Trump Administration Throws Support Behind Down Syndrome Abortion Ban
CLEVELAND — The U.S. Department of Justice this week lent its support to an Ohio law, currently blocked by a federal judge, that largely bans an abortion after a test shows a fetus likely has Down syndrome.
The “friend of the court” brief filed in front of the 6th U.S. Circuit Court of Appeals says the controversial law “does not prohibit any abortions,” but rather only forbids doctors from participating in an abortion if they know the woman is seeking one because of a Down syndrome diagnosis.
The law bans abortions after a prenatal screening or test shows the fetus likely has Down syndrome. Doctors who perform an abortion with knowledge of a possible Down syndrome diagnosis face a fourth-degree felony, punishable by up to 18 months in prison and a $5,000 fine.
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Attorneys for Ohio have argued the law is meant to prevent discrimination against children with the genetic disorder. The law, known as House Bill 214, is also called the “Antidiscrimination Law.”
Gov. John Kasich signed the law in December 2017. A federal judge in Cincinnati blocked the law in 2018 after the American Civil Liberties Union of Ohio sued on behalf of Preterm and Planned Parenthood, and wrote the law was unconstitutional.
A divided panel from the 6th Circuit upheld the Cincinnati judge’s ruling in October. However, the full court will review that ruling and hold oral arguments in March.
Eric Dreiband, an assistant attorney general for the Justice Department’s Civil Rights Division, signed the brief. The names of U.S. Attorneys Justin Herdman and David DeVillers, whose offices are in northern and southern Ohio, respectively, are also listed on the brief.
“This Ohio law prevents discrimination against individuals with Down syndrome,” Herdman said in a news release. “Accordingly, the state of Ohio’s interests in this matter are fully aligned with those of the United States and we are not only entitled, but compelled, to weigh in as a friend of the Court.”
The Justice Department got involved because it has an interest in the “undue-burden” standard, which is the legal test judges use to determine whether a law is too restrictive of a person’s constitutional right, the brief says. The test is often used in abortion litigation.
It also “has an interest in the equal dignity of those living with disabilities,” as well as preventing discrimination, according to the brief.
The brief says the law does not prevent women from seeking an abortion after a Down syndrome diagnosis and that the ability to obtain an abortion is “unfettered” unless she tells a doctor the reason she’s getting one.
“And even if she were to volunteer this motivation, nothing in the law would prevent her from seeking out a second provider,” the brief states, adding that women seeking abortions have no liability under the law.
The law also protects “the integrity and reputation of the medical profession,” according to the brief.
“The law also wards against the slippery slope to medical involvement in race- or sex-based abortions,” the brief states. “And it protects women themselves by separating them from potentially coercive abortion providers who may seek to pressure them into obtaining an abortion because of Down syndrome.”
ACLU of Ohio attorney Jessie Hill said the Justice Department’s argument is similar to the state’s in that it is essentially asking women to lie or hide information from doctors. She said many women seeking abortions disclose their reason for doing so as part of counseling and the decision-making process.
Ohio does not keep statistics on reasons women seek abortion or whether aborted fetuses had been diagnosed with Down syndrome. Nationally, abortion rates after learning of a possible Down syndrome diagnosis likely range from 50 to 85 percent, according to a 2012 survey of abortion studies.
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