Fox News' Bill O'Reilly advocated for a bill that undermines women's health and reproductive rights under the guise of preventing sex-selective abortions, threatening to shame the bill's opponents as "in sync" with China's one-child policy. However, the bill in question has been criticized by doctors, civil rights and women's groups as unconstitutional, an invasion of the doctor-patient relationship, and ineffective in preventing sex-selective abortions.
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O'Reilly: House Members Who Oppose Bill Are "In Sync" With China's One-Child Policy
In Lobbying For Anti-Women's Rights Bill, O'Reilly Threatens To Shame Congressional Members Who Oppose It. From the May 30 edition of Fox News' The O'Reilly Factor:
O'REILLY: Today, Planned Parenthood endorsed President Obama less than 24 hours after The Factor broadcast a shocking story showing a Planned Parenthood counselor in Texas advising a woman on how to abort her fetus if it turned out to be a girl.
O'REILLY: Now, there is no question that Planned Parenthood is a pro-abortion outfit, which has been in trouble for years. Undercover videos have documented underage abortions, abortion advice associated with prostitution, and now gender-based abortion guidance. Tomorrow, the House of Representatives will vote on outlawing gender-based abortions. We'll have special coverage on that.
And we'll name the names of congresspeople who vote against the bill, perhaps advising them they're in sync with China's abhorrent abortion policy. [Fox News' The O'Reilly Factor, 5/30/12]
In Fact, Bill Criminalizes All Abortions Under The Guise Of Stopping Sex-Selective Abortions
The "Prenatal Nondiscrimination Act" Criminalizes Abortions In Certain Circumstances. From the Prenatal Nondiscrimination Act as passed by the House Judiciary Committee:
(a) In General- Whoever knowingly--
(1) performs an abortion knowing that such abortion is sought based on the sex, gender, color or race of the child, or the race of a parent of that child;
(2) uses force or the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion;
(3) solicits or accepts funds for the performance of a sex-selection abortion or a race-selection abortion; or
(4) transports a woman into the United States or across a State line for the purpose of obtaining a sex-selection abortion or race-selection abortion;
or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both. [H.R. 3541 as amended, 5/29/12]
There Is No Evidence Of Widespread Sex-Selective Abortions In The United States
The Gender Ratio Of U.S. Births Is "Squarely Within Biologically Normal Parameters." According to the CIA's World Factbook, the gender ratio at birth in the United States is 1.05 males to females, a rate that the Guttmacher Institute calls "squarely within biologically normal parameters." [CIA, World Factbook, accessed 5/29/12; Guttmacher Policy Review, Spring 2012]
More Than 90 Percent Of U.S. Abortions Are Performed Before The Baby's Gender Is Identifiable. The Centers for Disease Control reported that in 2008, 91.4 percent of abortions were performed before the 13th week of pregnancy. Robert Shmerling of Harvard Health Publications noted that gender identification by means of ultrasound, by far the most common method, is usually only available by the 16th to 20th week. [Centers for Disease Control, accessed 5/29/12; Harvard Health Publications, accessed 5/29/12, via MSN]
Experts Say Abortion Bans Are Not Effective For Stopping Sex-Selective Abortions
WHO Recommends Measures To Support Women And Girls Rather Than Legal Prohibitions On Sex-Selective Abortion. From a report by the World Health Organization, the United Nations Office of the High Commissioner for Human Rights, the United Nations Population Fund, UNICEF, and UN Women:
Restricting access to technologies and services without addressing the social norms and structures that determine their use is therefore likely to result in a greater demand for clandestine procedures which fall outside regulations, protocols and monitoring. Discouraging health-care providers from conducting safe abortions for fear of prosecution thus potentially places women in greater danger than they would otherwise face.
An essential element in efforts to reduce sex-ratio imbalances are advocacy, sensitization and awareness-raising programmes conducted by both governments and nongovernmental organizations. By addressing and involving relevant social and other networks (such as health personnel and young women and men) these activities aim to change mindsets and attitudes towards girls, and to increase recognition of the value of girls and women in society. Approaches include showcasing women's successes and the contributions they have made to their family. These are particularly successful when they provide correct information from trusted sources, stimulate debate at local and national level, and lead to an explicit endorsement of attitudes that are supportive of greater equality. [World Health Organization, Preventing Gender-Biased Sex Selection, 2011]
Bill Would Allow Government Officials To Prohibit Abortions
Bill Allows Attorney General, Pregnant Woman's Spouse, And Others To Obtain An Injunction To Stop An Abortion. From the bill:
(4) INJUNCTIVE RELIEF. --
(A) IN GENERAL. -- A qualified plaintiff may in a civil action obtain injunctive relief to prevent an abortion provider from performing or attempting further abortions in violation of this section.
