Sex-Selective Abortions and the Twisting of Souls

It was billed as “the most modest first step” in legislating on abortion: the bill to preserve the life of the child who survived an abortion. It finally passed in 2002 under the title of the Born-Alive Infants’ Protection Act.   

The partisans of “abortion rights” thought that it was part of a scheme to unravel those rights, as indeed it was. But the challenge to the defenders of abortion was to explain the principled ground on which they could justify voting against this move to protect a child born alive. 

The other side was persistently offended that we would dare raise that kind of question, or face them with a never-ending series of those questions. As they kept evading the main moral questions over the years, they would fall into the forms of argument that must have, as their purpose and effect, to undo the very act of moral reasoning. 

They were quite right that we were seeking to dissolve the sense of the “rightness” of abortion, working step by step. But even if that were the case, on what ground would they permit the killing of a child born alive?

We would indeed move step by step, and with each move we would ask the liberal side to honor the principles that they themselves had enacted into law. If it were wrong to discriminate against the handicapped, how could it be justified to kill a child in the womb with Down syndrome? 

With each move, with each posing of the question, the proponents of abortion would respond with rising anger: As they reasoned, abortion was in the interests of women and their reproductive health, and so each challenge simply confirmed for them the evil of those who would find a clever way to dispossess women of those rights.

That same outrage has flared again as the Judiciary Committee in the U.S. House has come forth with another one of those key legislative steps: the proposal to bar abortions based on sex. The idea of the Prenatal Nondiscrimination Act (PRENDA) has been around for years, and it has come back again this year owing mainly to the tenacity of Trent Franks (R-AZ) the chairman of the subcommittee on the Constitution, and his redoubtable, unsinkable counsel, Jacki Pick.  

The evidence has become overwhelming, from this country and abroad, that with the diffusion of ultrasonography – with the means of discovering the sex of the child in the womb – there has been a persistent inclination to prefer males and abort females. The result has been a massive skewering of sex ratios, with portentous effects.

    Indian women protest sex-selective abortion

Nicholas Eberstadt, who has devoted a career to demography, noted that “sex-selective abortion has assumed a scale tantamount to a global war against baby girls.” The situation has become so dire that India, Britain, and even China have forbidden abortions based on sex. But those laws are infirmly enforced, and the odd thing is that people have come to the United States to get late term abortions of this kind forbidden even in the East.  

We have seen feminist writers such as Ms. Mara Hvistendahl mapping out the severity of the problem, with an evident, felt sense of the “wrongness” of killing children in the womb because they are female. But instead of supporting the restriction of abortion, she rails against an obscure professor from Amherst College, whom she credits as the evil genius behind this step-by-step strategy. 

As we know, the liberal feminists in America will not countenance any move to bar an abortion based on the sex of the child. The reason is plain: To admit that any abortion could be judged as wrong or unjustified is to break through the legal wall that protects the right to order an abortion at any time for any reason. It is the beginning of the end, for it opens the legislative arena to all of those judgments reached by ordinary folk about the kinds of abortions that would be unjustified, and therefore rightly forbidden.

PRENDA was brought to the floor of the House on May 31, and once again the rituals of moral evasion set in: This was yet another move, we heard, to roll back that right to abortion. But how could it be in “the interests of women” to acquiesce in the killing of women on a massive scale? 

And yet put aside the “loss” now of millions of women in the world, and thousands in the United States: Why is it simply not wrong in principle to kill babies because they are female – regardless of how many people are doing it?  

Rep. Jerry Nadler and the Democrats insisted that the Republicans were hypocrites because they wouldn’t vote for other bills, with more liberal programs giving benefits to women – as though we had to purchase the right to bar the killing of women, at the cost of giving more patronage and payoffs to feminist groups. 

PRENDA received the votes of 226 Republicans and 20 Democrats; 161 Democrats and 7 Republicans opposed it. But for reasons we’ll have to explain at another time, the bill was brought up under rules that required a vote of two-thirds for passage. This was clearly a test run. But what it revealed again is the way in which souls have become twisted out of shape over the years as people have absorbed the rituals of evading the moral argument.


Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.