Criminal Law and Philosophy

, Volume 5, Issue 3, pp 349–360

Why a Criminal Prohibition on Sex Selective Abortions Amounts to a Thought Crime

Authors

    • Department of GovernmentDartmouth College
Original Paper

DOI: 10.1007/s11572-011-9123-z

Cite this article as:
Bedi, S. Criminal Law, Philosophy (2011) 5: 349. doi:10.1007/s11572-011-9123-z

Abstract

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime.

Keywords

Sex selective abortionsHate crimesThought crime

While hate crime legislation is common, laws criminalizing sex selective abortion are relatively new and rare. Only two American states1 have adopted such a prohibition with various other jurisdictions in the United States contemplating similar legislation. There is a federal bill, like its state counterparts, that makes it illegal to perform “an abortion knowing that the abortion is sought based on the sex, gender, color or race of the child, or the race of a parent.” (House Resolution 7016: 2008). It makes this kind of abortion a crime. With regards to other countries, China has a law criminalizing “abortions carried out after sex determination tests except with the approval of a health department.” The law requires that the “reasons for sex determination [tests] be documented.” (Reproductive Health2003: 200; see alsoReproductive Health2005).

Whether hate crime legislation is anomalous in a liberal, criminal legal framework is a staple question in scholarly work in philosophy and criminal legal theory (see, e.g., Al-Hakim 2010; Dillof 1997; Gellman 1995; Hurd 2001; Kahan 2001; Lawrence 2002; Steiker 1999). However, there is no work considering this question in light of a prohibition on sex selective abortions. This is surprising since both a sex selective abortion and a hate crime share a similar underlying structure. In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim.2 He or she could be disposed to thinking that one race or sex is inferior to another.

While the President’s Commission on Bioethics regarding sex selective abortions remarks that “vigorous enforcement of any such statute might depend on coercive state inquiries into private motivations[,]” it fails to spell out the nature of this analysis (President’s Council 2003: 755). Those few scholars who address the philosophical implications of sex selection (see, e.g., Goodkind 1999; Warren 1985; Weiss 1995) do not consider this argument or its relationship to a thought crime. I do so here.

I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. After all, the underlying act of abortion is not a crime. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. This is why hate crime legislation merely increases the penalty for a crime committed on the basis of a particular bias or motivation. It punishes thought rather than being a thought crime.

The term “thought crime” originates from George Orwell’s classic science fiction novel 1984 where a Fascist regime criminalizes the thinking of unapproved thoughts (Orwell 1961 [1949]). Here the mere presence of a thought is sufficient to constitute a crime. This is problematic because the criminal law generally calls for an act and a culpable state of mind, the conventional actus reus and mens rea requirements, respectively. In the Orwellian case, it is easy to spot the thought crime. After all, no act is required. This essay focuses on a harder case. Even though the requisite act and culpable state of mind—aborting a fetus—is necessary for this kind of crime, aborting the fetus is otherwise not punishable. This means that a particular motivation or bias is enough to make this act a crime. A punishable act is thus not necessary. This is anomalous in a liberal, criminal legal system that does not afford an agent’s motivation such a crucial and sufficient role. Doing so is tantamount to making character the definitive rather than just a partial basis of the crime.

This fundamental difficulty with criminalizing sex selective abortions has gone unnoticed. Planned Parenthood challenged various portions of a Pennsylvania law in Planned Parenthood v. Casey (1992) (invalidating a spousal notification requirement before procuring an abortion). But Planned Parenthood did not challenge a portion of the law that criminalized sex selective abortions (see deCourcy Hinds 1990). Pennsylvania is one of two states that do have such a prohibition. Consider also that the pending federal bill describes a sex selective abortion as “barbaric,” as “an act of sex-based or gender-based violence.” (House Resolution 7016: 2008) (emphasis added). By using the word “violence,” the bill treats such an abortion as a hate crime. The bill fails to realize that if we ignore the relevant bias in procuring an abortion, the act is no longer punishable. Aborting a fetus is not a crime or an act of violence! In a 2006 Zogby poll, 46 percent of Americans agree that abortions ought to be legal. But it is interesting to note that in the same poll 86 percent of Americans believe that sex-selection abortions ought to be a crime.3

