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Ending Lethal Discrimination before Birth

Tim Bradley  

On March 24 of this year Indiana Governor Mike Pence signed into law legislation that forbids doctors from performing an abortion, before or after the unborn child reaches 20 weeks of post-fertilization age, if the reason for the abortion is based on the “race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.”


In his statement announcing his signing of the bill, Pence said, “I believe that a society can be judged by how it deals with its most vulnerable—the aged, the infirm, the disabled and the unborn.

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“Some of my most precious moments as Governor have been with families of children with disabilities, especially those raising children with Down syndrome. These Hoosiers never fail to inspire me with their compassion and these special children never fail to move me with their love and joy,” Pence added.


Indiana is the first state to enact comprehensive legislation that imposes penalties upon any person performing an abortion motivated by the race, sex, or disability of the child. The law protects the pregnant mother from any penalties. Arizona law forbids abortion on the basis of race, while North Dakota bans abortion on account of disability. Seven states, in addition to Indiana, ban sex selection abortion: Arizona, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania, and South Dakota.


However, a federal judge for the Southern District of Indiana is expected to announce within two weeks whether or not the court will block Indiana’s new law from taking effect on July 1. The lawsuit was brought against the state by Planned Parenthood of Indiana and Kentucky and the American Civil Liberties Union (ACLU), who argue that it is unconstitutional and violates women’s privacy.


The new law poses a dilemma for abortion supporters and groups like the ACLU. These groups expend great resources in fighting against the same kind of discrimination Indiana’s law seeks to combat—against women, minorities, and disabled persons. What this law forces abortion supporters to confront squarely is the inherent tension in their analysis of the legal status of the unborn child as a vulnerable human being. If the law stands, it effectively enshrines that child as a human being, and recognizes that child possesses the same rights—against unjust discrimination on account of one’s race, sex, or condition of disability—that all others enjoy.


Opponents of the law, therefore, claim that “you cannot discriminate against a fetus,” and that the laws are meant to highlight “a tension that has been manufactured.” But in fact the tension is real.


Accurate data is harder to come by in the United States due to lack of proper records and mandatory reporting, but ample evidence confirms that sex selection abortion is prevalent globally. China and India have well-documented problems in this area, and estimates show that there are between 160 million and 200 million girls missing worldwide on account of sex selection abortion. And despite the challenges of collecting data on the issue in North America, a number of studies document sex-selection abortions taking place in the U.S., as Dr. David Prentice, Vice President of Charlotte Lozier Institute, testified in the Indiana Senate last year in support of the new law.


Similarly, genetic discrimination abortions are common. Most disability discrimination abortions occur after 20 weeks (because the most accurate diagnostic procedures that might indicate the presence of genetic abnormalities typically are performed between 18 and 20 weeks of gestation), and therefore most disability discrimination abortions would already be forbidden by Indiana’s law prohibiting abortion after 20 weeks, when the child is capable of feeling pain. But the new law still serves to prevent genetic discrimination abortions as advances in technology will only make the detection of genetic abnormality more accessible at earlier ages of gestation.


An overwhelming number of children diagnosed in the womb with Down syndrome, for example, are aborted. In some countries in Europe, upwards of 90 percent of children diagnosed in the womb with Down’s are aborted, while in the United States that number is estimated to be between 70 and 90 percent.


Yet, while such a large share of children diagnosed with Down syndrome in the womb are aborted, recent research indicates that the benefits of living with a Down syndrome child outweigh the costs. Parents of children with Down’s pay, on average, just $84 per month more in out-of-pocket medical expenses for care for their child, and medical costs decrease with age.


Another recent study found that 99% of people with Down syndrome are happy with their lives, 99% of parents love their child with Down syndrome, and 97% of that child’s siblings (aged 9 to 11) love their sibling and are proud of them.


And while the added costs of giving birth to and raising a child with disabilities such as Down syndrome are certainly real, the late Dr. Jerome Lejeune, who discovered the genetic basis for Down syndrome, reminded us, “It cannot be denied that the price of these diseases is high—in suffering for the individual and in burdens for society. Not to mention what parents suffer! But we can assign a value to that price: It is precisely what a society must pay to remain fully human.”


These words echo those of Pence as he signed the bill, “that a society can be judged by how it deals with its most vulnerable.” While still under review by the federal courts and yet to take effect, Indiana’s law provides an example of legislation limiting abortion and protecting unborn children from being targeted on the basis of their race, sex, or condition of disability. Indiana is the first state to pass a comprehensive law along these lines, but more should follow.


Tim Bradley is a research associate at the Charlotte Lozier Institute.


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