Thursday, May 31, 2012

On sex-selective abortion bans

Ross Douthat is upset because Dana Milbank wrote a column containing the sentence "The problem with Franks’s proposal is that it’s not entirely clear there is a problem. Sex-selection abortion is a huge tragedy in parts of Asia, but to the extent it’s happening in this country, it’s mostly among Asian immigrants." I generally agree with Douthat that criminal laws should reflect universal norms of what are right and wrong, and that trying to take into account interest group electoral politics in fashioning the criminal code is bad. On the other hand, I am not convinced that Milbank's statement is so horrible. It should not be ridiculous to argue that Congress shouldn't criminalize behavior that is not really a problem on resources allocation grounds. If the problematic behavior is something that largely goes away as members of a particular immigrant group assimilate into broader society, that is probably information that Congress should take into account in making such resource allocation decisions. Also, I am a believer in moral pluralism: if members of different racial and ethnic groups disagree on whether a behavior is morally wrong, it is probably wise for members of Congress to acknowledge the existence of real disagreement and avoid criminalizing the behavior.

All that said, I'm not quire sure how sex selective abortion bans are supposed to work. "So, Madame Merle, are you planning to abort your child on the basis of sex? No? Okay, then we're good to go. Once it is widely known that such laws exist, who in the world will say yes to that question?  As in sex discrimination cases in employment or education, a prosecutor could look elsewhere for evidence that a woman decided to abort a fetus on the basis of sex. But that would entail rather intrusive investigations into the woman's private life -- e.g. prosecutorial or police interviews with the woman's close friends, romantic partner, or family members -- and all of this might start to seem weird and problematic on privacy grounds. 

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