Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States

Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States

The IHR Clinic, in partnership with National Asian Pacific American Women’s Forum (NAPAWF) and Advancing New Standards in Reproductive Health (ANSIRH), researched and drafted a report titled “Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States.” The report examines the recent proliferation of laws banning sex-selection abortion in the United States. It is the work of a multidisciplinary team, including two economists, led by IHR Clinical Professor Sital Kalantry and Miriam Yeung, Executive Director, NAPAWF. Sujatha Jesudason, Assistant Professor, University of California, San Francisco, Shivana Jorawar, Reproductive Justice Program Director, NAPAWF, and IHR Clinical Lecturer in Law Brian Citro assisted in the direction of the project team and the research, drafting and editing of the report. Economists Arindam Nandi, Fellow, Center for Disease Dynamics, Economics and Policy and Alexander Persaud, PhD candidate, University of Michigan, provided quantitative data analysis of US birth data.

IHR Clinic students Kelsey Stricker (2014), Jeff Gilson (2014) and Bill Watson (2014) researched, drafted and edited the report and first year law students Lindsay Gus (2016) and Marlow Svatek (2016) provided critical research support on a volunteer basis. Research for the report included a trip to New Delhi, India, during which Brian Citro and Jeff Gilson conducted interviews with physicians, lawyers, government officials, social activists and academics towards understanding the practice of sex selection and the related phenomenon of son preference in India.

Eight states have enacted laws prohibiting sex-selective abortion and twenty-one states and the federal government have considered such laws since 2009. The laws prohibit the performance of an abortion if sought based on the sex of the fetus and provide for both criminal and civil penalties in most cases. A great deal of misinformation exists regarding sex selection in the United States. The report identifies six inaccuracies commonly associated with sex-selective abortion and laws prohibiting it in the United States. They appear, among other places, in statements made by legislators, testimony submitted to legislatures, and reports issued by legislative committees that have considered or adopted laws banning sex-selective abortion. The report presents each piece of inaccurate information as a “myth” and draws on legal research, empirical analysis of U.S. birth data, field-work, and an extensive review of scholarly publications in social sciences, law and other disciplines to replace these myths with facts.

As the report explains, laws banning sex-selective abortion have been introduced and enacted based upon a combination of implicit bias, factual inaccuracies and harmful stereotypes about Asian Americans. Rather than to combat gender discrimination, the report shows that sex-selective abortion bans are intended to limit access to abortion generally. In addition, the report includes findings from an analysis of recent birth data in the United States which shows that, rather than exhibiting a preference for sons, Asian Americans actually give birth to more girls than White Americans on average. The methodologies used for this and the other quantitative study provided in the report are available here: quantitative data analysis methodologies.

The report will be disseminated widely and used as the centerpiece of legislative advocacy, led by NAPAWF, in the United States Congress and state legislatures where laws banning sex-selective abortion are being considered.

The report is available here

Report to the U.N. Committee on the Elimination of Racial Discriminatoin: Sex-Selective Abortion Bans in the United States and Their Discriminatory Effect on Asian American Women

The IHR Clinic, in partnership with National Asian Pacific American Women’s Forum (NAPAWF) and Advancing New Standards in Reproductive Health (ANSIRH), submitted a Shadow Report to the CERD Committee in June 2014, addressing the discriminatory nature of sex-selective abortion bans in the United States. The report is titled “Sex-Selective Abortion Bans in The United States and Their Discriminatory Effect on Asian American Women,” and is available here. The report asserts that sex-selective abortion laws, currently in place in eight states, violate article 5(e)(iv), the right to health, and article 2, duty to review state laws, of the Convention on the Elimination of Racial Discrimination (CERD).

In 2008 the CERD Committee enjoined the United States to reduce racial disparities in reproductive health care. The United States issued a 2013 Periodic Report to the Committee, acknowledging that Asian Americans receive worse health care than Whites, but failing to mention sex-selective abortion bans. The Shadow Report asserts that sex-selective abortion bans continue to impede the ability of the United States to address the Committee’s concerns, because they inhibit equal enjoyment of the right to health and perpetuate racial discrimination against Asian American women.

The report asserts that sex-selective abortion bans are in violation of article 5(e)(iv), because such bans are likely to reduce Asian American women’s access to reproductive health services, and thereby negatively impact their health outcomes. The laws' legislative history demonstrates that Asian American women are assumed to be the population most likely to perform sex-selective abortions, and are therefore most likely to face scrutiny from health professionals when seeking reproductive services. Because of this stereotype, health care professionals may, without reason, deny Asian American women access to reproductive services in states where sex-selective abortions are banned. Asian American women may also choose not to seek reproductive services in the first place, because of the fear of being stigmatized. These bans further increase xenophobic stereotypes, and negatively impact Asian American women’s right to health.

Second, under CERD article 2, the United States has a duty to review state laws that are racially discriminatory. Because the state bans on sex-selective abortion disproportionately inhibit Asian American women’s access to reproductive health services and stigmatize Asian American women, they are racially discriminatory. Under article 2(1)(c), the United States has the duty to amend, rescind, or nullify laws that are in conflict with CERD. Finally, under article 2(1)(e), the government must discourage anything that strengthens racial division. Because the sex-selective abortion bans tend to strengthen racial division by singling out Asian American women, the United States must review such laws and take affirmative measures to ensure they do not violate CERD.

The report recommends the CERD Committee ask the United States the following questions:

  • What will the United States do to address the discriminatory effect sex-selective abortion bans have on Asian American women in reducing their access to reproductive health services and stigmatizing their use of such services?
  • What affirmative measures can the United States take to counteract the harmful stereotypes about persons of Asian descent being propagated at the state level through sex-selective abortion bans?

The report recommends the following conclusions: 

  • The United States should issue a statement condemning sex-selective abortion bans as discriminatory against and harmful to Asian American women, encouraging state 6 legislatures to repeal their sex-selective abortion bans, and encouraging the United States Congress not enact a federal sex-selective abortion ban.
  • The United States Congress should take affirmative measures to counteract the harmful stereotypes about persons of Asian descent being propagated at the state level through sex-selective abortion bans, including by allocating funding to organizations working to counteract these stereotypes.
  • The United States Congress should enact a resolution stating that it refuses to enact a sex-selective abortion ban due to the discriminatory impact of such a ban on Asian American women, and it should call on the state legislatures to do the same.