Originally written by Aram A. Schvey for On The Issues Magazine.
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What’s chutzpah? Until December 2011, I would have deferred to the classic definition in Leo Rosten’s The Joys of Yiddish: chutzpah is a man who kills his parents and then throws himself on the mercy of the court as a lonely orphan. But at the end of the year, Rep. Trent Franks (R-AZ) introduced a bill to teach the world the real meaning of chutzpah: the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011.”
The bill’s sanctimonious name belies its content: the bill invokes a feminist icon while attacking women’s reproductive rights, and a civil-rights hero while requiring doctors to engage in racial profiling of their clients.
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This bill would make it a crime for a doctor to perform an abortion which a patient seeks “based on” the sex or race of the fetus or parent. Representative Franks claims his intention is to protect women who belong to communities of color and immigrant communities. In light of Franks’s voting record of consistently opposing legislation to combat sex- and race-based discrimination, that’s a tough sell. But, of course, Franks isn’t really interested in eliminating sex- or race-based discrimination. Rather, he is interested in eliminating abortion — a fact that’s made even more obvious by knowing that Franks has sponsored or supported every major piece of anti-choice legislation this Congress.
Franks is cynically cloaking himself in the garb of feminism and racial equality in an effort to chip away at Roe v. Wade, the 1973 Supreme Court case that recognized a constitutional right to abortion. The bill, for the first time, would criminalize an otherwise-legal abortion simply because of a woman’s motivation in seeking it — something that is constitutionally impermissible prior to viability. A doctor who performs a safe and otherwise legal abortion on a woman could be sued by her parents or the man who impregnated her, and could even face up to five years in jail, merely because the woman’s motivation was wrong in the eyes of the bill’s author. The clear purpose of such a vague law is to threaten providers with prison and to even further chill the access of women, and low-income women of color in particular, to a full range of reproductive services.
Bad on Evidence, Worse on Policy
The bill is predicated on a claim that some segments of Asian-American communities are engaging in sex selection and female feticide. Any claim of concern for these women is feigned because the bill does nothing to address the underlying sex discrimination that gives rise to son preference — and nothing in the bill would actually help empower the few women who may be subject to pressure by family members to get an abortion.
Instead, the bill squarely aims to punish doctors who perform safe, legal abortions. The bill thus invites doctors to engage in racial profiling of their Asian-American clients. One witness testifying in favor of the bill suggested, for example, that doctors would need to interrogate women who are seeking a second abortion — all the more so if the fetus is female in both instances. This kind of intimidation, particularly of minority women, will jeopardize their access to safe, comprehensive reproductive health services.
The profiling gets stranger still when it comes to “race-selective abortions.” As Franks sees it, African-American women are waging genocide (a term he used repeatedly in the hearing) against African-American children. Under the bill, doctors would have to ask black women whether they are having an abortion because the fetus is black. No, that’s not a typo. This may sound insane, but this is exactly how the law would work, according to Steven Aden, a lawyer with the Alliance Defense Fund called to testify by the anti-choice lawmakers. (He did not address the question of whether white women would also be asked if they are getting an abortion because the fetus is white.)
So much for honoring Susan B. Anthony’s and Frederick Douglass’s legacies.
To add insult to injury, Franks also presided over a bizarre spectacle of a hearing on the bill. The six anti-choice lawmakers — all white men — invited three witnesses, also all white men, to testify on a bill aimed at “protecting” Asian-American and African-American women from their reproductive choices. I have nothing against white men — I happen to be one — but there was something a bit absurd about having all-white, all-male lawmakers and witnesses promoting a bill that claims to speak for minority women.
The only witness objecting to the bill — Miriam Yeung , executive director of the National Asian Pacific American Women’s Forum — is a woman of Asian descent. Anti-choice lawmakers seized on the opportunity to shamelessly ask Yeung, whose children had just left the hearing room, whether she, “as a mother,” could have aborted them.
A good bit of the rest of the hearing focused on patently offensive comparisons between the Holocaust and abortions in the African-American community, suggesting that black women were somehow unwittingly complicit in a plan to develop a white master race. It was more than a little disconcerting to see a hearing in the United States Congress devolve into a lunatic-fringe Internet-chat-room conversation.
But there’s nothing funny about efforts to enact the nutty Franks bill. Not only would it target Asian-American and African-American women, but it would undermine abortion rights for all women.
All abortions performed after an ultrasound would be potentially suspect because the woman could have determined the sex of the fetus at that time. But because sex-determination kits are readily available over the counter at drug stores, any abortion is potentially suspect, because the woman could have learned the sex of the fetus. Under the proposal, any doctor who sees a patient — especially one from a community of color — would have to interrogate her about whether the race (or sex) of the fetus is playing a role in her decision to have an abortion.
All of this only serves to jeopardize women’s health. An environment of distrust between doctors and patients is inevitable, as is the likelihood that some doctors will be chilled from providing services — again, especially to patients of color. Several UN agencies, led by the World Health Organization, released an interagency statement on sex-selection earlier this year and concluded that “[d]iscouraging health-care providers from conducting safe abortions for fear of prosecution thus potentially places women in greater danger than they would otherwise face.” And similarly, when access to legal abortion services is restricted, it is “likely to result in a greater demand for clandestine procedures which fall outside regulations, protocols and monitoring.”
The very notion of race selection — that black women are having abortions as part of a eugenics plot — is ludicrous. And the way to address the very limited sex-selection issue that does exist here in the U.S. is not by passing legislation that restricts access to abortion services and jeopardizes women’s health. Instead, efforts should focus on improving the status of women, educating communities about the value of girls and combating the underlying sex discrimination and son preference that gives rise to sex selection. Indeed, a similar bill was defeated by the Georgia legislature last year. So, if Franks really wants to address the issues he claims to be concerned about, he should support laws and policies that promote equality such as the Equal Pay Act, the Violence Against Women Act, and the Lilly Ledbetter Fair Pay Act. But to oppose these measures while claiming to be interested in “protecting” women, especially women of color, from themselves … well, that’s chutzpah.
Aram Schvey is the Policy Counsel for Foreign Policy and Human Rights at the Center for Reproductive Rights and is responsible for advancing the center’s international policy objectives in Washington, D.C.