Ban on abortion with Down’s syndrome gains ground after court ruling


It is a ban that even supporters recognize will be difficult to enforce. Yet 2021 was a watershed year for legislation in several states seeking to ban abortions on the sole basis of a prenatal diagnosis of Down syndrome.

The governors of Arizona and South Dakota recently signed such bills, and similar measures are underway in North Carolina and Texas. More importantly, a federal appeals court said Ohio may start implementing a 2017 law that was suspended.

While this ruling by the U.S. 6th Court of Appeals conflicts with other Federal Court rulings, anti-abortion activists say it increases the chances that the U.S. Supreme Court will agree to d ” examine a case dealing with legal issues. This could pave the way for the adoption of bans in some other states where the courts block them.

Just this week, the High Court – with a Conservative 6-3 majority resulting from three appointments by former President Donald Trump – signaled its willingness to reconsider the Roe v. Wade of 1973 establishing a national right to abortion. Judges have agreed to review a Mississippi law that seeks to ban abortions after 15 weeks. Roe essentially legalized any abortion that takes place before a fetus can survive outside the mother’s womb, usually around 24 weeks.

Katherine Beck Johnson, a lawyer with the conservative Family Research Council, acknowledged that Down syndrome laws could be easy to get around. Doctors could tell women not to share their specific reasons for wanting an abortion.

“But even if it is difficult to enforce, it is worth adopting,” she said, “it is important for a state to show that it does not support eugenics; they want to eliminate the stigma of people with Down syndrome.

Opponents of the bills, including some parents of children with Down’s syndrome, argue that elected officials should not interfere in a woman’s deeply personal decision to carry a pregnancy to term after a diagnosis of Down’s syndrome.

“There is something condescending about these bans, suggesting that people lack the capacity to make their own decisions,” said Holly Christensen, teacher and columnist in Akron, Ohio, whose 8-year-old daughter Lyra , has Down’s syndrome. .

Christensen said she believed pressure from anti-abortion activists for such laws, hoping to bring a case to the Supreme Court, had undermined efforts to disseminate more information about Down syndrome in order that more families be prepared to raise children with the disease.

She would like to see Ohio lawmakers increase funding for education and services for children with disabilities.

According to the National Down Syndrome Society, about one in 700 babies in the United States, or about 6,000 per year, are born with the disease, which results from a chromosomal irregularity. There are no official figures on the number of prenatal diagnoses of Down’s syndrome leading to a decision to abort; a 2012 study by medical experts estimated the abortion rate to be 67%.

In the past, many children with Down’s syndrome were institutionalized. Christensen said that these days they frequently acquire professional skills and a certain degree of self-reliance. Their life expectancy is over 60 years, triple the expectancy of just a few decades ago.

“If you say to a woman, ‘We’re going to force you to have a baby with Down’s syndrome. she’ll think, ‘Oh my God, is it really that bad that you’re going to force me?’ ”Christensen said.

In recent years, courts have systematically blocked state laws seeking to ban abortion if it was based on a diagnosis of Down syndrome or other fetal abnormalities. Trump’s judicial appointments to lower-level federal courts as well as the Supreme Court have changed the legal landscape.

“It feels like the terrain is changing,” said Elizabeth Nash, who monitors state law for the Guttmacher Institute, a research group that supports abortion rights.

Nash noted that court rulings have already enabled law enforcement in Missouri, Tennessee and Ohio.

Last month’s ruling by a divided 6th Circuit court, which includes six Trump-appointed judges, overturned two previous rulings that had blocked the application of Ohio’s 2017 law. Doctors could face a felony charge, have their medical license forfeited and be held liable for legal damages if they learn of a Down syndrome diagnosis during an abortion.

The majority opinion said Ohio law is intended to protect the Down’s syndrome community from “the stigma it suffers from performing selective abortions for Down’s syndrome.”

Arizona’s new Down’s syndrome measure, part of an anti-abortion bill signed by Republican Gov. Doug Ducey last month, is expected to come into effect later this year. Similar to the Ohio law, it provides for felony charges against doctors who perform abortions based on a diagnosis of Down syndrome or other genetic abnormalities.

Opponents are planning a trial to block it.

Dr Julie Kwatra, OB-GYN practicing in Arizona, is among those on both sides of the issue who suggest the law, if it comes into force, would be difficult to enforce.

“Women who want to terminate their pregnancy will do so, whether they are doing it in a safe and legal way or in a dangerous and illegal way,” she said. “It is still absolutely legal to terminate your pregnancy for a number of other reasons.”

However, Kwatra said the new measure, by threatening to criminalize, “puts a dark cloud on the practice of medicine and the doctor-patient relationship.”

Dr Jamila Perritt, CEO of Physicians for Reproductive Health, said it would be damaging for doctors in states with Down syndrome laws to become defensive in their interactions with patients.

“When you go to your health care provider, who do you want them to protect – your well-being or theirs? ” she said.

Cathi Herrod, president of the Center for Arizona Policy, a conservative group that has supported state legislation, said the law will be valuable even if women are free to give another reason for requesting an abortion.

“Doctors will be warned, women will be warned that you don’t get an abortion just because there is a diagnosis of a non-terminal genetic disease,” she said.

Michael New, an abortion opponent who teaches social research at the Catholic University of America, said the laws are a good strategy for the anti-abortion movement, although their applicability is questionable.

“If these laws are obeyed, it would set a precedent that would increase the likelihood that other types of pro-life protective laws will be obeyed,” he said via email.

He also suggested that the laws could help shape public opinion, drawing attention to the high percentage of abortions when diagnosed with Down syndrome.

Erika Christensen and her husband, Garin Marschall, decided in May 2016 to terminate a pregnancy after learning in the third trimester that the fetus would likely be unable to breathe after birth. The couple lived in New York City, where abortions were banned after 24 weeks gestation. They traveled to Colorado, where Christensen had an abortion at 32 weeks.

Christensen and Marschall now oppose bills banning abortion on grounds of genetic abnormalities, saying they oversimplify tough decisions women and families face.

“All decisions in these cases are necessarily complicated,” said Christensen, who was grateful for the discussions she had with her doctors.

The couple noted that the 6th Circuit ruling upholding the law in Ohio implies that patients seeking abortions in similar cases could lie to their doctors about their reasons.

“It’s a really dangerous place as far as the law is concerned,” Marschall said.


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