisan coalitions by ideology. For instance, while a majority of moderate and liberal Republicans say abortion should mostly be legal (60%), just 27% of conservative Republicans say the same. Among Democrats, self-described liberals are twice as apt as moderates and conservatives to say abortion should be legal in all cases without exception (42% vs. 20%).

Regardless of partisan affiliation, adults who say they personally know someone who has had an abortion – such as a friend, relative or themselves – are more likely to say abortion should be legal than those who say they do not know anyone who had an abortion.

Views toward abortion also vary considerably by religious affiliation – specifically among large Christian subgroups and religiously unaffiliated Americans. 

For example, roughly three-quarters of White evangelical Protestants say abortion should be illegal in all or most cases. This is far higher than the share of White non-evangelical Protestants (38%) or Black Protestants (28%) who say the same. 

Despite  Catholic teaching on abortion , a slim majority of U.S. Catholics (56%) say abortion should be legal. This includes 13% who say it should be legal in all cases without exception, and 43% who say it should be legal, but with some exceptions. 

Compared with Christians, religiously unaffiliated adults are far more likely to say abortion should be legal overall – and significantly more inclined to say it should be legal in all cases without exception. Within this group, atheists stand out: 97% say abortion should be legal, including 53% who say it should be legal in all cases without exception. Agnostics and those who describe their religion as “nothing in particular” also overwhelmingly say that abortion should be legal, but they are more likely than atheists to say there are some circumstances when abortion should be against the law.

Although the survey was conducted among Americans of many religious backgrounds, including Jews, Muslims, Buddhists and Hindus, it did not obtain enough respondents from non-Christian groups to report separately on their responses.

As a  growing number of states  debate legislation to restrict abortion – often after a certain stage of pregnancy – Americans express complex views about when   abortion should generally be legal and when it should be against the law. Overall, a majority of adults (56%) say that how long a woman has been pregnant should matter in determining when abortion should be legal, while far fewer (14%) say that this should  not  be a factor. An additional one-quarter of the public says that abortion should either be legal (19%) or illegal (8%) in all circumstances without exception; these respondents did not receive this question.

Among men and women, Republicans and Democrats, and Christians and religious “nones” who do not take absolutist positions about abortion on either side of the debate, the prevailing view is that the stage of the pregnancy should be a factor in determining whether abortion should be legal.

Americans broadly are more likely to favor restrictions on abortion later in pregnancy than earlier in pregnancy. Many adults also say the legality of abortion depends on other factors at every stage of pregnancy. 

Overall, a plurality of adults (44%) say that abortion should be legal six weeks into a pregnancy, which is about when cardiac activity (sometimes called a fetal heartbeat) may be detected and before many women know they are pregnant; this includes 19% of adults who say abortion should be legal in all cases without exception, as well as 25% of adults who say it should be legal at that point in a pregnancy. An additional 7% say abortion generally should be legal in most cases, but that the stage of the pregnancy should not matter in determining legality. 1

One-in-five Americans (21%) say abortion should be  illegal  at six weeks. This includes 8% of adults who say abortion should be illegal in all cases without exception as well as 12% of adults who say that abortion should be illegal at this point. Additionally, 6% say abortion should be illegal in most cases and how long a woman has been pregnant should not matter in determining abortion’s legality. Nearly one-in-five respondents, when asked whether abortion should be legal six weeks into a pregnancy, say “it depends.” 

Americans are more divided about what should be permitted 14 weeks into a pregnancy – roughly at the end of the first trimester – although still, more people say abortion should be legal at this stage (34%) than illegal (27%), and about one-in-five say “it depends.”

Fewer adults say abortion should be legal 24 weeks into a pregnancy – about when a healthy fetus could survive outside the womb with medical care. At this stage, 22% of adults say abortion should be legal, while nearly twice as many (43%) say it should be  illegal . Again, about one-in-five adults (18%) say whether abortion should be legal at 24 weeks depends on other factors. 

Respondents who said that abortion should be illegal 24 weeks into a pregnancy or that “it depends” were asked a follow-up question about whether abortion at that point should be legal if the pregnant woman’s life is in danger or the baby would be born with severe disabilities. Most who received this question say abortion in these circumstances should be legal (54%) or that it depends on other factors (40%). Just 4% of this group maintained that abortion should be illegal in this case.

This pattern in views of abortion – whereby more favor greater restrictions on abortion as a pregnancy progresses – is evident across a variety of demographic and political groups. 

Democrats are far more likely than Republicans to say that abortion should be legal at each of the three stages of pregnancy asked about on the survey. For example, while 26% of Republicans say abortion should be legal at six weeks of pregnancy, more than twice as many Democrats say the same (61%). Similarly, while about a third of Democrats say abortion should be legal at 24 weeks of pregnancy, just 8% of Republicans say the same. 

However, neither Republicans nor Democrats uniformly express absolutist views about abortion throughout a pregnancy. Republicans are divided on abortion at six weeks: Roughly a quarter say it should be legal (26%), while a similar share say it depends (24%). A third say it should be illegal. 

Democrats are divided about whether abortion should be legal or illegal at 24 weeks, with 34% saying it should be legal, 29% saying it should be illegal, and 21% saying it depends. 

There also is considerable division among each partisan group by ideology. At six weeks of pregnancy, just one-in-five conservative Republicans (19%) say that abortion should be legal; moderate and liberal Republicans are twice as likely as their conservative counterparts to say this (39%). 

At the same time, about half of liberal Democrats (48%) say abortion at 24 weeks should be legal, while 17% say it should be illegal. Among conservative and moderate Democrats, the pattern is reversed: A plurality (39%) say abortion at this stage should be illegal, while 24% say it should be legal. 

Christian adults are far less likely than religiously unaffiliated Americans to say abortion should be legal at each stage of pregnancy.  

Among Protestants, White evangelicals stand out for their opposition to abortion. At six weeks of pregnancy, for example, 44% say abortion should be illegal, compared with 17% of White non-evangelical Protestants and 15% of Black Protestants. This pattern also is evident at 14 and 24 weeks of pregnancy, when half or more of White evangelicals say abortion should be illegal.

At six weeks, a plurality of Catholics (41%) say abortion should be legal, while smaller shares say it depends or it should be illegal. But by 24 weeks, about half of Catholics (49%) say abortion should be illegal. 

Among adults who are religiously unaffiliated, atheists stand out for their views. They are the only group in which a sizable majority says abortion should be  legal  at each point in a pregnancy. Even at 24 weeks, 62% of self-described atheists say abortion should be legal, compared with smaller shares of agnostics (43%) and those who say their religion is “nothing in particular” (31%). 

As is the case with adults overall, most religiously affiliated and religiously unaffiliated adults who originally say that abortion should be illegal or “it depends” at 24 weeks go on to say either it should be legal or it depends if the pregnant woman’s life is in danger or the baby would be born with severe disabilities. Few (4% and 5%, respectively) say abortion should be illegal at 24 weeks in these situations.

The stage of the pregnancy is not the only factor that shapes people’s views of when abortion should be legal. Sizable majorities of U.S. adults say that abortion should be legal if the pregnancy threatens the life or health of the pregnant woman (73%) or if pregnancy is the result of rape (69%). 

There is less consensus when it comes to circumstances in which a baby may be born with severe disabilities or health problems: 53% of Americans overall say abortion should be legal in such circumstances, including 19% who say abortion should be legal in all cases and 35% who say there are some situations where abortions should be illegal, but that it should be legal in this specific type of case. A quarter of adults say “it depends” in this situation, and about one-in-five say it should be illegal (10% who say illegal in this specific circumstance and 8% who say illegal in all circumstances). 

There are sizable divides between and among partisans when it comes to views of abortion in these situations. Overall, Republicans are less likely than Democrats to say abortion should be legal in each of the three circumstances outlined in the survey. However, both partisan groups are less likely to say abortion should be legal when the baby may be born with severe disabilities or health problems than when the woman’s life is in danger or the pregnancy is the result of rape. 

Just as there are wide gaps among Republicans by ideology on whether how long a woman has been pregnant should be a factor in determining abortion’s legality, there are large gaps when it comes to circumstances in which abortions should be legal. For example, while a clear majority of moderate and liberal Republicans (71%) say abortion should be permitted when the pregnancy is the result of rape, conservative Republicans are more divided. About half (48%) say it should be legal in this situation, while 29% say it should be illegal and 21% say it depends.

The ideological gaps among Democrats are slightly less pronounced. Most Democrats say abortion should be legal in each of the three circumstances – just to varying degrees. While 77% of liberal Democrats say abortion should be legal if a baby will be born with severe disabilities or health problems, for example, a smaller majority of conservative and moderate Democrats (60%) say the same. 

White evangelical Protestants again stand out for their views on abortion in various circumstances; they are far less likely than White non-evangelical or Black Protestants to say abortion should be legal across each of the three circumstances described in the survey. 

While about half of White evangelical Protestants (51%) say abortion should be legal if a pregnancy threatens the woman’s life or health, clear majorities of other Protestant groups and Catholics say this should be the case. The same pattern holds in views of whether abortion should be legal if the pregnancy is the result of rape. Most White non-evangelical Protestants (75%), Black Protestants (71%) and Catholics (66%) say abortion should be permitted in this instance, while White evangelicals are more divided: 40% say it should be legal, while 34% say it should be  illegal  and about a quarter say it depends. 

Mirroring the pattern seen among adults overall, opinions are more varied about a situation where a baby might be born with severe disabilities or health issues. For instance, half of Catholics say abortion should be legal in such cases, while 21% say it should be illegal and 27% say it depends on the situation. 

Most religiously unaffiliated adults – including overwhelming majorities of self-described atheists – say abortion should be legal in each of the three circumstances. 

Seven-in-ten U.S. adults say that doctors or other health care providers should be required to notify a parent or legal guardian if the pregnant woman seeking an abortion is under 18, while 28% say they should not be required to do so.  

Women are slightly less likely than men to say this should be a requirement (67% vs. 74%). And younger adults are far less likely than those who are older to say a parent or guardian should be notified before a doctor performs an abortion on a pregnant woman who is under 18. In fact, about half of adults ages 18 to 24 (53%) say a doctor should  not  be required to notify a parent. By contrast, 64% of adults ages 25 to 29 say doctors  should  be required to notify parents of minors seeking an abortion, as do 68% of adults ages 30 to 49 and 78% of those 50 and older. 

A large majority of Republicans (85%) say that a doctor should be required to notify the parents of a minor before an abortion, though conservative Republicans are somewhat more likely than moderate and liberal Republicans to take this position (90% vs. 77%). 

The ideological divide is even more pronounced among Democrats. Overall, a slim majority of Democrats (57%) say a parent should be notified in this circumstance, but while 72% of conservative and moderate Democrats hold this view, just 39% of liberal Democrats agree. 

By and large, most Protestant (81%) and Catholic (78%) adults say doctors should be required to notify parents of minors before an abortion. But religiously unaffiliated Americans are more divided. Majorities of both atheists (71%) and agnostics (58%) say doctors should  not  be required to notify parents of minors seeking an abortion, while six-in-ten of those who describe their religion as “nothing in particular” say such notification should be required. 

Americans are divided over who should be penalized – and what that penalty should be – in a situation where an abortion occurs illegally. 

Overall, a 60% majority of adults say that if a doctor or provider performs an abortion in a situation where it is illegal, they should face a penalty. But there is less agreement when it comes to others who may have been involved in the procedure. 

While about half of the public (47%) says a woman who has an illegal abortion should face a penalty, a nearly identical share (50%) says she should not. And adults are more likely to say people who help find and schedule or pay for an abortion in a situation where it is illegal should  not  face a penalty than they are to say they should.

Views about penalties are closely correlated with overall attitudes about whether abortion should be legal or illegal. For example, just 20% of adults who say abortion should be legal in all cases without exception think doctors or providers should face a penalty if an abortion were carried out in a situation where it was illegal. This compares with 91% of those who think abortion should be illegal in all cases without exceptions. Still, regardless of how they feel about whether abortion should be legal or not, Americans are more likely to say a doctor or provider should face a penalty compared with others involved in the procedure. 

Among those who say medical providers and/or women should face penalties for illegal abortions, there is no consensus about whether they should get jail time or a less severe punishment. Among U.S. adults overall, 14% say women should serve jail time if they have an abortion in a situation where it is illegal, while 16% say they should receive a fine or community service and 17% say they are not sure what the penalty should be. 

A somewhat larger share of Americans (25%) say doctors or other medical providers should face jail time for providing illegal abortion services, while 18% say they should face fines or community service and 17% are not sure. About three-in-ten U.S. adults (31%) say doctors should lose their medical license if they perform an abortion in a situation where it is illegal.

Men are more likely than women to favor penalties for the woman or doctor in situations where abortion is illegal. About half of men (52%) say women should face a penalty, while just 43% of women say the same. Similarly, about two-thirds of men (64%) say a doctor should face a penalty, while 56% of women agree.

Republicans are considerably more likely than Democrats to say both women and doctors should face penalties – including jail time. For example, 21% of Republicans say the woman who had the abortion should face jail time, and 40% say this about the doctor who performed the abortion. Among Democrats, far smaller shares say the woman (8%) or doctor (13%) should serve jail time.  

White evangelical Protestants are more likely than other Protestant groups to favor penalties for abortions in situations where they are illegal. Fully 24% say the woman who had the abortion should serve time in jail, compared with just 12% of White non-evangelical Protestants or Black Protestants. And while about half of White evangelicals (48%) say doctors who perform illegal abortions should serve jail time, just 26% of White non-evangelical Protestants and 18% of Black Protestants share this view.

• Only respondents who said that abortion should be legal in some cases but not others and that how long a woman has been pregnant should matter in determining whether abortion should be legal received questions about abortion’s legality at specific points in the pregnancy.  ↩

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There’s a Better Way to Debate Abortion

Caution and epistemic humility can guide our approach.

If Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization becomes law, we will enter a post– Roe v. Wade world in which the laws governing abortion will be legislatively decided in 50 states.

In the short term, at least, the abortion debate will become even more inflamed than it has been. Overturning Roe , after all, would be a profound change not just in the law but in many people’s lives, shattering the assumption of millions of Americans that they have a constitutional right to an abortion.

This doesn’t mean Roe was correct. For the reasons Alito lays out, I believe that Roe was a terribly misguided decision, and that a wiser course would have been for the issue of abortion to have been given a democratic outlet, allowing even the losers “the satisfaction of a fair hearing and an honest fight,” in the words of the late Justice Antonin Scalia. Instead, for nearly half a century, Roe has been the law of the land. But even those who would welcome its undoing should acknowledge that its reversal could convulse the nation.

From the December 2019 issue: The dishonesty of the abortion debate

If we are going to debate abortion in every state, given how fractured and angry America is today, we need caution and epistemic humility to guide our approach.

We can start by acknowledging the inescapable ambiguities in this staggeringly complicated moral question. No matter one’s position on abortion, each of us should recognize that those who hold views different from our own have some valid points, and that the positions we embrace raise complicated issues. That realization alone should lead us to engage in this debate with a little more tolerance and a bit less certitude.

Many of those on the pro-life side exhibit a gap between the rhetoric they employ and the conclusions they actually seem to draw. In the 1990s, I had an exchange, via fax, with a pro-life thinker. During our dialogue, I pressed him on what he believed, morally speaking , should be the legal penalty for a woman who has an abortion and a doctor who performs one.

My point was a simple one: If he believed, as he claimed, that an abortion even moments after conception is the killing of an innocent child—that the fetus, from the instant of conception, is a human being deserving of all the moral and political rights granted to your neighbor next door—then the act ought to be treated, if not as murder, at least as manslaughter. Surely, given what my interlocutor considered to be the gravity of the offense, fining the doctor and taking no action against the mother would be morally incongruent. He was understandably uncomfortable with this line of questioning, unwilling to go to the places his premises led. When it comes to abortion, few people are.

Humane pro-life advocates respond that while an abortion is the taking of a human life, the woman having the abortion has been misled by our degraded culture into denying the humanity of the child. She is a victim of misinformation; she can’t be held accountable for what she doesn’t know. I’m not unsympathetic to this argument, but I think it ultimately falls short. In other contexts, insisting that people who committed atrocities because they truly believed the people against whom they were committing atrocities were less than human should be let off the hook doesn’t carry the day. I’m struggling to understand why it would in this context.

There are other complicating matters. For example, about half of all fertilized eggs are aborted spontaneously —that is, result in miscarriage—usually before the woman knows she is pregnant. Focus on the Family, an influential Christian ministry, is emphatic : “Human life begins at fertilization.” Does this mean that when a fertilized egg is spontaneously aborted, it is comparable—biologically, morally, ethically, or in any other way—to when a 2-year-old child dies? If not, why not? There’s also the matter of those who are pro-life and contend that abortion is the killing of an innocent human being but allow for exceptions in the case of rape or incest. That is an understandable impulse but I don’t think it’s a logically sustainable one.

The pro-choice side, for its part, seldom focuses on late-term abortions. Let’s grant that late-term abortions are very rare. But the question remains: Is there any point during gestation when pro-choice advocates would say “slow down” or “stop”—and if so, on what grounds? Or do they believe, in principle, that aborting a child up to the point of delivery is a defensible and justifiable act; that an abortion procedure is, ethically speaking, the same as removing an appendix? If not, are those who are pro-choice willing to say, as do most Americans, that the procedure gets more ethically problematic the further along in a pregnancy?

Read: When a right becomes a privilege

Plenty of people who consider themselves pro-choice have over the years put on their refrigerator door sonograms of the baby they are expecting. That tells us something. So does biology. The human embryo is a human organism, with the genetic makeup of a human being. “The argument, in which thoughtful people differ, is about the moral significance and hence the proper legal status of life in its early stages,” as the columnist George Will put it.

These are not “gotcha questions”; they are ones I have struggled with for as long as I’ve thought through where I stand on abortion, and I’ve tried to remain open to corrections in my thinking. I’m not comfortable with those who are unwilling to grant any concessions to the other side or acknowledge difficulties inherent in their own position. But I’m not comfortable with my own position, either—thinking about abortion taking place on a continuum, and troubled by abortions, particularly later in pregnancy, as the child develops.

The question I can’t answer is where the moral inflection point is, when the fetus starts to have claims of its own, including the right to life. Does it depend on fetal development? If so, what aspect of fetal development? Brain waves? Feeling pain? Dreaming? The development of the spine? Viability outside the womb? Something else? Any line I might draw seems to me entirely arbitrary and capricious.

Because of that, I consider myself pro-life, but with caveats. My inability to identify a clear demarcation point—when a fetus becomes a person—argues for erring on the side of protecting the unborn. But it’s a prudential judgment, hardly a certain one.

