Letter from Catherine Glenn Foster, M.A., J.D.
June 25, 2020
Dear Governor Reeves:
I serve as President and CEO of Americans United for Life (AUL), America’s original and most active pro-life advocacy organization. Founded in 1971, before the Supreme Court’s decision in Roe v. Wade, AUL is active in all fifty states and is known as the legal architect of the pro-life movement. AUL attorneys are experts on constitutional law and abortion jurisprudence. I appreciate the opportunity to submit legal testimony in support of H.B. 1295, regarding abortion discrimination on the basis of race, sex, and genetic abnormality in Mississippi.
I write to urge you to sign H.B. 1295, the “Life Equality Act of 2020.” This Act would protect all children from prenatal discrimination on the basis of race, sex, or genetic anomaly, but specifically it would protect baby girls and children diagnosed with Down syndrome and other congenital disabilities.
Abortions Based on Race Are Discriminatory
As Mississippi lawmakers note in the “Legislative findings and purpose” section of this bill, discrimination on the basis of race is “odious in all aspects.”1 Right now, our nation is currently grappling with its legacy of racial discrimination and the deep wounds it has caused. The color of our skin should never impact how we are treated in any way, including in the womb. A preborn person of color is owed freedom and equality, the birthright of every human being. Too often, our society has looked the other way when abortion is used as a tool of oppression, ending the lives of persons of color before they take their first breath.
When considering Indiana’s version of the Life Equality Act in 2019, Justice Clarence Thomas worried that “technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics.”2 He lays out the history of the American eugenics movement and its link to the precursors of the modern abortion industry, stating that “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”3 Denying any child the right to life based on the color of his or her skin is an injustice that Mississippi can prevent by passing H.B. 1295.
Abortions Based on Sex Are Discriminatory
A sex-selection abortion is an abortion undertaken to eliminate a child of an undesired sex. Importantly, the targeted victims of such abortions are overwhelmingly female. The practice of sex-selection abortion has drawn increasing attention in the U.S. and worldwide. The problem is so severe in some countries that in 2005 the United Nations Population Fund (UNFPA) termed the practice “female infanticide.” The UNFPA described this as a “symptom of pervasive social, cultural, political and economic injustices against women, and a manifest violation of women’s human rights.”4 According to the UNFPA, recent studies have shown 126 million girls “were missing in 2010 due to gender-biased sex selection,” which includes prenatal sex selection, and by 2020, “more than 142 million women will be missing.”5 Writer Mara Hvistendahl estimates the number is closer to 163 million worldwide.6 Even Hillary Clinton identified sex-selection abortions as part of abuse against women. In a 2009 interview, then-Secretary Clinton stated that “unfortunately with technology, parents are able to use sonograms to determine the sex of a baby, and to abort girl children simply because they’d rather have a boy.”7
Some studies have found that sex-selection abortions are being performed in the United States.8 For example, researchers concluded that the most logical explanation for the irregularity in boy-birth percentages in the United States is gender selection. Given the high expense and rarity of advanced reproductive technologies such as in vitro fertilization (IVF) or sperm sorting, this gender selection is most likely taking place by abortion.9 Analysis also revealed a deviation in favor of sons in Western society to be evidence of sex selection, most likely at the prenatal stage.10 One survey found that there still exists a moderate “tendency for American adults to express overall preferences for a boy over a girl.”11 Even the efforts of pro-abortion advocates to defeat bans on sex-selection abortions by claiming these abortions are rare acknowledge that sex-selection abortions happen.
Abortions Based on Genetic Abnormality Are Discriminatory
Prenatal testing is becoming increasingly common; many diagnostic tests are intended to provide parents and healthcare providers with information about an unborn baby’s health and development, as well as the child’s sex. Prenatal testing can be a valuable tool for diagnosing and treating conditions that threaten the health or life of the mother and/or the child. However, in some cases and despite the documented error rates for such testing, it is also being used as a precursor for aborting a child of an undesired sex or with potential genetic abnormalities. For example, some studies have indicated that somewhere between 50 and 90 percent of children diagnosed with Down syndrome are aborted.12 Clearly, this chilling slide toward eugenics—specifically eliminating persons with certain hereditary characteristics—must be confronted.
The U.N. Committee on the Rights of Persons with Disabilities (CRPD), stated “[l]aws which explicitly allow for abortion on grounds of impairment violate the Convention on the Rights of Persons with Disabilities.” The CRPD rejected the idea that a prenatal diagnosis of a genetic abnormality is “incompatible with life” and noted that “experience shows that assessments on impairment conditions are often false,” but affirmed that even if the diagnosis turns out to be accurate, discriminating on the basis of genetic abnormalities “perpetuates notions of stereotyping disability as incompatible with a good life.”13 The U.S. Congress has additionally found that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.”14 In fact, polling has shown that 99 percent of people with Down syndrome are happy with their lives, 99 percent of parents of Down syndrome children love their child, and 97 percent of children aged 9 to 11 with a sibling with Down syndrome love them and are proud of them.15
Mississippi Has a Legitimate Interest in Preventing Discrimination, Which Is Not Trumped by the “Right” to Abortion
It is far from clear that banning abortions on the basis of race, sex, or genetic abnormality is unconstitutional. The U.S. Supreme Court has not held that a woman’s interest in abortion trumps the state’s interest in preventing disability discrimination, and the lower federal courts are split on whether and how Roe v. Wade and Planned Parenthood v. Casey apply. By passing H.B. 1295, Mississippi can speak on the issue and affirm that this form of discrimination should not be protected under Roe or Casey.
H.B. 1295, and bills like it, are about preventing discrimination on the basis of race, sex, or genetic difference. “None of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”16 As stated in Gonzales v. Carhart, the Supreme Court “has confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned.”17 Discriminating on the basis of race, sex, or genetic disability has been condemned; it is thus natural to extend this protection against discrimination to life in the womb. If the State has an interest in stopping discrimination based on race, sex, or disability, the State should also have an interest in preventing discrimination on these bases by stopping eugenics.
I strongly encourage Mississippi to take this crucial step toward preventing discrimination based on the child’s race, sex, or genetic disability, and enact H.B. 1295. Thank you.
Catherine Glenn Foster
President & CEO
Americans United for Life