(B) DEFINITION. -- In this paragraph the term 'qualified plaintiff' means --
(i) a woman upon whom an abortion is performed or attempted in
violation of this section;
(ii) any person who is the spouse or parent of a woman upon whom
an abortion is performed in violation of this section; or
(iii) the Attorney General. [H.R. 3541 as amended, 5/29/12]
Rep. Nadler: A Relative Could Block An Abortion "Merely By Alleging That The Abortion Is Being Done For The Purposes Of Sex Selection." From the House floor debate on the bill:
REP. JERROLD NADLER (D-NY): Under this bill, a relative who disagreed with a woman's choice would be able to sue a doctor simply by alleging that the woman had an impermissible motive. The doctor would face years of litigation at great expense. A relative could even obtain an injunction blocking an abortion from going forward merely by alleging that the abortion is being done for the purposes of sex selection. While the matter is being litigated, the pregnancy would go forward so that regardless of the merits, a woman would be compelled by a court injunction to proceed with her pregnancy against her will, perhaps to have an abortion at a much later stage with a much more mature fetus. [House floor debate on H.R. 3541, 5/30/12]
Bill Would Interfere With Doctor-Patient Relationships
American Congress Of OB/GYNs: "Bill Would Require" Violation Of "Doctor-Patient Confidentiality." During the House floor debate on the bill, Rep. Barbara Lee stated that the American Congress of Obstetricians and Gynecologists stated: "If passed into law, this bill would require that medical and mental health professionals violate doctor-patient confidentiality and report known or suspected violations of the law to law enforcement authorities." [House floor debate on H.R. 3541, 5/30/12]
Dr. Douglas Laube: Bill Would "Requir[e] Providers To Scrutinize The Decision-Making Of Certain Populations Or Risk Serious, Criminal Penalties." From testimony on H.R. 3541 by Dr. Douglas Laube, board chairman of Physicians for Reproductive Choice and Health:
H.R. 3541 distorts the concepts of equality and rights by requiring providers to scrutinize the decision-making of certain populations or risk serious, criminal penalties. As physicians, we find this attack on women seeking abortion and those of us who provide abortion care unconscionable. The bill does nothing to address the critical issues of gender inequality or racial disparities in access to high-quality reproductive healthcare, showing the sponsors' true intent, which is to decrease access to legal abortion. [Physicians for Reproductive Choice and Health, 12/6/11]
Nadler: Doctors "Would Be Forced To Police Their Patients, Read Their Minds, And Conceal Information From Them." From the floor debate on H.R. 3541:
NADLER: How would this affect the basic practice of medicine? H.R. 3541 would force health care providers to inquire into women's reasons for seeking abortion services. Physicians would have to consider whether women seeking routine non-abortion services such as determining the sex of the fetus might then use that information in deciding whether to continue a pregnancy.
Given the severe civil and criminal penalties in this bill, doctors would be forced to police their patients, read their minds and conceal information from them. The failure to do so would put medical professionals at risk of prosecution and lawsuits. [House floor debate on H.R. 3541, 5/30/12]
Bill Could Lead To Racial Profiling Of Women Seeking Abortions
Center For Reproductive Rights: Under The Law, A Prosecutor Might Rely "Solely On Racial Profiling" To Prove There Was A Sex-Selective Abortion. From testimony by the Center for Reproductive Rights against H.R. 3541:
In the real world, there is rarely, if ever, direct evidence that an abortion was based on sex (or race). The World Health Organization and four other leading United Nations agencies, in analyzing laws worldwide criminalizing sex-selective abortion found that "prosecuting offenders is...practically impossible," and that "proving that a particular abortion was sex-selective is equally difficult."
