Selective Reduction: “A Soft Cover for Hard Choices” or Another Name for Abortion?

See Madeira Jody , unpublished personal interviews, manuscript on file with author (suggesting that a significant fraction of women interviewed who considered selective reduction regard the procedure as fundamentally different from abortion).

Mundy L. , “Too Much to Carry?” Washington Post Magazine, Sunday May 20, 2007.

Armstrong T. F. , “What Is the Difference between Selective Reduction and Abortion?” Yahoo! Health, available at <http://voices.yahoo.com/what-difference-between-selectivereduction-12077534.html> (last visited July 29, 2014).

See Mundy , supra note 2.

Daar J. F. , “Selective Reduction of Multiple Pregnancy: Lifeboat Ethics in the Womb,” U.C. Davis Law Review 25 (Summer 1992): 773–843, at 783.

See Padawer R. , “The Two-Minus-One Pregnancy,” NY Times Magazine, August 10, 2011.

Abortion has been constructed differently in other countries. In Columbia, for example, abortion is conceptualized as an issue of women's health, whereas in China, abortion may be viewed as a method of population control. See Rao R. , Abortion Rights, in Global Perspectives on Constitutional Law , Amar V. D. Tushnet M. V. , eds. (New York: Oxford University Press, 2009).

See Abrams P. , “The Bad Mother: Stigma, Abortion, and Surrogacy,” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 179–191.

See, e.g., Stenberg v. Carhart (opinion of Kennedy J. , dissenting) (subtly disparaging physicians who perform abortions by repeatedly referring to them as “abortionists,” and arguing that “the majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life”).

See Bernstein E. , “Disclosures Two Ways,” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 245–254.

Jones R. Finer L. Singh S. , Characteristics of U.S. Abortion Patients, 2008 (May 2010), Guttmacher Institute, available at <http://www.guttmacher.org/pubs/US-Abortion-Patients.pdf> (last visited April 22, 2015) (last visited April 22, 2015).

See Spar D. L. , “Fertility Industry Is a Wild West,” New York Times , September 13, 2011. But see Daar J. , “Federalizing Embryo Transfers: Taming the Wild West of Reproductive Medicine?” Columbia Journal of Gender & Law 23, no. 2 (2012): 257–325 (disputing characterization of ART as the “wild west” of reproductive medicine, and contending that this is an urban myth).

See Spar D. L. , The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception (Boston: Harvard Business Review Press, 2006).

See Madeira J. L. , “Conceiving of Products and the Products of Conception: Reflections on Commodification, Consumption, ART, and Abortion,” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 293–306 (describing the tension between those who envision themselves as “patients” within the medical model and those who see themselves as “consumers” within the market model).

See Padawer , supra note 7.

See Britt D. W. Evans W. J. Mehta S. S. Evans M. I. , “Framing the Decision: Determinants of How Women Considering Multifetal Pregnancy Reduction as a Pregnancy-Management Strategy Frame Their Moral Dilemma,” Fetal Diagnosis & Therapy 19, no. 3 (2004): 232–240.

The role of doctors as moral gatekeepers policing entry to selective reduction is reminiscent of “the doctor's dilemma” in historically policing entry to abortion. See Swanson K. W. , “The Doctor's Dilemma: Paternalism in the Medicolegal History of Assisted Reproduction and Abortion,” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 312–325 (describing the “doctor's dilemma,” which is about exercising medical paternalism to promote the best interests of patients in the face of legal regulation while at the same time avoiding the pitfalls of unregulated consumerism).

Evans M. I. , “The Truth about Multiple Births,” Newsweek, July 1, 2010.

Evans M. I. Fletcher J. C. , “Selective First-Trimester Termination in Octuplet and Quadruplet Pregnancies: Clinical and Ethical Issues,” Obstetrics and Gynecology 71, no. 3 (March 1988): 289–296.

Evans M. I. Kaufman M. I. Urban A. J. Britt D. W. Fletcher J. C. , “Fetal Reduction from Twins to a Singleton: A Reasonable Consideration?” Obstetrics & Gynecology 104, no. 1 (July 2004): 102–109.

Evans M. I. Britt D. W. , “Multifetal Pregnancy Reduction: Evolution of the Ethical Arguments,” Seminars in Reproductive Medicine 28, no. 4 (2010): 295–302.

See, e.g., Rovner J. , “Partial-Birth Abortion: Separating Fact from Spin,” NPR, February 21, 2006 (explaining that the phrase “partial-birth abortion” was coined by the National Right to Life Committee in 1995 in order to foster opposition to abortion). See also Stenberg v. Carhart, at footnote 16 (opinion of Thomas J. , dissenting) (conceding that “the statutory term “partial birth abortion” may express a political or moral judgment,” but arguing that the choice to use a technical term instead may also be normative).

See Gonzales v. Carhart (upholding federal law prohibiting “partial-birth abortion”).

Berkowitz R. L. Lynch L. , “Selective Reduction: An Unfortunate Misnomer,” Obstetrics & Gynecology 75, no. 5 (1990): 873–874.

Id., at 874.

Id., at 873.

Evans M. , “Selective Termination: Clinical Experience and Residual Risks,” American Journal of Obstetrics & Gynecology 162, no. 6 (1990): 1568–1572.

