A federal appeals court handed the pro-life community a major victory on Tuesday when it upheld an Ohio law that bans abortions based on a Down syndrome diagnosis, ruling there "is no absolute" right under Supreme Court precedent to an abortion.
At issue is a 2017 Ohio law banning 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.
The law is known as the Down Syndrome Non-Discrimination Act.
A district judge issued a preliminary injunction against the law, and a three-judge panel of the Sixth Circuit affirmed the lower court’s ruling.
But on Tuesday, the full Sixth Circuit, in a 9-7 decision, reversed the preliminary injunction and ruled the law does "not create a substantial obstacle to a woman’s ability to choose or obtain an abortion."
The law, the court said, advances three "valid and legitimate state interests by protecting:
- "The Down syndrome community from the stigma associated with the practice of Down syndrome-selective abortions."
- "Pregnant women and their families from coercion by doctors who advocate abortion of Down syndrome-afflicted fetuses."
- "The integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down syndrome-selective abortions."
The court quoted evidence that said fetuses with Down syndrome "are disproportionally targeted for abortions," with between 61 percent and 91 percent of pregnant women choosing abortion when a diagnosis is "discovered on a prenatal test."
Significantly, the court declared "the right to an abortion before viability is not absolute." The Sixth Circuit quoted the majority decision in Roe v. Wade (1973) as saying, "we do not agree" with the contention "that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses."
The Sixth Circuit also cited an opinion by Chief Justice John Roberts in a 2020 abortion decision. Although pro-lifers lost that case, Roberts' concurring opinion in the majority was seen as abating pro-choice legal arguments and possibly laying the groundwork for future pro-life victories.
Roberts, according to the Sixth Circuit, said an abortion restriction is constitutional if it is "reasonably related to a legitimate state interest" and does not "have the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."
The law satisfies the Roberts test, the Sixth Circuit ruled.
"Simply put, there is no absolute or per se right to an abortion based on the stage of the pregnancy," the court ruled, further emphasizing that point.
The nine-member majority consisted of five judges nominated by President Trump, three by President George W. Bush and one by President George H.W. Bush.
Mike Gonidakis, president of Ohio Right to Life, said his organization was "elated" with the decision.
"The Sixth Circuit Court of Appeals has sided with life and ruled against the fatal discrimination of babies with Down syndrome," Gonidakis said. "The eugenic practice of singling out human lives for death because of a Down syndrome diagnosis has no place in our society. This court ruling brings us one step closer to ensuring that vulnerable babies with special needs are not marked for death because of who they are. Every life is worth living, and every precious and unique human being is worthy of complete protection under law."
Photo courtesy: Pixabay
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.