At the same time, even if one believes that the moral needle ought to lean in the direction of protecting the unborn from abortion, that doesn’t mean one should be indifferent to the enormous burden on the woman who is carrying the child and seeks an abortion, including women who discover that their unborn child has severe birth defects. Nor does it mean that all of us who are disturbed by abortion believe it is the equivalent of killing a child after birth. In this respect, my view is similar to that of some Jewish authorities , who hold that until delivery, a fetus is considered a part of the mother’s body, although it does possess certain characteristics of a person and has value. But an early-term abortion is not equivalent to killing a young child. (Many of those who hold this position base their views in part on Exodus 21, in which a miscarriage that results from men fighting and pushing a pregnant woman is punished by a fine, but the person responsible for the miscarriage is not tried for murder.)

“There is not the slightest recognition on either side that abortion might be at the limits of our empirical and moral knowledge,” the columnist Charles Krauthammer wrote in 1985. “The problem starts with an awesome mystery: the transformation of two soulless cells into a living human being. That leads to an insoluble empirical question: How and exactly when does that occur? On that, in turn, hangs the moral issue: What are the claims of the entity undergoing that transformation?”

That strikes me as right; with abortion, we’re dealing with an awesome mystery and insoluble empirical questions. Which means that rather than hurling invective at one another and caricaturing those with whom we disagree, we should try to understand their views, acknowledge our limitations, and even show a touch of grace and empathy. In this nation, riven and pulsating with hate, that’s not the direction the debate is most likely to take. But that doesn’t excuse us from trying.

Disability rights groups are fighting for abortion access — and against ableism

The conversation about abortion and other reproductive health care in the country is missing something: people with disabilities. 

Since it became clear the Supreme Court would overturn Roe v. Wade , disability rights advocates say the uproar over allowing states to ban or restrict abortion has largely overlooked the ways people with disabilities will suffer. At least 12.7% of the U.S. population lives with disabilities — including from speech and limb differences, mobile disabilities and developmental disabilities —  as of 2019, according to census data . 

“I think one of the reasons that disabled people are not centered in these conversations, even though we should be, is that typically disabled people are de-sexualized,” said Maria Town, president and CEO of the American Association of People With Disabilities (AAPD). “We are not seen as sexual beings. In fact, the assumption is that we just don’t have sex when, in reality, disabled people do have sex. We need and deserve accessible, affordable reproductive and informed reproductive health care, and that includes abortion.”

Even after years of highlighting the longstanding lack of access to reproductive care, people with disabilities are still less likely to have health care providers and routine check-ups, and are more likely to have unmet health care needs because of the cost, according to the Centers for Disease Control and Prevention . Access to reproductive services is even slimmer.

“You may need an additional support person for physical access or to provide mental health support,” said Town, who has cerebral palsy and uses mobility devices. “For states that have banned abortion and people are talking about needing to travel out of state or use telehealth services, many telehealth platforms are not accessible to people with disabilities. These are all barriers to health care. Accessibility of reproductive health care can be a huge challenge.” 

People with disabilities are more likely to live in poverty than those without and often rely on state insurance programs like Medicaid to meet health care needs, according to the DC Abortion Fund , a nonprofit group that helps low-income people pay for abortions. However, only 15 states and Washington, D.C., cover abortions through Medicaid , a significant financial barrier to abortion access for people with disabilities. 

For example, West Virginia, which has the largest population of disabled people in the country, according to census data, solely provides state funds for abortions in cases of life endangerment and fetal impairment. An analysis by the National Partnership for Women and Families found that abortion bans in the 26 states that are certain or likely to ban abortion could affect up to 2.8 million women with disabilities (53 percent of all such women in the U.S.). 

Since the Supreme Court’s ruling, disability rights groups like the AAPD and the Disability Rights Education and Defense Fund have condemned the Supreme Court’s action, detailing the myriad ways people with disabilities will be affected by the decision and calling out ableism in the national conversation about reproductive justice. Black people bear the brunt of this injustice. About 1 in 4 Black adults in the country have a disability, compared with 1 in 5 white Americans, according to the CDC . And about 36% of Black people with disabilities live in poverty, compared with 26% of America’s overall disabled population. 

“Abortion advocates need to stop saying that the main reason to want abortion is to not have a disabled child,” disability rights advocate Imani Barbarin said. “There’s nothing like entering a space and the only reason they want access to this medical procedure is to not have somebody like you in their life. This is turning away tons of pro-abortion advocates who have disabilities.” 

People with disabilities across the country have reported experiences with health care providers that left them feeling discriminated against and concerned about the quality of care they’d receive. In a study by the National Research Center for Parents with Disabilities , one doctor jokingly asked a woman with a physical disability if she “used a turkey baster” to get pregnant, another refused to touch a pregnant woman’s amputated leg to help her push during labor, and one nurse remarked to another woman that “it was wonderful that somebody like [her] would still want to have a kid.” 

And the marginalized group fares no better when it comes to terminating a pregnancy. A New York woman recently told The New York Times that Planned Parenthood of Greater New York canceled her abortion appointment, telling her, “We don’t do procedures for people in a wheelchair.” (Planned Parenthood officials later apologized and said the woman’s appointment had been “mismanaged.”)

But the challenges of reproductive care don’t start at pregnancy, Town said people with disabilities experience unfair treatment from the time they are young. 

“Procedures like pap smears are not inherently accessible to me,” Town said. “In the broader reproductive health care space, many disabled people are sterilized forcibly. And if they’re not sterilized, they’re placed on birth control or other forms of contraception without their consent. That happened to me as a young girl. Not for any health-related reasons, but so I was easier to care for.” 

Stefanie Lyn Kaufman-Mthimkhulu, founder of the disability rights grassroots organization Project LETS, who is nonbinary and uses they and she pronouns, said they had an abortion in 2020 months after giving birth to a daughter. Kaufman-Mthimkhulu has Congenital Myasthenic Syndrome (CMS), a disorder that has an underlying defect in the transmission of signals from nerve cells to muscles. Kaufman-Mthimkhulu said they sometimes use a wheelchair. They also have autism and endure chronic pain in their ankle and spine as a result of multiple surgeries, they said.

As a result, their body had “negative reactions” to being pregnant and their pregnancy was   labeled high risk as a result of their disabilities — “Pregnancy exacerbated my current pain and health issues, and created new issues. I was constantly in severe pain, and former tools like medical marijuana were no longer accessible to me,” Kaufman-Mthimkhulu said. 

Research shows that people with disabilities get pregnant at similar rates to those without, but are more likely to experience blood clotting, hemorrhaging and infection during pregnancy, according to research published in the Disability and Health Journal . They also often receive inadequate health care and are at significantly higher risk of dying from pregnancy and childbirth, the research showed. 

Kaufman-Mthimkhulu said in the wake of Roe being overturnedruling, Project LETS is working to develop political education sessions to both teach the public about the connection between reproductive and disability rights and strengthen mutual aid networks to support people with disabilities who need access to abortion, medication and other reproductive necessities. She said one key to fighting back against abortion restrictions for people with disabilities will be to strengthen systems that allow people with disabilities to give birth outside of traditional medical environments. 

For instance, the organization is working with doulas and birth workers to create care networks for people outside of the traditional health care system, she said. This is important as people with disabilities navigate a system that doesn’t always tend to their needs. “Pregnancy put my physical body through hell, and mental, spiritual and emotional stability was significantly destabilized — to a point that I don’t believe has recovered.”

But harshly restricted access to care won’t be the only consequence of overturning Roe. Barbarin said organizations must prioritize making sure people with disabilities have access to their necessary medications moving forward. 

“So many disabled people’s medications have ended because they’re abortifacients,” Barbarin said, referring to substances that induce abortion. “So people who are on certain lupus and cancer drugs have had them stopped immediately.” 

One example of this is the drug Methotrexate, which is used to treat several types of cancer — like leukemia and lymphoma — and various diseases like lupus and Crohn’s disease. It is also an abortifacient , often used to treat ectopic pregnancies . The Lupus Foundation of America this month acknowledged reports of  people having trouble accessing the drug since the Supreme Court ruling.  

“We need not just people who are reproductive advocates, we need people who are medical advocates for people with disabilities. I really want people to understand that, if you want to talk about intersectionality, you need to get disabled people their meds.”

Barbarin, Town and Kaufman-Mthimkhulu agree that proper sex education is necessary for a future where people with disabilities have unlimited access to reproductive care. Up to 36 states don’t include the needs and challenges of youth with disabilities in their sex education requirements or provide resources for accessible sex education, according to a 2021 report from the nonprofit Sexuality Information and Education Council of the United States . And of those that do, only three explicitly include the group in their sex education mandates. 

As the nation gears up for life without federal abortion protection, disability rights groups are prioritizing community care, medication and education for people with disabilities. Even with all these efforts, they say, it’s important to move away from ableist rhetoric that only further marginalizes people with disabilities. 

“Often times, disabled folks are used as scapegoats for pro-life arguments. Like, ‘Look at all of these babies labeled with prenatal abnormalities that are aborted!’” Kaufman-Mthimkhulu said.

“While it’s true that we must interrogate the ableism that leads to many disabled fetuses being aborted, disabled folks are not to be used as props to support harmful pro-life policies. We are not your pro-life scapegoats, and eugenics has no place in abortion access.”

CORRECTION (July 25, 2022, 10:57 a.m. ET) : A previous version of this article misstated the diagnosis of Stefanie Lyn Kaufman-Mthimkhulu. She has been diagnosed with Congenital Myasthenic Syndrome, not Lambert-Eaton Myasthenic Syndrome.

Char Adams is a reporter for NBC BLK who writes about race.

Abortion as an Instrument of Eugenics

• Michael Stokes Paulsen

Response To:

• Race-ing Roe : Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade  by  Melissa Murray
• See full issue

I. Throwing Down a Gauntlet

Professor Melissa Murray is right about one thing. Laws banning trait-selection abortion — prohibitions on abortion when had solely because of the race, sex, or specific disability of the child that otherwise would be born — pose a direct challenge to the Supreme Court’s constitutional abortion-law doctrine under Roe v. Wade 1 and Planned Parenthood v. Casey . 2 Such laws prohibit abortion based on a specific reason for having an abortion. And under current judicial doctrine, the state can’t do that: Roe and Casey held that a pregnant woman has a constitutional right to obtain an abortion; that that right may be exercised for essentially whatever reason the woman sees fit; and that the state may not make or enforce laws that have the purpose or effect of inhibiting the woman’s abortion choice. 3 The state may not forbid a reason — any reason at all — for which an abortion is committed or obtained.

There is a little more to it than that. But not much. The Court’s cases make the right to abortion plenary — explicitly so, pre-viability, and essentially so, as the result of a sweeping “health exception” even post-viability. 4 As a result, under Roe and Casey , abortion must be permitted as a matter of constitutional right, to be exercised for virtually any reason, throughout all nine months of pregnancy, right up to the point of live birth.

If Roe and Casey are right, then, abortion constitutionally must be allowed for any reason. This includes the race of the child to be born, the fact that she is a girl, or the fact that the child would be born with a disability. Under Roe and Casey , trait-selection abortion bans are “unconstitutional” (to accede for the moment to a familiar but improper use of the term). For the Court to uphold such bans would require it to repudiate, or greatly revise, the premises and substance of its current abortion-law doctrine. 5

Professor Murray is right about another, related thing: that that is at least part of the point of enacting such trait-selection abortion bans. Surely, part of the purpose of laws banning abortion when had for such eugenics reasons is to pose a more or less head-on challenge to the legal premises and deadly logic of Roe and Casey . If those decisions do indeed yield a constitutional right to kill Black human fetuses for being Black, girls for being girls, and the disabled for their disabilities, that result is truly monstrous and rightly discrediting. The ultimate goal of trait-selection bans is — probably just as Murray fears — to lay the groundwork for (or to attain straightaway) the overruling of Roe and Casey , by attacking their constitutional reasoning in a particularly sympathetic and persuasive context that lays bare where their logic leads.

Trait-selection bans throw down a gauntlet: Does the Constitution really confer a right to abortion when the sole reason is the race, or sex, or disability of the unborn human child? Is there a constitutional right to kill a living human fetus because he or she is a child of color, because he or she has Down syndrome, or because (in a perverse reversal of a traditional expression of joy) “it’s a girl!”?

If the answer to these questions is yes , Roe is perhaps revealed in new ways, to fresh eyes, for the legally radical, extremist decision its critics have long claimed it to be: Roe and Casey recognize a constitutional right to abortion even when had for eugenics purposes. And if the answer is no , the Court — eyes wide open, feet to the fire — might well feel compelled to reevaluate, revise, or even repudiate Roe .

At a simple doctrinal level, trait-selection bans thus present a square challenge to the Court’s abortion decisions. And at a deeper level, trait-selection bans tend to undermine both the legal and moral assumptions underlying the judicially created constitutional right to abortion in a unique way: they refute the “ it ”-ness of the human fetus. The unborn human fetus has human traits, qualities, capacities — in short, a distinctive human identity. Trait-selection abortion bans force fair-minded people (including judges) to confront and wrestle with the assumed “ it ”-ness of the human fetus in light of its — his or her — undeniable human characteristics. And that wrestling tends to produce a moral intuition: that the unborn human fetus is part of our common humanity. The moral intuition is a powerful one, uniting the otherwise sometimes differing moral instincts of the traditionalist right and the progressive and feminist left. 6

This is potentially game changing. If the intuition of the wrongness of trait-selection abortion has moral salience — the intuition that it is simply wrong to kill a fetus for reasons of race, sex, or disability — it is because of the implicit recognition of the humanity of the fetus. If killing a fetus because she is female (or Black, or disabled) is thought horrible, it can only be because the human fetus is thought to possess moral status as human — because “ it ” is a baby girl or a baby boy, a member of the human family. Constitutional law tends to follow moral intuitions. And the legal intuition that tends to follow from recognizing that the fetus has human characteristics — a distinctive, individual human identity — is that it should not be legal to kill a fetus on the basis of such human qualities. 7

This in turn can have further implications — producing something like an “aha!” moment: If it’s wrong to kill a girl because she is a girl, isn’t it wrong to kill a girl for some other reason? Isn’t the girl still a girl , irrespective of the reason for which an abortion is had? Whatever makes it intuitively wrong — and not a matter of constitutional entitlement — to kill a human fetus because of his or her race, sex, or disability strongly suggests that it is also wrong to kill that same human fetus for most other reasons. 8

Trait-selection abortion bans thus pose hugely important, stark, and seemingly unavoidable legal and moral challenges to the constitutional legal regime of Roe . These are the fundamental questions posed in the Box v. Planned Parenthood 9 case and that are discussed in Justice Clarence Thomas’s important concurrence in denial of certiorari in that case — the opinion that is the topic of Murray’s article. And yet these are the questions that Murray avoids entirely.

Instead, Murray trains her energies on a specific feature of Justice Thomas’s opinion — its discussion of race specifically as among eugenicist justifications for abortion. Thomas noted, as relevant background to modern efforts to ban abortion when had specifically for eugenics purposes, the disturbing history of racist and disability-eugenics arguments for abortion made in the (disturbingly recent) past. 10 Murray’s article proposes to “contextualize[]” 11 and provide a more “nuanced” 12 view of this historical evidence. Yet, as we shall see, much of Murray’s evidence supports Thomas’s conclusion. 13

Murray’s main point, however, is to criticize — to warn against — what she sees as the dangerous rhetorical and legal implications of Justice Thomas’s efforts to draw a connection between the abortion-rights legal regime and abortion-as-an-instrument-of-eugenics arguments and outcomes. Such an attempted connection, Murray argues, uses race to undermine Roe — a consequence she finds objectionable and dangerous. Moreover, she fears, racial justice arguments might supply the “special justification” needed to overrule prior precedent. 14 She believes that this is the project afoot in Thomas’s Box concurrence.

This Response offers a straightforward but harsh critique of Murray’s opus: it misses the point. For all of its analysis, Murray’s article simply fails to address the central legal questions posed by trait-selection abortion bans: Are they constitutional or not? Does the Roe right really embrace the freedom to kill a fetus because it is Black, female, or disabled? And if trait-selection bans are constitutional, why — and doesn’t the answer to that question deservedly undermine the legitimacy of Roe and Casey ?

This Response proceeds in three Parts.

Part II discusses Murray’s claim that Justice Thomas’s concurrence in Box v. Planned Parenthood is somehow misguided or mistaken in suggesting a historical relationship between abortion rights and racial eugenics arguments. (Murray gives far less attention to disability-based abortion and essentially none at all to sex-selection abortion.)

My contention is that Justice Thomas has it mostly right and that Murray’s critique falls wide of the mark. While abortion is not a eugenics conspiracy — a deliberate plot to reduce the size of the African American, female, or disabled populations — it remains an undeniable fact that the aborted are disproportionately racial minorities, female, and those with disabilities. 15 Abortion, in short, has a markedly disparate impact along lines of race, sex, and disability. This in itself is troubling, even if it is not proof of deliberate design — which Thomas never claims it is. Thomas does fairly highlight, however, the disturbing history of eugenics arguments for the desirability of liberalized abortion.

More to the point, it is undoubtedly the case that abortions are sometimes had, today, for eugenics reasons — fairly often, even, for sex-selection and disability-elimination. 16 In short, abortion is used as an instrument of eugenics. In some or many instances, this is the result of deliberately eugenic motivations of individuals exercising the abortion choice. In other instances, it is simply the incidental — though perhaps predictable — consequence of patterns of exercise of the abortion right due to other motivations.

Part III builds on this discussion to return to the critical substantive question: Where abortion is shown to be motivated by race, sex, or disability, may it constitutionally be prohibited on that ground? My position is that the constitutionally correct answer is yes and that this answer does indeed undermine Roe ’s and Casey ’s core legal premises, exactly as Murray worries. While trait-selection bans indeed conflict with current doctrine, I offer a road map as to how the Court nonetheless might sustain them — a route that inevitably would undermine or repudiate current doctrine in one or more important respects.

Part IV concludes with a word about stare decisis. As noted, Murray regrets Justice Thomas’s invocation of the racial-eugenics history of the right recognized in Roe because she fears that considerations of racial justice might provide the “special justification” she presumes is needed to warrant overruling Roe . The short answer (which I have developed elsewhere and will not rehearse at length in this essay) is that the premise is wrong: the doctrine of stare decisis — in the strong sense of deliberate adherence to a decision a court is otherwise fully persuaded is an erroneous, unfaithful interpretation of the Constitution — is simply incompatible with written constitutionalism. 17 Murray’s only mildly contrived theory of racial justice–necessitated exceptions to stare decisis — and her fear of its introduction into the abortion field — presumes the need for a special exception to an otherwise strict rule of stare decisis, entrenching Roe . That need does not exist. Moreover, even if one recognizes the force of precedent in constitutional cases as a general rule, most everyone agrees that decisions that are seriously wrong on enormously important questions can and should be overruled. That category certainly includes serious errors on racial justice matters. But it is not limited to such cases.

