A controversial 2017 Ohio law, called the Ohio Down Syndrome Non-Discrimination Act (HB-214), was argued in a Wednesday special hearing before the entire US 6th Circuit Court of Appeals in Cincinnati. The law prohibits doctors from performing abortions if they have knowledge that a Down Syndrome diagnosis, or the possibility, is influencing the decision.
The law was sidelined by two earlier decisions, in which a federal judge and a three-judge panel ruled the law is likely unconstitutional. According to the law, doctors who ignore the ban face a fourth-degree felony charge, lose their medical license and be held liable for legal damages. The pregnant woman requesting the abortion faces no criminal liability.
The US Justice Department, arguing for the ban, insists it doesn’t impede a woman’s constitutional right to an abortion, because “it does not prohibit any abortions at all.”
However, the Ohio legislature which conceived the measure stated quite the opposite. “I’m of the mind that it certainly does prevent abortions,” Ohio State Rep. Candice Keller, a Republican abortion opponent, told NBC.
Down Syndrome, an easily diagnosable genetic disorder, can cause a variety of physical and mental disabilities. It occurs in about one in 700 babies born in the US each year, or about 6,000 annually.
While it would seem, on the surface, that mothers of children with Down syndrome would approve of this measure, that’s not quite the case. A group of these mothers has sided with the ACLU of Ohio, Preterm-Cleveland and other abortion providers who brought the suit. Their feeling is that Down syndrome kids have been singled out and exploited by anti-abortion factions because the syndrome is obvious and visible.
“Why Down syndrome and not spina bifida or cystic fibrosis?” they wrote. “(We) fear it is because those in the Down syndrome community are readily identifiable, sympathetic, and bring so much joy to their parents. But (our) children should not be co-opted to be the sympathetic faces of a political campaign.”
The Decision Rests on Its Constitutionality
While the measure doesn’t precisely prohibit abortions, it does prohibit doctors from performing them in certain cases. It demands doctors use a diagnosis to deny a woman her right to an abortion, and also interpret her theory of mind (personal reason for wanting one) in denying her the procedure as well.
“The state cannot ban abortions before viability. It can’t take the ultimate decision away from the woman,” B. Jessie Hill, an attorney for the providers, said. “That’s just a sort of bedrock rule.”
Yet, she said, “that’s exactly what this law does.”
She feels the law is “clearly unconstitutional.”
The US 6th Circuit has become more conservative since the Trump Administration’s right-wing appointments. It might overrule the previous two rulings, which have stated the law is “likely unconstitutional.”
The American Civil Liberties Union (ACLU) says laws like this are part of an ongoing strategy to limit abortions in any way possible.
“Since January 2011, states across the country have enacted more than 483 restrictions on abortion,” Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project tells Parentology. “While politicians may have packaged this law differently, their endgame is still clear: to push abortion out of reach.”
Kolbi-Molinas continues, “The only thing this law does is take an individual’s ability to make one of life’s most deeply personal decisions and turn it over to politicians.”