The Trump administration Department of Justice is urging an appeals court to uphold an Ohio law banning abortions based on a Down syndrome diagnosis, saying the law affirms the “integrity of the medical profession” and protects individuals from discrimination based on a disability.
At issue is a 2017 Ohio law prohibiting doctors from performing abortions if the doctor “has knowledge that the pregnant woman is seeking the abortion, in whole or in part” due to a prenatal Down syndrome diagnosis.
Although a three-judge panel on the U.S. Sixth Circuit Court of Appeals struck down the law in a 2-1 decision last year, the full Sixth Circuit took up the case in what is known as an en banc hearing.
It is known as the Down Syndrome Non-Discrimination Act
“Many women whose unborn children are diagnosed with Down syndrome receive the message that those children would be better off never being born,” says the Justice Department’s friend-of-the-court brief, filed Tuesday. “... The Antidiscrimination Law promotes Ohio’s contrary message that people with Down syndrome have lives worth living, lives worth protecting. The validity of such a message is evident, especially, when one considers ‘the once-pervasive practice of involuntarily sterilizing those with mental disabilities,’ which ‘the judiciary itself endorsed.’
“Just as a State may reasonably ‘fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia,’ it may also conclude that permitting providers knowingly to perform abortions on the basis of Down syndrome will open the door to the involvement of the State’s medical profession with abortions done on the basis of race, sex, genetic makeup, or other attributes that can be detected prenatally.”
The federal government, the brief says, “has an interest in the equal dignity of those living with disabilities” because the government “enforces civil rights laws that outlaw various forms of disability discrimination, including the Rehabilitation Act, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act.”
The law guards the integrity of the medical profession “both in the eyes of those with Down syndrome and the public more generally,” the brief says. Further, it protects women “against the risk that some or any abortion providers may pressure them to obtain an abortion on the basis of Down syndrome rather than leaving this difficult decision to them.”
According to the brief, Ohio’s law is constitutional because it targets the doctor, not the woman. The law does not require the doctor to inquire into the women’s motivations, and even if the doctor rejects a woman’s request, she could go to a clinic elsewhere, the document asserts. Still, the law is not "toothless," the brief argues.
“[T]his legislation carefully targets the knowing participation of a provider in an abortion on the basis of Down syndrome given the State’s significant interest in protecting the reputation and integrity of its medical profession,” the brief says.
Michael Foust is a freelance writer. Visit his blog, MichaelFoust.com.
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, The Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.