North Dakota enacts law banning Down syndrome-selective abortion

northdakota-locatemapYesterday, the Governor of North Dakota signed House Bill 1305, prohibiting sex-selective abortion and abortion for genetic abnormality. That same day, the Governor also signed a law banning abortion once a fetal heartbeat is detected. As a result, with abortion being invoked, the media reporting and instant comments devolved into pro-life/pro-choice arguments. But let’s look at the actual language of the law that concerns Down syndrome abortions and see what it actually says before we choose sides. 

The relevant section of the law is quite succinct, really:

A new section to chapter 14-02.1 of the North Dakota Century Code is created and enacted as follows:

Prohibition – Sex-selective abortion – Abortion for genetic abnormality Penalty. 

1. Notwithstanding any other provision of law, a physician may not intentionally perform or attempt to perform an abortion with knowledge that the pregnant woman is seeking the abortion solely:

a. On account of the sex of the unborn child; or

b. Because the unborn child has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality.

2. Any physician who performs an abortion in violation of this section is guilty of a class A misdemeanor.

Let’s take this piece by piece.

The first prohibition is sex-selective abortion. This actually seems an area of consensus. In February 2007, ACOG issued an ethics committee opinion saying the same thing: that using prenatal testing for the purposes of sex-selection is unethical. The committee opinion recognized that sex-selective abortion reinforces sexist attitudes and is prejudiced against the sex selected against, in most cases female. Laws banning sex-selective abortion have also been passed in Pennsylvania, Arizona, and Oklahoma.

Let’s break the second prohibition down into its two subparts, taking the last first.

It would also seem not just a point of consensus, but basic reason to be opposed to abortions based merely on the “potential for a genetic abnormality.” The story of the false positive prenatal test is widely enough known now. While a screening test may reassess your chances for having a child with a genetic condition, a true positive can be returned only by a diagnostic test. Professional medical organizations recommend that women should be offered diagnostic testing and only require counseling on termination following a diagnosis, not just a screening test result. At the recent ACMG conference, a presenter spoke of a patient who received a positive non-invasive prenatal test result–still just a screening test–and, nonetheless, proceeded to abort based on the result. An audible gasp echoed throughout the conference hall.

So far, two-thirds of the recently enacted prohibition actually are consistent with current professional medical guidelines: sex-selective abortion is professionally prohibited as unethical and  terminations should be based on a diagnosis, not the mere chance of having a child with a genetic condition. Now, let’s address the last two remaining parts.

The provision prohibiting abortion based on the diagnosis of a genetic abnormality is where the legislation runs counter to medical guidelines. As just mentioned, not only is termination following a prenatal diagnosis for conditions like Down syndrome authorized, it is the choice most often made by those with a prenatal diagnosis and medical guidelines require obstetricians to counsel their patient about termination following a prenatal diagnosis. Therefore, on this provision, the law runs counter to the medical standard of care. However, our country has a rich history of legal requirements that run counter to the societal norm.

The 13th, 14th, and 15th Amendments upended what had been legally-sanctioned slavery. Similarly, the Civil Rights Acts of the 1960’s trumped state segregation laws and the education and anti-discrimination laws of IDEA and ADA were enacted precisely because of widespread discrimination against the disabled. Even the constitutional recognition of a right to abortion announced in Roe v. Wade ran counter to the state laws at the time that prohibited abortion.

Simply being counter to the status quo is not enough to criticize the new law. And, if there were reasonable discussion, I expect there would be a lot of agreement–or at least less objection–to some of the conditions the law prohibits being selected against by abortion: congenital deafness, blindness, dwarfism, cleft lip and palate, and club foot just to name a few. At the same time, perhaps there are certain conditions where consensus would exist that allowing termination is more understandable, such as conditions that are incompatible with life or actually cause pain. And, for purposes of this blog, perhaps discussion could be had on the accepted, ethical administration and uses of prenatal testing for Down syndrome. Until this law, the standards governing prenatal testing for Down syndrome have been written by medical professionals, who overwhelmingly state that they would choose to abort if they had a pregnancy prenatally diagnosed with Down syndrome.

The new law could provide the opportunity to engage in a reasonable public discourse on how the ever-advancing prenatal testing capabilities should be used. This, too, was not only called for at the ACMG conference, but has been called for ever since the dawn of prenatal testing: to have all the stakeholders provide input to inform an ethical approach to the technology. But, as just mentioned, almost never have individuals from the tested-for communities been included in the discussions and committee meetings that have resulted in professional guidelines.

