Wayne Freeland, Sandra Day O’Connor College of Law

Edited by Nicole Fries

The Changing Picture of the Freedom to Choose

Earlier this year, the Senate of Indiana passed a bill with the intent of banning abortions when there is a reasonable belief that the mother is aborting the child for one of three reasons; gender, disability, or the potential for disability. Indiana joins the ranks of other states who have either already passed, or are considering, similar legislation.  While some have praised this action as preventing discrimination in utero, others claim that it is a violation of a woman’s right to privacy.  In addition, some see it as a government intrusion into a woman’s right to choose while simultaneously imposing a harsh financial burden on mothers and families in general by forcing them to raise special needs children.  One scientist even commented that he felt it was immoral for a mother not to terminate a fetus with Down’s syndrome.[1]

In Roe v. Wade, the Supreme Court recognized the right of a woman to choose to abort a pregnancy.  The court did not recognize a fetus as having any right to life.  Could a fetus suddenly acquire those rights denied to any other fetus, when if born, it would have some sort of disability?  I would argue that perhaps the argument for abortion would be stronger in those cases, as a mother would be making the decision to terminate based upon a health concern for the unborn fetus.  Many parents of “special needs” children find the experience deeply rewarding, however, the difficulty in raising a child that in many cases will be unable to function independently cannot be denied.  Additionally, the cost of raising a child with special needs can be crippling for a family.

In 2012, California Democrats sought to pass a bill that would criminalize abortions on the basis of gender.  The measure failed, even though it was strongly supported by several women’s rights groups.  This does raise the concern that as technology increases, potential mothers will be faced with ever-increasing information on the fetus that is growing inside them, information that they can use to determine whether to abort or keep a child, with gender and disability being just the beginning.

To take the question of selective abortion one step further: what happens when advancements in medical technology allow parents to tell when their child to be may be gay?  In an effort to prove that sexual orientation is not a matter of choice, some studies have linked certain genetic markers with an increased possibility of homosexuality.  What happens when parents can have the DNA of their fetus screened for homosexuality, gender identity if this too, can be linked to a DNA marker?  Will parents terminate pregnancies to prevent their children from having any trait that they consider undesirable?  If we take it one step farther, what happens if genetic tests can tell with reasonable accuracy whether a child will have ADD or a low IQ?  This might not be as far-fetched as one may think.

As the Supreme Court recognized in Roe v. Wade, a woman does have a right to abort a child.  Unable to determine at what point a fetus becomes a person and is entitled to protection, the court found that until a fetus is viable, then it is within a woman’s rights to terminate the pregnancy.  Attempting to criminalize abortion if the mother aborts because of gender, sexual orientation, or disability reopens a door closed by the courts, allowing government back into the doctor’s exam room.  Should a woman’s right to abort a child remain absolute, even when the results are discriminatory or distasteful?  The right to choose, much like the right to free speech, should not be infringed upon, but what happens when it is used in ways that others feel is morally reprehensible?


Brown, Michael (Jul 10, 2013) Is it Alright to Abort a Lesbian Baby? Retrieved from http://townhall.com/columnists/michaelbrown/2013/07/10/is-it-alright-to-abort-a-lesbian-baby-n1636769

Dawkins, Richard (Aug 21, 2014) Richard Dawkins: ‘immoral’ not to abort if foetus has Down’s syndrome. The Guardian.  Retrieved from http://www.theguardian.com/science/2014/aug/21/richard-dawkins-immoral-not-to-abort-a-downs-syndrome-foetus

Ditum, Sarah (Feb 20, 2015) Against the Fiona Bruce amendment: why feminists should oppose the ban on sex-selective abortion.  Retrieved from http://www.newstatesman.com/politics/2015/02/against-fiona-bruce-amendment-why-feminists-should-oppose-ban-sex-selective

Coughlan, Andy (Nov. 17, 2014) Largest Study of Gay Brothers Homes in On “Gay Genes”. New Scientist.  Retrieved from http://www.newscientist.com/article/dn26572-huge-twin-study-homes-in-on-gay-genes.html#.VPNtCvnF-Sq

Ertelt, Steven , (Feb 18, 2014) Indiana Senate Committee Passes Bill to Ban Abortions Based on Down Syndrome, retrieved from http://www.lifenews.com/2015/02/18/indiana-senate-committee-passes-bill-to-ban-abortions-based-on-down-syndrome/

Horan, Sophie (Feb 19, 2015) Why I Terminated My Pregnancy After Learning My Baby Had Down’s Syndrome, retrieved from https://www.yahoo.com/parenting/i-terminated-my-baby-with-down-syndrome-111407679952.html

See Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)

Smith, Wesley J. (Nov. 17, 2014) Will “Gay Gene” Impact Abortion Views?  National Review.  Retrieved from http://www.nationalreview.com/human-exceptionalism/392860/will-gay-gene-impact-abortion-views-wesley-j-smith

Steinhauer, Jennifer (May 31, 2012) House Rejects Bill to Ban Sex-Selective Abortions.  New York Times.  Retrieved from http://www.nytimes.com/2012/06/01/us/politics/house-rejects-bill-to-ban-sex-selective-abortions.html?_r=0

Thompson, Chrissie (Feb 10, 2015) Bill Would Ban Abortion After Down’s Syndrome Diagnosis. Retrieved from http://www.cincinnati.com/news/

Zagorski, Sarah, (Feb 20, 2015) Woman: Aborting My Baby With Down’s Syndrome Was the Best Thing For My Child, retrieved from http://www.lifenews.com/2015/02/20/woman-aborting-my-baby-with-down-syndrome-was-the-best-thing-for-my-child/

[1] Dawkins, Richard (Aug 21, 2014) Richard Dawkins: ‘Immoral’ not to abort if foetus has Down’s syndrome. The Guardian.

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