The XX Factor

Arkansas Passed an Aggressive Law Fighting Sex-Selective Abortion. Fortunately, That’s Not a Real Problem.

This conversation isn’t necessary.


For a party that claims to loathe government excess and overreach, Republicans have a remarkable knack for ginning up legislation to solve problems that don’t exist. In-person election fraud is basically a myth, for example, but Republican state legislatures have enacted law after law making it harder to vote. This week, the governor of Arkansas signed an unusually onerous law protecting society from an vanishingly rare phenomenon: sex-selective abortion.

The new law will require abortion providers to ask the pregnant woman if she knows the sex of her fetus, and to inform her that she may not procure an abortion as a method of sex-selection. But the law goes further, requiring doctors to request the woman’s pregnancy-related medical records and postpone the abortion until “a reasonable time and effort” is spent obtaining them. The Center for Reproductive Rights calls it the first law “forcing health care providers to investigate a woman’s reasons in addition to her entire pregnancy-related history.” Republican governor Asa Hutchinson signed the bill on Wednesday, and it is scheduled to go into effect on Jan. 1, 2018. (Hutchinson has been on a roll this year, signing another bill in January that bans the most common method of second-trimester abortion.)

Abortion law is a particularly rich source of government protection against non-existent threats. On Wednesday, the Republican-controlled legislature in Arizona passed a bill requiring abortion clinics to maintain equipment that could be used to revive a fetus that shows signs of life after an abortion procedure. But research from the Center for Disease Control suggests that deaths occurring after an attempted abortion (in other words, when the procedure initially fails) are extremely rare—143 identifiable cases in 12 years. Other state laws require special pre-abortion counseling or waiting periods that presume women need extra time and information to be sure of their choices. In fact, recent research suggests women are just as confident about their abortion decisions as they are about things like breast cancer treatments and invasive prenatal testing. Other states require abortion clinics to renovate their offices in the name of patient safety. Seeing a pattern yet? The risk of complications from abortion are extremely low.

Seven states currently ban abortion for reasons of sex selection. On paper, these bans may sound like common sense. Polls suggest prospective parents prefer boys to girls by a real and stubborn margin: 40 percent to 28 percent in 2011, according to Gallup, a similar spread to what they found in 1941. What would it look like if such parents starting engineering their families by aborting the girls they didn’t want? In that light, banning abortion on the basis of sex looks kinda-sorta feminist, which is certainly how anti-abortion groups have tried to frame it: Such abortions are “the real war on women,” as one organization put it, while the Federalist warned of a “femicide problem.” Some anti-choice advocates point to skewed sex ratios in China and India, and to research suggesting Asian immigrants may have stronger preferences for sons: Asian immigrant families are likelier to go on to have a third child after having two daughters, for example.

Fortunately, however, sex-selective abortion in the United States appears to be—you guessed it!—extremely, extremely rare. Researchers have looked at the effects of sex-selective abortion bans in Illinois and Pennsylvania and found that they had no effect on sex ratios in the state. And it doesn’t appear to be a widespread problem even when experts look at Asian American communities in particular: Asian Americans actually have more girls than white Americans do. The most that can be said, as the Guttmacher Institute puts it, is that there is “limited and inconclusive evidence” that sex-selective abortions are occurring in certain immigrant communities. It’s a troubling thing that may happen very infrequently, but it’s hardly a scourge in need of aggressive legislation.

Opponents of these laws point out that while they don’t appear to tilt sex ratios in a state, they do have one possible effect: Preventing Asian immigrants from access to abortion. Because determining a woman’s exact motives is essentially impossible, some doctors may err on the side of racism-inflected “caution” and refuse to perform abortions on women in some immigrant communities in order to avoid legal scrutiny, those advocates warn. If that proves true, it sounds like a real problem worth solving.