Unfortunately, though, the new law deals with abortion and it was signed contemporaneously with another law that is only about abortion. Already, the media has lumped the two together to create the binary narrative with quotes from pro-life and pro-choice advocates. And, as a result, the chance of any reasonable discussion about ethical line-drawing–agreeing as to which conditions should be on which side of the line to allow for selective abortion–will barely have a chance, if at all, to occur.

Finally, the last part of the law certainly further undermines this chance at a reasonable public discourse. The last section imposes a criminal penalty, making any physician that performs a sex-selective or disability-selective abortion subject to a Class A misdemeanor: up to a year’s confinement and fine of $10,000. It is rare in the law to make discrimination subject to a criminal penalty. Certainly there are civil rights acts violations that may be brought, but those are civil remedies, not criminal. The North Dakota legislation, however, is not unprecedented in imposing a criminal penalty. In an effort to address the sex ratio skewing occurring in India and South Korea due to a disproportionate number of baby girls being aborted, those nations criminalized sex-selective abortion. But, imposing a criminal penalty will further polarize this discussion.

Most of the new North Dakota law actually is consistent with current medical practice, and the part that is not, the prohibition of disability-selective abortion, is ripe for reasonable public discourse. Unfortunately, that is unlikely to happen since abortion has a way of causing reasonable people to otherwise choose sides and stop listening to each other.

UPDATE: Two new posts have been added discussing the new North Dakota law. One addresses a New York Times commentary on the new law; the other analyzes its constitutionality. You can read the new posts here and here.

Prove me wrong. I hope you will comment and your comments will contribute to a reasonable public discussion on the role of public policy and the ethical administration of prenatal testing. If you disagree with the law, could it be revised in a way you would support? If you agree with the law, why? 


  1. I don’t agree with aborting for sex or undesirable traits, but I don’t think that anyone that would abort for these reasons would make a very good parent, anyway. There is no such thing as the perfect child. With that said, forcing them to carry this “imperfect” fetus to term does what, exactly? Yes, it stops an abortion, but what does it do for the quality of life for that child? I think education about Down syndrome (in those cases) is key. It is not “incompatible with life”. Many people with Down syndrome live into their 60’s with proper medical care. Families (including mine) who have a child with Down syndrome are no less happy than others. I think if people realized this, even though it might be a little scary, they would re-think having an abortion solely for Down syndrome. All that being said, I don’t think putting more restrictions on abortion is the answer. I want children to be wanted by their parents, not forced upon them. You can’t legislate that, you can only educate.

    • Thanks, Amy. I believe you are my neighbor, down here in Real world. Fairyland was not working out for me either. All of that rabid magical thinking was too frightening.

      Leticia, you sound like a kumbaya singing, radical optimist—See how productive it is to start with “you sound like a…” Didn’t that set the tone for reasonable discourse? No?

      I give up. People cannot talk about abortion. Nobody can separate their emotions from the issue, even for a 5 minute discussion.

  2. Amy, you sound like a subscriber to the old Planned Parenthood mantra, “every child a wanted child”. I wonder if you wanted a child with Down syndrome before you discovered you either were expecting or had delivered your child.

    I have interviewed dozens of parents of children with Down syndrome for my book and one of the most common refrains I hear is “She/he is exactly the child I never knew I wanted.”
    I know I was surprised when I discovered prenatally without testing (you’ll have to read “A Special Mother is Born” to find out how I knew) that my daughter Christina had T21. I thought, “I could never parent a child with a disability, I don’t have the temperament”. Ten years earlier, I had deliberately chosen to teach English as a Second Language instead of Special Education for that reason, but I often say, never tell God what He is capable of doing, Day by day, after Christina’s birth, I became the kind of mother I thought I wasn’t, and nearly a dozen years later, I am a more loving, patient, and tolerant person. Think I am a religious zealot? I am hardly unusual: Dr Brian Skotko found in his 2010 survey of 300 families with a member with Ds, that 97% of the siblings said having a sib with T21 made them a better person. See his article in the Journal of American Medical Genetics.
    If the extra patience required to parent a child with T21 brings out the best in parents, and siblings, I say we have to thank our genetically diverse children for the favor.

