Roe, Casey, and Sex-Selection Abortion Bans

Table of ContentsI. Introduction 1091II. Sex-Selection Abortion Bans 1094III. Roe and Casey Generally 1098IV. Surviving Casey 1102A. An Easy Case Post-Viability 1103B. An Uphill Climb Pre-Viability 11041. Pre-Viability Bans Unconstitutional Per Se? 11052. Avoiding a Rush to Judgment: An Alternative Interpretation 1109a. Casey May Only Bar Blanket or Comprehensive Abortion Bans 1110b. Casey May Permit Narrow Bans When Supported by Other Interests 1113c. A State's Compelling Interest in Eliminating Sex Discrimination May Allow a Sex-Selection Abortion Ban to Survive the Undue Burden Test 1118V. The Future of Sex-Selection Abortion Bans 1130VI. Conclusion 1133I IntroductionForty years have passed since the United States Supreme Court decided Roe v. Wade,1 and lawmakers across the country continue to adopt legislation to rein in a woman's right to choose. Legislative efforts have accelerated recently,2 with states such as Texas, North Dakota, Kansas, and North Carolina adopting new abortion laws in the face of strong opposition by pro-choice advocates.3 The measures adopted in North Dakota, Kansas, and North Carolina include bans on sex-selection abortionsabortions sought because of the sex of the fetus.4 Because these narrow bans attempt to control access to abortion based on a woman's reasons for having the procedure, they challenge the constitutional limits of abortion regulation in a new way.The Court in Roe rejected the notion that a woman has the right to choose to have an abortion "at whatever time, in whatever way, and for whatever reason that she alone chooses."5 In Roe and later in Planned Parenthood of Southeastern Pennsylvania v. Casey,6 the Court addressed limitations on timing,7 and in Gonzales v. Carhart,8 the Court dealt with constraints on manner.9 The Court, however, never has squarely faced the question of a state's ability to limit abortion based on the reasons for which it is sought. Sex-selection abortion bans present this very question.It is common to think of Roe as the constitutional norm for abortion regulations and restrictions, but Casey sets the current standard. Therefore, it is Casey that a sex-selection abortion ban must satisfy to be constitutional. While the Court in Casey retained the "most central principle of Roe" that a woman has the "right to terminate her pregnancy before viability,"10 it gave states substantially more latitude to adopt abortion laws than they had under Roe. In Casey, the Court preserved the ability of states under Roe to "regulate, and even proscribe, abortion [after viability] except where it is necessary... for the preservation of the life or health of the mother"11 and opened a new door to previability measures that do not pose an "undue burden" on a woman's right to abort a non-viable fetus.12Despite the door that Casey opened, the prospects for sexselection abortion bans seem rather grim. Though otherwise narrow, sex-selection abortion bans typically apply throughout pregnancy,13 and recent federal court decisions call into question whether Casey permits a pre-viability ban of any kind.14 Unlike the bans considered in these recent cases, however, sex-selection abortion bans serve a state interest that was not considered in Roe or Casey-that of eliminating sex discrimination and its harmful effects. The presence of this interest, which the Court has described as "compelling" in cases involving freedom of association for expressive purposes,15 makes the answer to the question of the constitutionality of sex-selection abortion bans less clear than it might first appear. …