II. Abortion for Eugenics: Conspiracy or Simple Consequence?

How one answers the question whether abortion is a tool of racial, gender, or disability eugenics depends very much on how the question is asked. Is legalized abortion a eugenicist conspiracy — a deliberate plot on the part of those favoring abortion rights to reduce the number of people of a given race, sex, or disability? Surely not. At the very least, such motivations form no part of the modern argument for abortion rights. Does unrestricted legal abortion-choice produce a disparate impact resulting in disproportionate numbers of abortions ending the lives of minority, female, and disabled fetuses? Undeniably. The aborted are disproportionately Black, female, and disabled. Is the right to abortion sometimes used , by those exercising the abortion-choice, for eugenics purposes — specifically for the purpose of aborting on the basis of race, sex, or disability? Unquestionably. Some — but not all — of the abortion–disparate impact is attributable to intentional decisions to abort based on a trait of the baby that otherwise would be born.

These are three different questions. Justice Thomas’s concurrence in Box keeps them distinct. Murray’s article, in attempting to critique Thomas, tends to smush these separate questions together in a mildly confusing way.

Begin with Justice Thomas’s Box concurrence itself. Thomas’s opinion compiles an impressive and rightly disturbing narrative of evidence that family planning and abortion advocates in the past embraced the desirability of abortion as an instrument for achieving racial eugenics and for culling persons with disabilities from the population. (There appears to be no evidence that early abortion advocates ever favored abortion for gender -eugenics purposes — aborting girls because they are girls. 18 )

“Many eugenicists . . . supported legalizing abortion,” Justice Thomas writes, “and abortion advocates — including future Planned Parenthood President Alan Guttmacher — endorsed the use of abortion for eugenic reasons.” 19 Thomas notes how recent some of these eugenics-as-a-reason-for-abortion observations are, extending to the late 1960s and early 1970s. 20

But Justice Thomas stopped short of claiming that legal abortion is a racist plot to reduce the African American population — even while noting that some prominent African American leaders have so argued over the years. 21 Thomas’s point was narrower: Abortion “is an act rife with the potential for eugenic manipulation,” he wrote. 22 Moreover, “[t]he use of abortion to achieve eugenic goals is not merely hypothetical,” he observed, 23 with considerable history on his side. And more to the present-day point, “[t]echnological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability.” 24 Thus, abortion is now capable of being used as “a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.” 25

The right to abortion at one time had eugenicist proponents (among others). The right to abortion can be employed for eugenicist purposes (among others). Indiana’s trait-selection law was a response in part to this history and this reality. That is all Justice Thomas was saying.

Nothing in Murray’s article refutes Justice Thomas on these points. Murray demonstrates that, historically, different parties have acted from different motives and expressed different reasons for supporting abortion rights. This is an important but not a particularly surprising observation. It does not seriously impeach Thomas’s analysis. In fact, much of Murray’s historical discussion of race and abortion actually supports Thomas’s position. 26

Justice Thomas never claimed that abortion is a eugenicist conspiracy. Nor did Thomas claim that evidence of the disparate racial incidence of abortion proves a racially discriminatory purpose behind the abortion-rights position. Indeed, Thomas was careful to disclaim any such argument, maintaining consistency with his disparate-impact-does-not-establish-discriminatory-intent position in other discrimination law contexts. 27 Murray’s critique of Thomas here is badly off the mark. She charges Thomas with being “opportunistic and inconsistent” because — supposedly — “Justice Thomas had no trouble associating disproportionately high rates of abortion in the Black community with eugenics and the desire to limit Black reproduction” even though “he rejects the notion that racism is to blame for racially imbalanced outcomes.” 28 This simply misrepresents and mischaracterizes Thomas’s position, which is almost exactly the opposite of Murray’s characterization. 29

But what is one to make of the glaring evidence of a shockingly disparate impact of abortion? Even if abortion is not designed for eugenics purposes, it unquestionably has disproportionately eugenicist effects. The abortion right is not a racial, or gender, or disability classification, in terms. It does not depend on eugenicist intentions and is not the product of a eugenics conspiracy. But those possessing the abortion right exercise it in a fashion so as to abort more Black babies, more girls, and more “defective” children.

There is no blinking this reality. Consider race: The abortion rate is nearly three-and-a-half times higher among Black women than among white women. 30 (The abortion rate is 1.7 times higher for Hispanic women than it is for white women. 31 ) Black babies are aborted alarmingly more frequently than white babies — a point Justice Thomas made dramatically in his Box opinion. 32 This is almost certainly not attributable to a pattern of deliberate decisions to abort a child because of his or her race, but to socioeconomic factors. Some such factors may be statistically correlated with race, but that does not mean that such abortions are had because of the race of the child. (One suspects that few, if any, pregnancies are aborted specifically because the baby to be born is Black. 33 ) That does not alter the reality of a significant disparate racial impact to abortion, but it might suggest that something other than racism is the cause of racial disparities in abortion rates. 34

Consider sex: In 1990, Nobel Prize–winning Harvard economist Amartya Sen, in an arrestingly titled article, documented the statistical reality that, worldwide, More than 100 Million Women Are Missing 35 — a result, Sen argued, so far from the baseline norm expected in nature as to be statistically explainable only on the premise of some form of culpable human intervention, likely including severe medical neglect, deliberate female infanticide, and the predictable impact of China’s “one-child family” policy given a strong cultural preference for boys. 36 In 2011, journalist Mara Hvistendahl, in her book Unnatural Selection , reported that the number of missing (and presumed dead) women and girls in Asia alone had reached 160 million and counting. 37 This didn’t just happen. Hvistendahl convincingly demonstrates that the reason for the large demographic disparity in the male-female birth ratio is sex-selection abortion. 38 Women have abortions of female fetuses because the technology has become widely and inexpensively available to learn the sex of an unborn baby and then to kill her if she is a girl. As Justice Thomas’s Box opinion detailed, the United States is not exempt from the phenomenon of sex-selection abortion. 39 Unlike the situation of racial disparities in abortion, there is no way to explain the statistical reality of grossly disparate sex-differential birth rates, at least in some nations or among certain groups, other than by the hypothesis of abortions specifically being obtained because of the female sex of the child.

Consider disability: As Justice Thomas set forth in his Box concurrence, the abortion rate for children diagnosed with Down syndrome approaches 100% in Iceland, exceeds 90% in several other European nations, and is 67% in the United States. 40 There is no question but that this is the deliberate killing of children with a disability because of their disability.

Swallow hard and acknowledge the truth of what these numbers reveal, particularly for abortions predicated on sex or disability. Abortion is often employed for eugenics purposes — especially for sex selection and disability elimination. Abortion is used by women and men to kill girls because they are girls. Abortions are obtained in substantial numbers in order to cull the disabled, before birth, because they are disabled. And, while it seems unlikely that an abortion would be obtained specifically because the child is Black, the exercise of the right to legal abortion definitely has a racially disparate eugenic impact.

Is that not disturbing? Might it not supply a judicially recognized “compelling interest” qualifying, or overriding, the judicially fashioned constitutional right to abortion — the point of Justice Thomas’s opinion in Box ? Might it not rightly furnish a (further) critique of the validity of Roe v. Wade and Planned Parenthood v. Casey and thereby serve to undermine these decisions’ legal and moral premises? Where race, sex, or disability can be shown to be the reason for a particular abortion, can such an abortion constitutionally be prohibited? Is the Court irrevocably committed to a doctrine that would compel toleration of eugenics-motivated abortion as a constitutional right? Or is there a sensible road back?

III. Thinking Outside the Box : A Roadmap for Upholding Trait-Selection Bans and Reforming Current Abortion Doctrine

As noted at the outset of this Response, laws prohibiting trait-selection abortion conflict in principle with Roe and Casey ’s establishment of a constitutional right to abortion for any reason the woman chooses. Is there nonetheless a plausible route for sustaining such prohibitions, even under current constitutional doctrine? I believe there is. But that route requires rereading Roe and Casey , limiting their holdings and narrowing their reasoning fairly substantially, and embracing premises that undermine the doctrinal foundations of those decisions at critical junctures. A thorough doctrinal analysis of these points would require an article of its own. 41 But the broad outlines of the argument can be sketched briskly.

First , rights have reasons . Even unwritten , judicially fashioned rights have reasons. For a right whose origins derive from common law–like judicial decisions rather than constitutional text, the rationale of judicial decisions in effect supply the relevant legal “text” and should permit subsequent common law–like adjustments to better conform rule to rationale. Where the formulation of a right — and especially of an unwritten right — outruns the reasons proffered for that right, there is good reason to limit or narrow it. Roe offers reasons for the abortion right. None of those reasons supports the extension of such a right to situations of deliberately eugenics-motivated abortion.

Central to the reasoning underlying the recognition of an abortion right in Roe was the premise, building on Eisenstadt v. Baird 42 the year before, that the decision “ whether to bear or beget a child ” is an aspect of the assumed constitutional “right of privacy.” 43 The implication, but by no means a clear one, is that what Roe seeks to protect is the decision whether to have a child at all . It is the freedom to be, or not to be, a parent. In the case of an abortion had solely because of the race, sex, or disability of the child that would be born, there is no interference with that choice. Rather, an abortion chosen for those reasons would implicate the different decision of whether to have a particular kind of child. To ban sex-selection (or race-motivated, or disability-based) abortion is not to interfere with the choice of whether or not to have a child — the right Roe and Casey seem to have in view — but to interfere with the choice to abort where continued pregnancy and childbirth otherwise would be chosen , but for reasons of the traits of the child to be born.

Similarly, Roe refers to “the distress, for all concerned, associated with the unwanted child.” 44 But, with trait-selection abortion bans, it is not the child that is unwanted; it is a child of a particular type that is “unwanted.” It is an unwanted girl . Or a child unwanted because of his race or disability. That is a materially different situation from the one contemplated in Roe .

The same point can be made with respect to “autonomy” or “bodily intrusion” or “burdens of pregnancy” or “physical constraints” arguments for the right to abortion, prominent in both Roe 45 id . (stating that “[t]he detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent” and listing medical and psychological burdens of pregnancy generally; the possible “distressful life and future” occasioned by “[m]aternity, or additional offspring;” the “distress, for all concerned, associated with the unwanted childhood;” and in some cases the “stigma of unwed motherhood”). and Casey . 46 Whatever the intrusions or burdens occasioned by pregnancy and childbirth, they are burdens that exist independently of the race, sex, or disability of the child. The very real burdens of pregnancy do not justify eugenics abortions specifically. In short, the right to abortion as formulated in Roe (and in Casey ) overshoots the reasons the Court offers in support of the right.

Second, the “undue burden” standard of Casey can be understood in a similar sense, as limited by the scope of what is thought the relevant right. Casey ’s holding was that the abortion right is violated, pre-viability, by any law that imposes an “undue burden” 47 on the right to choose abortion — that is, by any law that has the “purpose or effect” of placing a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” so as to interfere with the “woman’s right to make the ultimate decision” as to whether or not to have any particular abortion. 48 Taken literally, this language would forbid trait-selection bans on the abortion choice. Such bans directly prohibit the ultimate decision, for abortions had for certain reasons. Such laws literally impose a direct legal obstacle to that particular abortion choice.

It seems fair to observe, however, that the “undue burden” formula is vague, amorphous, malleable, and adjustable. In a scheme of judicial development of an unwritten right, it should be open to the Court to conclude that prohibitions on trait-specific abortions do not burden in a relevant way the right to abortion itself , but only the right to trait selection of born children through the means of abortion. Such laws do not directly burden the decision to have an abortion, but only one reason for having an abortion. Just as employment antidiscrimination laws do not forbid hiring and firing, but only certain illegitimate reasons for a particular employment decision, trait-selection abortion bans do not “strike at the right [to abortion] itself.” 49 Thus, while Casey ’s specific doctrinal formulation would appear to preclude trait-selection bans, Casey does not appear to be all about the doctrine. More realistically, it is a case concerned with a supposed “balancing” of interests, as Roe also purported to be. Where that balance needs to be adjusted, the Court should adjust it. 50

Third, prohibitions of eugenics-motivated abortion protect distinctive “compelling interests” that plausibly override previous balances struck by the Court’s abortion jurisprudence. In theory, the Court’s judicially fashioned presumptive abortion liberty is subject to being overridden by a sufficiently “compelling interest,” including the compelling interest in protecting viable human fetal life. Even though the Court has not, to date, credited the interest in protecting human fetal life at all stages of fetal development — treating pre-viability living fetal life as only “potential life” 51 — an argument can certainly be made that, even under current doctrine, the state possesses a compelling interest in protecting such unborn human life from destruction for eugenics reasons. For example, a prohibition on sex-selection abortion — where a child otherwise would be born but for her sex — furthers compelling interests in eliminating sex bias in society generally, in affirming the equal moral worth of women and girls, and in preventing the creation of troubling gender imbalances in the population of those who are allowed to be born. 52 Likewise, race-based or disability-based abortion bans further compelling interests in forbidding discrimination on these grounds, in condemning these forms of highly socially undesirable animus, in affirming the equal human dignity of all, and preventing eugenicist ends. 53 While these interests are not necessarily more compelling in principle than the interest justifying the protection of preborn human life from destruction generally, they are distinctive to the eugenic abortion situation in particular.

Fourth, the situation of trait-specific, eugenic abortion turns purported “gender equality” or “equal protection” arguments for abortion rights back on themselves. The “sex discrimination” or “women’s equality” argument for abortion has always been doctrinally flawed and analytically weak: abortion restrictions do not classify on the basis of sex; they regulate the conduct of men and women; they are designed not to subjugate women but rather to protect fetal human life; and they are drawn to address that interest specifically. 54 Nonetheless, the claim retains a certain superficial, intuitive appeal because the burden of pregnancy, and thus of abortion prohibitions, falls uniquely on women as a consequence of human biology. 55 The presumed remedy is (on this view) to give women the freedom to abort their pregnancies, so that women as a class are not adversely impacted.

Sex-selection abortion prohibitions pose a challenge to this intuition. There is something deeply wrong when a right to abortion, championed in the name of female gender equality, produces a constitutional right to abort human embryos and fetuses for being female. Standard-issue feminist arguments for abortion rights, whatever their merit in general, simply do not work in this setting. To whatever extent Roe and Casey rest on sex-equality premises, those premises fail to supply a justification for eugenics-based abortions specifically.

None of this is to deny that, for prohibitions on trait-selection abortion to be upheld, there would need to be fairly major revisions in the Court’s current abortion jurisprudence. The legal premises necessary to sustain such a ban would almost inevitably undermine seriously, if not contradict outright, the premises and doctrines on which Roe and Casey depend. For openers, as noted above, to uphold a law forbidding abortion based on a fetus’s human traits would at least implicitly involve recognition, at some level, of the humanity of the fetus — a subtle but fundamental assault on Roe ’s underlying premises. Upholding trait-selection prohibitions would also require holding that abortion, even of a nonviable fetus, can be prohibited when done for at least some reasons (for instance, eugenics reasons), or it would require holding that such a prohibition is not an “undue burden” on the abortion choice — both significant changes. It might also involve holding that a “compelling interest” exists in prohibiting at least some abortions even pre-viability — a different major change in doctrine. Lastly, it may even involve holding that the unborn, living human embryo and fetus are legally entitled to the status and constitutional rights of a legal “person” — a hugely significant change. 56

These are major changes. It is hard to view them as entirely consistent with current abortion doctrine, even if that doctrine is plausibly distinguishable or capable of being reformed to accommodate such shifts. Murray is right in her basic instinct. Trait-selection bans pose a direct challenge to the legal regime of Roe and Casey . It is that threat that she wishes to ward off, by invoking the shield of stare decisis and criticizing Justice Thomas’s discussion of race and disability as an effort to do an end run around that supposed shield.

IV. Staring Down Stare Decisis

Do principles of stare decisis require striking down trait-selection abortion bans? Does stare decisis forbid making major revisions to —or outright repudiation of — the Court’s abortion jurisprudence? Does stare decisis require adherence to Roe ? Does stare decisis even require adherence to Casey ’s version of stare decisis, and to Casey ’s purported reliance on the doctrine to justify adhering (mostly) to Roe ? Is there, as Murray suggests, an implicit “race exception” to an otherwise fairly strict rule of stare decisis? And is some such exception really needed in order to justify overruling Roe and Casey (as Murray argues it is, and fears Thomas is trying to create)?

The answer to all these questions is No . Start with the easiest and narrowest point: notwithstanding the doctrinal tensions between trait-selection bans and the abortion regime of Roe and Casey , nothing in those decisions out-and-out decided the specific issue of a claimed right to abortion for eugenics purposes. Under almost any conception of the force of precedent, trait-selection bans present a different and distinguishable issue. Roe and Casey protect the right to choose not to have a child — the right to be (or not to be) a parent — not the right to choose to have a child but not one of a particular race, sex, or disability . Justice Thomas made this obvious point in his Box concurrence, and Judge Easterbrook made the point in his partial dissent from denial of en banc rehearing in the court below. 57

But more broadly and fundamentally, the judicial doctrine of stare decisis cannot — constitutionally cannot — preclude the Supreme Court from reconsidering and rejecting doctrines and past decisions that it is persuaded conflict with what the Constitution actually provides and permits. Simply put: if the proper task of constitutional interpretation is to faithfully interpret and apply the document itself, then past judicial decisions at odds with the document simply cannot be followed as binding authority in a subsequent case. This is the simple principle of constitutional supremacy — the very principle that fuels the argument for judicial review in The Federalist No. 78 and Marbury v. Madison . It follows that precedent can inform, guide, persuade — and perhaps even furnish a baseline from which a subsequent interpreter must justify departure — but it cannot revise the Constitution itself. 58 Any version of the doctrine of stare decisis that would purport to bind the Court to past holdings and doctrines in conflict with the Constitution is quite literally unconstitutional. 59

The Court itself acknowledges that the doctrine of stare decisis is not in any way required by the Constitution but is simply a matter of general judicial policy and practice. 60 The doctrine is not required by any rule of law fairly traceable to the Constitution’s text, structure, or history — and the Court has repeatedly said it is not (including in Casey ). 61 It is commonplace that the Court frequently overrules its past decisions. ( Casey overruled two decisions.) The judicial doctrine of stare decisis remains very much in a state of flux, with different Justices struggling to articulate their own formulations of and alterations to the doctrine. 62

In light of these first principles, and a realistic description of the limitations of the doctrine even as a practical matter, it is difficult to know what to make of Murray’s theorized implicit “race exception” to her otherwise fairly strict conception of stare decisis. One can certainly see, as Murray does, in decisions like Brown v. Board of Education 63 (repudiating Plessy v. Ferguson 64 in substantial part) and last Term’s decision in Ramos v. Louisiana , 65 that concerns over racial injustice — and a history of racist motivations behind legislative policies cast in ostensibly neutral terms but designed to further racial subjugation — figured prominently in the Court’s reasoning on the merits of those controversies. But the simpler explanation of those decisions is that the Court felt it necessary to overrule past erroneous precedent because of the gravity and clarity of the constitutional errors involved.

There is no reason to believe that the Court’s obligation to overrule serious constitutional errors is limited to contexts involving race. The Court’s obligation to overrule serious constitutional errors is the Court’s obligation to overrule serious constitutional errors. Racial injustices forbidden by the Constitution but perpetuated by judicial precedent are just one illustration of a broader principle: the Court must get the Constitution right, and the imperative of doing so feels most pressing on matters that loom large. Brown was clearly one such case.