    • Did you not see the part where I said I had a child with Down syndrome? And I found out prenatally, not that it is any of your business, or that it makes me a better person because of it. I don’t subscribe to much, frankly, but, “every child a wanted child” seems like a pretty good thing to me. I don’t think forcing a woman to carry a child she doesn’t want is a good way to go about things. Education is the way to go. And your whole post seems like self promotion, to me.

  3. I am the father of a child with Down syndrome. He is wonderful and I love him. That being said, any law that restricts a woman’s right to an abortion is wrong.

    • You obviously have a strong opinion here. Let me just ask, Is it equally wrong to restrict a child’s right to live? What if the child is a girl (a potential woman) – shouldn’t she have the right to choose? Food for thought.

  4. As my invitation to comment challenged, I hope that comments will prove me wrong; that instead, even though this is a discussion involving abortion, it can be a reasonable one. A discussion that addresses the merits of the issue, rather than addressing the commentator personally.

    • I am trying! 🙂

    • kathy ratkiewicz says:

      Even though I am generally in favor of women’s rights, I find it amazing that the one most championed is the ‘right’ to kill another human being. The word ‘fetus’ does not mean ‘non-person’. It is straight from the Latin, and means ‘unborn child’.
      A woman’s right to choose, although legal,is not morally right, because it strips the other person involved of their right to live.
      Yes, I agree with North Dakota’s new law.

  5. As mentioned in the piece, other states, countries, and even ACOG have recognized that sex-selective abortion is wrong. Part of the justification for that judgment is that however much it may be “the woman’s choice,” the cumulative effect of sex-selective abortion reinforces the sexist attitudes that likely lead her to choose to abort her fetus because it was a girl. The same dynamic exists for Down syndrome, in that Down syndrome is still stigmatized and discriminated against, even more so in the medical context. The policy prohibiting selective abortion for sex and disability recognizes that “choice” can be less independently made when it is exercised in a culture that discriminates and stigmatizes the condition the woman chooses to select against.

    • Mark, I’m always amazed at your research, structure of an argument, and even-handed delivery, on such an empassioned subject too. Debates on abortion aside (hopefully), I agree with at least the aim of this law that looks to challenge and curtail the basis of sex selection and disability.

  6. StelLa McLeod says:

    Sadly, I suspect the way people will get round the law is to say that having a child with a genetic condition will endanger their health. Amy, have you never heard of adoption? A better slogan tha,n “Every child a wanted child.” is “Every child a welcomed child.” As Leticia said most parents do love and accept their children. Before birth, babies receive their oxygen via the umbilical cord which is why they have no need to breathe; they are alive and growing. I have never understood why some people think women should have the “right” to choose to kill their own children just because of their age and where they live (womb). I hope this law at least make people realise that abortion can affect society’s attitudes toward the survivors, and this applies not just to sex selection abortions but also genetic based abortions.

  7. We have a special needs child as well as other children. If I were given the choice between my child or another without a medical problem I would have picked my child every single time. Given the chance I would do it all over again a million times. I understand that women have a right to choose, but the right to kill isn’t a right that is extended to the rest of America on the basis of a disability or sex so why should women be any different. This is coming from a woman and I will happily give up my right if it means that other “special” children will have a chance at life. 75-90% of children with Down Syndrome are aborted on the basis of a disability which is a disgusting statistic. Those children were robbed of their rights based on a disability that they could not control. I am not suggesting that women that don’t want a child be forced to keep it, but there are other options such as adoption.

  8. I think it is easy to say that adoption is an easy option. I don’t think it is. I don’t feel we should force women into being incubators for fetuses that they don’t want.

    • I think that its pretty terrible that as a mother who supposedly has a special needs child you still feel the same way. You are upset when people mention your name in a comment and yet you throw your opinion on every one. Once a woman has made a conscious decision to have sex she needs to deal with the concequenses, not get rid of a baby in whichever way is most convenient to her. A “fetus” as you put it, still has a heartbeat. Anything with a heartbeat is technically living. If you are resentful of your choice that doesnt mean the rest of the world should be as well.

      • Let me suggest that one of the “gray areas” Amy refers to could be a woman who did not make the conscious decision to have sex, through impairment or coercion or worse. Does she “suck it up” and carry the child at any physical or emotional cost because you think it’s morally or religiously right, or because she can just give the child up for adoption when she’s delivered? Amy is doing a patient job of trying to have a nuanced discourse, but in the end, if your self righteous opinion of abortion as wrong trumps all, she cannot.

