Abortion and Parental Rights

Here’s a hypothetical that I’ve been pondering, and I’m curious to hear what other things.  Suppose a state passed a law that prohibited doctors from telling parents the sex of their fetus.  The rationale for this would be that sex-selection abortions are deemed morally wrong by society.  (All other information about the fetus could be disclosed.)  Would such a statute be invalid? If so, why?  Parental right to know?  An ‘undue burden” on the right to have an abortion?

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10 Responses

  1. Hume says:

    Moral/political claim: it is illegitimate to criminalize the exchange of factual information simply because of a contingent causal relation to morally inappropriate behavior, especially in a situation where the information is relevant to fundamental interests *other than* its use in a morally inappropriate way (i.e., parents’ interest in knowing the sex of their child). Also, a mere assertion: I do not think any analogy to the criminalization of “conspiracy” can carry any weight here.

  2. wondering says:

    I think such statute would run afoul of the First amendment. This is particularly so because such law is wildly over-inclusive — at least in the US, most people want to know the sex of their fetus for reasons entirely unrelated to sex-selective abortions.

  3. Gerard Magliocca says:

    This clearly could present a First Amendment problem–I’m just trying to figure out if that is the only constitutional flaw.

  4. Howard Wasserman says:

    I think you could make an argument that denying truthful information burdens the right to have an abortion. But that would raise some interesting tensions for those opposed to mandatory counseling/ultra-sound laws, which argue that the forcing of information is an undue burden.

  5. I. Glenn Cohen says:

    It may depend on whether you think there is a right (or as I put in rights, plural, http://ssrn.com/abstract=1114806) not to procreate protected by Fourteenth Amendment that pertains to choosing facts about the child one might have. On this question, I would take a look at John Robertson, Jessie Hill, and my own work. Ted Ruger also has a project on the submerged constitutionalism of health law, from which I suspect he (or someone inspired by him) might argue that there may be problems in allocating the power to this to the federal rather than state government — the argument is conceivable, though I am not sure how persuasive in this context.

  6. I’m not a Con Law person, but I am sophisticated consumer, and I’m going to fight your hypo by saying that this bill would never pass. Two groups would hate this bill: mothers and retailers. Compare the amount spent on baby clothes and decor now with the pre-ultrasound world. Pregnant women have a lot of time to peruse Pottery Barn catalogs and high-end boutiques before babies come. Without finding out the sex, moms would either stick with yellow/green/lavender or not decorate until after the baby comes, and then would find that they have no time and the baby can just sleep in a drawer. Anecdotally, the friends I have had who choose not to find out are more often having their second or third babies, not the first. Also, any farmer with an ultrasound machine can tell you the sex of your baby, so “doctor” would have to be fairly broad.

  7. Joe says:

    The “the profound moral and spiritual implications of terminating a pregnancy” that Casey provides women a limited right to determine for themselves include sex choice. In certain cases, there is a medical reason to know as well, including if the child might have a genetic trait that is sex specific. “Our obligation is to define the liberty of all, not to mandate our own moral code.” The fact society as a whole finds the choice immoral is not enough. The choice here is for the individual to make. The ministerial exemption case underlines even equal protection concerns don’t override private matters of conscience.

  8. Pato says:

    I would understand that goverment could try to establish some kind of protection against discrimination. However the law has to have some kind of reassonable conection with which it looks to protect. Goverment cannot ban the use of cars to avoid car accidents or flights to avoid planes from falling.
    Even though those purpose are among goverment objectives the objectives should be reached respecting as much as possible the envolved rights. Goverment could seek the reasons for abortion without prohibiting the sex information.

  9. I am not sure a parental right to know can be constitutionally justified, but the Fourteenth Amendment does protect the parental right to determine a child’s upbringing. It might be argued that knowing the child’s gender would determine the parents’ upbringing of the child, namely, whether and how to bring up the child. I am thinking of the line of Supreme Court cases that include Pierce v. Society of Sisters, Meyer v. Nebraska, etc. The wrinkle, of course, is that these cases deal with an already born child, as do all constitutional arguments.

  10. Joe says:

    As to #9, a liberty interest regarding family can include determining the type of people you wish to be in your family, including the sex of the children. A person, e.g., might decide sex matters when they adopt. Can the state determine this is wrong and only allow adoption when you don’t know the sex of the child? Note the concern is not some serious altering of the balance of the sexes but only “moral” concerns.