But Roe and Casey — the issue of abortion generally and of trait-selection abortion bans in particular — clearly pose questions of similar constitutional and moral enormity. And they do so whether race is an overlay or not. On any view of the abortion issue, Roe and Casey are constitutional decisions of enormous consequence. It is important that the Court get the answer right.

V. Conclusion

Legal doctrine can be a useful tool. In the end, however, what matters are not technical legal nuances or clever doctrinal moves — on questions like whether stare decisis is an otherwise strict rule (but with a race loophole) or whether trait-selection bans can be squeezed within current “undue burden” analysis (or require doctrinal reformulation or repudiation). The doctrines are mere instruments, tools of decision. What matters are the realities and the results.

The reality is that our current constitutional law allows abortion for any reason, including a eugenics reason. The result is that abortions can be obtained, and are obtained, on account of the race, sex, or disability of the child that otherwise would be born.

If this matters, it has enormous consequences for the constitutional law of abortion. That is the ultimate point of Justice Thomas’s opinion in Box . It is a point that Professor Murray would prefer to ignore.

† Responding to Melissa Murray, Race-ing Roe : Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev . 2025 (2021).

* Distinguished University Chair & Professor of Law, The University of St. Thomas. This essay is dedicated to my nieces and nephews and the diversity of race, sex, ability, and nations of birth they reflect. My thanks to Stephen Gilles, Guy-Uriel Charles, Elizabeth Schiltz, and Teresa Collett for comments on an earlier draft. All errors and opinions are mine.

^ 410 U.S. 113 (1973).

^ 505 U.S. 833 (1992).

^ See Roe , 410 U.S. at 164–65; Casey , 505 U.S. at 845–46.

^ See infra Part III, pp. 426–30.

^ This intuition contrasts sharply with the implicit ideology underlying current abortion law: Roe treats the unborn human fetus as merely “potential” human life. See Roe , 410 U.S. at 150. If the human fetus has no human moral status unless the pregnant woman chooses to give it one (the position assumed by current law), there is nothing at all wrong with sex-selection abortion or with race-based or disability-based abortion. The fetus is, on this view, not really “a girl,” or “Black,” at all. She is only a “potential girl” or “potentially Black.”

^ 139 S. Ct. 1780 (2019) (per curiam).

^ See infra Part II, pp. 421–26.

^ Murray, supra note 6, at 2029.

^ Id . at 2030.

^ Murray does not address whether similar concerns might not specially justify overruling precedent because of the harms it inflicts, or supports, on the basis of sex or disability. I submit that they do. See infra Parts III and IV, pp. 426–33.

^ See infra pp. 424–26.

^ See, e.g ., Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent , 22 Const. Comment . 289, 289–91 (2005) [hereinafter Paulsen, The Intrinsically Corrupting Influence ]; Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev . 2706, 2731–34 (2003) [hereinafter Paulsen, The Irrepressible Myth ]; Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey ? , 109 Yale L.J . 1535, 1548–50 (2000) [hereinafter Paulsen, Abrogating Stare Decisis by Statute ].

^ This is probably most simply explained by the fact that the technology for discerning the fetus’s sex before birth was not readily available until relatively recently. See, e.g ., Juan Stocker & Lorraine Evens,  Fetal Sex Determination by Ultrasound , 50 Obstetrics & Gynecology 462, 465 (1977).

^ Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1784 (2019) (Thomas, J., concurring).

^ Box , 139 S. Ct. at 1790–91 (Thomas, J., concurring).

^ Id . at 1787.

^ Id . at 1783.

^ Id . at 1784.

^ Id . at 1790.

^ Murray offers an excellent, poignant account of abortion’s connection with our nation’s history of slavery. She provides a particularly sensitive description of the realities of oppression, violence, tragedy, and killing-out-of-desperation framed by that awful epoch. See Murray, supra note 6, at 2033–34. Murray is also to be commended for being scrupulously honest in acknowledging and presenting evidence of the racist goals of the eugenics movement, beginning more than a century ago, and of the efforts of early advocates of birth control and abortion to align their rhetoric with, and to justify their specific policy positions with reference to, then-popular racial- and disability-eugenicist views. Id . at 2035–41. She provides such evidence even though it is at odds with her thesis. Finally, Murray offers striking evidence — evidence Justice Thomas’s opinion largely omits but which provides indirect support for his ultimate conclusion — of important mid-to-late-twentieth century Black leaders’ condemnation of abortion and birth control as instruments of “race suicide,” id . at 2040, or “racial genocide,” id . at 2041–42. Thus, while Murray contends that “the history of race and abortion is more nuanced and complicated,” id . at 2062, than Thomas’s concurrence, her evidence does not actually contradict Thomas’s description.

^ See, e.g ., Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2526–32 (2015) (Thomas, J., dissenting).

^ Murray, supra note 6, at 2097.

^ Far from suggesting that disparate impact is indicative of intentional discrimination, Justice Thomas suggested — somewhat startlingly — that disparate impact analysis and eugenics theory share a common logical flaw, in that both ways of thinking wrongly tend to assume that a single presumed dominant factor can fully explain disparities in outcomes. For Thomas, such an assumption collapses the distinction between correlation and causation, wrongly stereotypes individuals according to statistical groups, and ignores real-world complexities. Box , 139 S. Ct. at 1786–87 & n.4 (Thomas, J., concurring). One need not agree with Thomas’s distinctive view in order to recognize that it is not the position that Murray criticizes. Thomas’s position may be idiosyncratic and even iconoclastic, but it is not inconsistent.

^ Ctrs. for Disease Control & Prevention Morbidity & Mortality Wkly. Rep ., Abortion Surveillance — United States, 2018 , at 8 (2020).

^ Box , 139 S. Ct. at 1791 (Thomas, J., concurring).

^ One must of course allow for the possibility of unusual and (one would hope) aberrant situations of race-motivated abortion, such as race-based abortion to conceal the identity of an unintended biological father from another domestic partner. There are also reported cases involving alleged discriminatory encouragement (or coercion) of minors who are members of racial minorities to obtain abortions. See, e.g ., Arnold v Bd. of Educ. of Escambia Cnty., 880 F.2d 305, 316 (11th Cir. 1989) (sustaining a cause of action against a public school district based on allegations that “the defendants counselled Black students to have an abortion and white students to carry the fetus to term”).

^ This is consistent with Justice Thomas’s skepticism of disparate impact analysis generally, as noted above. See supra note 29.

^ Amartya Sen, More than 100 Million Women Are Missing , N.Y. Rev. Books (Dec. 20, 1990), https://www.nybooks.com/articles/1990/12/20/more-than-100-million-women-are-missing [ https://perma.cc/R4SA-X2VP ].

^ Id . Sen’s analysis was focused on Asia and Africa.

^ Mara Hvistendahl, Unnatural Selection: Choosing Boys Over Girls, and the Consequences of a World Full of Men 5–6 (2011).

^ Id . Hvistendahl noted that “[s]ex selection defies culture, nationality, and creed.” Id . at 6.

^ Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1791 (2019) (Thomas, J., concurring) (collecting authorities).

^ Id . at 1790–91.

^ For an excellent contribution to the literature in this regard, see Thomas J. Molony, Roe, Casey, and Sex-Selection Abortion Bans , 71 Wash. & Lee L. Rev . 1089 (2014).

^ 405 U.S. 438 (1972).

^ Id . at 453 (emphasis added) (citation omitted); see Roe v. Wade, 410 U.S. 113, 153 (1973).

^ Roe , 410 U.S. at 153.

^ Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992) (“The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.”)

^ Id . at 876.

^ Id . at 877.

^ Id . at 874.

^ A similar argument can be made for modification of the Court’s health-exception doctrine. As noted above, the health exception requires that abortion be permitted, even after viability, as a matter of constitutional right, for “emotional, psychological,” and “familial” reasons. See supra note 4. If this exception is construed so as to embrace a right to late-term abortion for reasons of trait selection (on the theory that these fit within the description of abortions had for “emotional,” “psychological,” or “familial” health considerations), the Court certainly would be justified in revising its health-exception doctrine to avoid such a seemingly outlandish and doubtless unintended result.

^ Casey , 505 U.S. at 886 (plurality opinion).

^ Cf . Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984) (finding the elimination of sex discrimination to be a compelling state interest).

^ Cf . Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 733 (2014) (“The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race . . . .”); Tennessee v. Lane, 541 U.S. 509, 522 (2004) (holding that the Fourteenth Amendment prohibits “irrational disability discrimination”).

^ For a fuller presentation of this position, see Paulsen, Worst Decision , supra note 4, at 1008 n.34 & 1008–10, and Michael Stokes Paulsen, Paulsen, J., Dissenting , in What Roe v. Wade Should Have Said 196, 204–07 (Jack M. Balkin ed., 2005) [hereinafter Paulsen, Paulsen, J., Dissenting ] ; see also Paulsen, Paulsen, J., Dissenting , supra at 206 (“Those who invoke women’s equality to create a constitutional right to abortion in the end permit mothers (influenced, perhaps, by others) to selectively kill their unborn children because of the child’s sex.”).

^ The disparate social and economic burdens of pregnancy and parenthood on women are, however, socially (and legally) constructed and susceptible to remedies that more equally impose such burdens on men and women. See Paulsen, Paulsen, J., Dissenting , supra note 54, at 216 n.9; see also Michael Stokes Paulsen, Men, Abortion, Sin, and Salvation , Pub. Discourse (May 1, 2014), https://www.thepublicdiscourse.com/2014/05/13080 [ https://perma.cc/A8XS-DSGH ].

^ See generally Michael Stokes Paulsen, The Plausibility of Personhood , 74 Ohio St. L.J . 13 (2013) (setting forth the textual, structural, and historical arguments supporting this view and reaching the conclusion that it is entirely plausible and defensible, but not incontrovertible).

^ See Michael Stokes Paulsen, Originalism: A Logical Necessity , Nat’l Rev . (Sept. 13, 2018, 11:20 AM), https://www.nationalreview.com/magazine/2018/10/01/originalism-a-logical-necessity [ https://perma.cc/B9RC-7TZK ].

^ This is a telescoped version of arguments I have made in other writing. See supra note 17. See especially Paulsen, The Irrepressible Myth , supra note 17, at 2731–34, making the argument that the premises and logic of Marbury conflict with the judicial doctrine of stare decisis, if understood to require or counsel deliberate adherence to a precedent the Court is otherwise persuaded is wrong; Paulsen, The Intrinsically Corrupting Influence , supra note 17 (arguing that stare decisis conflicts with every theory of constitutional interpretation). Numerous other scholars and jurists have made the same or similar constitutional argument against according binding prospective force to erroneous judicial precedents. See generally, e.g ., Gary Lawson, The Constitutional Case Against Precedent , 17 Harv. J.L. & Pub. Pol’y 23 (1994) (concluding that the Supremacy Clause and Marbury forbid judges to follow precedent in conflict with the Constitution); Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents , 87 Va. L. Rev . 1 (2001) (concluding that demonstrably erroneous precedent cannot constitutionally be regarded as authority displacing the meaning of the Constitution itself). Justice Thomas has adopted a version of this position. Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring) (concluding that “demonstrably erroneous” precedents must be corrected, whether or not other factors support overruling the precedent). For an important argument that principles of due process constitutionally forbid a strict conception of stare decisis that would preclude the legal rights and interests of persons who were not joined as parties to a prior proceeding, see Amy Coney Barrett, Stare Decisis and Due Process , 74 U. Colo. L. Rev . 1011 (2003).

^ Paulsen, Abrogating Stare Decisis by Statute , supra note 17, at 1537 & n.1, 1543–51 (citing the Court’s formulations to this effect).

^ Id . at 1570–82.

^ Just last Term, two notable cases produced multiple competing opinions of the Justices concerning the proper understanding and application of the doctrine. See June Med. Servs. LLC v. Russo, 140 S. Ct. 2103 (2020); Ramos v. Louisiana, 140 S. Ct. 1390 (2020).

^ 347 U.S. 483 (1954).

^ 163 U.S. 537 (1896).

^ 140 S. Ct. 1390 (2020).

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• Disabled people are tired of being a talking point in the abortion debate

Selective abortion bans are not actually designed to protect disabled people.

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As the abortion debate reaches a fever pitch across the nation, disabled people are once again being used as a rhetorical device by left and right alike.

Selective abortion bans , bills introduced by anti-abortion lawmakers that forbid abortions on the basis of a fetal diagnosis of disability, and sometimes assigned sex as well, are in the news again this week. On Tuesday, the Supreme Court declined to take up an Indiana selective abortion case that would have banned abortion on the basis of sex, race, or a diagnosis of disability. The news, paired with the release of a lengthy statement from Justice Clarence Thomas describing the risk of “eugenics,” was an acute reminder to disabled people of their frequent role as objects, not people, in this debate.

Selective abortion bans, which are pulled from the playbooks of anti-abortion groups like Americans United for Life , are an old and constant source of frustration for disabled people. These bills employ a sinister disablism that exacerbates the idea of the “justified abortion,” exploiting the 50 percent of Americans who support restricting abortion “under certain circumstances,” even while 29 percent unequivocally support abortion access and 71 percent overall support Roe v. Wade . And these bans are on the rise — according to Rewire.News, 10 states have seen bills related to fetal anomalies introduced in 2019, a marked uptick over recent years.

But bills like these have little to do with protecting disabled people. They are crafted to restrict access to abortion and information about pregnancies, imperiling pregnant people (including, by the way, disabled pregnant people). Using disablism to sneak past an abortion ban or put abortion advocates in an uncomfortable position is a brilliant tactic, and one advocates must not fall for.

Selective abortion bans drive a wedge between doctors and patients

Such bills, which typically prohibit doctors from performing an abortion when they have reason to believe it has been requested because of a diagnosed fetal anomaly or the fetus’s assigned sex, put already vulnerable health care professionals in danger. They reduce the question of access to one of judgment that can interfere with frank discussion and decision-making, or force a delicate dance of plausible deniability so a health care provider can say they didn’t realize why the patient was requesting an abortion.

Some states are also introducing closely related “perinatal hospice” bills, which require physicians to tell patients dealing with a lethal fetal anomaly about the presence of “perinatal hospice” services. These services are not clearly clinically defined but may include medical care to keep the pregnant person as stable as possible, birth planning (whether a still or live birth is expected), and, in the event of a live birth, pain management and other palliative care to keep the infant comfortable prior to death. Such bills pressure and shame patients, and can actually endanger pregnant people by pushing them to carry a high-risk pregnancy to term, something Iowa Republican state Rep. Shannon Lundgren said she supported during a debate over a 20-week ban in 2017.

Like many incrementalist bans, these bills are designed to drive a wedge between patients and providers. Doctors may feel like they cannot recommend prenatal testing or discuss the results in case a patient asks for an abortion. Patients may feel like they can’t ask for testing or counseling. This deprives patients of information they need about their pregnancies, such as pregnancy risks or treatable medical issues in the fetus, and can be extremely dangerous.

These bills are not designed to protect disabled people

Proponents of these bills tend to claim that they are defending “ the disabled ,” in contrast to those who want to “kill disabled babies.” They may speak of abortion as a choice of convenience, suggesting that when parents face a diagnosis of lethal anomaly, they’ll opt to “get rid of it.”

Some rely on a frequently misinterpreted study from Iceland that purports to demonstrate that prenatal testing has led to a near-total elimination of Down syndrome. It has not. The study looked at pregnancy outcomes in patients who opted for prenatal testing and found a very high incidence (close to 100 percent) of patients decided to request abortions — but some families decline testing, and therefore infants with Down syndrome continue to be born in Iceland.

These bills are also cynically drawing directly on real concerns from the disability community, which has dealt with a long legacy of eugenics. The fear of being eliminated from society is very immediate for communities with congenital, testable disabilities; Down syndrome is a popular example, but it’s also possible to test for many forms of dwarfism , as well as a variety of congenital physical and developmental disabilities.

But there’s little evidence that disability is a driving reason for people to have abortions. While it’s possible to perform some tests as early as the 10th week of pregnancy, more extensive, accurate testing is often only available at closer to 15 or even 20 weeks. Eighty percent of pregnancy terminations take place before 10 weeks and a little more than 5 percent take place after 16 weeks, suggesting that most people make decisions about abortions for reasons other than disability. That’s supported by Guttmacher data that shows that not wanting more children, not being prepared for single parenthood, health concerns, and affordability were all big factors for choosing an abortion. Prenatal diagnoses were not.

The anti-abortion trap of the “justified abortion”

Even as they claim to be concerned about the welfare of the disability community, lawmakers are leveraging disablism to score political points. Their rhetoric is carefully calculated to put abortion proponents in the position of having to defend the seemingly indefensible: choosing to end a pregnancy because of a congenital anomaly. That defense can get particularly fraught with later abortions and arguments that such procedures should be legal, or at least a carve-out should be provided, precisely because something might be wrong with the fetus.

These bans also unwittingly create a dividing line between “justified” abortions and everything else. The use of justification also comes up in calls for exceptions in cases of rape or incest, or in cases where the life of the pregnant person is endangered . Rather than calling in no uncertain terms for abortion on demand and without apology, some are drawn into the traps created by anti-abortion forces; now they’re the people who want to kill disabled babies, instead of the people who believe a private and extremely safe medical procedure should remain personal.

Historically, selective abortion bans have often failed to pass. In at least three states , Kentucky, Indiana, and Ohio, such bills have been blocked in court — but laws in North Dakota (one of the oldest, dating to 2013) and Louisiana still stand, as does a variant on the blocked Ohio bill. As the climate in the United States becomes increasingly hostile to abortion, challenging such bans will be more difficult, which makes their increased incidence very concerning. Five have already been signed into law in 2019, though one was recently blocked .

While near-total bans pass statehouses left and right, we need to pay attention to this insidious “incrementalist” legislation too. Some states are using laws like these to slowly but steadily roll back abortion access, and to lay the groundwork for future legal maneuverings. They’re also counting on this legislation to exacerbate tensions around “justified” abortions. It’s critical to push back on selective abortion bans, and to do so without engaging in the same disablism that abortion opponents are trying to leverage to get them passed in the first place.

s.e. smith is a Northern California-based journalist and writer whose work has appeared in publications like the Guardian, Bitch Magazine, Esquire, Rolling Stone, and Rewire.News, in addition to anthologies including The Feminist Utopia Project and (Don’t) Call Me Crazy .

First Person is Vox’s home for compelling, provocative narrative essays. Do you have a story to share? Read our submission guidelines , and pitch us at [email protected] .

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Ethics and abortion, two opposing arguments on the morality of abortion..

