Appeals Court Upholds Ohio Law Banning Down Syndrome Abortions

Ruling could spark Supreme Court standoff

Graham Piro • April 14, 2021 4:20 pm

An appeals court upheld an Ohio law banning abortions of babies diagnosed with Down syndrome Tuesday, marking a victory for the pro-life movement at the state level.

The Sixth Circuit Court of Appeals upheld Ohio’s Down Syndrome Non-Discrimination Act in a 9-7 ruling, overturning a three-judge panel that ruled against the law. The court found the law did not create an “undue burden” on the right to an abortion because it limited doctors from performing abortions only when a mother discloses she’s requesting the procedure because her child has been diagnosed with Down syndrome.

“[The law] furthers three valid and legitimate interests by 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,” the court wrote in its opinion. “[The law] allows doctors to perform such abortions when they do not know that Down syndrome is the reason, without undermining [the law’s] specific purposes or objectives.”

The court’s decision comes in the middle of a number of state laws seeking to restrict access to abortion. Arkansas’s attorney general asked the Supreme Court to intervene to reverse the striking down of a similar Arkansas law banning Down-syndrome-selective abortions. Meanwhile, blue state attorneys general are taking action to prevent laws restricting access to abortion from going into effect. New York attorney general Letitia James (D.) led a group of 20 state attorneys general in challenging a Tennessee law requiring women to get two in-person appointments before obtaining an abortion.

Chuck Donovan, president of the pro-life Charlotte Lozier Institute, said state laws restricting abortions for reasons of Down-syndrome diagnoses are pushing the conservative-leaning Supreme Court toward revisiting Roe v. Wade. He said the Court has signaled even if Roe is not overturned, justices are open to chipping away at current law.

“In certain countries, children with Down syndrome are being devastatingly eliminated from the population,” Donovan said. “Justice Clarence Thomas has confirmed this is an issue of first impression and it remains an ‘open question’ whether states may implement protections such as these. We are encouraged by this ruling and hope the Supreme Court will now weigh in on this important human rights issue.”

The Sixth Circuit’s decision marks a reversal from the Seventh Circuit appeals court’s decision in 2018 to overturn an Indiana law that prohibited abortions based on the gender, race, or disability of a fetus. The overturning of the three judge panel’s ruling also makes further review of Ohio’s law more likely.

As the Biden administration expands federal support for access to abortion, Republican-controlled states are appealing to the judiciary. The likelihood of further review of the Ohio law, combined with Arkansas’s direct appeal to the Supreme Court and blue state attorneys general challenging laws restricting abortion, forecasts a judicial showdown over abortion could be imminent.

Correction 1:45 p.m. 04/15/21: The previous versions of the headline and first sentence incorrectly referred to the decision as coming from a district court. The headline and first sentence have been updated.