Yesterday, 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?