My essay proceeds in two parts. First, I consider the case of hate crime legislation in explaining the difference between a crime and a thought crime. I argue that the latter is not simply one where the law punishes motivation or bias, where character is relevant to the crime. Rather, a thought crime is one where ignoring an agent’s motivation—while keeping all other elements of the act constant—is enough to render the act legal. This is problematic, because it renders an agent’s character sufficient not just relevant for punishment. Second, I show that a prohibition on sex selective abortions fits this definition of a thought crime. In criminalizing a sex selective abortion, the law makes a woman’s motivation in procuring an abortion sufficient to make an otherwise non-punishable act punishable. Since a woman’s decision to abort would be legal if we replace her sexist bias with a benign one, her character is wholly responsible for deeming a sex selective abortion a crime, or so I argue. In outlining this difficulty, I distinguish between the reasons or rationales for prohibiting this type of abortion and what makes such an abortion punishable. The latter question is the important one for this analysis.

Hate Crime Legislation: Punishing Thought Versus a Thought Crime

Consider the following model hate crime legislation:

A person commits a Bias-Motivated Crime if, by reason of the actual or perceived race, color, religion, national origin, sexual orientation or gender of another individual or group of individuals, he violates a particular section of the Penal code (e.g., for criminal trespass, criminal mischief, harassment, menacing, intimidation, assault, battery and or other appropriate statutorily proscribed criminal conduct).4

The model legislation goes on to state: “the degree of criminal liability should be at least one degree more serious than that imposed for commission of the underlying offense.”5 A hate crime statute, then, increases the penalty for an “underlying offense” that is motivated by a particular bias—sexism, racism, homophobia and the like. I leave to one side the issue of which motivations ought to be included within the scope of a hate crime statute. Hate crime legislation looks to motivation. It specifies certain kinds of biases that trigger a more severe punishment.

In light of such legislation, it is helpful to consider the parts or components of an “ordinary” crime:

“Ordinary” Crime
  1. (a)

    Act of x-ing (the actus reus)

     
  2. (b)

    Purposefully, knowingly, recklessly, or negligently x-ing (the mens rea)

     

With most (and perhaps all) criminal legislation the motivation—why an agent decides to do x—is irrelevant. After all, the law defines assault, murder, fraud, and the like without taking into account motivation. An act (a) is generally accepted as necessary for any crime.6 An act is an objective fact. It is independent of the agent’s subjective thought or thought processes. Consider that fraud is an intentional misrepresentation of fact. There must be an objective state of affairs where there is some kind of misrepresentation. Even here the law does not define fraud by looking to why an agent commits this misrepresentation. Along with this objective requirement (a) is an agent’s level of fault in bringing it about (b).

But these requirements are importantly different from motivation. They do not explain the underlying reason or motivation for doing the relevant act. Imagine two individuals who both plan to kill someone. Each plans accordingly, determining the time and place where their victim will be present. However, one agent’s motivation for committing murder is to seek revenge. The other agent’s motivation for doing so is pecuniary gain (a “gun for hire”). Both purposefully intend to kill but have different underlying reasons for doing so. The criminal law may consider level of fault but as a descriptive matter it does not take into account motivation. Now motivation may be relevant in extinguishing criminal culpability (I consider this below) but it is not a component of a crime.

This is why hate crime legislation may seem anomalous. In a hate crime, the law most certainly cares about motivation:

Hate Crime
  1. (a)

    Act of x-ing (the actus reus)

     
  2. (b)

    Purposefully, knowingly, recklessly, or negligently x-ing (the mens rea)

     
  3. (c)

    Motivation for x-ing

     

The salient difference between an “ordinary” crime and a hate crime, then, is the presence of (c). Here it matters why one is committing assault, murder or fraud—after all, one could be motivated by hate in defrauding or assaulting an individual. The liberal critique of hate crime legislation argues that these kinds laws are anomalous within the liberal criminal legal framework (see, e.g., Dillof 1997; Gellman 1995; Hurd 2001). In particular, this line of reasoning argues that emphasis on motivation or bias is antithetical to liberalism and its concern with harmful actions rather than bad character. Whereas the law may rightly look to (a) and (b), it ought not to consider an agent’s reason for doing something.