        And if any commenter needs a credential, I can only offer that my parents had a tough choice to make on an unplanned pregnancy at 20. I’m only writing this because of the choice they made, but I’m glad they got to make either choice, and not have it dictated to them.

  9. StelLa McLeod says:

    Amy, The chances are that these children are wanted, at least initially. There is no way of knowing before birth what any baby will be like so why assume a worst case scenario. Adoption is not an easy option but it is one the baby can live with! On the other hand, abortion denies the baby a life and the mother an opportunity to love. Abortion also poses risks to the mother’s health and also risks the life and health of future babies (e.g. Increased risk of prematurity) and there is no guarantee the next baby will not have a genetic condition and not all genetic conditions are diagnosable prior to birth anyway. It is a privilege to carry a child to birth; one not every woman is granted.

    • Giving birth carries a significantly higher risk than abortion. Again, I have a child with Ds. I knew before he was born. I just don’t want to force it on anyone. And there are thousands of children around the world in institutions waiting for adoption who have Ds and other needs. Why not look there?

  10. The laws says a woman can’t have an abortion BECAUSE the child has a genetic abnormality. So the woman will simply say that that is not the reason she is having the abortion. The genetic abnormality is just a coincidence. They will just say they don’t want a child right now. End of story.

  11. I always appreciate engaged viewers of this blog and thank you for your comments. Should there be further comments, I hope they will address the question asked: whether you agree with the law or disagree with the law, and why?

  12. Michelle shafer says:

    This law poses itself as an ethical & moral statement on disability – when in reality it is a very slick tool to undermine & oppress women’s rights.

    • North Dakota was pretty clear in taking a head-on challenge to abortion on demand with the other law that was signed the same day banning abortion once a fetal heartbeat can be detected. On the merits of this law, what do you think: is it objectionable for a state to say as a matter of public policy abortions should not be performed solely on the basis of sex or disability? If so, why?

  13. Laurann kealiher says:

    What about Tay Sachs ,trisomy 13 ,cystic fibrosis . All of theese lead to suffering and death. Where is the line drawn

  14. I’m sorry, but this is just another sign of the retards winning the battle over manufactured “controversy”. Here’s the simple facts of the matter. Downs IS a serious condition which results in some serious complications. A heart-beat means nothing, it’s not a baby until it pops out, simple as that. A normal wanted fetus can turn into a medical disaster due to any number of circumstances that are beyond control, be it an accident, an illness, or even just pure randomness. The cost to society and the burden on society is not factored in nearly enough. I’d rather my taxes go to paying for schools for those who are going to actually be productive members of society and make actual contributions. There is no “god”, there is no “god’s plan”, and there is absolutely no reason to doom parents to a life-long burden of disabled children and society to a burden that is 100% preventable. If you want to raise these medical disasters, be my guest, but it should be entirely at your own expense, paid in advance.

    • Well, as Amy said, education is the key. Dave needs some education. “It’s not a baby until it pops out.” [Easy to learn that it indeed is a baby beforehand…google it.] But I digress…”This law poses itself as an ethical & moral statement on disability – when in reality it is a very slick tool to undermine & oppress women’s rights” could easily be replaced with “-when in reality it is a very slick tool to preserve a child’s life.” Everyone has an opinion here. The problem is that without education (back to Amy), people do not know that the overwhelming majority of parents love their child(ren) with special needs, as much as they love their typically developing children. Without education they do not know that the potential is there for much happiness, fulfillment, love. The people screaming for the right to kill their babies, or, the right for others to kill their babies aren’t looking at facts, at reality. No child, no adult, no teenager, is perfect. They are saying these things because they are safe from harm. The death is not about them. They have protection from the LAW. What if the LAW decided that people who are challenged- meaning suffering from depression, anxiety, back pain, etc., who are on medication and disability- tax USERS instead of tax PAYERS- should just be dead? Should not be allowed to exist because of their burden on others? Sounds ridiculous, right? Well that is exactly the logic many put behind the idea of termination due to Down syndrome or other chromosomal differences. It is exactly the same thing, no “gray area.” We just haven’t gotten the chance to know one of the babies yet, and the other guy might be Uncle Milt. We have completely lost our humanity when we are having eugenics discussions where “educated” (and uneducated) people are fighting for the right to kill children.