Posted June 7, 2019 | Reviewed by Jessica Schrader

Abortion is, once again, center stage in our political debates. According to the Guttmacher Institute, over 350 pieces of legislation restricting abortion have been introduced. Ten states have signed bans of some sort, but these are all being challenged. None of these, including "heartbeat" laws, are currently in effect. 1

Much has been written about abortion from a philosophical perspective. Here, I'd like to summarize what I believe to be the best argument on each side of the abortion debate. To be clear, I'm not advocating either position here; I'm simply trying to bring some clarity to the issues. The focus of these arguments is on the morality of abortion, not its constitutional or legal status. This is important. One might believe, as many do, that at least some abortions are immoral but that the law should not restrict choice in this realm of life. Others, of course, argue that abortion is immoral and should be illegal in most or all cases.

"Personhood"

Personhood refers to the moral status of an entity. If an entity is a person , in this particular sense, it has full moral status . A person, then, has rights , and we have obligations to that person. This includes the right to life. Both of the arguments I summarize here focus on the question of whether or not the fetus is a person, or whether or not it is the type of entity that has the right to life. This is an important aspect to focus on, because what a thing is determines how we should treat it, morally speaking. For example, if I break a leg off of a table, I haven't done anything wrong. But if I break a puppy's leg, I surely have done something wrong. I have obligations to the puppy, given what kind of creature it is, that I don't have to a table, or any other inanimate object. The issue, then, is what kind of thing a fetus is, and what that entails for how we ought to treat it.

A Pro-Choice Argument

I believe that the best type of pro-choice argument focuses on the personhood of the fetus. Mary Ann Warren has argued that fetuses are not persons; they do not have the right to life. 2 Therefore, abortion is morally permissible throughout the entire pregnancy . To see why, Warren argues that persons have the following traits:

• Consciousness: awareness of oneself, the external world, the ability to feel pain.
• Reasoning: a developed ability to solve fairly complex problems.
• Ability to communicate: on a variety of topics, with some depth.
• Self-motivated activity: ability to choose what to do (or not to do) in a way that is not determined by genetics or the environment .
• Self-concept : see themselves as _____; e.g. Kenyan, female, athlete , Muslim, Christian, atheist, etc.

The key point for Warren is that fetuses do not have any of these traits. Therefore, they are not persons. They do not have a right to life, and abortion is morally permissible. You and I do have these traits, therefore we are persons. We do have rights, including the right to life.

One problem with this argument is that we now know that fetuses are conscious at roughly the midpoint of a pregnancy, given the development timeline of fetal brain activity. Given this, some have modified Warren's argument so that it only applies to the first half of a pregnancy. This still covers the vast majority of abortions that occur in the United States, however.

A Pro-Life Argument

The following pro-life argument shares the same approach, focusing on the personhood of the fetus. However, this argument contends that fetuses are persons because in an important sense they possess all of the traits Warren lists. 3

At first glance, this sounds ridiculous. At 12 weeks, for example, fetuses are not able to engage in reasoning, they don't have a self-concept, nor are they conscious. In fact, they don't possess any of these traits.

Or do they?

In one sense, they do. To see how, consider an important distinction, the distinction between latent capacities vs. actualized capacities. Right now, I have the actualized capacity to communicate in English about the ethics of abortion. I'm demonstrating that capacity right now. I do not, however, have the actualized capacity to communicate in Spanish on this issue. I do, however, have the latent capacity to do so. If I studied Spanish, practiced it with others, or even lived in a Spanish-speaking nation for a while, I would likely be able to do so. The latent capacity I have now to communicate in Spanish would become actualized.

Here is the key point for this argument: Given the type of entities that human fetuses are, they have all of the traits of persons laid out by Mary Anne Warren. They do not possess these traits in their actualized form. But they have them in their latent form, because of their human nature. Proponents of this argument claim that possessing the traits of personhood, in their latent form, is sufficient for being a person, for having full moral status, including the right to life. They say that fetuses are not potential persons, but persons with potential. In contrast to this, Warren and others maintain that the capacities must be actualized before one is person.

The Abortion Debate

There is much confusion in the abortion debate. The existence of a heartbeat is not enough, on its own, to confer a right to life. On this, I believe many pro-lifers are mistaken. But on the pro-choice side, is it ethical to abort fetuses as a way to select the gender of one's child, for instance?

We should not focus solely on the fetus, of course, but also on the interests of the mother, father, and society as a whole. Many believe that in order to achieve this goal, we need to provide much greater support to women who may want to give birth and raise their children, but choose not to for financial, psychological, health, or relationship reasons; that adoption should be much less expensive, so that it is a live option for more qualified parents; and that quality health care should be accessible to all.

I fear , however, that one thing that gets lost in all of the dialogue, debate, and rhetoric surrounding the abortion issue is the nature of the human fetus. This is certainly not the only issue. But it is crucial to determining the morality of abortion, one way or the other. People on both sides of the debate would do well to build their views with this in mind.

https://abcnews.go.com/US/state-abortion-bans-2019-signed-effect/story?id=63172532

Mary Ann Warren, "On the Moral and Legal Status of Abortion," originally in Monist 57:1 (1973), pp. 43-61. Widely anthologized.

This is a synthesis of several pro-life arguments. For more, see the work of Robert George and Francis Beckwith on these issues.

Michael W. Austin, Ph.D. , is a professor of philosophy at Eastern Kentucky University.

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Strengthening the impairment argument against abortion

Bruce philip blackshaw.

1 Philosophy, University of Birmingham, Birmingham, UK

Perry Hendricks

2 Purdue University Department of Philosophy, West Lafayette, Indiana, USA

Associated Data

There are no data in this work.

Perry Hendricks’ impairment argument for the immorality of abortion is based on two premises: first, impairing a fetus with fetal alcohol syndrome (FAS) is immoral, and second, if impairing an organism to some degree is immoral, then ceteris paribus, impairing it to a higher degree is also immoral. He calls this the impairment principle (TIP). Since abortion impairs a fetus to a higher degree than FAS, it follows from these two premises that abortion is immoral. Critics have focussed on the ceteris paribus clause of TIP, which requires that the relevant details surrounding each impairment be sufficiently similar. In this article, we show that the ceteris paribus clause is superfluous, and by replacing it with a more restrictive condition, the impairment argument is considerably strengthened.

Introduction

Perry Hendricks’ impairment argument is a recent, novel argument for the immorality of abortion. 1 2 Hendricks’ basic claim is that since non-lethally impairing a fetus is immoral and aborting a fetus impairs it even more severely, it follows that abortion is also immoral. Importantly, no reference is made to the contentious issue of the moral status of the fetus. So, if the argument is sound, it entails that abortion is immoral even if the fetus is not a person .

The core of the argument is the impairment principle (TIP): if it is immoral to impair an organism O to the nth degree, then, ceteris paribus , it is immoral to impair O to the n+1 degree. An organism is impaired to the n+1 degree only in case it has more impairments—more limitations—than the nth degree. TIP seems to be uncontroversial. A second premise is that it is immoral to impair a fetus by giving it fetal alcohol syndrome (FAS), which also seems uncontroversial. If we accept that aborting a fetus impairs it to the n+1 degree in comparison to giving it FAS (impairment to the nth degree), it follows that abortion is immoral provided the ceteris paribus clause holds.

The main criticisms of the impairment argument have focussed on the difficulty of meeting the ceteris paribus clause—if this is not met, TIP is not satisfied and the impairment argument fails. Here, we show that the ceteris paribus clause is superfluous, and by replacing it with a more restrictive condition, the impairment argument is considerably strengthened. We also consider several objections to our revision, ultimately concluding that they are not successful.

The impairment argument stated

The impairment argument goes as follows: it is immoral to non-lethally impair a fetus by, say, deliberately giving it FAS. 1 This is an assumption that appears to be shared even by those who think that a fetus is not a person. 2 (Importantly, as Hendricks points out, the impairment argument only requires that there is some instance of non-lethal impairment of the fetus that is immoral. It is not tied to the morality of giving FAS to a fetus.) Let us say that to impair an organism is to limit one or more of its abilities. On this understanding of impairment, giving FAS to a fetus impairs it by limiting its ability to develop properly. From this fact, Hendricks tries to derive the immorality of abortion. He does so by making use of TIP, which is explained above. In essence, TIP states that, if it is immoral to impair an organism to some degree, then it will be immoral to impair it to any higher degree (provided there is not some great good that comes about due to the latter impairment and not the former—this is the ceteris paribus clause).

Hendricks argues that, given the current abortion methods, an abortion will always involve maximally limiting the abilities of a fetus, that is, maximally impairing it. (If abortion killed a fetus instantaneously, it could be argued that the abilities of the fetus were not impaired; however, no existing abortion methods are capable of doing so.) 3 Aborting a fetus always involves limiting more of its abilities than giving it FAS, since a fetus with FAS still has some abilities while an aborted fetus will not have any (since it is dead). 4 Since a fetus will be maximally impaired by abortion—all its abilities will be limited in the process of abortion—having an abortion always impairs the fetus to the n+1 degree. Say that to impair a fetus by giving it FAS is to impair it to the nth degree. Since we have assumed that giving FAS to a fetus is immoral, it follows from TIP that, ceteris paribus , aborting a fetus is immoral, since it impairs a fetus more than giving it FAS. Hendricks states this argument as follows:

• If it is immoral to impair the fetus by giving it FAS, then, ceteris paribus, it is immoral to kill the fetus.
• It is immoral to impair the fetus by giving it FAS.
• Ceteris paribus , it is immoral to kill the fetus.
• To abort a fetus is (in most cases) to kill it.
• So, ceteris paribus , to abort a fetus is (in most cases) immoral. 2

Now that we have a grasp of the impairment argument, we will show below that the ceteris paribus clause is vulnerable to objections. However, we will also show that if we modify TIP and understand the wrongness of impairing a fetus by giving it FAS in terms of the fetus being deprived of its particular future of value , this problem dissolves and, in fact, the argument is greatly strengthened.

Problems for the impairment argument

There are two key issues with the impairment argument that need to be resolved if it is to form a persuasive argument for the immorality of abortion. We have already noted the first issue—the difficulty of showing that TIP’s ceteris paribus clause holds when moving from FAS to abortion. The second is various counter-examples to TIP that have been raised.

The ceteris paribus clause of TIP requires that ‘the relevant details surrounding the impairment in the antecedent are sufficiently similar to the relevant details surrounding the impairment in the consequent.’ 1 This is the aspect of TIP that is most vulnerable to criticism, since it is unclear what details are relevant, and how sufficiently similar they must be between the antecedent and the consequent. Hendricks provides some scenarios to illustrate the ceteris paribus clause, but his examples actually serve to illustrate how problematic the ceteris paribus clause can be. For example, the clause is said to not be met when one impairment produces a valuable good but the other does not, such as in capital punishment, self-defence and euthanasia—cases where killing is plausibly thought to be moral. This judgement, however, is dependent on what is meant by ‘good’, and opens up a controversial debate of whether valuable goods are also obtained by abortion, an approach taken by Bruce Blackshaw, Claire Pickard and Joona Räsänen. 3–5 This means that the success of the impairment argument is contingent on what goods one believes accompany abortion and FAS, and how one weighs the goods. This threatens to weaken the impairment argument: it will no doubt be contentious what goods accompany abortion and FAS, and how they are to be weighed. And, it is very difficult to give a satisfactory defence of one’s position on these issues. Dustin Crummett provides a criticism that is a variation of this approach: instead of comparing goods, he argues that pregnancy is significantly more burdensome than refraining from drinking alcohol for 9 months, and so again, the ceteris paribus clause is not met. 6 So, the rather broad ceteris paribus clause of TIP brings substantial philosophical baggage, and the impairment argument will be significantly strengthened if its reliance on this clause can be eliminated.

Strengthening the impairment argument

Our approach is to replace the ceteris paribus clause with a clause that has narrower scope—we will require that the same reasons impairment is regarded as immoral for the nth degree are also present for impairment for the n+1 degree. This seems unobjectionable—if an impairment is immoral for reasons R at the nth degree, then, if R holds for impairment at the n+1 degree, we can conclude that this impairment is also immoral. More formally, we can restate TIP as the Modified Impairment Principle (MIP): if it is immoral to impair an organism O to the nth degree for reason R, then, provided R continues to hold (or is present), it is immoral to impair O to the n+1 degree. Importantly, MIP does not entail that if R is the reason why impairment to the nth degree is immoral, that it is also the reason why impairment to the n+1 degree is immoral. For example, if it is immoral to impair O for the reason that it is painful, then provided it is still painful , it is immoral to impair O to a higher degree. However, it does not necessarily follow that it is immoral to impair O to a higher degree because it is painful.

Unfortunately, the impairment argument, as originally conceived, fails to satisfy both TIP and our MIP. It implied that the wrongness of FAS is grounded in the limitation of the fetus’ capacity to develop future abilities: it produces a child who ‘is (among other things) unable to count and unable to tell the time’. 1 However, critics 3 4 have argued that, in the case of abortion, there will be no future individual to have its abilities limited, and so both the TIP ceteris paribus clause and our MIP reasons clause are not satisfied. Some other explanation of the wrongness of inflicting FAS, that also holds for abortion, is required for the modified impairment argument to succeed. This explanation will also need to avoid counter-examples that have been raised against TIP, such as that of animal abortion. 3 It seems clearly immoral to deliberately impair animal fetuses such that the animal subsequently lives in constant, agonising pain, but it is not clear that aborting animal fetuses is immoral. This is analogous to the FAS scenario and human abortion, and so unless some relevant differences can be found, it would seem to cast a significant doubt on TIP—and on our suggested MIP.

A solution is suggested by Hendricks’ original explanation for the wrongness of inflicting FAS—that it affects the individual in the future by limiting their cognitive abilities. We have noted that this explanation fails because in the case of abortion, no future individual exists. Fortunately, there is an alternative explanation available that is plausible. Don Marquis’ well-known argument for the immorality of abortion (the ‘future like ours’ (FLO) argument) grounds the wrongness in the deprivation of an individual’s future . According to Marquis, the greatest loss we can suffer is the loss of our life—it deprives us of ‘all the experiences, activities, projects, and enjoyments which would otherwise have constituted one’s future.’ 7 This loss is the reason why killing is wrong, and generally, why killing any individual human is wrong: it is wrong because the victim is deprived of a future containing valuable experiences typical of humans—a future of value, similar to our own, that she would have had if she had not been killed. This reasoning applies no matter what age an individual is when killed: so long as the individual has a future of value—whether it is an adult, child, or even a fetus—it is immoral to deprive it of its future. So, by Marquis’ reasoning, abortion is immoral because it deprives the fetus of a FLO that it would otherwise have enjoyed.

We can appropriate Marquis’ FLO reasoning to account for the wrong of impairment, including FAS, and show that it also applies for abortion, thus satisfying our MIP, which we have suggested should replace the original TIP. Let us take abusive head trauma in infants as an example. This can cause intellectual disabilities, cerebral palsy, cortical blindness, seizures and behavioural problems. 8 An infant abused in this way will not have the future it would have otherwise had—its future will be damaged, encompassing fewer valuable experiences, activities, projects and enjoyments. Utilising Marquis, we can explain the wrongness of abusive head trauma as a deprivation of an infant’s FLO, replacing it with a FLO containing fewer things of value. Similarly, a fetus with FAS will suffer various physical and cognitive deficits, and has been deprived of its original FLO. This is a plausible explanation of why it is immoral to inflict FAS on a fetus.

Additionally, it is important that an account for the immorality of inflicting FAS explains why it is immoral at the time of impairment : if, for example, the mother is hit by a car months after giving FAS to her fetus and the fetus is killed, preventing future cognitive impairments from arising, it is clear that it was still immoral for her to impair it. Deprivation of a FLO provides a plausible explanation for this: it is at the time of impairment by FAS that the fetus’ future was altered and it suffered the deprivation of its FLO—the fetus experiences the present loss of a future that it would otherwise have had. By contrast, permissive accounts such as Jeff McMahan’s must ground the wrong of inflicting FAS on the frustration of the fetus’ future interests—and still maintain that to prevent those interests arising in the first place via abortion is not immoral (and is not frustrating those interests). 9 Moreover, accounts like McMahan’s imply that if a fetus is not carried to term—if it is never born—it is not immoral to give it FAS, since it did not have future interests that were frustrated. This entails that a mother who intentionally gave FAS to her fetus but later lost her fetus due to chance (eg, a car accident, see above) did not act immorally: she did not frustrate the interests of a future person by giving her fetus FAS because it would never become a future person. Hence, McMahan’s theory, unlike FLO, has difficulty accounting for the immorality of giving FAS to a fetus when the fetus is never born. Thus, we have reason to favour the FLO explanation of the wrongness of giving FAS to a fetus.

So, in the case of FAS, the fetus is deprived of its original FLO, leaving it with a future that is significantly worse. Let us now consider abortion, which Hendricks argues is impairment to the n+1 degree. Abortion results in the fetus ceasing to exist, completely depriving it of a FLO, and means that the same reason we gave for the wrongness of impairing a fetus by giving it FAS also holds in the case of abortion.

Importantly, our MIP is satisfied in this case: the reason why inflicting FAS is immoral—deprivation of a FLO—is unaltered for abortion. Thus, MIP is met, and the ceteris paribus clause is not threatened since there is no such clause. Additionally, by understanding the immorality of giving FAS to a fetus in terms of the deprivation of its FLO, we have also eliminated counter-examples that involve animals, since animals do not have a FLO, even though they have a future. So, this simplifies the defence of the impairment argument considerably.

What about cases where killing may be not be considered immoral, such as capital punishment, self-defence and euthanasia? Marquis points out that, for euthanasia, the recipient typically does not have a future of value ahead of them, and so according to Marquis’ reasoning, euthanasia is not immoral. Of course, capital punishment and killing in self-defence do involve the loss of an individual’s FLO, and so they need to be explicated, otherwise we still have counter-examples to the MIP. Here, Marquis notes that killing adult human beings is only justified in extreme situations where the individual’s loss of life is outweighed by threats to other individuals’ FLOs. For example, in self-defence, we permit someone to kill in order to protect their own FLO. One important reason for capital punishment is to prevent an individual from killing again. In the case of abortion, it is extremely rare that pregnancy threatens a woman’s FLO, and it is only in these rare cases that abortion may not be immoral—at least according to Marquis’ reasoning. Marquis notes that the deprivation of a FLO may not be the only reason that killing is wrong, and so in the scenario where the woman’s life is threatened by her pregnancy, it may be that there are other reasons why abortion would still be immoral.

As we have noted, the criticisms of Pickard, Räsänen and Crummett 4–6 are predicated on the original impairment argument’s ceteris paribus clause, and so they are circumvented by its removal. This includes Crummett’s claim that someone sympathetic to Thomson’s famous violinist argument will not find the impairment argument persuasive.

It might be objected that, by appropriating FLO to account for the immorality of giving FAS to a fetus, we have dissolved the significance of the impairment argument: if the argument makes use of FLO, then it seems that it is no better than Marquis’ argument. Hence, our defence of the impairment argument comes at a great cost, namely, the argument’s significance.