Doing so undermines the criminal law’s liberal premises. Taking account of motivation is tantamount to considering an agent’s character. Motivation or bias can reveal an agent’s character, or at least provide some glimpse into it. For instance, an individual who assaults a victim because of their race, sex, or sexuality may very well be racist, sexist, or homophobic. The bias may point to a deficient or even vicious character. After all, homophobia and racism are bad character traits. The law’s focus on bias or motivation, then, is a way to get at an agent’s character. Taking aim at why an agent commits the act is how the law punishes character or a particular character trait. Under this objection to hate crime legislation, bias is proxy for character. By taking into account motivation or bias, the law seeks to punish character or a particular character trait. This is the important relationship between motivation/bias and character.

Punishing bias in order to punish an agent for these traits is to endorse:

A theory that takes the proper goals of criminal law to be the punishment of vice and the cultivation of virtue. Now these are distinctively non-liberal goals…. Liberals have long believed that theories that construe certain character traits as virtuous or vicious belong to the province of the Good, rather than the Right (Hurd: 230–231).

Punishing motivation, then, is a move towards a character theory of the criminal law, one that looks to the good rather than the right. It concerns itself with regulating how people think rather than what they do.7 This, as Hurd argues, is distinctively illiberal. Motivation—(c)—ought to be irrelevant.

Central to this liberal principle is the distinction between thought and action. Though often collapsed, it is important to distinguish liberty of thought from liberty of speech or discussion. Before proffering his famous marketplace of ideas defense of freedom of speech in On Liberty, John Stuart Mill states that the “liberty of expressing and publishing opinions” is “almost of as much importance as the liberty of thought itself.” (Mill 1989 [1859]: 15). Freedom of thought, then, is conceptually prior to freedom of speech. Even if we may disagree over whether and what kinds of speech the state may regulate (e.g., pornography, obscenity, defamation, hate speech and the like), liberty of thought stands as more fundamental. Laws that regulate speech may seek indirectly to censor thought or belief. This, in turn, generates the debate over the limits of freedom of speech. My analysis concerns criminal laws that directly consider the relevancy of thought. Those like Hurd suggest that hate crime legislation violates the thought/action distinction.

But scholars who defend hate crime legislation point out that the same logic that justifies appeal to (b) in certain cases also justifies the relevancy of (c) (see, e.g., Kahan 2001; Lawrence 2002; Steiker 1999). That is, the criminal law already considers what an agent thinks. For instance, the law deems a purposeful assault or killing worse than a reckless one. The latter act is worse, precisely because it points to a more wicked character. As Michael Bayles puts it, arguing that criminal law already cares about character in punishing individuals:

Discharging a gun in a crowded room is a dangerous act, but it may not indicate a dangerous or undesirable character trait. If the discharge was accidental, then it does not. But if the gun was discharged purposely, knowingly, or recklessly, then, a justification being absent, the act does warrant inferring an undesirable character trait. The various mental states indicate different attitudes towards harm. Blame is greater the more undesirable the attitude (Bayles 1982: 10) (see also Al-Hakim 2010: 349–350).

This kind of response suggests that the law’s distinguishing among the various levels of fault in the mens rea requirement is nothing other than a way to take character into account. Knowingly discharging a weapon reveals a worse character than accidentally doing so. It represents a disposition to put others in harm’s way.

While this essay is not a comprehensive account of the character theory of the criminal law, it is important to define the nature of this appeal to character. Character represents an enduring quality. It is not simply or merely about the harm a particular action causes, about the particular choice qua choice an agent makes (see generally Duff 1993). David Hume highlights this fact about character when he writes: “If any action be either virtuous or vicious, it is only as a sign of some quality or character. It must depend upon durable principles of the mind, which extend over the whole conduct, and enter into the personal character.” (Hume 1978 [1740] III, iii. 1: 407) Character or a character trait is a “durable” quality, not a transient or sporadic one. Character represents an agent’s long-term disposition or attitude. A bad or vicious character trait is an enduring attribute of an agent one that points to a deficient way of thinking. Under this view, we punish an agent who purposefully discharges a gun more severely than one who recklessly does so, because the former displays or reveals a particularly bad character. He or she thinks in a way that puts people’s lives in danger. This is not some spontaneous thought but rather a way of thinking, a disposition.

