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Court ruling on Down syndrome abortion law praised

CINCINNATI (BP) – Pro-life leaders praised a federal appeals court decision upholding an Ohio law that prohibits a doctor from knowingly performing an abortion because an unborn child has been diagnosed with Down syndrome.

The full Sixth Circuit Court of Appeals in Cincinnati overturned in a 9-7 opinion Tuesday (April 13) a preliminary injunction endorsed by its own three-judge panel against Ohio’s 2017 Down Syndrome Non-discrimination Act.

The ruling provides the U.S. Supreme Court with an opportunity to resolve divergent decisions between appeals courts. In 2018, the Seventh Circuit Court of Appeals in Chicago rejected an Indiana ban on abortions for reasons that include such disabilities as Down syndrome.

The decision came four days after the Sixth Circuit Court announced it would rule “en banc” – or as a full court – on a Tennessee law that requires a woman seeking an abortion to wait 48 hours before undergoing the procedure.

“Too many have used a diagnosis of Down syndrome as a reason to rob preborn children not only of their inherent dignity but also of their lives,” said Elizabeth Graham, vice president of operations and life initiatives for the Southern Baptist Ethics & Religious Liberty Commission (ERLC). “That ought to both break our hearts and shock our consciences.”

Graham said in written comments she is grateful the Sixth Circuit “both upheld Ohio’s efforts to protect these vulnerable children and also recently agreed to consider Tennessee’s waiting period law. State leaders are trying to enact common sense measures that protect life, which is the duty of the state.”

The ERLC will continue to support such state efforts “to ensure the health and safety of women and children from a profit-seeking abortion industry and speak to the culture about the sacred dignity of life,” she said.

Carol Tobias, president of the National Right to Life Committee (NRLC), said, “Abortions targeting children with Down syndrome are inherently discriminatory. Every child is unique and special, and she deserves to be protected in law.”

Steven Aden, chief legal officer for Americans United for Life, described the Sixth Circuit opinion as “a ringing affirmation of the states’ lawful authority to protect the least of all its citizens from a death motivated by hateful discrimination against disabled persons.”

Abortion-rights advocates criticized the ruling.

Kersha Deibel, president of the Planned Parenthood Southwest Ohio Region, and Iris Harvey, president of Planned Parenthood of Greater Ohio, said in a joint statement that Ohio’s legislators “should focus their attention on promoting laws that strengthen the health and rights of Ohioans and their families, rather than attempting to shame people for their private medical decisions.”

Ohio and Indiana are among 17 states that have enacted laws that prohibit abortion based on an unborn child’s disability, race and/or sex, according to the NRLC. Courts have totally or partially blocked enforcement of seven of those bans, the NRLC reported.

In the Sixth Circuit’s majority opinion, judge Alice Batchelder said “the restrictions imposed, or burdens created,” by the Ohio law “do not create a substantial obstacle to a woman’s ability to choose or obtain an abortion.” Instead, she wrote, the restrictions advance the state’s “legitimate interests and will not prevent a large fraction of the women it affects from obtaining abortions.”

Those state interests, Batchelder wrote, are protecting: “(1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions.”

A woman in Ohio who does not want a baby diagnosed with Down syndrome may still undergo an abortion for that reason alone, according to Batchelder’s opinion. “[The law] does not prohibit her from choosing or obtaining an abortion for that, or any other, reason. It bars a doctor from aborting a pregnancy when that doctor knows the woman’s specific reason and that her reason is: the forthcoming child will have Down syndrome and, because of that, she does not want it.”

In response to the plaintiffs’ arguments regarding the viability of the unborn child, Batchelder said, “The right to an abortion before viability is not absolute. Simply put, there is no absolute or per se right to an abortion based on the stage of the pregnancy.”

In October 2020, a federal judge ruled as unconstitutional Tennessee’s law requiring a 48-hour waiting period before a woman could receive an abortion and permanently blocked its enforcement. A three-judge panel of the Sixth Circuit Court rejected in a 2-1 decision the state’s request for a stay of the injunction while the ruling was appealed. Tennessee responded by requesting the full appeals court to rule.

Tennessee is one of 30 states that have approved waiting periods of either 18, 24, 48 or 72 hours before a woman can undergo an abortion, the NRLC reported. Federal courts have permanently blocked enforcement of Florida’s law, as well as Tennessee’s, according to the NRLC.