In light of the non-existence of direct evidence, there is real concern that a prosecutor might try to "prove" the existence of a sex-selective abortion by relying solely on racial profiling. This could effectively make nearly any woman who underwent an abortion pose a risk of criminal sanction for providers -- despite the fact that a woman's right to an abortion is a constitutionally protected right. [Testimony of the Center for Reproductive Rights on H.R. 3541, 12/6/11]
Asian American And Pacific Islander Community Organizations: "This Bill Exploits Our Community In An Attempt To Limit Abortion Access For Women Of Color." From a letter from 14 Asian American and Pacific Islander community organizations:
We are organizations that represent the Asian American and Pacific Islander community (API), and we write today to register our opposition to H.R. 3541, the "Prenatal Nondiscrimination Act." We have worked for years to improve the lives of Asian American and Pacific Islanders and welcome contined efforts to work with you on the issues that affect our community. However, this bill does nothing of the sort. Instead, this bill exploits our community in an attempt to limit abortion access for women of color, including API women, and we stand firmly against it.
If passed, the Franks bill would exacerbate health disparities and put additional stigma on women of color. [Letter from Asian American and Pacific Islander community organizations, 12/6/11]
Bill Contains No Exceptions For Abortions Performed Due To Sex-Specific Diseases And Defects
Bill Contains No Exceptions For Abortions Performed Because Of Sex-Specific Diseases And Defects. As stated by House Judiciary Committee members who voted against the bill:
It is important to note that the bill fails to distinguish between sex selection abortions that are for the purpose of preferring one gender over another and an abortion to avoid the risk of bearing a child with a sex-linked defect, or for any other purpose. Both would be criminalized under the proposed legislation. [Judiciary Committee report on H.R. 3541, 5/29/12]
A Variety Of Diseases And Defects Occur Primarily Or Exclusively In One Gender And Can Be Discovered Through Prenatal Testing.
- Duchenne Muscular Dystrophy. Duchenne muscular dystrophy is a neuromuscular disease found almost exclusively in males. Children with Duchenne muscular dystrophy will need a wheelchair by the time they are teen-agers. The average lifespan of someone with the disease is than 30 years. The risk of having a child with Duchenne muscular dystrophy occurs in one out of every 3.500 births. Prenatal testing can detect the altered gene that causes the disease. [Aetna IntelliHealth, accessed 5/30/12; Muscular Dystrophy Campaign, accessed 5/30/12]
- Rett Syndrome. Rett syndrome is a neurodevelopmental disorder that mostly affects females. It is characterized by normal early growth and development followed by a slowing of development, loss of purposeful use of the hands, distinctive hand movements, slowed brain and head growth, problems with walking, seizures, and intellectual disability. Males with the syndrome experience severe problems when they are first born and die shortly after birth. While the syndrome occurs spontaneously, prenatal testing is available for families with an affected daughter who has the identified mutation. [National Institute of Neurological Disorders and Stroke, accessed 5/30/12]
- Hemophilia. Hemophilia is a genetic condition that prevents blood from clotting, and is found almost exclusively in males. Prenatal testing of a mother with a family history of hemophilia can detect whether a fetus is carrying the altered gene. [Cincinnati Children's Hospital, accessed 5/30/12]
- Fragile X Syndrome. Fragile X syndrome is a genetic condition involving changes in part of the X chromosome. It is the most common form of inherited intellectual disability (mental retardation) in boys. ... Genetic testing can diagnose this disease. ... Genetic counseling may be helpful if you have a family history of this syndrome and are planning to become pregnant. [U.S. National Library of Medicine, accessed 5/31/12]
- Bloch-SulzbergerSyndrome.Bloch-Sulzberger Syndrome (incontinentia pigmenti) is a disorder that affects the skin, eye, and central nervous system. The disorder occurs primarily in females, but many male fetuses with the genetic mutation are miscarried before birth. Prenatal testing for pregnancies at increased risk is possible if the disease-causing mutation in the family has been identified. [National Center for Biotechnology Information, accessed 5/30/12]
Bill Has Serious Constitutional Issues
Contrary To Roe v. Wade, Bill Prohibits Abortion Prior To Viability. As stated by the members of the House Judiciary Committee who voted against the bill:
By imposing a criminal penalty for certain abortions at any point in a pregnancy, the bill crosses a bright line set out by the Supreme Court. It would allow, for the first time since Roe, the government to inquire into a woman's motivations for having an abortion, and her deliberations with her health care provider.