The law treats a purposeful killing worse than a reckless one, because purposefully doing so indicates a worse character, a worse way of thinking. Similarly, hate crime legislation punishes individuals for other bad character traits—other kinds dispositions—such as being racist, sexist or homophobic. A racist motivation in committing a crime can represent a vicious character; one that speaks to an agent’s disposition that one racial group is inferior to another. The law may deem an assault based on the victim’s race or sexuality worse than an assault based on pecuniary gain or revenge. Racism or homophobia may be particularly vicious traits. Even if the presence of (c) may be descriptively anomalous, it is not normatively so. Just as the law punishes varying levels of fault, it may punish motivation or bias. If that’s the case, hate crime laws are not anomalous in a liberal, criminal legal framework. Punishing thought is a familiar feature of the criminal law.

That is a very brief, even truncated account of the debate over hate crime legislation. My purpose is to highlight that the scholarly work looks simply to the legitimacy of (c). It asks if (c) may be a relevant component of a crime. Should the criminal law take it into account or does it violate liberal principles? This is the scope of the debate. I do not seek to decide this question definitively here, only to point out that punishing thought does not amount to a thought crime. I define a thought crime is one where (c) is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. How do we determine that motivation is indeed sufficient to convert an action and accompanying fault element from one that is non-punishable into one that is punishable? First, we consider what the law at issue prohibits by mapping the typology of the crime. Second, we determine if the act is no longer punishable if we ignore (c) and keep (a) and (b) constant.

Take a silly (but illustrative) example. Imagine a law that made it a crime to be intimate with someone solely on the basis of the person’s race (call it a “race selective intimacy” crime). First, drawing from the typology above, we can explicate the following parts to this crime:

Race Selective Intimacy Crime
  1. (a)

    Being intimate with someone (actus reus)

     
  2. (b)

    Purposefully doing so (mens rea)

     
  3. (c)

    Doing so because of their racial background (motivation)

     

Second, if we ignore the relevancy of (c) and keep (a) and (b) constant, the act is no longer criminal. After all, being intimate with someone is not a punishable act. Thus, a race selective intimacy crime is a thought crime. The motivation—here choosing to be intimate with someone because of his or her race—is sufficient to take the act from the domain of the non-punishable to the punishable.

Contrast this with hate crime legislation entailing an assault motivated by race. The typology of such a hate crime is:

Hate Crime of Assault
  1. (a)

    Apply force without consent (actus reus)

     
  2. (b)

    Intend to apply force without consent (mens rea)

     
  3. (c)

    Apply such force because of victim’s racial background (motivation)

     

In this case, ignoring (c) and keeping (a) and (b) constant leaves us with a punishable act. After all, it is a crime to apply force without consent and intend to do so. Motivation—here choosing to apply such force because of a victim’s race—is not sufficient to render the act punishable. Hate crime legislation, then, is not a thought crime. (c) may be relevant in a hate crime but it does not play a primary role.

Given the link between bias and character, character serves a partial rather than definitive role in hate crime penalty enhancements. That is, the bias qua bias—revealing the sexist, racist, or homophobic character of the agent—is not sufficient to entail punishment. After all, the underlying act is also punishable (hence the hate plus the crime). There is some objective harm—the assault or murder—that is independent of the agent’s motivation or bias. In the case of hate crimes, the thought is coupled with a punishable act. The agent’s racist or sexist character is not sufficient to render the act a crime. After all, he or she is also committing assault or murder or any number of crimes that may be motivated by hate. While a focus on an agent’s character, revealed by a sexist or racist bias, is enough to increases the penalty in a hate crime, it is not enough to render the act punishable. The law punishes the underlying assault or murder independent of any deficiencies in character. This is the crucial explanation that saves hate crime legislation from being a thought crime. Such legislation certainly punishes thought (and we may debate the merits of this) but it does not amount to a thought crime.

This, in turn, explains how the law enforces hate crime legislation. Hate crime legislation works by increasing the penalty for what would otherwise still be a crime. A defendant is not charged with two separate crimes such as assault and assault with a racist motivation. Rather, the defendant is charged with assault and then a penalty for committing it on the basis of a particular bias. According to the model statute, the degree of liability should be “one degree more” serious.

This analysis has the upshot of explaining the role of self-defense (and other defenses or excuses in the criminal law). In the case of self-defense, an individual commits a purposeful killing but is justified in doing so. The law takes into account why he did the killing. If his reason for doing so was a belief that his life was genuinely in danger, the law may not punish him. Here the law is not punishing thought but rather exculpating an individual on the basis of it (cf Hurd 2001: 217–218). That is, an agent may be forgiven for motivations that are excusable or “reasonable.” In a case of self-defense, but for the justificatory bias—here a belief that one’s life is in danger—the act would be punishable. Motivation, then, can take an already punishable act—murder or assault—and either increase the penalty (a hate crime) or decrease/extinguish it (the presence of a justification or excuse). In either case, the motivation is not making the act punishable. It is only increasing the punishment or decreasing/extinguishing it.

