The Economist - USA (2021-02-06)

The EconomistFebruary 6th 2021 United States 23

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merica’s anti-abortioncampaigners

tend not to be noisy champions of ra-

cial equality, the rights of women or the

disabled. But they intend to change that. In

recent months conservative states have

introduced bills banning abortion on the

grounds of race, sex or the diagnosis of a fe-

tal abnormality. Last week South Dakota

became the latest to do so, when the gover-

nor introduced a bill banning abortion be-

cause of Down syndrome. The aim, besides

limiting access to abortion, is to push a

case before the Supreme Court justices in

the hope that they will use it to overturn

Roe v Wade, the Supreme Court ruling of

1973 that legalised abortion.

Since Amy Coney Barrett joined the

court in October, giving it a 6-3 conserva-

tive majority, such an outcome seems like-

lier than ever. Mary Ziegler of Florida State

University reckons the end of Roe(“a ques-

tion of when rather than if”), is likely to

come through one of these “reason bans”,

or a law banning abortions later in preg-

nancy. Supreme Court rulings allow abor-

tion on demand (that is, for any reason) un-

til a fetus is viable, at around 24 weeks.

Polling suggests most Americans think it

shouldgenerallybelegalinthefirst three

months of pregnancy, but not thereafter.

In November a federal appeals court up-

held a ban in Tennessee on abortion on the

grounds of race, sex or a diagnosis of Down

syndrome (it struck down another law ban-

ning abortions as soon as a heartbeat was

detected, around six weeks). The state thus

became one of four to have a law banning

abortion in cases of fetal abnormality and

one of around a dozen to have a bar on ter-

minations on particular grounds including

sex or race. Elsewhere, courts have blocked

such bans. But in some of those cases,

judges have called for the Supreme Court to

reconsider them. In January, when a court

struck down a ban in Arkansas on abor-

tions because of Down syndrome, two of

the three judges thought the ruling failed

to adequately consider “the state’s compel-

ling interest in preventing abortion from

becoming a tool of modern-day eugenics”.

The revival of reason bans as a weapon

in America’s long-running abortion wars is

shrewd. Such bans are potent because they

are rooted in the argument that abortion

can constitute discrimination against a

particular group. Melissa Murray of nyu

Law points out that though Supreme Court

justices rarely overturn earlier rulings they

are more likely to do if there is a “special

justification”. In some cases, that has been

the desire to correct racial injustice.

Clarke Forsythe, senior lawyer for

Americans United for Life, which has

drawn up many successful state-level abor-

tion regulations, says he believes reason

bans, especially in the case of Down syn-

drome, are both emotive and “persuasive

as a matter of law”. The legal strides made

in the prohibition of discrimination in

America, he says, means that the anti-dis-

crimination rationale of such bans could

override the right to an abortion declared

by Roeand subsequent rulings.

There is no evidence that women in

America have abortions because their ba-

bies would be black, Asian or female (as the

race and sex bans imply). There is evidence

that they do so when the fetus they are car-

rying is found to have a genetic abnormali-

ty: a majority of diagnoses of Down syn-

drome result in an abortion. But even if it

was decided a woman should be deprived

of the ability to end a pregnancy for this

reason, such bans are impracticable. It is

“ridiculous and impossible”, says Khiara

Bridges, a professor at University of Cali-

fornia, Berkeley School of Law, to try to de-

termine the reason for an abortion, even if

a woman has received a particular prenatal

diagnosis. “She may have also lost her job.

There is rarely a single reason a woman has

an abortion.” State-level bans may also lead

to more abortions later in pregnancy as

women are forced to look (and then travel)

further afield for providers.

Ellen Clayton, a professor of paedia-

trics, law and health policy at Vanderbilt

Law School in Tennessee, says one of the

arguments increasingly advanced by anti-

abortionists, that abortion of Down syn-

drome babies fosters a wider atmosphere

of discrimination, is “flat out wrong”. She

points out that even as prenatal diagnostic

tests have improved, increasing the num-

ber of such abortions, other medical ad-

vances and changing attitudes have meant

people born with Down syndrome live lon-

ger, have more opportunities, and are more

integrated into society than in the past.

Abortion providers, meanwhile, are

concerned that the proliferation of such

bans will have deleterious effects on wom-

en’s prenatal health care. Dr Colleen McNi-

cholas, the chief medical officer for

Planned Parenthood of the St Louis Region

and Southwest Missouri—the last abortion

clinic in the state, thanks to regulations

that make it impossible for clinics to oper-

ate—says it is “ethically questionable if not

unethical altogether” to offer prenatal test-

ing without being able to offer interven-

tions. Doctors, she says, may also find it

hard to know what is allowable, since such

laws are “written to be confusing”.

Yet some believe the battling sparked by

such bans may not be entirely negative.

The arguments that tend to dominate ei-

ther side of America’s polarised abortion

debate—that abortion is simply an issue of

bodily autonomy on one and plain wrong

in every case on the other—makes it im-

possible to reach any kind of consensus on

how abortion laws and practices might be

reformed. The introduction of issues that

require a more nuanced approach might

improve the debate. “Abortion rights activ-

ists’ refrain of ‘my body, my choice’ is pow-

erful, but they should also be having con-

versations about ethical decisions around

abortion, including on things like disabili-

ty rights,” says Ms Bridges. “Otherwise,

they cede such issues to the other side.” 7

WASHINGTON, DC

How religious conservatives learned to

love anti-discrimination laws

Abortion arguments

Roe-ing back

Anti-discrimination campaigner

Budget Model, estimates that it would con-

tribute a mere 0.6% of growth.

Unlike Mr Obama, Mr Biden has never

been mistaken for a remarkable orator. His

choice of one particular word, “unity”, as

the opening theme of his administration is

imprecise. Mr Biden seems to mean not a

return to the era of good feelings but a low-

er-temperature politics where the party in

charge still leads but compromise is to be

pursued. Some Republicans, tripping over

the imprecision, have professed anger and

confusion that Mr Biden is in fact pursuing

conventional Democratic policies.

Yet for all that, a compromise is now

discernable. Senate Democrats have al-

ready voted to start debate on a budget res-

olution, which would allow them to pass a

compromise-free stimulus bill through a

parliamentary procedure called reconcilia-

tion, by which budget bills can pass with 51

votes, avoiding a filibuster. But Mr Biden’s

team appears open to accept means-testing

the $1,400 cheques, which would bring the

overall cost of the package down signifi-

cantly. Mr Obama mustered only 3 Republi-

can votes for his stimulus. Mr Biden could

well improve on that. 7