Down syn­drome abor­tion ban go­ing be­fore fed­eral court

The Kansas City Star - - News - BY JULIE CARR SMYTH

A fed­eral court in Cincin­nati was set to hear com­plex le­gal ar­gu­ments Wed­nes­day re­gard­ing Ohio’s Down syn­drome abor­tion ban in a case viewed as piv­otal in the na­tional de­bate over the pro­ce­dure.

At­tor­neys for the gov­ern­ment con­tend in le­gal fil­ings that the side­lined 2017 law does not in­fringe on a woman’s con­sti­tu­tional rights – be­cause it “does not pro­hibit any abor­tions at all.”

That was cer­tainly not how the mea­sure’s pro­po­nents in the Ohio Leg­is­la­ture saw it, said one backer.

“I’m of the mind that it cer­tainly does pre­vent abor­tions,” said state Rep. Candice Keller, a Repub­li­can abor­tion op­po­nent.

The Ohio law pro­hibits physi­cians from per­form­ing an abor­tion if they’re aware that a di­ag­no­sis of Down syn­drome, or the pos­si­bil­ity, is in­flu­enc­ing the de­ci­sion. Those who defy the ban would face a fourth-de­gree felony charge, be stripped of their med­i­cal li­cense and be held li­able for le­gal dam­ages. The preg­nant woman faces no crim­i­nal li­a­bil­ity un­der the law.

This and sim­i­lar pro­pos­als around the coun­try have trig­gered emo­tional de­bate over women’s rights, parental love and the trust be­tween doc­tor and pa­tient.

The state and fed­eral gov­ern­ment were set to ar­gue Wed­nes­day dur­ing a rare hear­ing be­fore the en­tire U.S. 6th Cir­cuit Court of Ap­peals in Cincin­nati that, be­cause of how it is struc­tured, the law im­pedes only doc­tors, not preg­nant women.

The Trump Jus­tice De­part­ment took the state of Ohio’s side in the case in Jan­uary, writ­ing, “Noth­ing in Ohio’s law cre­ates a sub­stan­tial ob­sta­cle to women ob­tain­ing an abor­tion.”

Op­po­nents, mean­while, call the law an il­le­gal “rea­son ban.” They say it un­der­cuts the woman’s in­de­pen­dent de­ci­sion-mak­ing by at­tempt­ing to get into her mind, or pre­vent her from speak­ing freely with her doc­tor, as she makes an abor­tion de­ci­sion.

Wed­nes­day’s high­stakes hear­ing fol­lows two ear­lier de­ci­sions in which a fed­eral judge and a three-judge panel ruled the law is likely un­con­sti­tu­tional. It has been on hold since it was en­acted. The 6th Cir­cuit has moved to the po­lit­i­cal right re­cently, based on new ap­point­ments by Pres­i­dent Don­ald Trump.

In an­other of the Ohio case’s le­gal twists, a group of mothers whose chil­dren have Down syn­drome has sided with the ACLU of Ohio, Preterm-Cleve­land and other abor­tion providers who brought the suit. They ar­gue the law – dubbed the “Ohio Down Syn­drome Non-Dis­crim­i­na­tion Act” – ac­tu­ally per­pet­u­ates dis­crim­i­na­tion against their chil­dren by sin­gling out their ge­netic ano­maly over oth­ers.

“Why Down syn­drome and not spina bi­fida or cys­tic fi­bro­sis?” they wrote. “(We) fear it is be­cause those in the Down syn­drome com­mu­nity are read­ily iden­ti­fi­able, sym­pa­thetic, and bring so much joy to their par­ents. But (our) chil­dren should not be co-opted to be the sym­pa­thetic faces of a po­lit­i­cal cam­paign.”

Down syn­drome is a ge­netic dis­or­der that can cause a va­ri­ety of phys­i­cal and men­tal dis­abil­i­ties. It oc­curs in about 1 in 700 ba­bies born in the U.S. each year, or about 6,000 an­nu­ally.

Mike Gonidakis, pres­i­dent of Ohio Right to Life, the state’s old­est and largest anti-abor­tion group, agreed that, legally, the Down syn­drome law is not an out­right ban on abor­tion – since the pro­hi­bi­tion de­pends on the doc­tor’s knowl­edge of the di­ag­no­sis.

It’s un­clear whether, if that ar­gu­ment should pre­vail and the law is up­held, what would be the ef­fect of an abor­tion ban that “bans no abor­tions.” Keller said the idea is to make it im­pos­si­ble for a woman to find a doc­tor will­ing to abort a preg­nancy in which Down syn­drome is a pos­si­bil­ity.

Gonidakis said pro­po­nents are op­ti­mistic the court’s cur­rent, more con­ser­va­tive line-up will rule in their fa­vor.

B. Jessie Hill, an at­tor­ney for the providers, said she will ar­gue the law is “clearly un­con­sti­tu­tional.”

“The state can­not ban abor­tions be­fore vi­a­bil­ity. It can’t take the ul­ti­mate de­ci­sion away from the woman,” she said. “That’s just a sort of bedrock rule.”

Yet, she said, “that’s ex­actly what this law does.”

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