However, when motivation is sufficient to make an act punishable, we ought to be genuinely concerned. Here character serves a definitive rather than a partial role in punishment. A thought crime, then, is normatively anomalous within our liberal, criminal legal framework. This is a type of crime that even the defenders of hate crime legislation should be reluctant to accept. Consider that even those who strongly advocate for the character theory of the criminal law do not seek to dispense with the necessity of punishable acts. That is, they seem to realize that while the law may ultimately punish bad character traits, it ought not to base punishment solely on them. As Mohamad Al-Hakim concedes:

This does not mean, of course, that character theorists are not interested in action at all. Actions are, under standard conditions, good evidence of particular character traits. A person who performs dishonest actions is likely a person of dishonest character. But criminal law deals with discrete actions. And sometimes a person performs a prohibited action but under conditions in which we cannot infer a bad character from the bad act alone. All of the exculpatory defenses (e.g. self-defense, necessity, duress, mistake) concern such cases. So while a bad act might be necessary, it is not sufficient for criminal responsibility (Al-Hakim 2010: 349) (emphasis added).

Al-Hakim makes clear that a good bias or motivation can excuse or justify an otherwise punishable or bad act. What he concedes is that a bad act is indeed necessary. This is what triggers the apparatus of the criminal law. If character inferred from bias or motivation is sufficient to take an act outside the domain of the non-punishable into the punishable we do undermine the liberal nature of the criminal law. For in such a case, character is serving a primary role in deeming an act a crime, in making a legal act a bad one. By contrast, in the case of hate crime legislation, character serves only some role in punishing a bias motivated crime. The underlying act is already deemed bad. When character is definitive in deeming an act a crime, the good as opposed as the right is doing the work. Here the thought is not coupled with a punishable act. It is telling that even a character theory defense of criminal law admits the necessity of a punishable act.

A hypothetical race selective intimacy crime, then, is anomalous in a criminal legal system that does not afford an agent’s motivation such a crucial and sufficient role. Even conceding that the criminal law cares about character—identifying various biases or motivation that may either increase or extinguish punishment, it does not care just about it. The crucial distinction between the right and good requires that there be some harmful or wrong action that triggers the apparatus of the criminal law. If the criminal law punishes an action that is otherwise legal simply based on why an agent does it, the law cares only about character. It does not simply punish thought but rather constitutes a thought crime.

A Criminal Prohibition on Sex Selective Abortion

If the foregoing analysis is correct, we ought to be quite concerned about laws that criminalize sex selective abortions. I make an important assumption in arguing that such a prohibition amounts to a thought crime. In the absence of a sex related bias in procuring an abortion, the act of aborting would not be punishable. That is, I assume a jurisdiction where abortion is generally legal. Considering that most, if not all, Western democracies deem abortion legal, it is not a controversial assumption. Obviously, a regime that criminalized abortions could treat a sex selective abortion as it does a hate crime: increasing the penalty for a woman who procures an otherwise punishable act on sexist grounds. In that case, a sex selective abortion would be a genuine hate crime.

Obviously, the federal bill like its state counterparts operates in a constitutional regime where abortion is legal. These laws have three parts:

Criminal Prohibition on Sex Selective Abortions
  1. (a)

    Procure an abortion (actus reus)

     
  2. (b)

    Intend to do so (mens rea)

     
  3. (c)

    Procure an abortion because of the fetus’ sex (motivation)

     
This crime is like the hypothetical race selective intimacy one. If we ignore the relevancy of (c), keeping (a) and (b) constant; the act is no longer criminal. After all, intending to procure an abortion and actually doing is not a punishable act. So a criminal prohibition on sex selective abortion is a thought crime. The motivation—here a desire not to have a female child—is sufficient to take the act from the domain of the non-punishable to the punishable. In light of this consider the following two scenarios:
  1. (1)

    A woman procures an abortion during the early stages of her pregnancy, because she cannot afford to take care of a child at this point in her life. The fetus happens to be female.

