Washington Law Review


Pregnant and Prejudiced: The Constitutionality of Sex- and Race-Selective Abortion Restrictions

March 01, 2013 | 88 Wash.L.Rev. 645

Six states currently restrict a woman’s access to abortion based on her personal motivations for seeking the procedure. These laws, which prohibit abortions that are sought based on the fetus’s sex or race, raise challenging constitutional issues, as the restrictions do not fit neatly into the U.S. Supreme Court’s abortion jurisprudence framework. The constitutionality of these laws is also unclear because no legal challenge has been brought against them. This Comment argues that motive-based abortion restrictions are unconstitutional on several grounds. First, the laws violate the woman’s constitutional liberty rights, which protect the personal beliefs and motivations behind her decision to terminate a pregnancy. Second, the laws conflict with the Court’s holding that governments cannot prohibit abortions before the fetus has reached viability. Third, while the Court’s decision in Gonzales v. Carhart may support abortion restrictions motivated by moral concerns, the interests recognized in Gonzales are distinguishable from those furthered by motive-based restrictions. For these reasons, reviewing courts should strike down motive-based abortion restrictions as unconstitutional.

Download Full Comment