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On Tuesday, a 6th U.S. Circuit Court of Appeals ruled to reverse a ban on a 2017 Ohio law regarding the act of performing abortions on fetuses because they are diagnosed with, or are believed to have, Down syndrome.
The bill was signed into law by Governor John Kasich in 2017, but it was blocked by a federal judge in early 2018 and has been in the courts since that time. The American Civil Liberties Union (ACLU) represented many abortion providers in filing a suit against the state health department, state medical board, and county prosecutors in 2018, according to The Associated Press.
The Ohio law states that a doctor cannot perform an abortion if he or she knows that a pregnant woman is seeking the procedure either entirely or in part because of a Down syndrome diagnosis, a test result indicating that the fetus has Down syndrome, or if the woman believes for any other reason the unborn child has Down syndrome. Doctors who violate the law would be charged with a fourth degree felony, but pregnant women would not be held liable for a criminal act under the law.
The court found that the “right to an abortion before viability is not absolute” and ruled 9-7 that the law did not “create a substantial obstacle to a woman’s ability to choose or obtain an abortion.” The court reversed the district court’s previous imposition of the injunction that blocked the law from being carried out.
Judge Alice Batchelder, who was nominated by former President George H.W. Bush, wrote that the law is not an undue burden on a woman. “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 continued, “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.”
Judge Richard Allen Griffin compared Down syndrome abortions to practices used during the Holocaust. “Many think that eugenics ended with the horrors of the Holocaust,” Griffin wrote. “Unfortunately, it did not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today.”
Some of the judges did not agree with the ruling. Chief Judge R. Guy Cole, Jr. wrote, “H.B. 214 is undoubtedly an abortion restriction,” adding that it “merely restricts the information and opinions a woman may share with her doctor.”
Chief Judge Cole continued, “Ohio may believe that requesting an abortion due to a fetal diagnosis of Down syndrome is offensive and discriminatory. But the state may not ban speech for being offensive or even discriminatory … In its haste to reconcile the law with a woman’s right to an abortion, the majority turns H.B. 214 into a don’t ask, don’t tell law. So long as doctors don’t ask and women don’t tell, the majority reassures us that women remain free to exercise their constitutional rights.”
Ohio Right to Life praised the ruling. “The eugenic practice of singling out human lives for death because of a Down syndrome diagnosis has no place in our society,” said Mike Gonidakis, president of Ohio Right to Life. “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.”