This objection, however, is mistaken, for our appropriation of FLO does not wed the impairment argument to Marquis’ argument—it does not commit us to the thesis that depriving an organism of FLO is the reason why abortion is immoral. Our modified version of the impairment argument only requires that the reason why inflicting FAS is immoral is also present for abortion—it does not commit us to an explanation as to why abortion is immoral. Suppose, for example, that it is immoral to impair an organism by cutting its finger, and suppose further that the reason this is so is because it limits its ability to use its hand. Now, cutting off the organism’s entire arm impairs it to a higher degree and also limits its ability to use its hand (ie, the reason it is immoral to impair to a lower degree is present). However, it does not follow that it is immoral to cut-off the organism’s arm because it limits the use of its hand—the reason might be because, for example, it limits its ability to use its arm, or perhaps because it deprives the organism of its health, etc. 5 So, the impairment argument just tells us that abortion is immoral, and that this follows from our MIP conjoined with the fact that giving FAS to a fetus is immoral. Thus, our modified impairment argument does not commit itself to a controversial ethic of killing, which is one of the virtues Hendricks had claimed for his original version of it. In other words, while we have claimed to show why giving FAS to a fetus is immoral, we have not claimed to show why abortion is immoral: the immorality of abortion simply follows from MIP and the immorality of giving it FAS.

Finally, it is worth pointing out a bonus of understanding the immorality of giving FAS to a fetus in the way we have described: it provides more support for Marquis’ argument against abortion. This is because, as Hendricks argues, giving FAS to a fetus is immoral even if the fetus never comes to be born . However, as we have contended, the only way to explain this fact is by appealing to the deprivation of the original FLO of the fetus; there are no other plausible explanations of its wrongness. And thus, we have good reason to think that depriving an individual of their FLO is immoral. And since Marquis’ argument is predicated on this thesis, we now have more support for his view.

In this article, we have reviewed the main criticisms of the impairment argument against abortion. We have shown that the problems raised can be resolved by the replacement of its ceteris paribus clause with a narrower clause based on the reason for the immorality of the impairment. As a result, the impairment argument is considerably strengthened. An added bonus of this discussion is that Marquis’ argument is strengthened as well: our defence of the impairment argument has provided additional support for the view that depriving an individual of a FLO is immoral, a thesis that Marquis’ argument is predicated on.

Acknowledgments

Thanks especially to G.L.G.―Colin Patrick Mitchell―for particularly insightful comments on this article - Perry Hendricks.

Contributors: The idea for this paper was conceived by Bruce Blackshaw. Perry Hendricks contributed valuable criticism and wrote the section on objections.

Funding: The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

Competing interests: None declared.

Provenance and peer review: Not commissioned; externally peer reviewed.

Hendricks argues that this is true even if the fetus is never born. He argues that if a mother has knowingly given her fetus FAS, she has acted immorally, and this is true, he thinks, even if she loses her fetus on account of being hit by a car later on in her pregnancy. We will follow Hendricks in making this assumption, and discuss it briefly subsequently.

E.g., Claire Pickard, no friend of the impairment argument, says that it is immoral to give a fetus FAS. 4

Bruce Blackshaw argues that killing is not impairment; 10 Hendricks responds by claiming that because all current abortion methods do not kill instantaneously, they bring the fetus to what he calls the ‘bridge of death’ where its abilities are maximally impaired. 2

This is a rough characterisation of Hendricks’s argument. For more details, see 1 2 .

We are not saying that this is the actual reason why cutting off an organism’s arm or finger is immoral. This is just an example.

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The ethics of abortions for fetuses with congenital abnormalities

Affiliation.

• 1 The Jakobovits Center for Jewish Medical Ethics and the Department of Medicine, Faculty of Medicine, Ben-Gurion University of the Negev, Beer-Sheva, Israel.
• PMID: 20561739
• DOI: 10.1016/j.ejogrb.2010.05.030

Abortion remains a highly contentious moral issue, with the debate usually framed as a battle between the fetus's right to life and the woman's right to choose. Often overlooked in this debate is the impact of the concurrent legalization of abortion and the development of new prenatal screening tests on the birth prevalence of many inherited diseases. Most proponents of abortion support abortion for fetuses with severe congenital diseases, but there has unfortunately been, in our opinion, too little debate over the moral appropriateness of abortion for much less severe congenital conditions such as Down's syndrome, deafness, and dwarfism. Due to scientific advances, we are looking at a future in which prenatal diagnosis will be safer and more accurate, raising the specter, and the concomitant ethical concerns, of wholesale abortions. Herein, we present a reframing of the abortion debate that better encompasses these conditions and offers a more nuanced position.

Copyright © 2010 Elsevier Ireland Ltd. All rights reserved.

• Abortion, Induced / ethics*
• Congenital Abnormalities / diagnosis*
• Down Syndrome / diagnosis
• Genetic Diseases, Inborn
• Prenatal Diagnosis / ethics*
• Value of Life

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• Volume 31, Issue 10
• Acting parentally: an argument against sex selection
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• R McDougall
• Correspondence to:
 R McDougall
 Mansfield College, Oxford OX1 3TF, UK; rosalind.mcdougallmansfield.ox.ac.uk

The Human Fertilisation and Embryology Authority’s (HFEA) recent restrictive recommendations on sex selection have highlighted the need for consideration of the plausibility of ethical arguments against sex selection. In this paper, the author suggests a parental virtues approach to some questions of reproductive ethics (including sex selection) as a superior alternative to an exclusively harm focused approach such as the procreative liberty framework. The author formulates a virtue ethics argument against sex selection based on the idea that acceptance is a character trait of the good parent. It is concluded that, because the argument presented posits a wrong in the sex selecting agent’s action that is not a harm, the argument could not function as a justification of the HFEA’s restrictive position in light of their explicit commitment to procreative liberty; it does, however, suggest that ethical approaches focused exclusively on harm fail to capture all the relevant moral considerations and thus that we should look beyond such approaches.

• HFEA, Human Fertilisation and Embryology Authority
• sex selection
• virtue ethics
• procreative liberty

https://doi.org/10.1136/jme.2004.008813

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In November 2003, the Human Fertilisation and Embryology Authority (HFEA) in the United Kingdom released a report on its review of sex selection. 1 The review focused particularly on sperm sorting and preimplantation genetic diagnosis as sex selection techniques. The report’s key recommendation was that sex selection should only be available in “cases in which there is a clear and overriding medical justification”, (HFEA, 1 para 147) referring to the avoidance of sex linked genetic conditions. As Harris has argued, 2 and as a close reading of the document makes clear, this position is essentially based on market research rather than systematic ethical analysis. The HFEA’s report and the preceding consultation document do, however, refer to a number of ethical arguments against sex selection. These include: sex selection as playing God; 3 sex selection as an inappropriate use of medical resources; (HFEA, 3 para 29) the potential for unequal access to sex selection technology; (HFEA, 3 paras 90–1) possible resultant disruption of the sex ratio; (HFEA, 1 para 78) (HFEA, 3 paras 85–6) stepping onto the slippery slope to designer babies; (HFEA, 1 para 29) (HFEA, 3 paras 92–5) gender discrimination; (HFEA, 1 para 29) (HFEA, 3 paras 81–4) and negative effects on the welfare of children produced using sex selection technology (HFEA, 1 para 139) (HFEA, 3 paras 87–9).

My aim in this paper is to formulate a different argument against sex selection, one not mentioned in the HFEA material. The argument draws on a virtue ethics framework and is based on the idea that the willingness to accept one’s child, regardless of characteristics such as the child’s sex, is a trait of the good parent. In section 1 I briefly outline and argue for a virtue ethics approach to some questions in reproductive ethics. I posit a criterion of right parental action that claims that an act is right if it is what the virtuous parent would do in the circumstances, where the parental virtues are defined as characteristics conducive to the flourishing of the child. In section 2 I argue that sex selection is morally impermissible in light of the parental virtue of acceptance. In section 3 I consider some possible objections to this argument. Throughout the paper I assume the UK context of relative equality between the sexes, and thus accept that the argument’s force is limited to such contexts. I conclude with some thoughts on policy implications of the argument; I suggest that the argument presented is a basis for moral condemnation of sex selection, but still falls short in terms of providing an ethical justification for the HFEA’s restrictive position in light of the HFEA’s explicit commitment to procreative liberty. Under a framework privileging procreative liberty, the wrong involved in sex selection must be a harm based wrong in order to justify restriction, and this is not the type of wrong posited by the argument against sex selection that I put forward. The fact that there are ethical considerations that remain uncaptured by an exclusively harm focused approach such as procreative liberty gives us good reason to look beyond this type of framework for a more comprehensive way of assessing the moral status of particular reproductive choices.

SECTION 1: ADOPTING A VIRTUE ETHICS APPROACH TO A QUESTION OF REPRODUCTIVE ETHICS

The prevailing approach to ethical questions around reproduction is an approach based on the notion of the primacy of parental procreative liberty. Murray has called this procreative liberty approach “the regnant contemporary framework for thinking about the ethics of reproductive technologies”. 4 The procreative liberty framework is a harm based approach to reproductive ethics that posits a criterion of right action along the lines of “an action is right if it causes no significant harm to others”; under this framework a reproductive choice is morally permissible if it is not (significantly) harmful. The classic description of this approach is provided by Robertson. 5 The approach is based on the idea that reproduction is such a personal, self expressive decision that people are entitled to great freedom in this area of life. Robertson writes, for example, that “because of the centrality of reproduction to personal identity, meaning, and dignity…the liberty to procreate [is] an important moral right” (Robertson, 5 p 30). Dworkin gives a similar justification. 6 The influence of this approach is demonstrated by its invocation in the HFEA material. The HFEA explicitly commits itself to respecting the principle of procreative liberty, stating that “the decision to have children…is an area of private life in which people are generally best left to make their own choices and in which the state should intervene only to prevent the occurrence of serious harms, and only where this intervention in non-intrusive and likely to be effective” (HFEA, 1 para 132).

Although the extent to which the HFEA’s reasoning and conclusions in fact align with a procreative liberty outlook is questionable, 2 the HFEA’s emphasis on potential harms as the crucial relevant factors is clear.

Despite its pervasive influence, the harm focused procreative liberty approach faces a fundamental difficulty. The difficulty is the non-identity problem described by Parfit. 7 The non-identity problem relates to the fact that so long as they have lives worth living, we do not harm the people whom we bring into existence. Had we acted otherwise, these people would not exist at all and thus our action cannot be worse for these people. Because reproductive decisions are often decisions that determine who will exist, the idea of harm to the child produced by a particular reproductive decision is problematic as the alternative for that child is non-existence. The name “non-identity problem” refers to the fact that the person created when the agent makes the “better” reproductive decision is a different person from the one that would exist if the agent made the “worse” decision. Thus, in making the “worse” decision, the agent cannot be said to harm the resulting child.

This non-identity problem effectively precludes meaningful consideration under a harm focused approach of the child produced by a particular reproductive decision; this is the fundamental difficulty for an approach such as the procreative liberty framework. So long as the child’s life is preferable to non-existence, bringing the child into existence is deemed morally permissible. This sets an extremely low standard for morally permissible reproduction. (For critiques of the low threshold for moral acceptability associated with the procreative liberty framework see Murray, 4 p 42, Lauritzen 8 and Steinbock. 9 ) For example, knowingly producing a child who was inevitably destined for a life of abuse or a child whose life would consist almost entirely of suffering as a result of a crippling medical condition would both be deemed morally permissible actions by parents (at least in terms of harm to the child produced; significant harms to existing people could potentially deem such actions impermissible). The intuitively problematic nature of condoning such reproductive choices as innocuous with respect to the children produced points to the deep problem that the non-identity problem produces for any exclusively harm focused approach.

I will outline a potential alternative to the harm focused procreative liberty approach, drawing on ideas from virtue ethics. The parental virtue framework that I will outline moves away from this notion of harm as crucial and thus avoids the non-identity problem and the associated implausibly low threshold for morally acceptable reproductive decisions. Because the alternative framework’s criterion of right action invokes the agent’s character rather than putative harms associated with the action, the fact that the child who may be the locus of a harm does not yet exist is unproblematic.

The term “virtue ethics” covers a number of ethical theories, all of which claim primacy for character in the justification of right action. (For a full account of the positive claims of virtue ethics see Oakley’s article. 10 ) Virtue ethics posits the following criterion of right action: an action is right if and only if it is what a virtuous agent would do in the circumstances. 11 As Oakley writes: “what makes the action right [under virtue ethics] is that it is what a person with a virtuous character would do” [Oakley’s italics] (Oakley, 10 p 130). Virtue ethics also makes the related claim that the virtuous person is one who has and exercises the virtues. This claim decisively differentiates virtue ethics from Kantianism and consequentialism, both of which have room for the concept of the virtuous person but define virtue in terms of action in accordance with particular rules such as the categorical imperative or the maximisation of wellbeing (Hursthouse, 11 p 23). Under virtue ethics, virtue is prior to the definition of right action rather than derivative from it.

Thus virtue ethics fills out the idea of the virtuous person in a way that is independent of the virtuous person’s disposition to act rightly. One strand of virtue ethics posits the virtuous person as one who has character traits conducive to human flourishing; in Oakley’s words, this approach sees “the content of virtuous character…[a]s determined by what we need, or what we are, qua human beings” [Oakley’s italics] (Oakley, 10 p 133). Hursthouse identifies the question “How am I to live well?” as the basis of this approach. 12 Hursthouse argues that a moral conclusion emerges from the answer to this non-moral question; from an understanding of what makes a human life go well, we can articulate a set of character traits that are conducive to living well. Hursthouse writes that:

as human beings, we naturally have certain emotions and tendencies, and…it is simply a brute fact (made up of a vastly complex set of other facts) that given that we are as we naturally are, we can only flourish/be happy/successful by developing those character traits that are called the virtues—courage, justice, benevolence and so on [Hursthouse’s italics] (Hursthouse, 12 p 226).

Hursthouse uses the examples of generosity, honesty, and courage as illustrative, arguing that facts about human life make these character traits conducive to human flourishing: generosity promotes flourishing because humans “are naturally sociable creatures who like to have friends and want to be loved by friends and family”; honesty promotes flourishing for similar reasons and because “there are likely to be occasions in our lives when we need to be believed”, and courage promotes flourishing because humans fear the pain and death to which they are inevitably subject (Hursthouse, 12 pp 226–8). So the position is that there are certain character traits that promote human flourishing, taking some facts about human life as immutably given, and that these character traits are the virtues. Combining this set of flourishing conducive traits with the innocuous normative assumption that it is morally important that human lives go well, we arrive at the moral conclusion that we should have and exercise these character traits; we should act in accordance with the virtues. The claim is not that those people with the flourishing conducive character traits inevitably flourish, rather, as Hursthouse puts it, that “[v]irtue is the only reliable bet” (Hursthouse, 12 p 230).

The key virtue ethics claims that I have outlined can therefore be summarised as follows:

Criterion of right action—an action is right if and only if it is what a virtuous agent would do in the circumstances;

Origin of the virtues—virtues are character traits conducive to human flourishing, based on immutable facts about human life.

Versions of these claims specific to the realm of parental action (which I will take to include reproduction and rearing) can be articulated:

Criterion of right parental action—an action is right if and only if it is what a virtuous parent would do in the circumstances;

Origin of the parental virtues—parental virtues are character traits conducive to the flourishing of the child, based on immutable facts about human reproduction and rearing.

I will refer to these claims as the parental virtues approach. These parenting specific claims involve the additional assumption that the primary purpose of parenthood is the flourishing of the child. In the general context we made the baseline assumption that the purpose of human agents is the promotion of human flourishing; in the parental context, the assumption is that the primary purpose of a parent is the flourishing of his or her child. The idea is that this purpose is the primary necessary element of the parental role. It may be objected that positing parenting as exclusively aimed at the flourishing of the child is too simplistic. Becoming a parent is also, it might be argued, partly and justifiably a self directed project. This objection can be accommodated, however, in a view positing the purpose of parenting as the flourishing of the child. The parent’s interests are not excluded on such a view once it is acknowledged that parental wellbeing contributes to the flourishing of that parent’s child. Positing the flourishing of the child as the purpose of parenthood does not obviate the importance of the parent’s own interests; it does not make the good parent one whose own interests are inevitably martyred to the project of the maximal flourishing of his or her child. That the flourishing of the child is the primary commitment associated with the parental role is, however, suggested by the intuitive implausibility of the low threshold implied by an exclusively harm focused approach discussed earlier. There seems to be something unparental about an agent who creates a child with no chance of flourishing, purely to satisfy his or her own desire to have a child. So the assumption that the primary purpose of parenthood is the flourishing of one’s child seems a defensible one.

Having articulated the above criterion of right parental action, the following question then arises: how relevant is this criterion to questions of reproductive ethics such as the moral status of sex selection? For not all questions of reproductive ethics seem rightly described as questions about parental action. It seems odd, for example, to posit a criterion of right parental action as relevant to questions around contraception or sterilisation that specifically aim to prevent one becoming a parent. However, the question of the exact range of issues to which a framework based on parental action is relevant can be set aside here; the focus in this paper is on the specific issue of sex selection, and this issue does fall within the realm of parental action. The sex selecting agent’s situation is one in which the criterion of right parental action is relevant because of the type of project on which the sex selecting agent is embarking. It is a necessary feature of the desire to sex select that it is part of a broader desire to become a parent; you could not want to have a son specifically without wanting, more generally, to be a parent. The sex selecting agent is thus necessarily in the situation of deliberately seeking to have a child; the sex selection decision is part of an overall project of parenthood. As Vehmas has suggested, the decision to procreate itself “puts the potential parents morally in the position of parenthood” [Vehmas italics]. 13 Because the sex selecting agent has deliberately adopted the project of parenthood, he or she has created a situation in which the criterion of right parental action is relevant, despite the fact that no child yet exists. Thus we can justifiably assess the moral permissibility of sex selection using the parenting specific claims articulated above.

Before proceeding to an ethical assessment of sex selection using the parental virtues approach, it is worth noting that this approach avoids the non-identity problem faced by an exclusively harm focused approach such as the procreative liberty framework. Because the parental virtues approach draws on the character of the virtuous parent to determine the moral status of an action rather than on the putative harms associated with the action, the fact that the child resulting from the action is not harmed by it becomes irrelevant. By looking ultimately to a general concept of children’s flourishing rather than to a mere absence of harm to this specific child, the parental virtues approach avoids the implausibly low threshold for morally permissible reproduction set by an exclusively harm focused approach.

SECTION 2: AN ARGUMENT AGAINST SEX SELECTION BASED ON THE PARENTAL VIRTUE OF ACCEPTANCE

Recall from the previous section that virtues reflect facts about human life, or human reproduction and rearing specifically in the case of parental virtues. One such fact of the latter type is the unpredictability of children’s characteristics. The unpredictability of the child produced is an intrinsic feature of human reproduction. The set of characteristics that one’s child will possess at a particular time is inherently unpredictable. Even if a child’s genetic make up was entirely known, the immense complexity of every child’s environment necessarily makes his or her characteristics unpredictable to some extent. In the case of most naturally conceived children, for example, we would have no idea which of a range of hair colours the child would have aged eight. Even if the precise genetic determinants of hair colour were known, some unpredictability would always remain; the environmental factors to which the child was exposed (perhaps sun exposure in the hair colour example) would inject a degree of randomness into the characteristic actually displayed. Also contributing to the inherent unpredictability of every child’s characteristics are the environmental events that produce traits without any genetic input. A child may, for example, be blinded by an accident or made anaemic by the non-availability of particular foods. So it is an intrinsic feature of a child that his or her characteristics will be, to some extent, unpredictable.

