PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

RR