Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.” Read more opinion SHARE THIS ARTICLE Share Tweet Post Email

Photographer: Alex Wong/Getty Images Photographer: Alex Wong/Getty Images

Ohio is considering legislation that would ban abortion, even before viability, if the reason for the termination is that the fetus has Down syndrome. On the surface, the law seems blatantly unconstitutional: The U.S. Supreme Court has affirmed a woman’s basic right to be free of any “undue burden” on terminating her pregnancy before viability. And no one doubts that the proposed law is intended as part of a broader legal attack on Roe v. Wade.

Yet on closer examination, the legal issue is more complicated. Seven states have laws banning abortion aimed at selecting the sex of a child. These laws are arguably constitutional, and haven’t been struck down by the courts. The argument in favor of those laws is that the state has a compelling interest in combating sex discrimination. It seems possible that countering discrimination against those with Down syndrome is a compelling interest on par with combating discrimination against women.

The state laws against sex-selective discrimination are rightly controversial. It’s well-established that sex-selective abortion is a widespread phenomenon in some Asian countries. But there’s no persuasive evidence that the phenomenon exists in the U.S. Critics of the domestic laws say they effectively single out Asian-American women for discriminatory treatment and therefore violate their right to equal protection of the laws. And political opponents argue with good reason that the laws are exploiting a foreign problem to chip away at abortion rights in the U.S.

On the other hand, the fact that a bad phenomenon is rare in the U.S. isn’t usually legal reason not to ban it. Sex-selective abortion is certainly a manifestation of sex discrimination. The Supreme Court has said that the basic right to First Amendment free association can be outweighed by the state’s compelling interest in sex equality. The case, Roberts v. Jaycees, was written by stalwart liberal Justice William Brennan.

The analogy is far from exact. The Roberts case didn’t weigh sex equality against the abortion right, which is also connected to women’s equality. It isn’t precisely the same to say that sex equality would outweigh the right to abortion as it is to say that the value outweighed the Junior Chamber of Commerce’s right to exclude women from full membership.

Nevertheless, it isn’t totally absurd to think that today’s court would conclude that the ban on sex-selective abortions survives scrutiny because it protects against a particularly virulent form of sex discrimination -- namely stopping women from being born.

If the bans on sex-selective abortions might be constitutional, what about Ohio’s ban on abortion in cases of Down syndrome? A strong case could be made that discrimination against the mentally and physically disabled -- and particularly against people with Down syndrome -- is as bad or worse than the history of sex discrimination in America.

It’s not just that those deemed “imbeciles” or “retarded” were shunned and shut away. For decades, from the late 19th century to World War II (and sometimes even beyond), mentally disabled people were targets of a eugenics-inspired movement for sterilization.

The most famous legal exemplar of this discriminatory practice is the 1927 Supreme Court case Buck v. Bell. The case involved Virginia’s home for the “mentally feeble,” where forced sterilizations were practiced for decades on unwilling and sometimes unwitting inmates who’d been forcibly committed to live there.

The court upheld the forced sterilizations in a notorious opinion by the otherwise great Oliver Wendell Holmes. Holmes, an advocate of judicial restraint, said the state’s act didn’t violate the woman’s due process rights. In a brutal comment that reflected the times, Holmes explained his thinking: “Three generations of imbeciles are enough.”

Today's Supreme Court -- by which I mean swing Justice Anthony Kennedy -- would likely welcome the chance to repudiate the doctrine and rhetoric of Buck v. Bell. Substantively, the court would have to hold that the state is justified in protecting those with Down syndrome from the legacy of discrimination embodied in forced sterilization.

Of course, the liberal justices could say that past violations of reproductive freedom shouldn’t be remedied by new restrictions on women’s right to choose.

And Kennedy would have to grapple with the reality that in today’s society, most people don’t think that aborting a child with Down syndrome discriminates against the disabled.

Indeed, the strongest argument against the Ohio law is that a fetus before viability isn’t constitutionally a person, and therefore can’t be made the subject of discrimination. But notice that this same argument can be used to say that sex-selective abortion isn’t discrimination, either, and is therefore constitutionally protected -- an argument that feminists are understandably not eager to advance.

The upshot is that abortion-rights activists had better try hard to defeat the Ohio law before it becomes law. Public sentiment might well be against the bill anyway, given contemporary beliefs about aborting fetuses with Down syndrome.

If they don’t, the law still might not be enforced. So far it seems no one has been prosecuted under the sex-selective abortion laws.

Yet as technology for genetic analysis of fetuses and even embryos gets better and faster and cheaper, there will inevitably be new legal regulation, and new constitutional challenges to face. Sooner or later, the courts are going to have to confront the balance between reproductive freedom and the ethics of choosing a child.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author on this story:

Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:

Stacey Shick at sshick@bloomberg.net