Sex-selective abortion bans are part of a larger strategy by anti-abortion groups to pass a variety of state-level bills restricting abortion. Anti-abortion groups frame sex-selective abortion bans in women’s equality terms. This puts some pro-choice feminists between a rock and a hard place. They oppose the bans because the laws burden the right to choose, but they also believe that it is sexist for a woman to terminate her pregnancy just because she does not want to give birth to a girl. As a result of this tension, it appears that some pro-choice feminists support the legislation while others express no view about it. With some notable exceptions, pro-choice organizations have not devoted significant resources to opposing the bans even though the sex-selective abortion bills were the second most often introduced anti-abortion legislation in 2012.
There appears to be a Rawlsian “overlapping consensus among some pro-choice and pro-life people in the United States in regard to” sex-selective abortion bans. Pro-life people oppose sex-selective abortion because they oppose abortion for any reason. Pro-choice people in the United States oppose sex-selective abortion because they are concerned about equality for women and girls. The title of an article by Noah Berlatsky, a writer for The Atlantic, observes this consensus. In his article, “Neither Pro-Life Nor Pro-Choice Can Solve the Selective Abortion Crisis,” he suggests that sex-selective abortion in the United States is an issue that both proponents and opponents of legal abortion rights should work together on.1 An analysis of legislative voting records presented in Chapter 3 suggests that pro-choice legislators in a few states voted in favor of prohibitions on sex-selective abortion. Another indicator of the overlap in positions between the two factions is the fact that the term “gendercide,” coined decades ago by a staunch feminist supporter of abortion rights,2 is now the rallying cry for anti-abortion movement actors.
I argue that scholarship that informs these questions—feminist legal theory and international human rights theory—has not considered questions of this nature and thus does not provide adequate tools in sorting through the competing rights. Both of these theoretical perspectives support a universal view of practices and rights. None of the many variants of American feminist legal theory have conceived of practices that so radically change meaning that they may be oppressive to women in one country, but not repressive when undertaken by women in another country. Though it should be noted that recent scholarship has been attuned to the view that different regulatory approaches may be necessary in regard to a practice based on the context in which the practice emerges.
The lines in the sand are even more firmly drawn in international human rights theory and practice on these questions. Modern international human rights theory is built on the premise that all rights are “universal”—everyone everywhere has the same substantive human rights. If a practice violates human rights in one country, it is also thought to violate human rights in another country. On the opposite pole of universality is cultural relativism. The extreme form of cultural relativism is problematic because it uses culture and religion to shield practices that are oppressive to women. The strong force of universalism of human rights is necessary to counteract the extreme forms of cultural relativism.
I endeavor to create a conceptual space between these two poles. In contrast to this universalizing messages in both feminist legal theory and international human rights law, I argue that whether or not bans on certain practices of immigrant women promote women’s rights should be ascertained using an evidence-based understanding of the practice in the context in which it occurs. I develop the framework of a new approach to evaluating regulations on the practices of migrants. This transnational feminist legal approach is a methodology that emphasizes both the context of the immigrant-sending and migrant-receiving country in evaluating bans on women’s behavior.
I argue that in evaluating whether or not a practice is oppressive to women, we should be open to the possibility that when the practice emerges in a new context, it has a different human rights impact. The universal approach to human rights is not adequately skeptical of claims that practices have the same negative human rights impact across multiple country contexts. Once a practice is thought to be contrary to human rights in one country context, it is assumed to also be discriminatory in another country context. In contrast, I suggest that policymakers in migrant-receiving countries should not leap to this conclusion.
In examining the behavior of people who trace their origin to another country, some people in migrant-receiving countries also assume that immigrants will undertake similar practices as people from their country of origin because they overemphasize the role of “culture” in shaping behavior and underestimate the role of the larger societal structures and context in influencing behavior. In contrast, I call for a careful empirical analysis that ascertains the scope of the practice in question in immigrant communities, the motives for the practice, and the impact the practice is likely to have in the migrant-receiving country.
The politics and discourse surrounding sex-selective abortion bans in the United States provide a rich case study for critiquing shortcomings in existing feminist legal theories as well as in developing a new methodology, the transnational feminist legal approach. Using the general principles of the transnational feminist legal approach that I develop in Chapter 1, I propose a specific framework in Chapter 2 that can be used to evaluate and resolve the competing rights in question when bans on sex-selective abortion are considered.
In proposing bans on sex-selective abortion, anti-abortion advocates have successfully argued that the bans are necessary to protect fetuses from sex discrimination. Pro-choice feminists and scholars have not successfully rejected this framing. Indeed, some advocates have tacitly accepted it. The context-based legal approach I propose frames the competing rights in question as women’s reproductive rights, on one hand, and the harm that sex selection may cause to girls and women living in a society, on the other. I start from the proposition that reason-based restrictions on the right to choose during the pre-viability period—including sex-selective abortion bans—do burden women’s reproductive rights, but they may be justifiable if women in any given society are exercising their rights in a way that harms women as a group.
In India, for example, many women want to have at least one male child, but they also want to have fewer children. This has led to fewer girls and women in society than there would be had women not aborted female fetuses. There is a consequent male surplus. Emerging empirical studies in India suggest that violence against women is associated with a male surplus.
On the other hand, there is no evidence in the United States that sex selection is widespread. However, the national discourse in the United States on sex-selective abortion has been driven by misinterpretations and misrepresentations of empirical studies of (now) old data on the children born to Asian American women. Indeed, the anti–sex-selective abortion bans in the United States were fueled by an article by economics professors Douglas Almond and Lena Edlund published in an influential multidisciplinary science journal in 2008. They found that when Chinese, Indian, and Korean families in the United States have one or two girl children, they are more likely than Caucasian Americans to have a boy as their next child. Their study was based on a 5% representative sample of the U.S. Census of 2000, which contained only 324 Asian American families with three children. They found that a small subset of these Asian American families select for boys. Yet, proponents of sex-selective abortion bans in state legislatures misrepresented these findings (and subsequent studies) as proof that “[s]ex-selection abortions have the effect of diminishing the representation of women in the American population.”3
It is no surprise that the anti-abortion movement was successful in exaggerating the findings of this technical article—even the