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Affirmative Action Abortions

By Jack M. Balkin

An intrepid UCLA law student, acting as a "tester," recently called several Planned Parenthood offices and asked whether he could make a donation specifically to fund the abortion of black babies. The donations were enthusiastically welcomed. The tester's racist remarks -- he posed as someone concerned that there were too many black people, and that he did not want his children competing with them someday, because of affirmative action -- were, in several instances, embraced by the Planned Parenthood veeps and development officers with whom he spoke. One said his views were "understandable, understandable." Another said that her Planned Parenthood office would accept a donation for any reason. Could he specifically endow one race-specific, black abortion? Sure. The officials gave the tester the price and the address to which to send the check.

Unbelievable? You can watch the video / audio on YouTube. (I still haven't figured out how to post the link.) If it's a hoax, I haven't heard yet.

It's not really all that unbelievable when you think about it. The premise of America's legal regime of abortion, under Roe v. Wade, is that the unborn human fetus or embryo is not really human life at all. It's an "it." "It" is a potential human life, a mass of cells possessed of no moral worth and no standing within the human community. They are non-persons. How can it be wrong to kill a non-person, for whatever reason? There is certainly no legal, moral, or rational basis for distinguishing between "black" non-persons and "white" non-persons, is there?

Since none of these human fetuses qualifies as human life (under this view), why should it be thought wrong to wish to financially support the destruction of a particular sub-class of such nothings? Why should it be thought wrong for Planned Parenthood to accept -- or for that matter to solicit -- funds for abortions specifically performed for African-American pregnant women? Indeed, might this not be thought affirmative action of a certain type, assuring the availability of what is (after all) a legal right, financially, to members of minority racial communities?

It is, of course, hardly the case that minorities are underrepresented in abortions. African-American women reportedly are 13% of the child-bearing female population but account for 36% of the abortions. More than 1,400 black babies -- or if you prefer, fetuses -- are aborted each day in America. Since the early 1970s, abortions of black babies has reduced the African-American population in America by about one-third from what it otherwise likely would have been. Some have called this, quite plausibly, racial genocide.

But how could it be "genocide" to abort what is not a human life? Is this not a category mistake? Under the cruel "logic" of abortion rights rhetoric, the fetus has no racial identity, because the fetus has no human racial identity. There is therefore nothing wrong with abortion targeted at specific races. The pregnant woman may have a racial identity, but the aborted fetus has none.

The same of course holds true for what is an increasingly common practice in America: abortion for reasons of sex-selection. Under the logic of Roe v. Wade, and under the mission of Planned Parenthood, there is nothing wrong with abortion of female human fetuses because they are female. Abortion is permitted for any reason or no reason. So, abortion likewise should be permitted on the ground that (in a perverse reversal of a phrase usually uttered in joy) "It's a girl!" Because, it is really just an it.

All of this, of course, is law blinking reality. Of course an aborted black human fetus has a racial identity. Of course an aborted human baby was either male or female -- a boy or a girl. These are simple, unavoidable biological facts. (Aren't they?) Pity the poor human child-in-utero, who has enough biological humanity to have a race, and a sex, but not enough humanity to be treated as a member of the human community!

The tester's questions of Planned Parenthood open a window on the vicious, fictitious logic of legal abortion. Abortion-rights supporters dare not admit that the aborted fetus has a racial identity that can be recognized as such or that he or she has a gender identity that can be recognized as such. For that would give away the game.

Is there any way out of this for abortion defenders? Is there anything they think wrong, morally, with "affirmative action abortion funding"? If so, what exactly makes it wrong?

Full post as published by Balkinization on April 25, 2008 (boomark / email).