A Federal Judge Has Blocked an Ohio Law Prohibiting Down Syndrome–Related Abortions

WASHINGTON, DC - FEBRUARY 23:  Gov. John Kasich (C) (R-OH), Gov. John Hickenlooper (L) (D-CO), and Gov. Bill Walker (R) (I-AK) speak during a press conference February 23, 2018 in Washington, DC. The three governors unveiled a blueprint for improved health care in the U.S. during the press conference. (Photo by Win McNamee/Getty Images)
Ohio Gov. John Kasich on February 23, 2018 in Washington, D.C.
Win McNamee/Getty Images

On Wednesday, a federal judge in Ohio blocked a law that would have prohibited women from getting abortions if they sought the procedure because their fetuses had a high probability of Down syndrome. The legislation, which Republican Gov. John Kasich signed in December, was slated to take effect on March 23.

Under the law, Ohio doctors would have had to write an “abortion report” after each abortion, verifying that they didn’t know if the patient wanted to terminate her pregnancy because of a Down screening. Doctors who performed abortions knowing that they were sought for reasons related to Down syndrome would have had their medical licenses revoked and be subject to felony charges. The law would have been nearly impossible to enforce, mostly serving as a way to shame women for their reasons for choosing abortion. It will remain blocked until a court makes a final ruling on the suit.

Judge Timothy Black is wonderfully sassy in his court order granting a preliminary injunction. He opens with a quote from “the top law enforcement official in the nation, United States Attorney General, Jefferson B. Sessions III,” who famously said, “Federal law is the law of the land.” When it comes to abortion, Black writes, federal law as interpreted by the Supreme Court “is crystal clear: ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” Ohio’s law, he continues, “violates the right to privacy of every woman in Ohio and is unconstitutional on its face.”

The intersection of Down syndrome and abortion politics has been a flashpoint for public debate in recent months, thanks to the Ohio law, a similar one in Indiana that’s currently before a federal appeals court, and news reports about the dwindling number of people with Down syndrome around the world. Earlier this week, conservative columnist George Will published a piece that called Down syndrome–related abortions “genocide” and prenatal genetic screenings “effective search-and-destroy technologies.” Inspired in part by Will, progressive columnist David Leonhardt wrote in the New York Times today that he is “deeply disturbed that some countries are moving toward eliminating an entire group of people.”

In Iceland, only one or two babies out of more than 4,000 total are born with Down syndrome each year, usually to women who get an inaccurate screening result or decide, as about 15 percent do, not to get the test. There are social reasons why some countries have a higher Down syndrome–related abortion rate than others; in Iceland, at this point, there may be a self-perpetuating cycle in which prospective parents don’t know any people with Down syndrome, so they don’t have a good idea of what life with a child with Down syndrome might be like. General discrimination toward people with disabilities certainly doesn’t help. But Iceland as a country is not “eliminating an entire group of people.” Icelandic women are choosing to get abortions, as is their right, for a wide variety of unknowable reasons. A woman’s decision to terminate a pregnancy is not a referendum on the Icelandic babies, children, and adults who are currently living with Down syndrome—the “group of people” to which Leonhardt refers. He does not explain why ending a pregnancy when a fetus has a high probability of a certain chromosomal disorder is more disturbing than any other abortion.

If a woman chooses to terminate a pregnancy after a Down syndrome screening, that does not make her a party to ableist discrimination, either, as proponents of the Ohio law suggest. There are very real difficulties that go along with raising a child, whether or not that child has a disability, and every prospective parent should be able to choose, without judgment, when and how to have a child.

There is no objective social good to come from increasing the population of people with Down syndrome, just as there is no moral imperative to, say, attempt to boost the birth rate of children with autism. General anti-discrimination efforts, like the ongoing Law Syndrome campaign, are important advocacy measures, and may also help convince families that they’re capable of parenting a child with a disability. But explicitly trying to stop women from getting abortions for particular reasons can only be done through persuasion, coercion, or force. Hopefully even supporters of the Ohio law would agree that a rising population of babies with Down syndrome would hardly be something to celebrate if those babies were born to parents who were shamed into having them.