Debate over partial-birth and sex-selective abortion provoked students attending Tuesday’s lecture at the Law School by law professors Martha Nussbaum and Carolyn Frantz.
The lecture, sponsored by the University chapter of the ACLU, was meant to rally support for the March for Women’s Lives in Washington, D.C. and a bill to protect abortion rights in the Illinois Senate.
Frantz, an associate professor at the Law School, opened her discussion by noting the constitutional background of the controversy concerning partial-birth abortions.
She explained how the case of Don Stenberg, attorney general of Nebraska, versus Leroy Carhart (2000), overturned the constitutionality of the Nebraska statute banning partial-birth abortion.
“The statue was unconstitutional because it applied to the dilation and evacuation (D and E) procedure as well as to the dilation and extraction (D and X) procedure, thus imposing an undue burden on the woman’s ability to choose D and E abortion,” Frantz said.
With partial-birth abortion, a substantial portion of the fetus is brought outside the body, while D and E abortion involves the dismemberment of the fetus while it is still inside the body.
The Nebraska statute was struck down because it lacked evidence proving that partial-birth abortions would create a greater health risk to women. In fact, the Supreme Court confirmed that the partial-birth procedure was “superior to, and safer than, the D and E and other abortion procedures.” Also, the ban lacked any requisite exception for the health of the woman or a clear definition of what entails a substantial portion of the fetus.
Frantz said that a significant reason the attorney general defended the Nebraska statue could be found in the notion that “the abortion looked like infanticide” because of the nature of the partial-birth procedure.
She concluded that President Bush’s Partial Birth Abortion Ban Act of 2003 successfully rendered partial-birth abortions illegal, regardless of their safer healthcare implications.
Nussbaum examined another topic in abortion controversy: The international “phenomenon” of non-Western feminists opposing all uses of abortion.
Sex-selective abortion—the practice of aborting the fetus based on the knowledge of its gender—has flourished in countries like India, China, and North Africa where sons are more desirable than daughters. The female-male ratio of certain areas is startlingly disproportionate, she said, attributing parts of her commentary to Amartya Sen’s India: Development and Participation.
The phenomenon Sen called “missing women” accounts for those who die from intentionally inadequate nutrition and healthcare, as well as frequent sex-selective abortion practices based on a high preference for male heirs.
Nussbaum added, ” Girls are not taken to the doctor, women die younger, and rather than get to the point of a female child, they [some Indian women] choose not to have the child at all.”
With the exception of places like Kerala, India where certain traditions of property rights are culturally matriarchal and education is offered to girls, females are considered a liability to the family in terms of requiring a dowry upon marriage and not having equal employment or educational opportunities to contribute to the family.
Nussbaum noted how contemporary theories suggest that certain cultural preconditions shape the desires of Indian women through the family and community, so they themselves are convinced of their own survival by continuing the cycle of sex-selective abortion.
The Indian parliament had previously banned the use of sex determination techniques for this reason. However, Nussbaum said that the government itself is enamored with romantic views of Indian traditions. Because of this, enforcement of the law has been comprehensively neglected as Indian women remain reluctant to give evidence of the use of such techniques that would lead to successful prosecution.