Id., at 1575.

Id., at 1574.

See Evans , supra note 28.

See Evans Fletcher , supra note 21.

127 S.Ct. 1610 (2007).

See Suter S. M. , “The “Repugnance” Lens of Gonzales v. Carhart and Other Theories of Reproductive Rights: Evaluating Advanced Reproductive Technologies,” George Washington Law Review 76, no. 6 (2008): 1514–1598.

See Rao R. , “Equal Liberty: Assisted Reproductive Technology and Reproductive Equality,” George Washington Law Review 76, no. 6 (2008): 1457–1489, at 1469.

Rao R. , “Reconceiving Privacy: Relationships and Reproductive Technology,” UCLA Law Review 45, no. 4 (1998): 1077–1123, at 1114.

See Padawer , supra note 7.

See Mundy , supra note 2.

See Cahn N. Carbone J. , Red Families v. Blue Families: Legal Polarization and the Creation of Culture (New York: Oxford University Press, 2010).

See Mundy , supra note 2.

See Padawer , supra note 7.

Of the 36 states which define abortion as the termination of pregnancy, 24 adopt language that is virtually identical to the Women's Right to Know Act, a model statute proposed by the Americans United for Life. See, e.g., Alabama (Code of Ala. Section 26–23E-3); Alaska (Alaska Stat. Section 18.16.090); Arizona (A.R.S. Section 36–2151); Arkansas (A.C.A. Section 23−79–156); Delaware (24 Del. C. Section 1782); Georgia (O.C.G.A. Section 31–9A-2); Idaho (Idaho Code Section 18–604); Illinois (750 ILCS 70/10); Kansas (K.S.A. 2013 Supp. 65–4a01); Louisiana (La. R.S. 40:1299.35.1); Massachusetts (ALM GL Section 333.17015); Michigan (MCLS Section 333.17015); Minnesota (Minn. Stat. Section 145.4241); Montana (50-20-104 MCA); New Hampshire (RSA 132.32); North Carolina (N.C. Gen. Stat. Section 90–21.81); North Dakota (N.D. Cent. Code Section 14–02.1–02); Oklahoma (63 Okl. St. Section 1–730); Pennsylvania (18 Pa. C.S. Section 3203); South Carolina (S.C. Code Ann. Section 44-41-10); South Dakota (S.D. Codified Laws Section 34–23A-1); Texas (Tex. Health & Safety Code Section 171.002); West Virginia (W.Va. Code Section 16-21-1); Wisconsin (Wis. Stat. Section 253.10).

The remaining 12 states do not adopt the exact wording of the Women's Right to Know Act, but still focus upon the termination of pregnancy, rather than the termination of fetal life. See, e.g., California (Cal. Health & Safety Code Section 123464); Colorado (C.R.S. 12–37.5–103); Florida (Fla. Stat. Section 390.011); Indiana (Burns Ind. Code Ann. Section 27-8-33-1); Iowa (Iowa Code Section 146.1); Kentucky (KRS 311.720); Nevada (NRS 442.240); Ohio (ORC Ann. 2919.11); Rhode Island ( Gen R.I. , Laws Section 23–4.7–1); Washington (Rev. Code Wash. ARCW Section 9.02.170)

See Americans United for Life, Women's Right to Know Act: Model Legislation & Policy Guide for the 2013 Legislative Year (2013), available at <http://www.aul.org/wp-content/uploads/2012/11/WRTK-Informed-Consent-2013-LG.pdf> (last visited April 22, 2015).

See Robertson J. , “Is Selective Reduction Covered by State Abortion Law?” April 10, 2013, available at <https://blogs.law.harvard.edu/billofhealth/2013/04/10/john-robertsonabortion-law-online-abortion-and-reproductive-technology-symposium> (last visited April 22, 2015).

See R.R.S. Neb. Section 71–6901.

See R.R.S. Neb. Section 44–1615.01 and 1999 Attorney General Opinion No. 5.

See Utah Code Ann. Section 76-7-301(1)(a)(ii).

See Section 188.015 R.S. Mo.

See Wyo. Stat. Section 35-6-101.

See, e.g., Spar, supra note 14.

See Evans , supra note 20.

Of course, stark disparities in the treatment of those who engage in essentially equivalent acts are pervasive in our society. See, e.g., Goodwin M. , “Prosecuting the Womb,” George Washington Law Review 76, no. 6 (2008): 1657–1746 (arguing that prayers and sympathy are offered to women who endanger fetal life and health through the use of ART, whereas criminal punishments are administered to pregnant women who use illegal drugs).

See Rao , Equal Liberty, supra note 43 (arguing that “[l]ines drawn based upon the status of the persons involved would likely be unconstitutional, whereas lines drawn to differentiate between different acts would likely be constitutional”).

See NeJaime D. , “Marriage Equality and the New Parenthood,” Harvard Law Review (forthcoming 2016) (depicting the ways in which the movement for marriage equality was enabled by significant shifts in the law's understanding of parenthood, which stem in part from the use of assisted reproductive technologies).

Of course, there is always the risk of a contrary result: Drawing attention to selective reduction may actually enhance negative attitudes towards assisted reproduction.