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Hastings Constitutional Law Quarterly

Authors

Annie Moskovian

Abstract

"My mother in law always tells me I am useless because I do not have a son. If I do not have a son, she says, they will send me back to India." These words come from a qualitative study on son preference and fetal sex selection among Indian immigrants in the United States in which women expressed the pressure to have sons from in-laws and husbands. Census studies also indicate that many Chinese and Korean Americans terminate pregnancies if the fetus is of the undesired sex.

Further, studies imply that sex selection is not a practice that can be easily eliminated, and technology has made it easier to practice sex selection early in a pregnancy. To address these concerns, some countries, like India, have banned sex-selective abortions (although these laws tend to be poorly enforced). In the United States, there exists no federal law on the issue; however, four states have criminalized the performance of sexselective abortions.

This note contends that while society can find reasons to justify abortions under certain circumstances but not others, public opinion should be irrelevant because the Constitution safeguards individual rights and does not subject them to popular vote. Therefore, in the interest of protecting both women's safety and reproductive rights, the right to engage in sex selection should be protected under the right to liberty articulated in the Due Process Clause of the Fourteenth Amendment.

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