Because a child’s characteristics are unpredictable, acceptance is a parental virtue. The flourishing of the child is facilitated by the parent’s embracing of the child regardless of his or her specific characteristics. Unless the parents act acceptingly toward the child’s characteristics, the child’s contentment and self esteem, and the parents’ ability to enjoy that child, are all in jeopardy. Thus, just as courage is a human virtue because it is conducive to flourishing in light of the fact that humans are subject to pain and challenge, acceptance is a parental virtue because it is conducive to flourishing in light of the fact that human reproduction inevitably produces a child whose characteristics are unpredictable. Because of the way that children are, the virtuous parent (in part) is one who has the character trait of acceptance with respect to his or her child, an accepting attitude that transcends the child’s specific characteristics.

Accepting one’s child, regardless of his or her particular current characteristics, is already perceived as a necessary characteristic of the good parent. When someone becomes a parent, we expect him or her to maintain that role regardless of the specific features of his or her child at any particular time. We would think extremely badly, for example, of parents who severed their relationship with their daughter once she developed leukaemia, or even treated their son differently purely on the basis that the blond hair of his childhood had now darkened to brown. Thus the claim that acceptance is a parental virtue is a compelling one, both in terms of its relationship to the fact of unpredictability in reproduction and its consistency with current prevailing attitudes.

The child’s sex is a characteristic that falls within the scope of this parental virtue of acceptance. Positing acceptance as a parental virtue does not imply that the virtuous parent is one who passively accepts each and every characteristic of his or her child. Hursthouse has argued that the notion of a virtue involves “the idea of the getting things right : in the case of generosity giving the right amount of things for the right reasons on the right occasions to the right people” [Hursthouse’s italics] (Hursthouse, 12 pp 228–9). Similarly the parental virtue of acceptance should not be understood as acceptance of absolutely everything. It need not, for example, imply that a mother should passively accept a child’s violence toward her. A complete characterisation of the virtue of acceptance would fully explicate the virtue’s scope, that is it would articulate exactly what is involved in getting things right with respect to acceptance. However, such a complete characterisation, although useful, is not necessary for the argument here; our focus on sex selection means that the relevant question is whether the child’s sex falls within the scope of the parental virtue of acceptance. We do not need to know all of the types of characteristics that are rightly accepted in order to ethically assess sex selection on the parental virtues framework, only whether or not a child’s sex is the type of characteristic toward which the virtuous parent acts with acceptance.

Reflection indicates that sex is indeed a characteristic that falls within the scope of the parental virtue of acceptance. Imagine, for example, that there exists a particular type of bacterial infection that results in a complete change in a child’s sex. On infection, girls become normal boys and boys become normal girls. One year old children are susceptible to this sex change pathogen. It seems intuitive that parents who rejected their daughter once she became a son, or vice versa, would act wrongly, just as parents who rejected their child once some other medical condition had radically affected his or her characteristics act similarly wrongly. Such a non-accepting attitude seems to be a non-parental one; the rejection entails some failure in the parental role. Sex is not the type of characteristic that could possibly justify this failure, thus it seems that a child’s sex is within the scope of the parental virtue of acceptance.

Therefore, under the criterion of right parental action and on the basis of the parental virtue of acceptance, sex selection is morally impermissible. In acting on a preference to parent only a child of a particular sex, the sex selecting agent fails to act in accordance with the parental virtue of acceptance. (Whether parents should be morally condemned under the parental virtues framework merely for having this preference is arguable; it is clear, however, that acting on the preference is impermissible under the framework.) The sex selecting agent fails to act in accordance with the parental virtue of acceptance, instead positing a specific characteristic, sex, as relevant to his or her attitude to the child. By sex selecting, the agent puts himself or herself into the parenting role yet fails to act in accordance with that role. The sex selecting agent acts wrongly not because acting on a preference for a child of a particular sex is necessarily inconsistent with being a good parent to the child so produced. That the sex selected child happens to be loved and adequately parented does not preclude condemnation of the sex selection act that brought that child into existence. The wrong is the sex selecting agent’s failure to act in accordance with a parental character trait, acceptance, which is intrinsically linked on a general conceptual level to the flourishing of children. Sex selection is wrong because it is not in accordance with the parental virtue of acceptance, regardless of the outcome for a specific child.

SECTION 3: TWO POSSIBLE OBJECTIONS

A possible objection to this argument against sex selection is that it could be seen as implying that parents are obliged to welcome any child regardless of his or her characteristics. If acceptance is a parental virtue and the right thing to do is what the virtuous parent would do, it seems that parents are morally precluded from, for example, using sex selection to avoid medical conditions or terminating a pregnancy when prenatal diagnosis has indicated severe disability. I do not, however, accept that the argument presented against sex selection commits us to requiring parents to welcome absolutely any child. This is because acceptance is only one in a range of parental virtues. Facts other than every child’s necessary unpredictability imply other parental virtues. The fact that human reproduction produces offspring that are long dependent, for example, implies that commitment is a parental virtue. Although she does not use the language of virtue, O’Neill makes this suggestion. 14 Because there is a range of parental virtues, there is potential for conflict amongst them. Cases in which sex selection would ensure the birth of a child unaffected by a particular medical condition or in which severe disability is diagnosed prenatally are, to my mind, such conflict situations. The parental virtue of acceptance points in one direction, and other parental virtues (such as concern that the child’s opportunities exceed a certain level) point in another. In such situations, the virtuous parent might in fact decide, all things considered, to abort a pregnancy on the basis of severe disability or to sex select to avoid a medical condition. This objection thus serves to highlight the fact that the argument of the previous section establishes only a prima facie presumption against sex selection rather than a categorical prohibition. The incompatibility of sex selection with the parental virtue of acceptance prevents sex selection being the choice of the virtuous parent in most cases, but not necessarily all; there may be cases (such as the avoidance of a sex linked condition) where another parental virtue is in tension with acceptance and ultimately overrides it. In a situation of radical inequality between men and women, for example, the parental virtue of acceptance would still apply, counselling against sex selection. It may, however, be in conflict with other parental virtues; it is possible that the ultimate verdict on how the virtuous parent would act will support sex selection. The objection that the argument against sex selection cannot be accepted because it implies that parents are obliged to welcome absolutely any child is thus not compelling; the argument does not involve this implication once acceptance is seen as one of a number of parental virtues.

A second possible objection to the argument presented would be to formulate a case in which a couple uses sex selection to have a girl, but willingly commit themselves to parenting any girl regardless of her other characteristics. These parents do not care whether their daughter develops particular typically feminine social characteristics or pursues particular typically feminine projects; they just want a female child. The objection would be that such sex selecting agents act with appropriate acceptance. I do not believe, however, that this type of case is a forceful objection to the argument presented. On my analysis, embarking on parenthood conditional on one’s child’s sex is not ethically problematic because it points to some defect in parental attitude that will potentially negatively affect the child’s welfare in the future. Rather, I have argued that the sex selection act itself is wrong, because the sex selecting agent fails to act in accordance with the parental virtue of acceptance in a situation in which he or she should so act. Thus, although the accept any girl case is less morally problematic in terms of parental acceptance than cases in which sex selecting parents want not only a girl, but a girl with particular typically feminine characteristics, the parents in the accept any girl case still act wrongly. The wrongness of choosing to parent conditional on sex is not ameliorated by future acts of acceptance; the wrongness of sex selection lies in the sex selection act itself. So neither of these two objections gives us reason to reject the presented argument against sex selection.

Could the argument presented provide an ethical basis for the HFEA’s restrictive position on sex selection? As discussed earlier, the HFEA theoretically sets a high threshold, “the occurrence of serious harms”, to be met before state intervention in the reproductive realm can be justified (HFEA, 1 para 132); according to this framework there must be serious harms associated with sex selection in order to justify any state restriction of access to sex selection technology. Therefore, the HFEA needs more than a compelling argument for the wrongness of sex selection to ethically justify its restrictive position; in the light of its explicit commitment to procreative liberty, the HFEA needs a compelling argument for the harmfulness of sex selection.

This is not provided by the argument presented. Although the argument points to a moral wrong inherent in the sex selecting agent’s action, it fails as an ethical foundation for the HFEA’s position because the posited wrong in sex selection is not a harm related wrong. Recall the non-identity problem from section 1. The child produced by sex selection is clearly not harmed by his or her parents choosing to sex select; the child’s very existence depends on this parental choice. Thus, although the sex selecting agent acts wrongly on the argument presented, this wrong does not involve a harm. On the argument presented, the sex selecting agent acts wrongly yet harms no one. Thus the state restricting access to sex selection is not justified on the HFEA’s own formulation; the serious harms threshold has not been met. So, although the argument presented articulates a wrong in sex selection, the argument would be of little use to the HFEA in any attempt to reconcile its restrictive position on sex selection with its overt commitment to procreative liberty.

The HFEA must either abandon its (arguably superficial) commitment to procreative liberty or revise its restrictive position on sex selection. Sex selection is not intrinsically harmful to the child produced (as indicated by the non-identity problem) so could only be justifiably prohibited under a harm focused framework such as procreative liberty if it involved significant harms to existing people, which seems unlikely. Looking beyond harm enables other wrongs associated with sex selection to be captured; the incompatibility of the practice with the parental virtue of acceptance is the argument I have presented here. Casting this wider net enables a more comprehensive ethical analysis and gives good reason to abandon an exclusively harm focused approach such as the procreative liberty framework. Sex selection cannot be justifiably restricted on a harm focused approach but looking beyond harm reveals the wrongness of the practice, and provides a justificatory basis for a restrictive policy.

Acknowledgments

I would like to thank Julian Savulescu, Adam Cureton, and the two JME reviewers for helpful comments on earlier drafts.

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This work was funded by the Commonwealth Scholarship Commission.

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Serge Schmemann

Editorial Board Member

Silencing Independent Voices Is Not the Way to Join the West

In Tbilisi, Georgia, the country’s parliament passed a “foreign agent” bill on Tuesday that, according to the ruling Georgian Dream party, will increase transparency on foreign funding of nongovernmental groups and media outlets.

But the thousands of Georgians who have been demonstrating in the streets since the measure was first introduced don’t agree with that description. Nor does the Biden administration, nor the European Union. They see the bill for what it is: a repressive measure intended to silence independent NGOs and media and move Georgia closer to the Kremlin’s orbit.

The law is modeled on one Russia enacted in 2012, which the Kremlin has used to smear or silence anyone challenging the government. The Georgian variant — widely known as the “Russian law” — would require organizations getting more than a fifth of their funding from abroad to register as “bearing the interests of a foreign power” or face stiff fines. The law was first introduced last year and withdrawn under heavy protest; this year the protests failed to dissuade the ruling party. Georgia’s largely ceremonial president, Salome Zourabichvili, says she will veto it, but Georgian Dream has enough votes to override her.

Why is the ruling party doing this?

One reason is the national elections set for October: Tamping down the opposition and the independent press will help Georgian Dream stay in power, which it’s held since 2012. The party has demonstrated distinctly authoritarian ambitions.

The more worrisome possibility is that Georgian Dream, the creation of the richest man in Georgia, Bidzina Ivanishvili, wants to get on the right side of Russia. Ivanishvili, who was prime minister from 2012 to 2013 and still wields considerable power behind the scenes, initially took a robust anti-Moscow stance, but that has been changing, especially since Russia invaded Ukraine.

The ruling party maintains that it is still keen on joining the European Union, which formally granted Georgia candidate status in December. The party has little choice, given that the overwhelming majority of Georgians are in favor of moving westward. But the party’s actions and words have pointed the other way, either out of fear of Russia — not irrational, given that Russia invaded Georgia in 2008 — or for gain, or to keep the party in power.

The United States and the European Union have made no secret of their alarm and annoyance. A State Department statement condemned the “foreign influence” legislation, warning that the law and Georgian Dream’s anti-Western rhetoric “put Georgia on a precarious trajectory.” A U.S. official warned that Washington may slap some financial and travel restrictions on some Georgian officials. It may not be too late.

Paul Krugman

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Is Disinflation Back on Track?

The latest news on inflation has been pretty good. It has also been extremely weird. And that weirdness is, in a way, the message.

With underlying inflation fairly low but probably still above the Fed’s 2 percent target and people still worried that it might go back up, quirky measurement issues can lead to big mood swings that are quickly reversed when the next numbers come in — or sometimes even a few hours after the initial announcement, once knowledgeable people have had some time to dig into the details.

There were two big official inflation reports in the past couple of days: the Producer Price Index (what we used to call wholesale prices) on Tuesday and the Consumer Price Index on Wednesday morning . There was also a private survey from the National Federation of Independent Business that may add some clarity.

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And if you look at two-year yields over the past few days, you see the market reaction matching my sense of the commentary:

Yields spiked when the P.P.I. report was released, then fell back once there was time to dig into the numbers, ending the day lower than they started.

On the other hand, markets from the get-go liked the C.P.I., which seemed to show inflation resuming its downward trend, with yields falling sharply. But as I write, analysts are still digging into the details. Will they be less optimistic by evening? Probably not: Early commentary seems, if anything, to be saying that the numbers were even better than they first appeared. But after yesterday, I’m going to wait and see.

I also mentioned the survey from the N.F.I.B., which represents small and medium businesses. One question it asks is whether businesses are planning to raise or lower prices over the next three months; the percentage difference from current numbers is often a useful indicator of inflation trends. And that spread is currently close to what it was before the pandemic, although slightly higher:

So my best guess? The acceleration in measured inflation over the past few months was probably a statistical illusion; inflation wasn’t as low as it seemed in late 2023 but probably hasn’t risen much, if at all. Underlying annual inflation is probably around 2.5 percent, maybe even less. So my guess is that we’ve already won this war — that we have basically achieved a soft landing, with low unemployment and acceptably low inflation.

But I could be wrong, and even if I’m right, it’s going to take at least a few more months of good inflation news before this happy reality sinks in.

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Frank Bruni

Contributing Opinion Writer

Biden’s Daring Debate Proposal Could Recharge His Campaign

I’ve been waiting and hoping — no, I’ve been desperate — for President Biden to do two things. One, boldly project strength. Two, recognize that he cannot coast to re-election and that he needs to shake up the state of the presidential race.

With his offer on Wednesday to debate Donald Trump at least twice before the election and as early as next month, he has done just that.

The Biden campaign’s proposal came with the condition that the debates be in a television studio and there be no audience present to hoot, holler and otherwise interrupt. Trump subsequently indicated that he was onboard, though it wasn’t clear if he would agree to Biden’s terms.

By emphasizing debates and suggesting that they start soon, Biden is taking a risk. But it’s a necessary one. Trump and his supporters lean hard on the charge that Biden is too rickety — in terms of both energy and intellect — to face off against Trump, and they have sold that idea skillfully and mercilessly, with the help of right-wing news organizations that portray Biden as a doddering wreck. It’s selective and often malicious stuff, but that doesn’t mean that Biden can ignore it. He must refute it. Signaling an eagerness to debate is the crucial first step.

The next one is performing well in those debates, should they happen, and that’s where the risk comes in. Some Democrats who’ve spent time with Biden over the past year privately express concerns about his sharpness and stamina, and a debate is less scripted — and arguably more draining — than a State of the Union speech read from a teleprompter. But a reluctance or refusal to debate could be as damaging to Biden as half a dozen terrible moments at the lectern.

Besides which, Trump could have scores of such moments, to go by his bizarro stump speeches of late. That’s where the rewards that Biden could reap come in. Do I think that he will turn in debate performances for the ages? No. Do I think that Trump will have a harder time insisting on Biden’s wobbliness if he has demonstrated his own profound unsteadiness on the same stage where Biden is standing, with plenty of swing voters watching? Yes.

I also think that it’s past time for Biden to pivot from caution to daring. Maybe that pivot is finally here.

Putin’s Defense Shake-Up Is a Danger for Ukraine

With Vladimir Putin’s revival of Soviet-style centralized and secretive rule, the old art of Kremlinology is making a comeback. It’s not quite the same as when the lineup atop Lenin’s mausoleum on May Day was scrutinized for signs of who was on the way up or down, but Putin’s abrupt replacement of the long-serving Sergei Shoigu as defense minister last Sunday was still a distinct blast from that dismal past.

Technically, Shoigu was kicked upstairs, to head up the national security council. Putin is not given to publicly punishing loyal courtiers, and Shoigu was about as loyal as they come, even going fishing and hunting with the boss. Still, Kremlin-watchers have long expected his ouster, given the sloppiness of the Russian invasion of Ukraine, the widespread corruption in the military-industrial complex, and Shoigu’s reported unpopularity with the generals. There was also the dramatic rebellion of the mercenary commander Yevgeny Prigozhin, who marched on Moscow last June demanding Shoigu’s head (only to lose his own in a plane crash broadly presumed to have been an assassination).

So, very briefly, here are the questions and speculation now keeping Kremlinologists busy:

Shoigu’s replacement at the Defense Ministry is Andrei Belousov, a senior Kremlin economist. That he is not a military man is not surprising; neither was Shoigu, a former construction foreman, nor his two predecessors. Military matters are handled by the generals of the General Staff; the defense minister looks after the military-industrial base. The thinking is that Belousov’s task will be to manage the rapid growth in Russia’s military spending and to clean up the corruption that is siphoning off huge amounts of the money earmarked for the Ukraine war.

How long Shoigu will be allowed to survive remains an open question. One of his top deputies, Timur Ivanov, was arrested on bribery charges in April. One of Ivanov’s nicknames was “Shoigu’s wallet.” And on Tuesday morning, government investigators announced that a senior general on the General Staff, Lt. Gen. Yuri Kuznetsov, had been detained on suspicion of “large-scale” bribe-taking.

A big question is what happens to Nikolai Patrushev, who is being displaced by Shoigu at the helm of the Russian security council. Patrushev, like Putin a former K.G.B. official, is among the oldest and closest members of Putin’s ruling clique, and among the most hawkish. Where he lands — or fails to land — will say a lot about where Putin is headed.

On balance, the musical chairs point to a major overhaul of the military as Russia moves toward what is basically a war economy. Russia is making incremental but steady advances in Ukraine, albeit at an astounding cost in casualties and armaments. Putin’s plan is to press on at any cost, squeezing Ukraine and its ever more reluctant Western backers, and keeping China on board as a major supplier. None of that bodes well for Ukraine.

Jonathan Alter

Where’s the Devastating Takedown of Michael Cohen That Trump Needs?

