by Craig Klugman, Ph.D.
Women of Wisconsin better make some room as they are about to have some visitors: Their in-laws may come to spend time in their uterus. Wisconsin bill SB201 (companion to AB217) allows a mother, father or grandparent to seek compensatory damages from the person who performed an abortion. The relatives may also seek money for emotional and psychological harm. If the damages are awarded, the provider would pay further damages of $10,000 and attorney fees. If injunctive relief is sought, then the court may prevent the physician from performing abortions in the future.
However, the damages can only be sought if the abortion was performed in the name of sex-selection. This could include if a couple decides they prefer to have only a male or female child. But it also might apply where a pregnancy is terminated because of a sex-linked disease, such as muscular dystrophy. Until there are court cases, the exact limits and reach of this law (if the bill becomes a law) wouldn’t be known.
The bill passed the Wisconsin Assembly back in June by a vote of 58 to 39 and in November was passed out of the Senate Committee on Health & Human Services with a recommendation to be brought for a full vote.
Abortion for a fetus being an undesired sex could happen for many reasons including to protect a child and family from a sex-linked genetic disease. But in many cultures (such as among groups in India and China), there is a cultural preference for male progeny. Sex selection (abortion or even pre-implantation) is illegal in many places including Canada, a position that its population supports. Thus, Canadians looking for sex selection go elsewhere, including the United States (and Wisconsin borders Canada). In fact, the U.S. has fewer restrictions on sex selection than many other countries. An internet search shows many clinics that work with people in other countries to come to the U.S. for sex selection techniques (mostly pre-implantation diagnosis of an embryo). This is medical tourism to have a baby of a particular sex.
It’s hard to argue that sex selection for cultural or social preferences is a good thing. Studies show severe imbalances among the sexes in countries with a history of this practice (such as China). Historically this practice has been about structural discrimination against women (with a preference for male babies). However today, Western parents are likely to be seeking a female child to round out their family. The preference is not all in one direction.
This Wisconsin bill is not completely new. In the summer of 2012, the U.S. Congress voted down the proposal Prenatal Nondiscrimination Act (PRENDA). That bill would have doctors imprisoned for five years for performing a sex selective abortion. What is unique with the Wisconsin bill is permitting the family to receive damages for the abortion. SB201 is a bill that almost views the consenting adults as victims of physicians and seems to be meant to strongly dissuade physicians from being involved in performing abortions. Ostensibly, because potential parents need to be protect from the big bad abortion doctor. The thinking might be that if you remove the providers, then abortions won’t happen.
This bill might be the long arm of the state trying to prevent abortions and infringe on a woman’s right to make such choices and to decide what happens to her body. The bill tries to chip away at an abortion right by looking at intent and giving a voice to people who have never had a legal say in the choice of whether to terminate a pregnancy—grandparents. This certainly would seem to be an attack on elective abortion, or abortion for any reason up until a certain time or developmental stage. And it could force women to carry a child to full term even if that child has a condition incompatible with life.
Another perspective is that this bill is another safeguard to protect the existence of an unborn child. If there are more obstacles in the way, more potential sanctions to be faced, then this bill will prevent abortions from happening. The concern on this side is less about the mother’s rights and on the rights of the fetus that is considered from a certain point of view to be a human being of full moral standing, or of high moral standing because of its potentiality of becoming a human being.
In the United States, we have generally approach issues of reproduction as a private matter between the parents. Individuals tend to have, what John Robertson calls, reproductive autonomy. The parents get to decide about their reproductive choices broadly with no or minimal state interference. Although in the past there may have been grandparent pressure on the decision, those potential grandparents never had a legal voice in the matter. This bill would give them that.
Clearly a bill such as this is politically charged. Beyond the comments on abortion, it discriminates against societies and cultures that value sex selection, it discriminates against women, it chips away at existing abortion rights, and it adds new players to the game of “control that uterus.” This bill raises concerns for many individuals, as it should. Whenever laws try to break new territory that takes away an individual’s existing rights, it needs to be seriously examined and considered. My own stand on this issue is summer up by what a theologian said to me a few months ago, in regards to the topic of abortion: Why do we have to legislate these sorts of things, why can’t we just allow people to make their own choices? Why not indeed.