The Columbus Dispatch

Court: Ohio can enforce Down syndrome abortion ban

- Jessie Balmert

Ohio’s ban on abortions after a fetal diagnosis of Down syndrome doesn’t violate a woman’s ability to obtain an abortion, a divided Sixth Circuit Court of Appeals ruled Tuesday.

The law, passed by Ohio’s Republican-controlled Legislatur­e and signed by GOP Gov. John Kasich in 2017, imposes criminal penalties on doctors who perform abortions if they’re aware that a Down syndrome diagnosis, or the possibilit­y of a diagnosis, is the reason for seeking the abortion. The penalty is a fourthdegr­ee felony.

Four abortion providers filed suit: Preterm-cleveland, Planned Parenthood of Southwest Ohio, Women’s Med, Planned Parenthood of Greater Ohio and a doctor. The law was blocked by a federal judge in March 2018.

On Tuesday, the full Sixth Circuit Court of Appeals ruled 9-7 that Ohio’s law did not “create a substantia­l obstacle to a woman’s ability to choose or obtain an abortion.” The appeals court reversed the injunction blocking the law from taking effect.

The court ruled that a woman’s right to an abortion is not absolute. Ohio’s law, which prevents a doctor from performing an abortion because of a Down syndrome diagnosis, is not an undue burden on the woman, wrote Judge Alice Batchelder, who was nominated

by former President George H. W. Bush.

“By preventing the doctor from joining the woman as a knowing accomplice to her Down syndrome-selective decision making, House Bill 214 prevents this woman from making the doctor a knowing participan­t (accomplice) in her decision to abort her pregnancy because her fetus has Down syndrome,” Batchelder wrote. “As limitation­s or prohibitio­ns go, this is specific and narrow.”

Batchelder said the law only prevented doctors from knowingly performing an abortion because of Down syndrome, but if the woman doesn’t provide a reason, the abortion could still proceed.

“Even though House Bill 214 does not prohibit Down syndrome-selective abortions and might not actually reduce the incidence of such abortions, by prohibitin­g doctors from knowingly participat­ing in this practice, it sends a resounding message condemning the practice of selective abortions,” Batchelder wrote.

Other judges were blunter, comparing these abortions to eugenics.

“Many think that eugenics ended with the horrors of the Holocaust. Unfortunat­ely, it did not,” wrote Judge Richard Allen Griffin, who was nominated by former President George W. Bush. “Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today.” Several judges disagreed with the ruling. “Eugenics certainly lives on, as my colleague argues, but not in a woman’s decisions about her reproducti­ve health,” wrote Judge Eric Clay, who was nominated by former President Bill Clinton. “The shadow of the eugenics movement materializ­es when the state wrests those decisions from her.”

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