For months, we’ve known that the cross-examination of Michael Cohen would be the decisive moment of Donald Trump’s New York felony trial — the day we learned whether his defense team could plant reasonable doubt in the minds of jurors.

On Tuesday it became clear that the team was struggling with its most important task.

Todd Blanche, Trump’s lead defense lawyer, was like a baseball pitcher assigned to start Game 7 of the World Series after only two or three wins in his major-league career. Though a seasoned former federal prosecutor, he has little experience as a defense attorney — and it showed.

We’re only about a third of the way through Blanche’s cross, but so far, he’s too meandering and pleasant for the sharp-toned, rat-a-tat style necessary for the role.

Blanche spent more than an hour showing that Cohen, like Stormy Daniels last week, despises Trump, and this line of inquiry was entertaining if not informative. When he quoted Cohen calling Trump a “boorish cartoon misogynist,” Cohen wielded the same mild and effective rejoinder he used twice earlier: “Sounds like something I would say.” My kids would like to see me in that T-shirt.

Blanche spent a long time depicting Cohen as a publicity hound cashing in on his decision to flip on Trump. Guilty as charged. But Cohen’s unwise decision to make sport of Trump in an orange jumpsuit (and worse) earlier in the trial, while angering both the prosecution and defense, doesn’t relate to the falsification of business records at issue in the case. And Cohen made it clear that he was merely responding in kind to Trump’s childish posts, a few of which jurors have seen more than once. All told, an annoying waste of the jury’s time.

Blanche had trouble finding a rhythm. For instance, he asked Cohen if he had appeared on MSNBC shows anchored by Ali Velshi and Joy Reid. When Cohen said yes, Blanche had no follow-up.

But his real problem is that he has so little to work with. Cohen delivered devastating direct testimony all day Monday and again Tuesday morning, and he has been careful and low-key on cross.

Instead of attacking the prosecution’s case head-on, Blanche has been handcuffed by a client nursing a perverse desire to see Cohen’s insults — and his own — aired in open court.

At around 4 p.m. Tuesday, shortly before court adjourned for the day, Blanche began delving into why other prosecutors have passed on this case. That could be promising for him. But after all the runs the prosecution has already scored, he’ll have to strike Cohen out with the bases loaded to get back into the game.

Michelle Goldberg

Top Republicans Come Face to Face With Trump’s Seamy Past

On a day when Michael Cohen, Donald Trump’s former fixer, testified about the price of loyalty to Trump, a group of Republicans, including House Speaker Mike Johnson, Gov. Doug Burgum of North Dakota and Vivek Ramaswamy, a former presidential candidate, showed up at the courthouse to demonstrate their loyalty to Trump.

Sitting in the courtroom on Tuesday on my first day at the trial, I kept wondering what they were thinking as they heard Cohen, seeming every bit the weary, reluctantly reformed TV gangster, testify about his mafia-like interactions with Trumpworld.

He described how, after his home and office were raided by the F.B.I., Trump encouraged him, both through a “really sketchy” lawyer and through his own Twitter posts, to, in Cohen’s words, “Stay in the fold, stay loyal, don’t flip.” He described how once he decided “not to lie for President Trump any longer,” the then-president publicly attacked him.

Cohen now seems like a man whose life has been essentially wrecked — he went to prison, lost his law license, had to sell his New York and Chicago taxi medallions and is still on supervised release. Though his implosion has been particularly severe, he is far from alone; many people who’ve served Trump, no matter how faithfully, have been ruined in various ways by the experience.

Nevertheless, as Trump runs for re-election, Republicans are climbing over one another to get as close to him as possible. Toward the end of his testimony for the prosecution, Cohen was asked about his regrets.

“To keep the loyalty and to do things that he had asked me to do, I violated my moral compass, and I suffered the penalty,” he said. I’d like to know if Johnson, hearing this, had even a flicker of foreboding.

The Increase in Drowning Deaths Should Be a National Priority

Drowning deaths in the United States rose by more than 12 percent to an estimated 4,500 per year during the pandemic, according to grim new data from the Centers for Disease Control and Prevention. The increase, from 4,000 per year in 2019, comes as this long-neglected public health crisis is slowly beginning to draw some attention from government policymakers.

“It’s moving in the wrong direction,” the C.D.C. director, Dr. Mandy Cohen, told The Times. The agency said more than half of Americans had never taken a swimming lesson.

The sobering data is an opportunity for President Biden and health officials to finally make drowning prevention a national priority.

Drowning is the leading cause of death for children ages 1 to 4 in the United States and the second leading cause of death by accidental injury for children 5 to 14. Tackling the issue has clear bipartisan appeal and would improve quality of life in every American community.

Despite the obvious need for action, federal, state and local governments in the United States have invested very little to prevent these deaths.

The rise in deaths has caught the eye of former New York City Mayor Michael Bloomberg, whose philanthropy told The Times this week it plans for the first time to direct millions of dollars to drowning prevention efforts within the United States to improve data collection and help fund swimming lessons in 10 states where drowning rates are highest: Alaska, Arizona, California, Florida, Georgia, Louisiana, Michigan, New York, Oklahoma and Texas.

The planned $17.6 million investment by Bloomberg Philanthropies is modest compared with the $104 million it is spending globally on preventing drownings. But the focus by Bloomberg, whose prominent public health campaigns helped ban smoking in bars and restaurants in New York, could help raise the profile of this issue. Executives at the philanthropy said they planned to work with the C.D.C.

Many Americans of even wealthy backgrounds have lost children to drowning. But drowning is also an issue of equity. Black people and Native Americans are at substantially increased risk of drowning. So are teenage boys. The C.D.C. report found that these trends have continued. In 2020, they said, Black Americans saw the greatest increase in fatal drownings.

Red Cross surveys suggest that a majority of Americans lack basic swimming abilities. With C.D.C. data showing the existence of more than 10 million private pools in the United States and fewer than 309,000 public ones, it’s clear that large numbers of Americans lack access to basic information about water safety, as well as safe places to learn to swim. Instead of a public health issue, drowning is treated as a private matter and swimming as a luxury. To save lives, this needs to change.

David Brooks

Why Trump Is Ahead in So Many Swing States

What do American voters want? The latest New York Times/Siena polls of swing states offer some confusing evidence on this point. Some of the polling results suggest that Americans are in a revolutionary frame of mind: Asked whether the political and economic systems need major changes, 69 percent of respondents said those systems need major changes or should be entirely torn down.

On the other hand, when the pollsters gave voters a choice between a candidate who would bring the country back to normal and one who would bring major changes, 51 percent said they would prefer the back-to-normal candidate and only 40 percent would prefer the major-changes candidate.

So which is it? Is 2024 a change election in which people want someone who will shake things up, or is this a stability election in which people are going to vote for the candidate of order over the candidate of chaos?

Well, different voters want different things. But if I had to write a single sentence that reconciled these diverse findings, it would be this: The people who run America’s systems have led the country seriously astray; we need a president who will shake things up and lead the country back to normal.

When they hear “systems,” I assume voters are thinking of the network of institutions run by America’s elite — corporations, governing agencies, higher education, the news media and so on. If voters believe one thing about Donald Trump it’s that he’s against these systems and these systems are against him.

Voters clearly see President Biden implicated in these systems. The heart of his problem heaves into view when people are asked which candidate will bring about change. Seventy percent of voters said that Trump would bring about major changes or tear down the system entirely if elected. And 71 percent of voters said that little or nothing would change if Biden was re-elected.

In other words, the evidence suggests that the swing voter wants reactionary change, not revolutionary change. The mood suggested by the evidence is angry nostalgia. That would be my explanation for why Trump is so convincingly ahead in most of the swing states.

Trump Told Cohen Disclosure of His Fling Would Be a ‘Total Disaster’

When Michael Cohen took the stand for the first time in Donald Trump’s hush-money trial on Monday morning, he almost accidentally sat down without taking the oath. But after he raised his hand and swore to tell the truth, he seemed to do so.

In dry language, with his impulse-control problems nowhere in sight, he landed blow after blow on the former president.

Cohen, Trump’s former lawyer and fixer, is willing to look like a stooge — pathetically eager for any praise from the boss — to implant in jurors’ minds that even in the absence of incriminating emails, he should be believed because of all the time he spent looking for Brownie points from Trump. When he did so, he was implicating Trump.

Cohen’s testimony about the Playboy model Karen McDougal, who says she had a nine-month affair with Trump, is important beyond Trump describing her to Cohen as “beautiful.” It cemented Trump’s attention to detail, which we’ve heard a lot about already. He constantly asked for updates on the hush money that American Media Inc., publisher of The National Enquirer, was paying at his direction to McDougal, replying, “Great!” or “Fantastic,” when Cohen delivered them.

Cohen’s tape of Trump discussing that deal landed hard when it was played, and not just because it was Trump’s voice talking about “150” — a clear reference to the $150,000 in hush money that Trump — through Cohen and A.M.I. — was originally going to pay McDougal. Trump’s micromanaging, which we’ve heard about for two weeks, came to life in a way that didn’t help him. And when Cohen dissected practically every moment of the call, there was no mistaking the meaning of the brief conversation.

When Cohen told Trump that Stormy Daniels was shopping her story, “Trump was really angry with me,” he said. Trump told Cohen: “‘I thought you had this under control, I thought you took care of this! … Just take care of it!’”

According to Cohen, Trump thought he would surely lose the 2016 election if the Daniels story came out. He testified that Trump said, “This is a disaster, a total disaster. Women will hate me,” and added that “guys, they think it’s cool” to have sex with a porn star, “but this is going to be a disaster for the campaign.” In combination with the fallout from the “Access Hollywood” tapes, they agreed, it would send his already low polling with women into a tailspin.

“Get control of it!” Trump barked, Cohen testified. “Just get past the election. If I win, it’ll have no relevance when I’m president. And if I lose, I don’t really care.”

Here the prosecutor, Susan Hoffinger, asked if Cohen inquired about Melania Trump. He said yes, and said Trump responded: “Don’t worry. How long do you think I’ll be on the market for? Not long.”

Wow. With Trump, every time you think he’s touched bottom, he crashes through the floor. Here he was already looking ahead to his third divorce.

Cohen is doing very well on direct examination. The test will come Tuesday afternoon, when cross-examination is likely to begin.

Farah Stockman

Israel Needs to Allow More Aid Crossings to Keep Gazans Alive

An already unbearable situation in Gaza is getting far worse, as hundreds of thousands of desperate Palestinian families flee an Israeli ground operation in Rafah, in southern Gaza. Aid groups say the so-called humanitarian zone near the sea, where people are being told to move, doesn’t have enough shelter, food, water or sanitation to support the people who are already there. Without a significant infusion of new aid, this place is at risk of total famine and social chaos.

One glimmer of good news came on Sunday, when Israel opened the Western Erez crossing in northern Gaza. But virtually no aid has got through to southern Gaza for nearly a week, aid groups say. The reality is that the Gaza Strip needs many, many more crossings.

“If you have only one entry point in, then it becomes extremely valuable, and every adverse actor can disrupt it for their own gain,” Dave Harden, a former U.S.A.I.D. mission director in the West Bank and Gaza, told me.

If there were a dozen access points, spread across every two or three kilometers, then no single crossing would become a choke point, vulnerable to attack. He said there’s no reason that Israel, which controls the security envelope around Gaza, could not open far more checkpoints.

“People complain that Hamas is stealing aid, but there would be no incentive to steal if there was enough food going in,” said Harden, adding that he shared a plan to open more than half a dozen more border crossings in Gaza with a branch of the Israeli military about six weeks ago.

But since then, the opposite has occurred. The main artery for humanitarian aid, Kerem Shalom, was shut down on May 5 after a Hamas rocket attack killed four Israeli soldiers. Then Israel seized the border crossing at Rafah , gaining full control over the vital entry and exit point for people and goods for the first time since 2005. Israeli officials have blamed Egypt for the halt in humanitarian goods through Rafah since last week. But for months aid groups have cited the onerous inspections of aid convoys, Israeli attacks on aid workers and protests by right-wing Israeli settlers who have destroyed or delayed truckloads of aid as the cause of famine in Gaza.

“The situation is absolutely desperate,” Sean Carroll, who leads Anera, an American aid organization that has operated in Gaza for decades, wrote in an email on Monday. His staff members have been forced to evacuate Rafah at a moment’s notice, just like the rest of the population, and were forced to leave vital supplies in a warehouse behind.

“They are trying to keep delivering but there’s not much to deliver,” he told me.

Believe It, Democrats. Biden Could Lose.

Donald Trump may be the presidential candidate whose midday snoozing has generated headlines and animated late-night comics, but President Biden is the one who needs to wake up.

He’s a whopping 12 points behind Trump among registered voters in Nevada, according to polls by The New York Times, Siena College and The Philadelphia Inquirer that were released on Monday morning. Biden won that state by nearly 2.5 points in 2020. He’s behind among registered voters in Arizona, Pennsylvania, Georgia, Michigan — in all of the six battleground states surveyed except Wisconsin. That’s not some wildly aberrant result. It echoes alarms sounded before. It speaks to stubborn troubles.

And it’s difficult for Democrats to believe. I know: I talk regularly with party leaders and party strategists and I’ve heard their incredulity. They mention abortion and how that should help Biden mightily. They mention the miserable optics of a certain Manhattan courtroom and a certain slouched defendant. They mention Jan. 6, 2021. They note Trump’s unhinged rants and autocratic musings and they say that surely, when the moment of decision arrives, a crucial share of Americans will note all of that, too, and come home to Biden.

From their lips to God’s ear. But with stakes this huge, I can’t help worrying that such hopefulness verges on magical thinking and is midwife to a confidence, even a complacency, that Biden cannot afford. He needs to step things up — to defend his record more vigorously, make the case for his second term more concretely, project more strength and more effectively communicate the most important difference between him and his opponent: Biden genuinely loves America, while Trump genuinely loves only himself.

The new polling shows that Democratic senators up for re-election are doing better than Biden , so his party affiliation isn’t his doom. That’s the lesson, too, of the favor enjoyed by Democratic governors in red and purple states . Look, for prime example, at Josh Shapiro in Pennsylvania .

But Biden seems to get the blame for the war in Gaza. For the high cost of living, too. Regarding the economy, he has a story to tell — infrastructure investment, the CHIPS Act, low unemployment — and must tell it better, with an eye not on his liberal base, but on the minorities and young people who are drifting away from him. That’s the moral of the latest numbers: Take no voter for granted. And there’s not a second to waste.

Patrick Healy

Deputy Opinion Editor

Will Michael Cohen Throw Cold Water on Trump’s Polling Lead?

Every Monday morning on The Point, we kick off the week with a tipsheet on the latest in the presidential campaign. Here’s what we’re looking at this week:

The next two weeks are critical for Donald Trump. He is leading President Biden in most polls in Arizona, Georgia, Pennsylvania and other swing states that will decide the 2024 election. But on Monday, the star witness in Trump’s criminal trial — Michael Cohen, his former lawyer — will begin telling a Manhattan jury that he gave $130,000 to the porn star Stormy Daniels in exchange for her silence about a sexual encounter with Trump. And based on the pace of the trial, the case could go to the jury as soon as next week.

Cohen is the linchpin to any conviction, acquittal or hung jury for Trump. More than any other witness in the case, he will put words in Trump’s mouth for jurors — telling them how the former president directed the payment to Daniels. Expect the cross-examination to be withering, but in the end, Trump’s lawyers may be hard-pressed to contain or thwart the damaging Cohen testimony without strong witnesses who can rebut it.

The trial matters because some voters say a conviction could change their thinking about Trump — a man who for years has shaken off scandals like Teflon. Failure to convict, in turn, could boost the martyr message that he’s been campaigning on at rallies like his big one in New Jersey on Saturday.

I just did a focus group with Trump voters from 2020 about how they see him now, which will be published on Tuesday. Most of these voters want to support him again because they think the economy will do better under him. But these voters volunteered how much they dislike Trump’s chaotic and inappropriate behavior, and several of them are looking at R.F.K. Jr. as a third-party candidate. What happens in the trial could steer some of these Trump voters away from him.

Biden had a successful fund-raising weekend on the West Coast, but it’s Israel’s military actions in Gaza and the cease-fire talks that will loom over both his week and the biggest event on his schedule: his commencement address at Morehouse College next Sunday. Many voters are unhappy with Biden’s approach to Gaza and general handling of the war, and he came in for some criticism over his latest move on U.S. weapons to Israel.

This isn’t an easy time for Mr. Biden to set foot on a college campus, but he’s been an admired figure at many historically Black colleges like Morehouse — and he and his campaign need to improve his standing with both Black voters and Georgia voters, where he is lagging Trump in polls. No single event will turn it around for Biden, but I think this will be one of his highest-stakes speeches of the spring.

The Table Is Set for Michael Cohen to Testify Against Trump

For months, we’ve heard that the prosecution’s entire case in Donald Trump’s New York felony trial boils down to one man: Michael Cohen.

It turns out that it doesn’t — as long as Cohen, Trump’s former lawyer, behaves himself on the witness stand beginning early next week.

For three weeks, I’ve sat in the courtroom and watched prosecutors carefully set the table for the feast of Cohen’s testimony against his longtime boss. Knowing that Cohen is a disreputable witness, they’ll basically argue that you don’t have to like the chef to swallow the food he serves.

The arc of the prosecution’s narrative has taken the jury from the “catch and kill” scheme (a coherent prelude to the crime) to the validation of highly incriminating records to the debunking of arguments for the defense. It all adds up to an effective precorroboration of Cohen’s likely testimony.

Stormy Daniels had no connection to the falsification of business records, the fundamental charge against Donald Trump. But by establishing that she did, indeed, have sex with Trump, her testimony provided important proof of motive. It’s increasingly clear to the jury that Trump coughed up the hush money to save his 2016 campaign after it was sent reeling by the “Access Hollywood” tape. He knew that a credible story of sex with a porn star would sink him. So he broke the law.

The defense has responded mostly by grasping at straws. It tried to make the hush money look like an extortion scheme, with the former president in his favorite position as victim — a difficult maneuver, considering that Trump has spent years in the same tawdry milieu.

On Monday and Friday, the defense attorney Emil Bove used technojargon and innuendo to suggest, without a shred of proof, that a key piece of evidence — a Sept. 9, 2016, call in which Trump and Cohen discussed hush money for the Playboy model Karen McDougal — was somehow tampered with by Cohen, the F.B.I. or some other sinister force and that it might not have been Cohen on the call. The idea was to use a nanosecond gap in the call and a change in phone ownership to capture the imagination of even a single conspiracy-minded juror. It takes only one to create a hung jury.

But Bove’s cross-examination crashed when a young prosecution witness explained that when people (in this case, Cohen) buy new phones, they usually keep their old numbers.

Is that all they’ve got? No, the defense is betting on the offensiveness of Cohen, who has been ignoring repeated pleas from prosecutors to keep his mouth shut in the days before he takes the stand. (Justice Juan Merchan strongly suggested he do so.)

If Cohen can straighten up and fly right, riding on a trove of evidence and surviving cross-examination, a conviction is well within sight.