By Cathy Zhang
In February, the Sixth Circuit Court of Appeals issued a one-sentence order allowing Tennessee’s “reason ban” abortion restrictions to go into effect. The restrictions make it a felony for a provider (or any other person) to perform an abortion if the provider “knows” the patient is seeking an abortion on account of the fetus’s sex, race, or probable diagnosis of Down syndrome.
The court below had previously enjoined the Tennessee law, which also includes a pre-viability abortion ban. This order leaves the previability ban in place while lifting the injunction on the reason bans; the reason bans will remain in effect until the Supreme Court makes a further ruling on abortion in Dobbs. In her dissent, Circuit Judge Karen Nelson Moore charged that the court’s order “subvert[s] the normal judicial process” and reflects a growing tendency of federal courts “to delay the adjudication of laws that significantly impair constitutional rights.”
Numerous health organizations, racial justice groups, and disability advocates alike have warned against the harms that the reason bans will inflict on people of color and disabled persons. Statements from these groups, along with 19 states and the District of Columbia, a host of constitutional law scholars, and other amici make clear that the law’s purported concern for marginalized groups belies an effort to restrict abortion access at the expense of pregnant people’s health and constitutional rights.
The Three Reasons
As a native Tennessean, I have been following the trajectory of the reason bans since the law’s passage in July of 2020. Living in Nashville in the months following the passage (and immediate injunction) of the reason bans, I noticed that in local news coverage, advocates of the bans tended to emphasize the Down syndrome and race elements of the ban over the sex element.
The political emphasis on the former two elements makes intuitive sense. The Down syndrome reason ban reflects a growing trend in genetic anomaly-related abortion legislation that, in the words of disability advocate amici, “exploits the very community it claims to protect” and deprives families of the freedom to make an affirmative decision to give birth to a child with a disability.
The attention to race reflects a recent revival in legal discourse around race and eugenics, marked by a 2019 concurrence in which Justice Clarence Thomas charged that “[e]nshrining a constitutional right to an abortion based solely on the race, sex, or disability… would constitutionalize the views of the 20th-century eugenics movement.”
Interestingly, however, across the U.S., the legislation itself reflects a different focus. When I recently began looking into reason bans in other states, I was surprised to find that some did not include all three reasons of sex, race, or a genetic anomaly. Even more unexpected was the relative distribution of these bans: the most widely enacted reason ban across states is a prohibition against abortions on account of sex, followed by genetic anomaly, with race selection banned in the fewest states.
Underpinning the sex reason bans across the country is the rationale that without these bans, cultural biases will spur sex-selective abortions that lead to population imbalances like those China and India, where there are tens of millions more men than women.
Anti-Asian Stereotyping
References to alleged “gendercide” in China and Asia have been prevalent in the passage of sex-based reason bans across the country. Researchers from the Harvard Kennedy School have pointed out that the association between growing AAPI populations in certain states and those states introducing sex-based reason bans reflects systemic anti-immigration policies. That sentiment has been exhibited in comments by state legislators, such as one statement by an Arizona senator that “cultures are bringing their traditions to America that really defy the values of America, including cultures that value males over females.”
Anti-Asian stereotypes were not only pushed during the passage of the Tennessee ban, but also codified in the Tennessee Code. The reason ban cites to § 39-15-214, which warns of “[w]idespread sex-selective abortions in Asia” and uncited data that “suggests that sex-selective abortions of girls are common among certain populations in the United States.”
This rationale perpetuates harmful stereotypes against Asian patients and gives rise to the concern that Asian individuals seeking an abortion in Tennessee will be denied care. This is not merely a speculative concern about individual discrimination, but a recognition of the fact that state-imposed barriers to care are disproportionately burdensome for Asian patients due to economic, immigration, and linguistic challenges. The National Asian Pacific Women’s Forum states that the stereotyping in Tennessee’s ban, in combination with systemic inequities, “will almost certainly result in AAPI women being denied the same abortion care that will still be available to non-AAPI women.”
Considerations from China
Reason bans undoubtedly limit reproductive autonomy and pose many harms to pregnant people. For these reasons, they’re also likely to exacerbate the concerns they set out to address.
Even under a good-faith (if not empirically supported) acceptance that sex-based reason bans are designed to prevent population imbalances seen in places like China, Tennessee’s reason ban is at best a poorly contextualized policy misstep. A basic understanding of China’s legal history and current policy challenges makes clear that government coercion in family planning is not a tenable solution to gender imbalances, but rather a fundamental cause of them.
China’s one-child policy is widely — and correctly — understood to have been the primary driver of the gender imbalance in China. The role of abortion in this, however, is mischaracterized by the legislators behind reason bans in states like Tennessee.
Sex selection took many forms, including infanticide and abandonment. When my cousin was born in rural China in the early 80’s, her parents initially planned to pass her off as the daughter of another couple so that they could try again for a son. To be sure, there was a cultural pressure to have a son who could carry the family name, but the pressure to raise a son was as much economic. A son could help on the family farm, had more earning potential, and did not require a dowry. Increased access to abortion care may have changed the ways in which sex selection took place, but was far from the originator of the phenomenon.
Concerns about the long-term economic implications of a child’s gender persist today, though in very different forms. The one-child policy distorted both gender and age distributions, resulting in a caregiving shortage for China’s aging population, which has traditionally relied on filial care. This, in combination with the expectation that daughters are more likely than sons to be reliable caregivers, has placed new value on daughters from the one-child generation.
During the summer of 2015, not long before China ended its one-child policy, I lived with a relative and her five-year-old daughter in Chengdu. During that period, she shared with me why even in the absence of the one-child policy, she and many other parents her age would choose not to have a second child. The cost of raising a child had steeply increased as parents became expected to invest all their resources into one child, so to be among the first families to have a second child might put their first child at a competitive disadvantage compared to their only-child peers. She and her husband also expressed comfort in the fact that their only child was a girl, since parents of daughters could reasonably expect to be cared for in old age.
At the heart of these instincts is a fear among parents that their children will not have the resources to be able to take care of their own families in the future. State intrusions and restrictions around pregnancy only exacerbate this problem by creating uncertainty in family planning. This is as true for Tennessee’s reason ban as it is for any law that strips pregnant individuals of their family planning autonomy.