      • “The people screaming for the right to kill their babies, or, the right for others to kill their babies aren’t looking at facts, at reality.” Just to clarify if it’s just those screaming for pro-choice positions, or if in this one sentence you’ve reduced all who may carry pro-choice opinions to “not looking at facts or reality”? Because I agree with that statement when it’s Dave “screaming” and making offensive and blunt opinions as if they were facts, but do not agree with it broadly 🙂

        • Just to clarify, yes, I am referring to all people who hold pro-abortion positions. This goes for the people who say, “Well I would never have an abortion, but I don’t have the right to tell someone else what she can do with her body,” as well as the doctors who take the oath to “first do no harm” then proceed to tear a baby out of the womb or poison it. Morals aside, abortion is ugly, inhumane, barbaric, and a whole host of horrific adjectives. That is the reality of it, and those who see it as merely a choice are not dealing in facts or reality.

  15. There are some very rare, very serious genetic abnormalities where the baby is going to die either in utero or shortly after birth – e.g. Mermaid’s Syndrome. Parents should absolutely have the right to self-determine if they are willing to undergo gestation and labour only to have a very deformed child die in their arms, or after spending their short life tethered to tubes in a neonatal intensive care ward. Some will choose this route. But those who can’t face it shouldn’t have to.

  16. I am unequivocally against abortion, death penalty, whatever action takes life and/or death out of the hands of our Creator. That being said, I have a very simple question: Why would there be any law at all to prevent selectively aborting a child? ALL abortions are” selectively deciding” to stop the life of the unborn for one reason or another. This is so illogical to me. If one decides to make it unlawful to selectively abort because of a genetic abnormality, why can millions of others abort legally for convenience or bad timing or finances or age or any other reason that people use to justify terminating a life? Is that not saying that the life of the child with Downs Syndrome is more valuable and needs more protection than the life of the child who showed no genetic abnormality? That is the logical conclusion that must be drawn, and of course, it is ludicrous, no matter one’s stance on abortion.
    And then, of course, if the child DOES have DS or something else genetic, a mother can just give another reason for wanting to terminate. Are there people out there who believe that Planned Parenthood, for example, would really care WHAT the reason is? Just check a different box. This is an impossible way to deal with the heinous practice of abortion. How is it even remotely possible to go down a road like that and decide who should be protected from abortion? The only possible answers are every child or no child.
    (The reason I am on this site is because my daughter and her husband, who live in Taiwan, just had their fourth little precious boy, and he has DS. The timeliness of the recent article about Taiwan and the attempt to wipe out an entire segment of their population, that being DS children, through routine prenatal testing and abortion led me to this blog. Already my grandson and his parents are being used by God in ways that, we believe, are just beginning to be a voice for special needs children in Taiwan, a nation that we love, and to bring understanding to almost an entire population about why anyone would not abort an unborn child if he/she will not be born “healthy.”


  1. […] North Dakota enacted its law banning Down syndrome-selective abortion, which I wrote about at this post. The week before 3/21, Kentucky passed the Down Syndrome Information Act, requiring written […]

  2. […] more extreme from mine, I commend Jack Dalrymple, the Governor of North Dakota, for signing the country’s first piece of legislation designed to protect unborn babies from being prosecuted solely for the crime of having an extra […]

  3. […] women’s and gender studies at the College of Charleston. Her research led her to argue that North Dakota’s new law banning sex- and disability-selective abortion won’t help children with Down […]

  4. […] wrote last week about North Dakota’s new law prohibiting sex-selective and Down syndrome-selective abortions. […]

  5. […] As I’ve already mentioned, as a Doctor you have a tremendous amount of influence with your patients, and they are looking to you with trust for guidance, hope, and encouragement. Regardless of what your views are on abortion, and rather or not you are “pro-life” or “pro-choice,‘ (I’m fully, 100%, always for life by the way) I’ve sure we can agree on the fact that selectively aborting a child based solely on the fact that they have three copies of their 21st chromosome as opposed to two is wrong. In fact, some states have even made it illegal to abort a child due to a genetic abnormality. […]

  6. […] comes up in the form of disability-selective abortion legislation, like a recent law enacted in North Dakota. GOP lawmakers claim such legislation is vitally necessary to prevent abortions on the basis of […]

  7. […] the actions of the medical provider and not the woman seeking the abortion. So far, only North Dakota has passed such legislation, but it was introduced as bills in the state legislatures for Indiana […]

  8. […] On Wednesday night I turned on my email and saw an article about North Dakota enacting a law banning Down syndrome selective abortion.   The article below is a good blog on the situation… […]

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