     
  2. (2)

    A woman procures an abortion during the early stages of her pregnancy, because she discovers the fetus is female. She is disposed to thinking that a female child is inferior to a male one.

     

Again, I assume a jurisdiction where (1) is not punishable. Criminalizing sex selective abortions in the manner that the federal bill outlines would render (2) but not (1) a crime. Now a regime where abortion is legal need not permit all abortions. For instance, it may punish those abortions performed in the third trimester. This would mean that abortions during this part of the pregnancy would be punishable. Importantly, the procedure by which a woman learns the sex of the fetus is often done in the latter part of the first trimester. And it is precisely in this first trimester where abortion is generally legal. It is not a punishable act.

Both (1) and (2) contain the same objective facts. There is a female fetus and a woman seeks to abort it. There is nothing about their actions that are different. Without looking to their subjective thought processes, these scenarios are identical. The only difference is the motivation underlying each woman’s decision to procure an abortion. A woman’s sex related bias in (2) suggests or points to a sexist character trait, an attitude that considers a female child to be less valuable than a male one. A criminal prohibition on sex selective abortions, then, renders this bias sufficient to make her act of abortion a crime. Of course, in addition to the presence of a sexist bias, the woman in (2) aborts a fetus. But that act is, but for the bias or motivation, perfectly legal. It is not punishable to destroy a fetus. So it is only the presence of a particular thought coupled with a non-punishable act—here aborting a fetus—that renders (2) a crime. This confounds the thought/action distinction. It takes aim purely at a woman’s bias or motivation in order to deem a sex selective abortion a crime. Thus, her character, her disposition to consider a female child inferior to a male one, plays a definitive role in criminalizing such abortions. This is anomalous in a liberal, criminal legal framework that does not afford character or thought such a crucial role.

If my definition of a thought crime is correct, it is independent from the justifications we may have for criminalizing sex selective abortions, justifications that may be important, even compelling. There are three primary rationales for a prohibition on sex selective abortions. First, these kinds of abortions may have bad consequences or effects, effects that do not arise from non-bias motivated abortions. In particular, sex selective abortions may have deleterious consequences for women in the long run by upsetting sex ratios (see, e.g., Bélanger 2002; Oomman and Ganatra 2002; George 2002; Rogers et al. 2007; Zilberberg 2007). Second, independent of any consequences, sex selective abortions are morally wrong in a way that abortions undertaken for reasons unrelated to the sex of the fetus are not. A possible third justification is one that suggests that this kind of abortion may illegitimately represent control of the parent over the prospective child (see McDougall 2005). This argument informs the rich (still emerging) body of normative scholarship on genetic selection or enhancement (see, e.g., Sandel 2007; Agar 2004; Kamn 2005). This scholarship examines the ethical issues with genetic enhancement or manipulation.

I explicate these justifications to show that there are indeed important, even persuasive reasons to prohibit sex selective abortions. In fact, the pending federal bill articulates both the first and second of these rationales (House Resolution 7016: 2008). To be sure, the consequentialist justification does not aim at the motivation or bias but rather the harmful effects that arise from such abortions. But this does not make such a prohibition any less a thought crime. The issue is not why we prohibit such abortions, but rather what makes them punishable. The definition of a thought crime does not hinge on the justifications for criminalizing sex selective abortions. These justifications may have nothing to do with a woman’s character traits. But as long as the law renders her motivation sufficient to make an otherwise legal act punishable, it constitutes a thought crime.

Consider that we could pass a law prohibiting all non-therapeutic abortions, that is, criminalize all abortions except those undertaken for the health or safety of the mother. Doing so will of course also prohibit sex selective abortions. Importantly, this kind of criminal legislation would not be a thought crime. Here ignoring a woman’s sexist motivation or bias would still mean that procuring an abortion would be a punishable act. After all, in this hypothetical case the law prohibits all those abortion that are not undertaken for the health or life of the pregnant woman. This would not make a woman’s bias in procuring an abortion sufficient to render her act a crime. This may drastically reduce the number of sex selective abortions but it would do so at the cost of criminalizing all other non-therapeutic abortions. In such a case, (1) and (2) would both be punishable.

