A new bill that seeks to restrict the practice of abortions based on the gender of the fetus. It could make doctors liable to being sued by a woman or her family members if they feel the physician should have realized that gender bias played a part in the decision to terminate the pregnancy.
By Rose Hoban
A bill to restrict doctors from performing abortions for a woman seeking to select the sex of her child is headed for a vote on the House floor after easily passing a health committee Wednesday.
The bill could make doctors liable if they “knowingly or recklessly perform” an abortion on a woman who indicates she wants one because she wanted a baby of a different gender.
The bill allows members of the woman’s family or another health care provider to sue a doctor they believe should have realized the woman was seeking a sex-selection abortion.
A doctor found guilty of doing such a procedure could face fines of between $10,000 and $100,000.
“All this bill does is make it an offense – that you can pursue on a civil basis – that you cannot do an abortion if you know that the primary purpose is for sex selection,” said the bill’s sponsor, Ruth Samuelson (R-Charlotte). “If there’s a preponderance of evidence that shows that she is doing it for the purpose of sex-selection, it would no longer be permitted.”
“It does not require that the doctor interrogate the woman,” Samuelson said.
Several doctors who spoke to the committee disagreed, saying that the bill could have a chilling effect on the doctor-patient relationship.
Joshua Nitsche, who works as a high-risk pregnancy physician in Winston-Salem, said he believed the bill would significantly affect his ability to care for patients.
Nitsche said he often has patients who have life-threatening problems during their pregnancies that cause them to seek abortions.
“A passing comment like, ‘I always wanted a girl,’ could force me to refuse her this lifesaving procedure or risk fines of up to $100,000,” Nitsche told the committee. “This bill will create an unwelcome intrusion in an already difficult situation by forcing the physician to unnecessarily interrogate a woman about her feelings concerning her baby’s sex.”
Committee member Deborah Ross (D-Raleigh) objected to the inclusion of the word “reckless” in the bill, saying that it put the burden on doctors to prove that they had ensured women were not seeking sex-selection abortions. She proposed several amendments that would have changed language in the bill.
“How do you come up with whether or not it’s reckless? You might end up having doctors needing to have an inquisition of their patients to find out,” Ross said. “We already have the Women’s Right To Know Act, with plenty of information given to a person coming for an abortion.
“Are we clear that it would not be reckless if a doctor were to fail to ask the woman what her rationale is?” asked Rep. Hugh Blackwell (R-Valdese).
Legislative staff attorney Shelly DeAdder responded that she was unsure at what point not asking becomes “reckless,” saying that issue would probably be decided in a courtroom.
“I’m not sure at what point the physician would become reckless,” DeAdder told the committee. “If that would require a physician to proactively seek the reason for the abortion, I’m not sure.”
“I have no idea what this law would require of me,” said Erica Levy, an obstetrician in Chapel Hill.
She told the committee that in her practice she had never encountered a woman who she thought might have been looking for a sex-selective abortion and noted that about 93 percent of abortions take place early enough in the pregnancy that the gender can’t be determined.
“I’m not sure what steps I would need to take in order to comply with this law, and how I should go about documenting that I was in compliance with this law if it were to pass,” Levy said.
“With the ‘reckless’ word in the bill, I’d need to make certain that the gender of the fetus is not a significant factor in [a woman’s] decision,” Nitsche said. “So if that woman was to say, ‘I was always hoping for a girl,’ I would be forced to ask a stream of very inquisition-, interrogator-like questions that really would thwart my efforts to develop a rapport and a relationship with the patient at this difficult time.”
Ross’ attempts to iron out the legal issues failed.
Sex-selection a worldwide issue
“The United Nations has documented the fact that there are over 163 million girls around the world missing, largely because of what we call ‘gendercide,'” said Tami Fitzgerald, head of the N.C. Values Coalition, referring to the practice of sex-selection abortions. “There is nothing pro-woman about killing a baby girl simply because she is a female.
“If we are against discriminating against women in the workplace, in university admissions, in housing, then we should be against discriminating against women in the womb,” she said. “Killing girls just because they are girls is not acceptable in any civilized society.”
Fitzgerald cited data indicating that in China and India as many as 113 boys are born for every 100 girls.
According to the World Health Organization, the natural ratio of boys to girls at birth is closer to 105 to 100, which is the norm in this country.
“This is a major concern,” said Barbara Holt, president of North Carolina Right to Life. “It’s a major concern globally, but it’s becoming a concern in our nation, with the number of immigrants that have come to this country.”
Both women pointed to research they said shows sex-selective abortions are taking place in the U.S. already.
One study of census data from 2000 determined that for second and third children of Indian, Chinese and Koreans, there are more boys being born than girls.
Another study indicated that about 120 girls per year were “missing” from immigrant families. Neither study described the issue as being a problem in North Carolina.
But researcher Sneha Barot of the Guttmacher Institute said that evidence of sex-selection abortions being performed in the U.S. is lacking.
“There’s actually limited data in the U.S., and it’s inconclusive,” Barot said. She analyzed the data from the two studies, and found their conclusions weak.
“The authors didn’t look at causes, they didn’t pinpoint whether it was caused by selective abortion or done in a pre-pregnancy stage – for example, if fertility treatment was involved,” she said.
Moreover, she said, the communities cited represent a small percentage of the population.
Members of immigrant communities told the committee that they feared people in their communities would be targets of racial profiling if the bill passed, and said the bill was discriminatory.
“In some cultures outside of the U.S., son preference is a real problem,” said Jina Dhillon of North Carolina Women United. “It is a real problem that is deeply rooted in societal structures that severely limit the social, political and economic autonomy of women.”
Dhillon said lawmakers were “throwing about cultural stereotypes about Asian women,” and that others in the Asian-American community were “baffled” by the bill.
She said the bill would encourage racial profiling and raise questions in the minds of physicians treating women from the Asian community.
Samuelson had a strong reaction to suggestions that the bill would discriminate.
“My daughter is brown. She was adopted from a country where women were not favored,” she said, referring to her daughter who was adopted from Chile. “This in no way is intended to discriminate against immigrants.”
But Milan Pham of the National Asian Pacific American Women’s Forum said a ban would place an unfair burden on women perceived to be immigrants and impede their relationships with their doctors.
She pointed out that Asian-American women already suffer from health disparities and poor access to care.
“There are language barriers, there are other cultural assumptions that take place that prevent complete access to health care,” Pham said. “The more barriers that are put into place, the harder it becomes for Asian-American women to get access to reasonable health care.”
“If you look at who are proponents of selective abortion bans, it’s clear they are less concerned with dealing with the real problem, which is son preference,” Barot said.
“The problem is gender discrimination,” she said. “They’re not concerned with addressing that problem. Their real agenda is banning abortion.”
The bill passed the House Health Committee on a party-line vote and has been placed on the calendar to be heard on the House floor Monday evening.