In its landmark 1973 decision in Roe v. Wade, the Supreme Court struck down pre-viability abortion prohibitions. The Court explained:
With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justification. If the State is interested in protecting fetal life after viability, it may go as far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. [Judiciary Committee report on H.R. 3541, 5/29/12]
Bill's Proponent Has Admitted That It Is A Step Along The Path To Banning All Abortions. According to House Judiciary Committee members who voted against the bill:
[S]ome proponents of this legislation have publicly admitted that it is intended to undermine, and ultimately overturn, the Supreme Court's Roe v. Wade decision. For example, Steven Mosher, who testified at the Constitution Subcommittee hearing on this legislation, has written:
I propose that we -- the pro-life movement -- adopt as our next goal the banning of sex- and race-selective abortion. By formally protecting all female fetuses from abortion on ground of their sex, we would plant in the law the proposition that the developing child is a being whose claims on us should not depend on their sex.
Of course, this suggestion is not original with me. It was originally made by the redoubtable Hadley Arkes, who wrote in the pages of First Things in 1994 that ''we seek simply to preserve the life of the child who survives the abortion. From that modest beginning, we might go on to restrict abortions after the point of ''viability,'' or we could ban those abortions ordered up simply because the child happens to be a female. We could move in this way, in a train of moderate steps, each one commanding a consensus in the public, and each one tending, intelligibly, to the ultimate end, which is to protect the child from its earliest moments. [Judiciary Committee report on H.R. 3541, 5/29/12]
Opponents Of The Bill Oppose Sex-Selective Abortions
Rep. Lee: "We All Are Opposed To Sex Selection" Abortions, But This Bill Is "A Continuation Of The War On Women." From the House floor debate on H.R. 3541:
REP. BARBARA LEE (D-CA): Don't get me wrong. Of course we all are opposed to sex selection based on gender. That's not what this is about.
This is about women's health care and gender discrimination. Also, and let me just read a paragraph from a letter signed by the American Congress of Obstetricians and Gynecologist and other groups. If passed into law, this bill would require that medical and mental health professionals violate doctor-patient confidentiality and report known or suspected violations of the law to law enforcement authorities. The penalty for failure to report is a fine or incarceration for up to one year. Shock and awe.
Let me tell you, this is a continuation on the war on women. There are those who have been actively working to reverse much of the progress women have been made by declaring this war on women that includes, mind you, stripping reproductive rights from women, cutting critical Title X funding and for the WIC nutrition programs, for low-income infant and pregnant women, and yes, this war continues with slashed funding for food stamps and daycare spending.
Let's call it what it is, Mr. Speaker. Supporters of this bill, they really are exploiting serious issues like racism and sexism in a backdoor attempt to make abortion illegal. [House floor debate on H.R. 3541, 5/30/12]
Planned Parenthood: Planned Parenthood "Finds The Concept Of Sex Selection Deeply Unsettling." In an April 23 column, Planned Parenthood's Leslie Kantor and Carolyn Westhoff noted that Planned Parenthood "finds the concept of sex selection deeply unsettling" and the organization "does not offer sex determination services; our ultrasound services are limited to medical purposes." Kantor and Westhoff further noted:
Planned Parenthood condemns sex selection motivated by gender bias, and urges leaders to challenge the underlying conditions that lead to these beliefs and practices, including addressing the social, legal, economic, and political conditions that promote gender bias and lead some to value one gender over the other. [RH Reality Check, 4/23/12]
NARAL Pro-Choice America: "We Condemn Gender Bias That Contributes To Pressures To Have A Child Of A Particular Sex." From testimony by NARAL Pro-Choice America president Nancy Keenan on H.R. 3541:
We condemn gender bias that contributes to pressures to have a child of a particular sex, but believe there are ways to combat gender inequity without threatening a woman's right to make the best decision for herself and her family.
For these reasons, we oppose [H.R. 3541]. It is an insincere attempt to help the communities with which it claims to be concerned, and is nothing more than a disingenuous attempt to block access to abortion. [Testimony by Nancy Keenan on H.R. 3541, 12/6/11]