Alternatively, we could criminalize the procedures that reveal the sex of the fetus. This would go quite far in reducing the number of sex selective abortions. Amniocentesis is one of the conventional medical procedures allowing a woman to know the fetus’ sex. By withdrawing part of the amniotic fluid in the uterus, a lab can analyze it to determine the sex. In its effort to stop such abortions, the state could simply outlaw this kind of test or prevent the pregnant woman from learning its results.8 By prohibiting amniocentesis, this law just makes it practically impossible for a woman to abort for certain reasons rather than others. A pregnant woman would have difficulty in knowing whether the fetus is male or female. For instance, India requires women to sign away their ability to know the sex of the fetus and punishes doctors for so disclosing (see Gentleman 2008). This kind of legislation does not afford bias and thus character any role (not to mention a definitive one) in criminalizing an act.

Now perhaps the concerns of sex selective abortions are so great as to warrant the imposition of a thought crime. Perhaps we are willing to tolerate this kind of anomalous legislation, precisely because of the peculiar and worrisome problem of abortions carried out on the basis of the sex of the fetus. We may very well be comfortable with such legislation. My analysis suggests, though, that punishing individuals in such a manner is an outlier in a criminal legal system that does not afford character revealed by the bias or motivation such a primary role. Criminalizing sex selective abortions in the way current and pending legislation does amounts to a thought crime. It deems a woman’s bias—punishing her sexist character—not just relevant but sufficient to remove an act from the domain of the non-punishable to the punishable.

As long as a woman’s decision to procure an abortion is—ignoring the relevant bias—legal, a law that criminalizes a bias motivated abortion problematically amounts to a thought crime. Hate crime legislation merely punishes thought by making an agent’s character relevant. Criminalizing sex selective abortions makes character not just relevant but sufficient in deeming an otherwise legal act a crime. By punishing thought without the presence of a punishable act, this legislation, like the pending federal bill, problematically affords character a primary role. While the reasons for curtailing sex selective abortions may be quite compelling, we ought to be careful in deploying thought crime laws to achieve that result.

Footnotes
1

These two states are: Illinois (720 Illinois Abortion Law 510/6 (8) of 1975) (“No person shall intentionally perform an abortion with knowledge that the pregnant woman is seeking the abortion solely on account of the sex of the fetus.”) and Pennsylvania (Abortion Control Act of 1989). Minnesota is also considering similar legislation. (http://www.msnbc.msn.com/id/29511381/). Oklahoma passed a law (Oklahoma HB 1595) prohibiting sex selective abortions but it was ruled unconstitutional on grounds unrelated to the issue of abortion. (http://reproductiverights.org/en/press-room/court-strikes-down-intrusive-ok-abortion-law-declares-unconstitutional).

 
2

My analysis does not consider non-discrimination employment legislation. While these types of laws also look to bias, they do not make employment discrimination a crime. They simply permit the prospective employee to seek monetary damages. My argument considers only criminal legislation.

 
4

Anti-Defamation League, Model Legislation for Bias Motivated Crimes. http://www.adl.org/99hatecrime/text_legis.asp.

 
5

Anti-Defamation League, Model Legislation for Bias Motivated Crimes. http://www.adl.org/99hatecrime/text_legis.asp.

 
6

I say “generally accepted” because while most scholarly works accepts the necessity of an “act” for criminal liability, there is work that questions it (see, e.g., Husak 1998, 2007; Simester 1998). For instance, in lieu of an act, Douglas Husak posits the requirement of control (whether an agent has control over something that has happened). My analysis does not hinge on this debate. The important point is that the actus reus requirement interpreted even as a signifier of control is an objective element, one that is not about what the agent thinks but about an outwardly state of affairs.

 
7

John Rawls’ account in Political Liberalism articulates the classic liberal distinction between the right and the good (Rawls 1996 [1993]).

 
8

Such a proposal may infringe free speech rights (see Schaibley 1981), considerations that are beyond the scope of this essay.

 

Acknowledgments

I presented earlier versions of this paper at a conference on reproductive technologies at the University of Minnesota Law School and the Legal Studies Workshop at Dartmouth. I received important feedback at these venues. In particular, I thank Walter Sinnott-Armstrong, Ann Bumpus, Susan Brison, John Carey, Glenn Cohen, Larry Crocker, Elvin Lim, James Murphy, Ronald C. Den Otter, and Lucas Swaine for their helpful comments. I also thank Suneal Bedi for providing feedback I could not have done without. I thank the anonymous reviewer for providing comments to sharpen and clarify the argument.

Copyright information

© Springer Science+Business Media B.V. 2011